Mikkelsen v. Purdie No. 05-07-01759-CV (Tex.App.- Dallas, Feb. 18, 2009, pet denied June 2009)
(limitations did not bar debt claim)("Because Purdie filed suit against Mikkelsen within fifteen months of the
date of the last payment was remitted, we cannot conclude the trial court erred in finding Purdie's claims
were not barred by the four-year statute of limitations.")
09-0392
TERENCE A. MIKKELSEN v. PHILLIP H. PURDIE; from Dallas County; 5th district (05-07-01759-CV, ___
SW3d ___, 02-18-09)
http://www.5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?c05_09.ask+D+4817713
File: 071759F - From documents transmitted: 02/18/2009
Affirmed, Opinion Issued February 18, 2009
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01759-CV
............................
TERENCE A. MIKKELSEN A/K/A TERRY MIKKELSEN, Appellant
V.
PHILLIP H. PURDIE, Appellee
.............................................................
On Appeal from the County Court at Law No. 1
Dallas County, Texas
Trial Court Cause No. cc-04-05002-a
.............................................................
MEMORANDUM OPINION
Before Chief Justice Thomas and Justices Morris and Francis
Opinion By Justice Francis
Phillip H. Purdie sued Terence A. Mikkelsen to recover on a debt. In three issues, Mikkelsen appeals the
trial court's judgment awarding Purdie $36,441.97, pre- and post-judgment interest, and $18,000 in
attorney's fees. Mikkelsen claims there is no evidence to support the trial court's finding (1) the agreement at
issue was between Mikkelsen and Purdie individually, (2) Purdie was entitled to assert claims for a loan
made by Texas corporations more than three years after the corporations had forfeited their existence, and
(3) the claim was not barred by the statute of limitations.
For the reasons that follow, we affirm the trial court's judgment.
In his first issue, Mikkelsen contends the trial court erred in finding the agreement in question was between
Purdie and Mikkelsen individually and that Purdie had standing to bring the suit. Mikkelsen claims no
evidence supports these findings. In his second issue, Mikkelsen contends the trial court erred in finding
Purdie was entitled to assert claims for money loaned by Texas corporations more than three years after the
corporations had forfeited their existence.
When, as in this case, a party is challenging the legal sufficiency of the evidence to support a finding on
which he did not have the burden of proof at trial, the appellant must demonstrate on appeal that no
evidence exists to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983);
Brockie v. Webb, 244 S.W.3d 905, 909 (Tex. App.-Dallas 2008, pet. denied). We sustain a no evidence
point only if there is no more than a scintilla of evidence proving the elements of the claim. St. Joseph Hosp.
v. Wolff, 94 S.W.3d 513, 520 (Tex. 2002). In making this determination, we view the evidence in the light
favorable to the verdict, crediting favorable evidence if a reasonable fact-finder could, and disregarding
contrary evidence unless a reasonable fact-finder could not.” City of Keller v. Wilson, 168 S.W.3d 802, 807
(Tex. 2005). We determine “whether the evidence at trial would enable reasonable and fair-minded people
to reach the verdict under review.” Id. at 827. If more than a scintilla of evidence exists to support the finding,
the legal sufficiency challenge fails. Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960
S.W.2d 41, 48 (Tex. 1998).
At trial, Purdie testified he is originally from New Zealand but has lived in Dallas as a permanent resident
since 1980. During that time, he has been in the “motor coaches, bus transportation” business. Purdie
testified he met Mikkelsen, a fellow New Zealander, and some other business people who had traveled to
Dallas. Mikkelsen told Purdie he had come to Dallas under the assumption he had a business person here
who was going to lend him money so he could start building homes in Stonebriar. Mikkelsen's company was
called Zea Tex Investments, Inc., and he was the sole member of the board of directors. The two men
became friends. When Mikkelsen's business person backed out, Mikkelsen asked Purdie to loan him money
which Purdie did. Purdie testified he put up $100,000 worth of vehicle titles and took out a personal loan of
$26,500 to help Mikkelsen. He “personally gave it to [Mikkelsen] to help him out,” and Mikkelsen personally
promised to pay Purdie “100 percent.” Purdie identified the checks paid to Mikkelsen or Zea Tex and
reiterated that he loaned the money to Mikkelsen personally. Mikkelsen assured him he would pay Purdie
back personally. Purdie also identified two letters to Purdie signed by Mikkelsen. The first letter is dated July
6, 1992, and the other is dated July 27, 1992. In the letters, Mikkelsen stated Purdie would be paid $15,000
in addition to his original contribution of $26,500. The July 27 letter concludes “As indicated to you, this
arrangement is not only binding on the holding company, Zea Tex Investments, Inc., but on T.A. Mikkelsen
personally as shareholder.” Purdie also received a document, dated August 7, 1992, entitled “Written
Consent of Sole Director in lieu of Organizational Meeting of Zea Tex Investments, Inc.” The document,
signed by Mikkelsen, states in pertinent part:
RESOLVED, That the Corporation borrow from Phillip A. Purdie the sum of $26,500 to be utilized as part o[f]
the 15% deposit contribution requirement by American Federal Bank pursuant to the Interim Loan
Agreement for $380,000 for house to be built on Lot 2 Augusta Place, Stonebriar. This sum is due for
repayment, together with profit contribution of $15,000, upon the sale of the property.
