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Affirmed and Memorandum Opinion filed March 27, 2007.



In The


Fourteenth Court of Appeals



NO. 14-05-01122-CV










On Appeal from the County Civil Court at Law No. 3

Harris County, Texas

Trial Court Cause No. 819, 991



  M E M O R A N D U M  O P I N I O N

This is an appeal from a summary judgment rendered in favor of a creditor in a debt-collection suit.   We affirm.

I.  Factual and Procedural Background

Appellee/plaintiff Unifund CCR as Assignee of Citibank (hereinafter AUnifund@) brought suit  against appellant/defendant Keith Rowlands claiming entitlement to amounts allegedly owing on an unpaid credit card account.  Unifund asserted a sworn-account claim and, in an alternative pleading, a quantum-meruit claim against Rowlands. Unifund alleged that it purchased the account from Citibank Afor good and valuable consideration@ and claimed to be the assignee of Citibank.[1]

Early in the litigation, Unifund served Rowlands with requests for admissions. Rowlands failed to file responses on or before thirty days following his receipt of this discovery and the requests were deemed admitted by operation of law under Texas Rule of Civil Procedure 198.2.  Based on the deemed admissions and a business-records affidavit from its agent, Angela Freckman, Unifund moved for summary judgment. Rowlands filed no response to Unifund=s motion, but appeared at the summaryBjudgment hearing. At Rowlands=s urging, the trial court agreed to re-set the summary judgment hearing to allow Rowlands another opportunity to file a response. Ten days later, Rowlands filed his summary-judgment response, but failed to address the deemed admissions.

 In his summaryBjudgment response, Rowlands attacked the Freckman affidavit as Afatally flawed@ and asserted, among other things, that Unifund could not Aprove that a contract was formed between [Unifund] and [Rowlands],@ apparently in response to Unifund=s allegation that its claim Aarises from an agreement between the parties.@ Attached to Rowland=s response was his affidavit in which he denied the account as alleged in Unifund=s pleadings.

The trial court granted Unifund=s motion for summary judgment on the claim for sworn account, and awarded Unifund $9,967.80, with interest, in damages and $3,322.60 for reasonable attorney=s fees and court costs.  Rowlands subsequently filed a motion to have the admissions Aundeemed,@ and he asked the trial court to grant a new trial.  The trial court denied the motion for new trial, but did not rule on the motion to Aundeem@ the admissions.  On appeal, Rowlands challenges only the summary judgment.  

II.   Issues Presented

In two issues, Rowlands essentially contends that (1) Unifund did not provide competent summary-judgment evidence to establish its right to recover on either the sworn-account or the quantum-meruit claim,[2] and (2) the evidence is legally insufficient to support the type and dollar amount of monetary damages the trial court awarded.[3]                      

III.   Analysis

In reviewing a traditional summary judgment, we consider whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law.  KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).  To be entitled to summary judgment, a defendant must conclusively negate at least one essential element of each of the plaintiff=s causes of action or conclusively establish each element of an affirmative defense.  Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).  Under this traditional standard, we take as true all evidence favorable to the nonmovant, and we make all reasonable inferences in the nonmovant=s favor.  Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  If the movant=s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment.  Id.

Rowlands asserts the Freckman affidavit is insufficient because the affiant  Astates that the records are kept by Citibank, yet [a]ffiant is an employee of Unifund . . . .@ Rowlands further argues that Unifund Afailed to establish that it is the owner of the accounts@ and that there is Ano evidence to establish any nexus between these account names and the ownership of said accounts by [Unifund].@   Unifund responds that even if the Freckman affidavit were not sufficient summary-judgment proof, summary judgment on the account claim was still proper based on the deemed admissions, which Rowlands has not challenged on appeal. Rowlands responds that because Unifund pleaded its claim as a sworn account, and a credit-card transaction is not a sworn account, the deemed admissions cannot be used to support this claim. 

