Summary
affirming summary judgment where evidence included credit card agreement, monthly statements, and creditor's affidavit, showing amount of past-due principal and interest and interest rate and explained increase from last monthly statement to damages sought at trial was based on applying agreed interest rate to last balance
Summary of this case from Colvin v. Tex. Dow Emps. Credit UnionOpinion
NO. 01-10-01146-CV
04-19-2012
NORIS ROGERS, Appellant v. UNIFUND CCR PARTNERS, Appellee
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Case No. 2010-09492
MEMORANDUM OPINION
Appellee, Unifund CCR Partners ("Unifund"), sued appellant, Noris Rogers, for breach of contract, alleging that Rogers had defaulted on his obligation to make payments on a credit account originally issued by Bank One, Arizona, NA ("Bank One"). In three issues, Rogers challenges the trial court's grant of summary judgment in favor of Unifund, arguing that (1) Unifund did not have standing to bring the suit on the debt at issue; (2) Unifund failed to establish each essential element of its breach of contract claim as a matter of law; and (3) Unifund failed to establish each essential element of its account stated claim as a matter of law.
We affirm.
Background
Bank One entered into a credit card agreement with Rogers and extended him credit under the terms of that agreement. Rogers used the credit card, but, at some point, he defaulted in making the required payments.
On February 12, 2010, Unifund filed suit against Rogers, alleging that it was the assignee of Bank One's interest in the account. Unifund stated a cause of action for breach of contract, alleging that Rogers defaulted in making the payments required by his credit card agreement with Bank One, or in the alternative, that Rogers was liable under promissory estoppel or quantum meruit. Unifund also sought reasonable and necessary attorney's fees. Rogers filed an answer and denied Unifund's allegations.
On October 10, 2010, Unifund moved for summary judgment on all of its claims. It supported its motion with the affidavit of Chris Blanton, legal liaison for Unifund, and various business records showing the assignment of the account to Unifund, the terms of the credit agreement, and Rogers' current account balance.
On November 1, 2010, Rogers moved to dismiss the case for lack of subject matter jurisdiction; alternatively, he moved for summary judgment. Rogers argued that he is not a resident of Harris County, and Unifund was required to file suit in his home county. He also argued that Unifund failed to meet its burden of proof on its breach of contract claim. He also argued generally that the "underlying documents in Unifund's Motion for Summary Judgment are simply not trustworthy." He further argued that Blanton's affidavit "raises doubts and questions as to his credibility which must be decided by the trier-of-fact." Rogers attached to his motion copies of two sets of interrogatories he had propounded and sent to Unifund. He also attached copies of the bills of sale and assignments from Chase Bank USA, NA ("Chase Bank") to Unifund Portfolio A, LLC, and then to Unifund; a copy of the credit card agreement; and evidence of his residence in Fort Bend County.
Rogers does not re-urge this argument as a ground for error on appeal.
On November 29, 2010, the trial court signed its final summary judgment determining that it had jurisdiction over the case, granting Unifund's motion for summary judgment, and ordering that Unifund recover $32,835.16 from Rogers, constituting principal and interest on the account, plus pre- and post-judgment interest, and attorney's fees.
Standing
In his first issue, Rogers argues that Unifund lacked standing to bring suit on the debt at issue. Specifically, he argues that the record does not contain any evidence that the account was assigned from Bank One, the original issuer of the account, to Chase Bank, which eventually assigned it to Unifund.
