Opinion issued February 20, 2014

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 12
- 00936
- CV

——————————— DEMERCE P. DENNIS , Appellant V. SCIL TEXAS, INC. D/B/A SPEEDY CASH , Appellee

On Appeal from County Civil Court at Law No. 4 Harris County, Texas Trial Court Ca se No. 1016933

MEMORANDUM OPINION Appellant, Demerce P. Dennis , challenges the trial court’s rendition of summary judgment in favor of appellee, SCIL Texas, Inc. doing business as Speedy Cash (“SCIL”) , i n SCIL’s suit against him for breach of contract, on a2 sworn account , and, a lternative ly , for quantum meruit

. In his sole issue , Dennis contends that the trial co urt erred in granting SCIL summary judgment. We affirm. Background
I n its verified petition in the j ustice court , SCIL a lleged that it , pursuant to a “Speedy Cash Credit Services Agreement” ( the “Agreement”) , provided a cash loan to Dennis , who defaulted by failing to repay the loan as agreed . SCIL sought damages of $1,024.66. SCIL attached to its petition the Agreement and a record of Dennis’s account , s upported by the affidavit of SCIL’s custodian of records

. SCIL also propounded Requests for A dmissions , requiring Dennis to admit or deny each of the substantive allegations in its petition

. Denni s filed a n unverified answer , generally disputing the debt , and he did not respond to SCIL’s Request s for Admissions. SCIL subsequently moved for summary judgment , which the justice court granted. Dennis appealed to the county court for a t rial de novo , 1 and he re filed his prior answer. SCIL again moved for summary judgment, asserting that Dennis’s “answer [was] defective and insufficient in law to constitute or raise a defense t o [its] cause of action”; the Request s for Admissions , propounded in the ju stice
court , were de emed admitted because Dennis had failed to timely respond ; and

1 See Villalon v. Bank One , 176 S.W.3d 66, 69

– 70 (Tex. App.

— Houston [1st Dist.] 2004, pet. denied).3 “the deemed admissions, as well as other pleadings, affi davits, and exhibits filed” established that it was entitled to judgment as a matter of law. SCIL attached to its su mmary - judgment motion its Requests for Admission s; the Agreement ; an account statement sho wing that on April 23, 2011, SCIL had advanced to Dennis $826.43 , which he was to repay by May 6, 2011; and the affidavit of Jorge Gonzalez, SCIL ’s Vice President of Customer Relations and custodian of records . Gonzalez testified that SCIL had advanced credit to Dennis , as shown in the accompanying account documents , and it had sent
numerous statements to him requesting payment

. H owever, Dennis had “failed and refused to pay the account, and [was] indebted to SCIL [in] the sum of $1,024.66, after all lawful offsets and credits.” SCIL also attached to its motion
t he affidavit of its attorney, James West, who testified that SCIL had incurred reasonab le and necessary attorney’s fees of $750. In response to SCIL’s summary

- judgment motion, Dennis filed an “answer,” disputing the existence of an agreement between the parties; asserting a defect of parties, specifically, naming “James West” as plaintiff an d asserting that “ Plaintiff is not the real party in interest and has failed to name all necessary parties”; and asserting the affirmative defense of accord and satisfaction. Dennis also filed answers to SCIL’s Requests for Admission s , admitting that he w as properly named in the petition , had received an invoice for the amount listed in the statement4 attached to the petition, and the amount of attorney’s fees stated were reasonable and necessary. On September 19, 2012, the trial court , without stating its basis, rendere d summary judgment for SCIL, awarding it da mages in the amount of $1,0 24.66 plus attorney’s fees of $750 .00

. A week later, Dennis filed an “Affidavit of Sworn
D enial , ” “challenging” the “charges.” Hi s motion for new trial was deni ed by operation of law. Standard of Review We review a trial court’ s granting of a summary judgment de novo. Ferguson v. Bldg. Materials Corp. of Am ., 295 S.W.3d 642, 644 (Tex. 2009)

. To prevail on a summary

- judgment motion, a movant has the burden of proving t hat it is entitled to summary judgment as a matter of law and there is no genuine issue of material fa ct

. T EX
. R. C IV
. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). A plaintiff moving for summary ju dgment 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, 222 (Tex. 1 999)