A suit on sworn account, which is based on Texas Rule of Civil Procedure 185, is a procedural tool and not a rule of substantive law.   N.W. Park Homeowners v. Brundrett, 970 S.W.2d 700, 702 (Tex. App.CAmarillo 1998, pet. denied).  Therefore, a suit on sworn account cannot be the basis of any claim.  Id.  Rule 185 provides only a procedure for the presentation of specific substantive claims enumerated in the rule.  Id. Although Unifund denominated its collection claim on Rowlands=s  unpaid account as a suit on sworn account, the substance of Unifund=s claim is a breach of contract.   In its pleading, Unifund stated:

          CITIBANK and Defendant entered into an Account Agreement allowing Defendant to receive cash advances and to purchase goods and services at different places which honored the credit card as issued by CITIBANK. In connection with Defendant=s request for an account, an account was issued by CITIBANK, being account # [account number], and an Account Agreement was sent to Defendant. A copy of said Account Agreement is attached hereto as Exhibit AA@ and made a part hereof.  Defendant obtained cash products and/or goods and services in accordance with said Account Agreement, said purchases being at the agreed prices charged or at the reasonable market value. In accordance with said Account Agreement, Defendant promised to pay for said account, but said account remains unpaid in at least the amount of $7,151.63, plus interest through 04/02/2004 in the amount of $2,816.17 for a total of $9,967.80, together with interest at the rate of 19.24% from April 3, 2004 until paid per the documentation attached hereto, and attorneys= fees. That after said account was presented to Defendant, Defendant acknowledged the amount demanded as justly due and owing.

Unifund points to the following deemed admissions as additional support for its summary-judgment motion:

1.       The true account reflected by Exhibit AA@ attached to Plaintiff=s Petition  in this cause is just and true.

2.       The account reflected by the exhibits attached to Plaintiff=s Petition in this cause is due.

3.       The account reflected by the exhibits attached to Plaintiff=s Petition in this cause is the balance due Plaintiff after all just and lawful offsets, payments and credits have been allowed.

4.       Rowlands purchased goods, wares, merchandise and/or services using the credit card and/or cash advances issued or provided by Plaintiff as indicated in the exhibits to Plaintiff=s Petition.

5.       The prices for the purchase of the goods, wares, merchandise, and/or services on the credit card and/or cash advances issued or provided by Plaintiff to Defendant made the basis of Plaintiff=s Petition were agreed prices.

6.       The prices for the items purchased on the credit card and/or cash advances issued or provided by Plaintiff to Defendant were the reasonable market value for the goods, wares, merchandise and/or services purchased.

7.       Defendant has promised to pay Plaintiff for the charges on the credit card and/or cash advances issued or provided by Plaintiff to Defendant.

8.       Plaintiff has often requested Defendant to pay Plaintiff for the charges on said credit card and/or cash advance account.

9.       Defendant has failed to pay Plaintiff for said credit card and/or cash advance account.

10.     Plaintiff made written demand upon Defendant for payment of said credit card and/or cash advance account.

11.     Such demand was made more than thirty days prior to filing lawsuit.

12.     The account agreement attached to Plaintiff=s Petition in this cause is a true and correct copy of the account agreement in question.

13.     By reason of the charges, Defendant is indebted to Plaintiff in the amount of $9,967.80, plus accrued interest at the rate specified in the account agreement.

14.     The sum of $3,322.60 is a reasonable and customary amount of attorneys= fees for causes of this type. 

Deemed admissions are competent summary-judgment evidence.   In re Herring, 970 S.W.2d 583, 587 (Tex. App.CCorpus Christi 1998, no pet.); Flores v. H.E.Butt Stores, Inc., 791 S.W.2d 160, 162 (Tex. App.CCorpus Christi 1990, writ denied).  Moreover, to the extent they address the elements of proof of a claim, deemed admissions provide uncontroverted proof of these elements as a matter of law.  Overstreet v. Home Indemnity Co., 669 S.W.2d 825, 827B28 (Tex. App.CDallas 1984) rev'd on other grounds by 678 S.W.2d 916 (Tex. 1984).  The trial court did not err in considering the deemed admissions in ruling on Unifund=s motion for summary judgment.  Indeed, the trial court had no discretion to ignore the deemed admissions.  See Pathfinder Pers. Serv., Inc. v. Worsham, 619 S.W.2d 475, 476 (Tex. Civ. App.CHouston [14th Dist.] 1981, no writ).  Notably, these admissions  prove as a matter of law all of the elements necessary for Unifund to prevail on its account claim against Rowlands.  Thus, it was not necessary for Unifund to rely upon the evidentiary effect of the pleaded sworn account; the admissions alone established Unifund=s entitlement to prevail based on Rowlands=s  breach of the Account Agreement.

