Landaverde v. Centurion Capital Corporation (Tex.App.- Houston [14th Dist.] Jun. 28, 2007)
(Hedges)(credit card debt suit)(credit card debt suit by assignee not properly brought as sworn account suit)
(deemed admission don't support summary judgment)
A judgment that grants more relief than a party is entitled to is subject to reversal. Id.
Thus, it was reversible error for the trial court to grant summary judgment for
Centurion on a claim it did not raise in its motion for summary judgment.
We sustain Landaverde's fourth issue.
REVERSED AND REMANDED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Hudson and Guzman
14-06-00712-CV Jose A. Landaverde v. Centurion Capital Corporation
M E M O R A N D U M O P I N I O N
This appeal arises out of a debt collection action filed by Centurion Capital Corporation
(“Centurion"), assignee of Discover, against appellant, Jose A. Landaverde. Landaverde appeals
from a summary judgment rendered in favor of Centurion. In his first issue, Landaverde challenges
the trial court's grant of summary judgment in favor of Centurion on its claims.
In his second issue, Landaverde argues that the trial court erred in denying his plea in abatement.
In Landaverde's third issue, he complains that the trial court erred in “ignoring" his motion to strike
Centurion's evidence. In his final issue, Landaverde contends that the trial court erred in dismissing
We reverse and remand.
In his first issue, Landaverde argues that the trial court erred in granting Centurion's motion for
summary judgment. In a traditional motion for summary judgment, the movant bears the burden of
establishing that there is no genuine issue of material fact and that it is entitled to judgment as a
matter of law. Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp.,
988 S.W.2d 746, 749 (Tex. 1999). In deciding whether there is a disputed material fact issue
precluding summary judgment, summary judgment evidence favorable to the nonmovant will be
taken as true, every reasonable inference must be indulged in favor of the nonmovant, and any
doubts are resolved in the nonmovant's favor. KPMG, 988 S.W.2d at 749; Nixon v. Mr. Prop.
Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985).
We review de novo the trial court's decision to grant summary judgment. Natividad v. Alexsis, Inc.,
875 S.W.2d 695, 699 (Tex. 1994).
Centurion based its summary judgment motion on: (1) Landaverde's alleged failure to file a verified
denial of Centurion's suit on an account, and (2) deemed admissions which Centurion contends
established every element of its suit.
Texas Rule of Civil Procedure 185 requires a defendant to file a verified denial in response to a
plaintiff's sworn suit on an account. Tex. R. Civ. P. 185. We have previously held that a sworn
account, as intended in Rule 185, applies only “to transactions between persons, in which there is a
sale upon one side and a purchase upon the other, whereby title to personal property passes from
one to the other, and the relation of debtor and creditor is thereby created by general course of
dealing." Hou-Tex Printers, Inc. v. Marbach, 862 S.W.2d 188, 190 (Tex. App.- Houston [14th Dist.]
1993, no writ).
After evaluating Centurion's original petition, it does not appear that the account subject of this suit
involves such a transaction. Centurion's petition states that Centurion and/or its predecessor
“extended credit to Defendant for the Defendant to purchase of (sic) one or more items of goods,
wares, merchandise, or services, or for cash advances. Defendant accepted the credit extended
by making charges on said credit card account, or by authorizing another person to make said
charges on this account."
Additionally, Centurion was assigned this account from “Discover." It thus appears that this
account was a credit card account extended to Landaverde for his general use by a financial
institution that was not the seller of the goods or services purchased with the credit card. Rule 185
is therefore unavailable to Centurion. See Bird v. First Deposit Nat'l Bank, 994 S.W.2d 280, 282
(Tex. App.- El Paso 1999, pet. denied) (holding that - a credit card issued by a financial institution
does not create the sort of debtor-creditor relationship required in order to bring suit under Texas
Rule of Civil Procedure 185"); Marbach, 862 S.W.2d at 190 (finding that a suit on a promissory
note is not included in Rule 185's definition of a sworn account); Dunham v. Providian Nat. Bank,
No. 14‑01‑00027‑CV, 2002 WL 192336, at *1 (Tex. App.- Houston [14th Dist.] Feb. 7, 2002, no
pet.) (not designated for publication) (noting that Rule 185 does not apply to a credit card account
which involves only an advance of money).
Centurion attached the following requests for admissions to its original petition which the return of
service shows was hand delivered to Landaverde on October 26, 2005:
(1) Defendant [Landaverde] entered an agreement whereby Plaintiff [Centurion] or Plaintiff's
original assignor extended credit to Defendant.
(2) Defendant was extended credit on the account or accounts the subject of this suit.
(3) Plaintiff or Plaintiff's original assignor extended credit to Defendant for the purchase of
goods, wares, merchandise or services or for cash advances on the account or accounts the
subject of this suit.
(4) Defendant or another with permission of Defendant accepted the credit extended for the
purchase of the goods, wares, merchandise, or services referred to in Request Number 03.
(5) The prices charged for the goods, wares, merchandise, or services referred to in Request
Number 03 were the prices agreed to by Defendant or another with permission of Defendant.
(6) The prices charged for the goods, wares, merchandise, or services referred to in Request
Number 03 were the usual and customary prices therefore at the time when delivered and in the
county where delivered.
(7) The balance due and owing to Plaintiff from Defendant on the account or accounts the subject
of this suit is at least $ 6353.38.
(8) More than thirty (30) days ago, Plaintiff presented to Defendant a demand for payment of the
outstanding balance stated in Request No. 07.