A. Standard of Review
"Standing is implicit in the concept of subject matter jurisdiction," which is never presumed, cannot be waived, and may be raised for the first time on appeal. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-45 (Tex. 1993); Scarbrough v. Metro. Transit Auth. of Harris Cnty., 326 S.W.3d 324, 331 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). Whether the trial court has subject matter jurisdiction is a question of law that we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Scarbrough, 326 S.W.3d at 331. Because standing is a component of subject matter jurisdiction, courts consider standing under the same standard by which they review subject matter jurisdiction generally. Tex. Ass'n of Bus., 852 S.W.2d at 446. "That standard requires the pleader to allege facts that affirmatively demonstrate the court's jurisdiction to hear the cause." Id.; Richardson v. First Nat'l Life Ins. Co., 419 S.W.2d 836, 839 (Tex. 1967). Standing focuses on who may bring an action. M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001). As a general matter, unless standing is conferred by a statute, a plaintiff must demonstrate that he possesses an interest in the controversy distinct from the general public such that the defendant's actions have caused him some particular injury. Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001). Without a breach of a legal right belonging to himself, a plaintiff has no standing to litigate. See Nobles v. Marcus, 533 S.W.2d 923, 927 (Tex. 1976); Robinson v. Neeley, 192 S.W.3d 904, 907 (Tex. App.—Dallas 2006, no pet.).
When jurisdictional facts are challenged, as here, the courts consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Scarbrough, 326 S.W.2d at 331. As with a summary judgment, the court takes as true all evidence favorable to the nonmovant and indulges every reasonable inference and resolves any doubts in the nonmovant's favor. Miranda, 133 S.W.3d at 228; Scarbrough, 326 S.W.3d at 331. If the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the court rules on the jurisdictional issue as a matter of law. Miranda, 133 S.W.3d at 228; Scarbrough, 326 S.W.3d at 331.
In order to establish standing to maintain a breach of contract action, a plaintiff must show either third-party-beneficiary status or privity. OAIC Commercial Assets, L.L.C. v. Stonegate Vill., L.P., 234 S.W.3d 726, 738 (Tex. App.—Dallas 2007, pet. denied). Privity in this context is established by proof that the defendant was a party to an enforceable contract with either the plaintiff or a party who assigned its cause of action to the plaintiff. Id.
B. Analysis
Unifund's original pleading alleged that Bank One had advanced credit to Rogers under a credit agreement and that Unifund was the assignee of that credit agreement. Unifund subsequently moved for summary judgment on its claims. As part of its summary judgment evidence, Unifund provided documents detailing the ownership of the account at issue. Specifically, it filed the bill of sale and assignment of the account from Chase Bank to Unifund Portfolio A, LLC, which then assigned the account to Unifund. It also included the affidavit of Chris Blanton, legal liaison for Unifund, who averred that, prior to those assignments, Chase Bank was the successor by merger of Bank One, the original issuer of the credit account.
Unifund also included copies of the official records of the Federal Deposit Insurance Corporation ("FDIC"), the history of Chase Bank under seal of the National Information Center, and the Certificate of the Corporate Secretary of Chase Bank, showing the history of Bank One, now known as Chase Bank. These documents show that Bank One, Arizona, NA was acquired by Bank One, NA; that Bank One, NA was subsequently acquired by JPMorgan Chase Bank, NA ("JPMC"); that, once acquired by JPMC, Bank One, NA merged into JPMC's credit card bank subsidiary, Chase Manhattan Bank USA, NA; and that Chase Manhattan Bank USA, NA changed its name to Chase Bank USA, NA.
Thus, Unifund met its burden to plead facts establishing its standing to bring this case by asserting that it was the assignee of the debt. See Tex. Ass'n of Bus., 852 S.W.2d at 446. The summary judgment evidence presented by Unifund established that it had standing to bring its breach of contract claim because Rogers was a party to a contract with Bank One, which, through a series of mergers and assignments, assigned its interest in the contract to Unifund. See OAIC Commercial Assets, 234 S.W.3d at 738; see also Blue, 34 S.W.3d at 554 (holding that courts may consider relevant evidence submitted by parties when necessary to resolve challenges to jurisdictional facts).
Rogers argues on appeal there is no evidence that his debt was ever transferred to Unifund because the transfers from Chase Bank to Unifund Portfolio A, LLC and then to Unifund itself were established only by the bills of sale, which were missing the attached exhibits showing the exact accounts transferred. However, this is a misrepresentation of the record. Along with the bills of sale, Unifund attached redacted information from the electronic file of accounts and receivables transferred pursuant to the assignment and bill of sale which established that Rogers' account was included in the portfolio transferred to Unifund.
