### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00274- CV

Juds on E. E kpe, App ellant

v. CACH, LLC, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 345 TH JUDICI AL DISTRICT NO. D-1 -GN-0 7-0 0274 6, H ONO RAB LE JEF F L. RO SE, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant J udson E. Ekpe appea ls a final summary judgme nt awa rding damag es and attorney ’s fee s to appellee CACH, L L C on claims that Ekpe brea ched a Ba nk of Americ a cre dit-car d ag ree ment that was later sold and assig ned to CACH. The judgme nt also dismiss ed a “counte rcla im” Ekpe had asser

ted. In three issues, Ekpe asser ts that the district court err ed beca use (1) CACH failed
to meet its summary -judgm en t b u rd en to conclusively establish either the exis tence of the cre ditcar d ag ree ment on which it s claims wer e predicate d or t hat Ekpe brea ched it; (2 ) C AC H failed to meet its burden as to its “standing ” to enfor ce that ag ree ment as Bank of Americ a’s a ssigne e; and (3) CACH did not prese nt g rounds that could support summary judgme nt as to Ekpe’s counter claim. Whil e we conclude that the di strict court properly g rante d summary judgme nt on CACH’s claims ag ainst Ekpe, we must rever se its judgment a nd rema nd as to Ekpe’ s counterc laim.BACK GR OUND I t is undisputed that a few y ear s ag o Ba nk of Americ a enter ed into an ag ree ment with Ekpe to provide him a cre dit car d acc ount, that Ekpe incurre d char g es on that acc ount, and that, at the time Ekpe inc urre d the cha rg es mater ial to this appea l, Ba nk of Amer ica ha d desig nated the

acc ount with a number that ended in 9902. I n August 2007, CACH sued Ekpe alleg ing that Ekpe had incurred charg es on the account, t hat Ekpe had failed to repa y the charg es i n acc ordanc e with
terms of the acc ount ag ree ment, and that CACH had subsequently been assig ned the ag ree ment and debt from Ba

nk of Americ a. CACH soug ht to rec over the sums it alleg ed Ekpe owed on the acc ount, interest, and attorney ’s fee s. Ekpe responded with a pro se pleading joining issue with CACH’s alleg ations. He also asser ted a “counte rc l ai m ” t h at , while in larg e part mere ly joined issue with CACH’s alleg ations, also included some aff irmative fac tual alleg ations and soug ht dama ges for various cla imed forms of e motional dist ress.

CACH fi led a motion for summary judgme nt on its aff irmative claims and
to “dismiss” Ekpe’s counter claim. I n support, CACH att ached summary -judg ment evidenc e that included ac count statements and othe r docume ntation that purported to perta in to Ekpe ’s ac count. CACH timely supplemented this evidenc e sever al times. E kp e fi l ed a response in opposition to CACH’s motion and also what he sty l ed as his own “motion for summary judgme nt” that chief ly
t o o k i ssue with CACH’s motion and proof. Ekpe likewise filed a motion for summary judgme n t as to his counterc laim. Ekpe did not, howeve r, present any summary -judg ment evidenc e either in opposition to CACH’s motion or in support of his own, n o r d i d h e ever obtain a hear ing on his moti ons.

2Following a hear ing solely on CACH’s motion, the district court rende red

final judgme nt awa

rding CACH $26,006.31 as the balanc e that had been due on the acc ount (re prese nting char g es Ekpe had incurre d plus acc rued interest, less any pay ments made by Ekpe) as of the date Ba

nk of Americ a had sold the acc ount to CACH, another $19,136.51 in interest that had

acc rued there afte r until the date of the order , $10,775.48 in attorney ’s fee s, and $350 in court costs. The district court also “dismisse d with prejudice ” Ekpe’s “alleg ed counter claim.” Subsequently , Ekpe reta ined counsel, who filed a motion for new trial that was overr uled by operation of law. This appea l ensued.