. Once the movant produces suff icient evidence to establi sh its right to summary judgment, the burden shifts to the nonmovant to come forward with competent controverting evidence that raises a fact issue. See
Van v. Pena , 990 S.W.2d 751, 753 (Tex. 1999). A genuine issue of fact arises if5 reasonable and fair

- minded jurors could differ in their conclusions in light of all of the summary judgment evidence. See Goodyear Tire & Rubber Co. v. Mayes , 236 S.W.3d 754, 755 (Tex. 2007). We indulge every reasonable inference and resolve any doubts i n the nonmovant’s favor. See Sw. Elec. Power Co. v. Grant , 73 S.W.3d 211, 215 (Tex. 2002). When a trial court’s judgment does not specify the grounds upon which the trial court relied in granting it , we must affirm “ if any of the summary - judgment grounds are meritorious. ” FM Props. Operating Co. v. City of Austin , 22 S.W.3d 868, 872 (Tex. 2000). Summary Judgment In his sole issue, Dennis argues that the trial court erred in granting SCIL summary judgment because SCIL ’s evidence is “ insufficient ” or “incompetent” to establish its right to recover on its claims

. He asserts that SCIL failed to produce “the original loan documents ,” SCIL failed to show that the account was “properly assigned,” and Gonzalez’ s affidavit does not “positively show a basis for” his personal knowledge

. To be entitled to summary judgment on its breach

- of

- contract claim, SCIL was requir ed to prove, as a matter of law : (1) the existence of a valid contract; (2) performan ce or tendered performance by SCIL; (3) a breach of contract by Dennis ; and (4) damages susta ined as a result of the breach. Winchek v. Am. Express Travel Related Servs. Co ., 232 S.W.3d 197, 202 (Tex. App.

— Hous ton [1st Dist.]6 2007, no pet.). To be enforceable, a contract must contain terms sufficientl y certain to enable a court to determine the rights and responsibilities of the parties. Id. And t he material terms must be agreed upon. T.O. Stanley Boot Co. v. Bank of El Paso , 847 S.W.2d 218, 221 (Tex. 1992).
Here , SCIL presented, as summary

- judgment e vidence , 2 a copy of the signed Agreement, establishing the existence of an enforceable contract

. See Winchek , 232 S.W.3d at 202

. Although the A greement provides that SCIL is “not a lender,” it agreed, on Dennis’s behalf, to obtain a loan and “issue a l etter of credit” to secure the loan

. The A greement also shows that on April 23, 2011, Dennis agreed
to pay SCIL $826.43, ten

- percent interest , and a fee of $165.29 . He agreed to pay,

on May 6, 2011 , SCIL $994.66 by electronic debit from his banking account , providing SCIL with the pertinent routing and account number

. In the event that he defaulted and SCIL had to pay on it s letter of credit , Dennis agreed to pay SCIL

. And he agreed to pay a fee of $30.00 , for any returned check , and reasonable att orney’s fees , in the event of collections

. “ In a contract to loan money, the material terms will generally be: the amount to be loaned, maturity date

2 We recognize that a party’s fail ure to timely respond to r equest s for a dmissions generally results in the matters therein being deemed admitted

. See T EX
. R. C IV
. P. 198.2(c); Wheeler v. Green , 157 S.W.3d 43 9, 443 (Tex. 2005). SCIL’s Requests for Admissions , however, required Dennis to admit or deny e ach of the substantive allegations in its petition. Requests for admission are intended to address uncontroverted issues. Wheeler , 157 S.W.3d at 443. A party may not use deemed admissions to try to preclude a presentation of the merits of a case. See id.7 of the loan, the interest rate, and the repayment terms .” See T.O. Stanley , 847 S.W.2d at 221. We concl ude that the Agreement reflects these terms and is sufficiently certain to enable a court to determine the rights and responsibilities of the parties. See id. ; Winchek , 232 S.W.3d at 202 ; see also Somers v. Aranda , 322 S.W.3d 342, 345 (Tex. App.