The elements of a breach-of-contract claim are: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages to the plaintiff resulting from that breach. See Hussong v. Schwan=s Sales Enters., Inc., 896 S.W.2d 320, 326 (Tex. App.CHouston [1st Dist.] 1995, no writ).   The deemed admissions support all four elements as a matter of law.  A valid contractCthe Account AgreementCexisted in which Rowlands promised to pay the charges on the credit card and/or cash advances subject to various terms and conditions.  Rowlands failed to pay the amounts due and owing, resulting in damages of $9,967.80, plus accrued interest at the rate specified in the Account Agreement.  Therefore, Rowlands breached his contract, and Unifund suffered damages as a result of this breach.  These matters are conclusively established by the deemed admissions.

Rowlands does not contest Unifund=s assertion that he failed to timely respond to the requests for admissions or that the requests were deemed admitted when he failed to respond. Though he sought to Aundeem@ the admissions in the trial court, he was not successful in obtaining this relief and he has not assigned error or identified any issue challenging the admissions in this appeal.

Moreover, Rowlands failed to obtain a finding by the trial court that withdrawal or amendment of the deemed admissions would not unduly prejudice Unifund, and he did not obtain a determination by the trial court that good cause existed for withdrawal or amendment of the deemed admissions.  See Tex. R. Civ. P. 198.3.  Although Rowlands does not assert any appellate issue in which he directly challenges the deemed admissions, in parts of his appellate brief he argues that Agood cause@ is Athe standard for the withdrawal of deemed admissions,@ that his conduct [in failing to respond to the requests] was not the result of any indifference, and that the admissions Ashould be given no probative value.@  To the extent these statements could be construed as assigning error to the trial court=s failure to Aundeem@ the admissions, this complaint was waived when Rowlands failed to obtain a ruling on his motion to have the admissions Aundeemed@ in the trial court.  Thus, to the extent Rowlands may have assigned error as to this complaint, he failed to preserve it for appellate review.  Tex. R. App. P. 33.1(a).





IV. Conclusion

Because the deemed admissions establish as a matter of law that no genuine issue of material fact exists as to the essential elements of Unifund=s claim, summary judgment was proper.  Accordingly, we overrule Rowland=s issues and affirm the trial court=s judgment.






/s/      Kem Thompson Frost






Judgment rendered and Memorandum Opinion filed March 27, 2007.

Panel consists of Justices Fowler, Edelman, and Frost.      






[1]  Attached collectively as AExhibit A@ to Unifund=s live pleading was a AUnifund Statement,@ a ACitibank Platinum Select Card@ statement, and a ACitibank Card Agreement.@  The Card Agreement allowed Rowlands to make charges and cash advances on a credit card subject to various terms and conditions.  The Card Agreement states, among other things, AWe [defined elsewhere in the agreement as Citibank (South Dakota), N.A.] reserve the right to assign any or all of our rights and obligations under this Agreement to a third party.@


[2]  In this appeal, we do not address the quantum-meruit claim because the trial court=s judgment was entered only on the sworn account claim. The trial court did not grant summary judgment on Unifund=s alternative claim for quantum meruit.

[3]  More specifically, Rowlands contends, in the  AIssues Presented@ section of his appellate brief, that:


(1)        [Unifund=s] only proof along with its business record affidavit is wholly inadequate. [Unifund] failed to proffer any competent evidence for the court to award a judgment for either breach of contract or quantum meruit claim which were the only claims plead.

(2)        The pleadings and business record affidavit on behalf of [Unifund] failed to proffer any competent evidence for the court to award the amount and type of damages awarded by the trial court=s judgment.