Furthermore, contrary to Rogers' contention, Blanton's affidavit is competent summary judgment evidence. Blanton's affidavit was based on personal knowledge he derived from his work for Unifund; it set forth facts that would be admissible in evidence, such as Rogers' name, account number, the balance on the account, and the transactions that led to Unifund's ownership of the debt; and it showed affirmatively that Blanton was competent to testify to the matters asserted. See TEX. R. CIV. P. 166a(f); see also Simien v. Unifund CCR Partners, 321 S.W.3d 235, 240-43 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (discussing predicate for admission of business records, including form of business records affidavit; holding that affidavit was sufficient to show admissibility of business records); Winchek v. Am. Express Travel Related Servs., Co., 232 S.W.3d 197, 206 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding business records affidavit was made on personal knowledge and provided underlying facts to support conclusions and, thus, constituted competent summary judgment proof).
We note that, because Rogers did not make any objections to Unifund's summary judgment evidence, on appeal we may consider his objections to Blanton's affidavit only to the extent he is raising a substantive defect—i.e., that Blanton's affidavit was conclusory or unsupported by facts. See Green v. Indust. Specialty Contractors, Inc., 1 S.W.3d 126, 130 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (stating that objection that affidavit states only legal conclusion is objection to substance and may be raised for first time on appeal). Defects in the form of the affidavit or its attachments must be preserved by an objection in the trial court. See TEX. R. CIV. P. 166a(f); Grand Prairie Indep. Sch. Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990) (holding that failure to affirmatively show that affiant had personal knowledge is defect in form that must be preserved in trial court); Green, 1 S.W.3d at 130 ("An objection that an affidavit contains statements of opinion or hearsay is an objection to the form of the affidavit.").
The record contains no evidence disputing the jurisdictional facts set out by Unifund or raising a fact issue on the question of Unifund's standing. Thus, we conclude that Unifund had standing to bring this case. See Miranda, 133 S.W.3d at 228 (holding that court may rule on jurisdictional issue as matter of law if relevant evidence is undisputed or fails to raise fact question on jurisdictional issue).
We overrule Rogers' first issue.
Breach of Contract Summary Judgment
In his second issue, Rogers argues that Unifund failed to establish all elements of its breach of contract claim as a matter of law and that some genuine issues of material fact remain, precluding summary judgment.
A. Standard of Review
We review de novo the trial court's ruling on a summary judgment motion. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). To prevail on a traditional summary judgment motion, a movant has the burden of proving that it is entitled to judgment as a matter of law and that no genuine issues of material fact exist. TEX. R. CIV. P. 166a(c); Little v. Tex. Dep't of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). A party moving for summary judgment on its own claim must conclusively prove all essential elements of the claim. TEX. R. CIV. P. 166a(a); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
If the movant meets its burden, the burden then shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). To determine if the nonmovant has raised a fact issue, we review the evidence in the light most favorable to the nonmovant, crediting favorable evidence if a reasonable factfinder could do so, and disregarding contrary evidence unless a reasonable factfinder could not. See Fielding, 289 S.W.3d at 848. We indulge every reasonable inference and any doubts must be resolved in the nonmovant's favor. See Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). When the trial court's summary judgment does not state the basis for the court's decision, we must uphold the judgment if any of the theories advanced in the motion are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
To prevail on a breach of contract claim, a plaintiff must prove the following essential elements: (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 sustained as a result of the breach. Winchek, 232 S.W.3d at 202.
B. Analysis
Rogers argues that a genuine issue of material fact exists with regard to each element of Unifund's breach of contract claim.