— El Paso 2010, no pet.) (concluding that material terms of contract were sufficiently definite to support summary judgment). The account statement shows that Dennis received from SCIL a “payday loan” of $826.43 on Apri l 23, 2011; re payment of $994.66 was due on May 6, 2011; the debit from his banking account on May 9, 2011 was returned and a $30.00 fee added to his account; no payments were successfully made; and the amount due on the accoun t as of the date of default was $1,024.66

. Gonzalez’s testimony establishes that SCIL performed the Agreement by advancing credit to Dennis as shown in the account documents ; Dennis defaulted on the Agreement by failing to repay the loan as agreed; and the damages sustained

. See Winchek , 232 S.W.3d at 202

. Dennis argues that SCIL’s evidence is insufficient to sup port summary judgment because SCIL failed to produce “the original loan documents” and Gonzalez failed to confirm that “the copy was compared against the original.” Defects in the form of affid avits or attachments wil l not constitute grounds for reversal unless specifically pointed out by objection by an opposing party with8 opportunity, but refusal, to amend. T EX
. R. C IV
. P. 166a(f). Because the record does not show that Dennis objected in the trial court to the form of the loan documents , this issue is not preserved for appeal. See id. ; T EX
. R. A PP
. P. 33.1. Moreover, Gonzalez testified th at he had care, custody, and control of the records pertain ing to Dennis’s account, which we re maintained in the regular and ordinary course of business, a nd the loan documents attached we re “true and correct copies” of those records. See T EX
. R. C IV
. P. 166a(f) ; see also T EX
. R. E VID
. 1003. Next, Dennis asserts that SCIL failed to show that the account was “properly

a ssigned ” to James West

. The record before us reflects that James West, as SCIL’s counsel , brought this action on behalf of SCIL to recover on its Agreement with Dennis. Nothing in the record before us suggests that West is pursuing a cause of action on his own be half. Finally , Dennis argues that Gonzalez’s affidavit is insufficient to support
summary judgment because it does not “positively show” that it i s based on personal knowledge. A n a ffidavit must be made on personal kno wledge, set forth facts that would be admissible in evidence, and show that the affiant is competent to testify to the matters stated therein. See T EX
. R. C IV
. P. 166a(f). A complaint that an affidavit i s not based on personal knowledge is a defect in form that must be preserved by objection in the trial court. Rizkallah v. Conner , 952 S.W.2d 580,
584

– 85 ( Tex. App.

— Houston [1st Dist.] 1997, no pet.)

. Because the record does9 not show that Dennis objected in the trial court on this basis, the issue is not preserved for appeal. See id. Moreover, Gonzalez ’s testimony that his affidavit is based on his persona l knowledge of the facts as Vice President of Customer Relations for SC IL demonstrates a sufficient basis for personal knowledge concerning Dennis’s
account. See Brown v. Mesa Di strib s . , Inc. , 414 S.W.3d 279 , 287 (Tex. App.

— Houston [1st Dist.] 2013 , no pet.) (“An affidavit from a company officer claiming personal knowled ge of the issue and the company’ s records is sufficient evidence for summary judgment.”) ; Miller v. Raytheon Aircraft Co. , 229 S.W.3d 358, 36 5

– 6 6 (Tex. App.

— Houston [1st Dist.] 2007, no pet.) (“The personal knowledge requirement is satisfied if the affidavit sufficiently describes the relationship between the affiant and the case so that it may be reasonably assu med that the affiant has personal knowledge of the facts stated in the affidavit.”)

. We conclude that SCIL’s evidence, taken together, establishes the existence of a valid contract between SCIL and Dennis, SCIL tendered performance by providing a loan to D ennis, which Dennis accepted, and Dennis defaulted by failing to pay the outstanding balance of $1,024.66 in accordance with the
A greement. See T.O. Stanley , 847 S.W.2d at 221; Winchek , 232 S.W.3d at 202

. Because SCIL produce d evidence establish ing, as a matter of law, its right to summary judgment on its breach

- of

- c ontract claim , Dennis had the burden to come10 forward with competent controverting evidence that raised a fact issue. See Van , 990 S.W.2d at 753. Dennis responded to SCIL’s summary - judgment mo tion by filing answers to SCIL’s Requests for Admissions

. Becaus e he did not offer any evidence, he did not meet his summary - judgment burden. See id. We hold that SCIL established that it is entitled to summary judgment as a matter of law on its breach

- o f

- contract claim. Accordingly, we overrule Dennis’s sole issue. 3
Conclusion We affirm the judgment of the trial court

.

Terry Jennings Justice Panel consists of Justices Jennings, Higley, and Sharp

.

3 Because we conclude that the trial court did not err in grant ing summa ry judgment on SCIL’s breach

- of

- contract claim , we do not reach its other asserted grounds.