Purdie testified he lent Mikkelsen the original sum of $26,500 plus additional amounts for a total of
$39,786. He testified that, although the loan document does not state an interest rate, he was owed
$25,936.87 based on a 6% interest rate as provided under Texas law. Purdie testified some of his payments
were made from company accounts while others were made on personal accounts. Mikkelsen eventually
moved back to New Zealand but sent Purdie money each year. He and Mikkelsen spoke by phone after
Mikkelsen left the country, and Mikkelsen told Purdie he would send payments of $500 until “the whole debt
was paid back.” The last payment Purdie received was $2000 in August 2002. Purdie filed suit against
Mikkelsen April 29, 2004.
We have viewed the evidence in the light favorable to the verdict, crediting favorable evidence if
reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. After doing
so, we conclude there is more than a scintilla of evidence to support the trial court's finding that Purdie and
Mikkelsen entered into an agreement personally under which Purdie would lend Mikkelsen money and
Mikkelsen agreed to be personally liable and pay Purdie back the money lent. Because Mikkelsen failed to
demonstrate on appeal that no evidence exists to support the adverse finding, the evidence is legally
sufficient. In light of this, we conclude we need not address Mikkelsen's argument that Purdie lacked
standing or his argument the trial court erred in finding Purdie was entitled to assert claims for money loaned
by Texas corporations more than three years after the corporations had forfeited their existence. We
overrule Mikkelsen's first and second issues.
In his third issue, Mikkelsen claims the trial court erred in concluding Purdie's claims were not barred by
the four-year statute of limitations. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(3) (Vernon 2002)
(person must bring suit on action for debt not later than four years after day cause of action accrues).
Mikkelsen argues Purdie only pleaded one exception to the statute of limitations, section 16.063 of the
Texas Civil Practice and Remedies Code, and contends section 16.063 is unconstitutional as applied to
Mikkelsen.
Limitations is an affirmative defense on which Mikkelsen had the burden of proof. See Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 220 (Tex. 2003) (party alleging affirmative defense of limitations
must prove statute of limitations applies as well as date on which limitations commenced); see also Carlisle
Corp. v. Med. City Dallas, Ltd., 196 S.W.3d 855, 861 (Tex. App.-Dallas 2006), rev'd in part on other
grounds, 251 S.W.3d 55 (Tex. 2008). To prevail on appeal, the party with the burden of proof at trial must
demonstrate the evidence conclusively established all vital facts in support of the issue. See Carlisle Corp.,
196 S.W.3d at 861.
The evidence at trial showed, and the trial court found, the last payment made by Mikkelsen to Purdie was
on August 7, 2002 in the amount of $2000. Likewise, the trial court found suit was filed by Purdie against
Mikkelsen on April 29, 2004. Mikkelsen does not attack either of these findings of fact. The trial court
concluded Purdie's “right to collection of such indebtedness is not barred by any statute of limitations.” The
trial court made no mention of any exceptions to the statute of limitations, nor does Mikkelsen explain on
appeal why an exception must apply in this case. Because Purdie filed suit against Mikkelsen within fifteen
months of the date of the last payment was remitted, we cannot conclude the trial court erred in finding
Purdie's claims were not barred by the four-year statute of limitations.
In reaching this conclusion, we reject Mikkelsen's argument, made in a footnote, that “the claim accrued”
August 26, 1992. Mikkelsen cites no evidence in the record to support this contention, nor does he discuss
the applicable law to support this date as the accrual date. Thus, his argument is inadequately briefed. See
Tex. R. App. P. 38.1. Because Mikkelsen failed to carry his burden on appeal, we cannot conclude the trial
court erred. We overrule Mikkelsen's third issue.
We affirm the trial court's judgment.
MOLLY FRANCIS
JUSTICE
071759F.P05