Wright v. Atlantic Credit and Finance, Inc. (pdf)(Tex.App.- Houston [1st Dist.] Dec. 10,
2009)(Alcala) (failure to plead statute of limitations)(deemed admissions and Atlantic's uncontroverted
summary judgment evidence conclusively establish Atlantic's entitlement to recover on breach of
contract and its entitlement to attorney's fees)
We conclude Wright did not plead the statute of limitations and Wright's deemed
admissions and Atlantic's uncontroverted summary judgment evidence
conclusively establish Atlantic's entitlement to recover on breach of contract and
its entitlement to attorney's fees. We affirm.
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Elsa Alcala
Before Justices Keyes, Alcala and Hanks
01-09-00135-CV Darryl G. Wright v. Atlantic Credit and Finance, Inc.
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd
G. WRIGHT, Appellant,
ATLANTIC CREDIT & FINANCE, INC., Appellee.
Court of Appeals of Texas, First District, Houston.
Opinion issued December 10, 2009.
Panel consists of Justices KEYES, ALCALA, and HANKS.
ELSA ALCALA, Justice.
In this lawsuit to collect credit card debt, appellant, Darryl G. Wright, appeals a summary judgment in
favor of Atlantic Credit & Finance, Inc. ("Atlantic), awarding Atlantic $13,582.99 in actual damages, as
well as attorney's fees, costs of court, and post-judgment interest. In five issues, Wright contends the
trial court erred by granting Atlantic's motion for summary judgment because limitations bars Atlantic's
claim, Atlantic's summary judgment evidence does not conclusively establish all the elements of its
claim, Atlantic is not entitled to attorney's fee, and Atlantic is not entitled to recover on its claims for suit
on a sworn account or quantum meruit.
We conclude Wright did not plead the statute of limitations and Wright's deemed admissions and
Atlantic's uncontroverted summary judgment evidence conclusively establish Atlantic's entitlement to
recover on breach of contract and its entitlement to attorney's fees. We affirm.
Wright opened a credit card account with Household Bank. The credit card allowed Wright to make
charges and receive cash advances, which he was obligated to repay under the terms of his
agreement with Household Bank. Wright received monthly statements showing his account
expenditures, payments, and monthly balances. Wright failed to pay the amount owed on the account
as of January 2006. Atlantic purchased the debt on Wright's credit card account from Household Bank.
Atlantic filed suit against Wright based on Wright's failure to pay the balance on the account. Atlantic
sought $13,582.99 in unpaid principal and interest. Atlantic served Wright with requests for admission
to which Wright did not respond. Among the requests for admissions were requests to admit or deny
that Wright had entered into an agreement with Household Bank, Wright had failed to pay the balance
owed, Wright's balance was $13,582.99, and Wright agreed to an interest rate of at least 18%.
Atlantic moved for summary judgment based on Wright's failure to respond to the requests for
admissions, an affidavit concerning Wright's account, and testimony from Atlantic's attorney in support
of an award for reasonable and necessary fees in the amount of $3,395.75. Wright did not file a
response or evidence in opposition to Atlantic's motion for summary judgment.
The trial court granted Atlantic's motion for summary judgment. The trial court rendered final judgment
in favor of Atlantic, awarding $13,582.99 in damages, $3,395.75 in attorney's fees $3,395.75 in
additional attorney's fees in the event of an unsuccessful appeal by Wright, post-judgment interest,
and costs of court. Wright timely appealed the trial court's judgment.
Statute of Limitations
In his first issue, Wright contends the trial court erred by rendering summary judgment in favor of
Atlantic because Atlantic's claim was barred by the statute of limitations.
The statute of limitations is an affirmative defense that must be specifically pleaded or it is waived. Tex.
R. Civ. P. 94; see Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988). Here, Wright did
not plead the statute of limitations as an affirmative defense and, therefore, waived limitations as a
defense. Additionally, Wright did not raise limitations in a response to Atlantic's motion for summary
judgment or present evidence in support of the defense. See Williams v. Unifund CCR Partners
Assignee of Citibank, 264 S.W.3d 231, 234 (Tex. App.-Houston [1st Dist.] 2008, no pet.) (debtor
asserting limitations did not defeat creditor's motion for summary judgment because debtor produced
no summary judgment evidence in support of limitations). We hold the trial court did not err by
rendering summary judgment because no pleadings or evidence raise the issue of limitations.
We overrule Wright's first issue.
Breach of Contract
In his third issue, Wright contends Atlantic's summary judgment evidence is "insufficient to establish the
existence of an agreement between them and the specific terms of interest rates and finance charges."