1. Existence of a Valid Contract
Parties form a binding contract when the following elements are present: (1) an offer, (2) an acceptance in strict compliance with the terms of the offer, (3) meeting of the minds, (4) each party's consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. Id. at 202. To be enforceable, a contract must be sufficiently certain to enable a court to determine the rights and responsibilities of the parties. Id. (citing T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992)).
Unifund provided account statements and account terms and conditions showing that Bank One and its successors extended credit to Rogers and that he used the credit account. Thus, Unifund presented evidence of an offer, Rogers' acceptance of the terms of the offer, a meeting of the minds and consent to the essential terms, and execution and delivery of the contract with the intent that it be mutual and binding. See id. at 204 (stating that delivery is shown when parties manifest intent through their actions and words that contract become effective) (citing Hay v. Citibank (S.D.) N.A., No. 14-04-01131-CV, 2006 WL 2620089, at *3 (Tex. App.—Houston [14th Dist.] Sept. 14, 2006, no pet.) (mem. op.) (holding that use of credit card and payments to account demonstrate existence of contract)). Furthermore, as we have already stated, Unifund presented competent summary judgment evidence that it was the owner of the debt and was the eventual assignee of Bank One and its successors.
Rogers argues that Unifund's evidence was insufficient to show a meeting of the minds regarding the applicable interest rate or its method of calculation. See Williams v. Unifund CCR Partners, 264 S.W.3d 231, 236 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (holding that evidence was insufficient to establish terms of contract as matter of law because Unifund did not produce any document that established the agreed terms). Here, Unifund produced the credit card agreement explaining the applicable interest rates and the methods for calculating interest and fees. Although it is true that this document does not contain Rogers' signature and that it is not the original agreement with Bank One, Rogers demonstrated his acceptance of these terms by his continued use of the credit card, as evidenced by the account statements. See DeClaire v. G & B McIntosh Family Ltd. P'ship, 260 S.W.3d 34, 44 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (stating that contract can be effective if signed by only one party if other party accepts it by his acts, conduct, or acquiescence in terms of contract).
2. Performance and Breach
To prove an action for breach of contract, a plaintiff must also establish that it performed or tendered performance of its contractual obligations. See Winchek, 232 S.W.3d at 202. Here, Unifund provided evidence in the form of account statements that Rogers used the extended credit to purchase goods and services and that he breached his obligation to pay for all charges to the account. Unifund also provided Blanton's affidavit, which stated that Rogers' account was owned by Unifund, that it was overdue in the amount of $32,835.16, and that the records of Rogers' account did not contain any objections to the charges or balance. See id. at 202 (providing that plaintiff must establish its performance and defendant's breach of its obligation to prevail on breach of contract claim). Thus, we conclude that Unifund established its performance and Rogers' breach as a matter of law.
3. Damages
Finally, to prevail on its breach of contract claim, Unifund had to establish that it was damaged by Rogers' breach of the credit card agreement. See id. Unifund provided evidence in the form of the account statements reflecting that Rogers owed $23,068.07 as principal and $4,623.70 as interest at the time Unifund acquired the debt, and it provided Blanton's affidavit establishing that, at the time Unifund moved for summary judgment, Rogers' account was past due in the amount of $32,835.16 and that the account continued to accrue interest at a rate of 5%. Rogers argues that the amount referenced by Blanton in his affidavit is inconsistent with the amount indicated in the account statements. However, Blanton obtained his figures by adding the total account balance at the time Unifund acquired the debt and adding the 5% interest that had continued to accrue during the intervening time.
Thus, we conclude that Unifund established its damages as a matter of law. The summary judgment evidence supported the trial court's judgment that Unifund was entitled to recover $32,835.16 from Rogers, constituting principal and interest on the account, plus pre- and post-judgment interest, and attorney's fees.
We overrule Rogers' second issue.
Because we conclude that the trial court properly granted summary judgment based on Unifund's breach of contract claim, we need not address Rogers' third issue, arguing that Unifund failed to establish the essential elements of its account stated claim as a matter of law. See Knott, 128 S.W.3d at 216.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Bland, and Sharp.