Landaverde filed an answer (which included a certificate of service recitation) to Centurion's
complaint on November 15, 2005 and included denials: (1) that Centurion or its predecessors
extended credit to him; and (2) that Centurion demanded payment of the debt.
Texas Rule of Civil Procedure 198.2 requires a party to respond to a request for admission within
30 days, except that a defendant served with a request before his answer is due has 50 days to
respond to the request. Tex. R. Civ. P. 198.2(a). If a response is not timely served, the request is
deemed admitted. Id. 198.2(c). Landaverde's responses filed on November 15, 2005 were timely;
therefore, those denials are given full effect. The requests for admissions which Landaverde did
not respond to were deemed admitted. See id. We must determine if Centurion established the
elements of its suit through the matters deemed admitted.
In addition to its attempt at using the procedural vehicle of Rule 185, Centurion sued under a
breach of contract and quantum meruit theory. In order to prove a breach of contract claim, the
plaintiff must show: (1) the existence of a valid contract; (2) performance or tendered performance
by the plaintiff; (3) breach of contract by the defendant; and (4) damages to the plaintiff resulting
from the breach. Frost Nat'l Bank v. Burge, 29 S.W.3d 580, 593 (Tex. App. - Houston [14th Dist.]
2000, no pet.).
The elements of quantum meruit are: (1) the plaintiff rendered valuable services or furnished
materials; (2) for the party sought to be charged; (3) the party sought to be charged accepted and
enjoyed the services or materials; and (4) the party sought to be charged had reasonable notice
that the plaintiff, in performing the services or providing the materials, expected payment. Vortt
Expl. Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990); Wohlfahrt v. Holloway, 172 S.
W.3d 630, 634 (Tex. App.- Houston [14th Dist.] 2005, pet. denied).
The deemed admissions here do not support either of Centurion's claims. As mentioned above,
Landaverde timely denied: (1) that he was extended credit from Centurion or any of its
predecessors, and (2) that Centurion demanded payment from him. As a result, Centurion did not
prove that it or its predecessors performed or tendered performance to Landaverde. See Burge,
29 S.W.3d at 593. Landaverde's denial that Centurion or its predecessors extended credit to him
negates the request intended to show performance. That same denial negates the quantum meruit
elements requiring Centurion to show that it rendered services or materials and that Landaverde
accepted such services or materials. See Vortt, 787 S.W.2d at 944; Wohlfahrt, 172 S.W.3d at
634. Consequently, Centurion did not establish its suit through deemed admissions. Therefore,
there was no basis on which the trial court could have granted summary judgment on Centurion's
claims. We sustain Landaverde's first issue.
In his second issue, Landaverde argues that the trial court erred in dismissing his plea in
abatement which was based on Centurion's alleged incapacity to sue. There is nothing in the
record, however, to indicate that the trial court granted a hearing on the issue or made any other
type of ruling regarding the issue. Landaverde has therefore waived this issue for purposes of this
appeal. Tex. R. App. P. 33.1; Bossier Chrysler Dodge II, Inc. v. Rauschenberg, 201 S.W.3d 787,
798 (Tex. App.- Waco, 2006, pet. filed) (holding that a party filing a verified pleading should seek a
hearing on the issue).
In his third issue, Landaverde complains that the trial court erred “when it ignored my motions to
strike the evidence introduced by the Plaintiff." Landaverde filed a motion to strike an affidavit
Centurion attached to its original complaint. The record does not reflect that the trial court ruled on
this issue either, as Landaverde's statement that the trial court “ignored" his motions seems to
indicate. Landaverde has failed to preserve this issue for review. Tex. R. App. P. 33.1.
In his fourth issue, Landaverde contends that the trial court erred when it dismissed his
counterclaim. Landaverde filed a counterclaim alleging Centurion violated the Federal and Texas
Fair Debt Collection Practices Acts. Centurion did not address Landaverde's counterclaim in
its motion for summary judgment. Nevertheless, in its order granting summary judgment, the trial
court stated, “All relief not expressly granted herein is denied, as this judgment is appealable and
finally disposes of all parties and all claims in this cause of action." The supreme court has
provided, as an example of words indicating a trial court's clear intent for a judgment to be final,
language essentially the same as the language in the trial court's order in this case. See Lehmann
v. Har‑Con Corp., 39 S.W.3d 191, 206 (Tex. 2001) (stating that “[a] statement like, 'This judgment
finally disposes of all parties and all claims and is appealable,' would leave no doubt about the
court's intention" for a judgment to be final). Therefore, the trial court's order was final. See
Lehmann, 39 S.W.3d at 200 (holding that if the trial court's intent to finally dispose of the case is
clear, then the order is final and appealable).
The implication of that finality is that the trial court granted summary judgment in favor of Centurion
on Landaverde's counterclaim. As mentioned above, however, Centurion did not raise the issue of
Landaverde's counterclaim in its motion for summary judgment. A judgment that grants more relief
than a party is entitled to is subject to reversal. Id. Thus, it was reversible error for the trial court to
grant summary judgment for Centurion on a claim it did not raise in its motion for summary
judgment. We sustain Landaverde's fourth issue.
We reverse the trial court's grant of summary judgment in favor of Centurion on its claims and
Landaverde's counterclaim. We find, for purposes of this appeal, that Landaverde waived his
complaints regarding his plea in abatement and his motion to strike Centurion's evidence. We
remand these issues to the trial court for further proceedings consistent with this opinion.
/s/ Adele Hedges
Judgment rendered and Memorandum Opinion filed June 28, 2007.
Panel consists of Chief Justice Hedges and Justices Hudson and Guzman.