A. Applicable Law
We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.
2005). Summary judgment is proper only when a movant establishes that there is no genuine issue of
material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A
plaintiff moving for summary judgment on its claim must establish its right to summary judgment by
conclusively proving all the elements of its cause of action as a matter of law. Rhone-Poulenc, Inc. v.
Steel, 997 S.W.2d 217, 223 (Tex. 1999); Anglo-Dutch Petroleum Int'l, Inc. v. Haskell, 193 S.W.3d 87,
95 (Tex. App.-Houston [1st Dist.] 2006, pet. denied). In reviewing a summary judgment, we must
indulge every reasonable inference in favor of the nonmovant, take all evidence favorable to the
nonmovant as true, and resolve any doubts in favor of the nonmovant. Valence Operating Co., 164
S.W.3d at 661.
The essential 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 contract by the defendant; and (4)
damages sustained as a result of the breach. Williams, 264 S.W.3d at 235-36 (citing Winchek v. Am.
Express Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex. App.-Houston [1st Dist.] 2007, no
pet.)). "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 236 (citing Winchek, 232 S.W.3d 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 Winchek, 232 S.W.3d at 202). "The material terms of a contract must be agreed upon before a
court can enforce the contract, and the interest rate is a material term." Id. (citing T.O. Stanley Boot
Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992)).
Atlantic served requests for admissions on Wright. The requests for admissions included the following
Based on [Wright's] request, [Atlantic] (or [Atlantic's] predecessor in interest) opened the [credit card]
[Wright] entered into an agreement to create a charge account for credit.
[Atlantic] (or [Atlantic's] predecessor in interest) offered an extension of credit to [Wright] in exchange
for [Wright's] promise to repay the credit.
[Wright] presently owes [Atlantic] the amount of $13,582.99.
A contractual interest rate of at least 18% per year was agreed to by [Wright] and [Atlantic].
Wright never responded to Atlantic's requests for admissions. Unanswered requests for admissions
are deemed admitted and any matter thus admitted is "conclusively established" as being true. Tex. R.
Civ. P. 198.3; see Wal-Mart Stores, Inc., v. Deggs, 968 S.W.2d 354, 355 (Tex. 1998).
Atlantic submitted the deemed admissions in support of its motion for summary judgment. In addition,
Atlantic submitted an affidavit in which one of its employees stated Atlantic had been assigned Wright's
account by Household Bank and its records showed Wright had last made a payment in January 2006.
The deemed admissions and the uncontroverted affidavit establish: (1) the existence of a valid
contract; (2) performance by the Household; (3) breach of contract by Wright; and (4) damages
sustained as a result of the breach. See Williams, 264 S.W.3d at 235-36. Furthermore, the deemed
admissions specifically cover the agreed upon interest rate. See id. at 236. We hold the trial court
properly rendered summary judgment on the claim for breach of contract.
We overrule Wright's third issue.
In his fourth issue, Wright challenges the trial court's award for attorney's fees. Specifically, Wright
asserts Atlantic is not entitled to attorney's fees because it did not present the account to him for
payment at least 30 days prior to filing suit.
In the requests for admission, Atlantic requested Wright to admit or deny that, prior to filing suit,
Atlantic made a demand for the outstanding balance and that Wright had received a demand letter for
payment of the account. Wright failed to respond, and therefore, he is deemed to have admitted these
facts. See Tex. R. Civ. P. 198.3; see Wal-Mart Stores, Inc., 968 S.W.2d at 355.
We overrule Wright's fourth issue.
Suit on a Sworn Account and Quantum Meruit
In his second and fifth issues, Wright contends the trial court improperly awarded summary judgment
on Atlantic's claims for suit on a sworn account and quantum meruit.
When the trial court does not specify the basis for its ruling, it is appellant's burden on appeal to show
that each of the independent grounds asserted in support of summary judgment is insufficient to
support the judgment. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). When the
trial court's order granting summary judgment does not specify the grounds upon which it was granted,
we will affirm the judgment if any of the theories advanced are meritorious. Carr v. Brasher, 776
S.W.2d 567, 569 (Tex. 1989).
Having overruled Wright's issues concerning Atlantic's breach of contract claim, the judgment may be
affirmed on that ground. We therefore need not address Wright's second and fifth issues.
We affirm the judgment of the trial court.
 See Tex. Civ. Prac. & Rem. Code Ann. § 38.001(3) (Vernon Supp. 2009) (providing attorney's fees are recoverable
provided "payment for the just amount owed must not have been tendered before the expiration of the 30th day after the
claim is presented").