ANALYSIS

Ekpe’s first two issues challeng e the district court’s summary judgme nt as to CACH’s brea ch -of-contrac t claims. We revie w the district court’s summary judgme nt de novo. Valence Operating Co. v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005); Provident Life & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 215 (Tex. 2003). Summary judgme nt is prop er wh en there are no disputed issues of mater ial fac t and the movant is entitled to judgme nt as a matter of law. Tex. R. Civ. P. 166a(c ); Knott , 128 S.W .3d at 215-16. When revie wing a sum mary judgme nt, we t ake as true all evidenc e favor able to the non-movan t , an d we indulge ever y rea sonable infere nce and resolve any doubt in the non-movant’s fa v o r. V a l en ce Operating Co. , 164 S.W .3d at 661; Knott , 128 S.W .3d at 215.

To obtain summary judgme nt on its own af fi rm ative claims, as CACH seems to acknow ledg e, it bore the “tra di t i o n al” summary -judg ment burden of establishing its entitlement to judgment a s a matter of law by conclusively

establishing e ach element of its breac h-of- contra ct

3cause of action. See M.D. Anderson Hosp. & Tumor Inst. v. W illri ch , 28 S.W .3d 22, 23 (Tex. 2000) (per curiam) (citing Rhône-P oulenc, Inc. v. S t eel , 997 S.W .2d 217, 222-23 (Tex. 1999); Oram

v. Gene ral Am. Oil Co. , 513 S.W .2d 533, 534 (Tex. 1974) (per curiam)). To preva il on its brea ch-of

contra ct cause of action, CACH had to prove the following essential elements: (1) the exis tence of

a valid contra ct, (2) perf

ormanc e or tender ed perf

ormanc e by the plaintiff, (3) brea ch of the contra ct by the defe ndant, and (4) damag es sustained as a result of the brea ch. W inchek v. American Express Travel Rel a t ed S

er vs . Co. , 232 S.W .3d 197, 202 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (op. on reh’ g ). Assuming CACH met this burden, the burde n would have shifte d to Ekpe to file a timely written response prese nting g rounds for denying summary judgme nt. See City of Houston

v. Clear Creek Basin Auth. , 589 S.W .2d 671, 678 (Tex. 1979). Grounds that Ekpe did not expressly prese nt to the trial court by written response cannot be considere d as g rounds for reve rsal on appea l. Tex. R. Civ. P. 166a(c ); Clear Creek Basin Auth. , 589 S.W .2d at 678. CACH’s motion must stand

o n i t s o wn merits, howeve r, and thus Ekpe is not prec luded from contending for the first tim e

on appea l that t h e gro u nds prese nted in CACH’s motion wer e leg ally insufficient to entitle it to summary judgme nt. Rhône-P oulenc , 997 S.W .2d at 223 (citing Cle a r C r ee k B a s in Auth. , 589 S.W .2d at 678). Additionally , CACH bear s the burden on appea l of s h o wi n g t h at there is

no g enuine issue of materia l fac t and that it is entitled to judgme nt as a matter of law. See id. Ekpe,

as previously noted, did not prese nt summary -judg ment evidenc e in an attempt to raise fac t issues. To challeng e the s u m m ar y j u dg ment on appea l, Ekpe focuse s his eff orts on attacking the leg al suffic iency

of CACH’s motion. I n his second issue, Ekpe argues that CACH’s summary -judg ment proof fell short of conclusively

establishing e ither the e x istence of the credit-ca rd agr eeme nt on which the judgment 4was predic ated or that h e b reache d that ag ree ment. As Ekpe acknow ledg es, CACH’s summary judgme nt p ro o f i ncluded a document titled “Visa or Masterc ard Cardmember Ag ree ment” that
set forth various terms, including th e i ntere st rate and fee s Ba nk of Americ a would char g e and its monthly minimum pay ment require ments. Howeve r, observing that this Agree ment co n tains

no ref ere nce ei t h er to him or his acc ount number, Ekpe asser ts that CACH failed to conclusively prove that it supplied the terms of the particula r cre dit-car d ag ree ment he had with Ba nk of Americ a. We disag ree . Among other evidenc e, CACH prese nted the aff idavit of Maria Hwang , a CAC H au t h orized ag ent and rec ords custodian who aver red that she had persona l knowledg e of the rec ord-ke eping prac tices of both CACH a nd Ba nk of Amer ica. Attac hed to Hwang ’s aff idavit

wer e documents that, she indicated, wer e all related to Ekpe’s acc ount. These documents included the “Visa or Masterc ard Cardmember Ag ree ment.” They also included B ank of Americ a monthly
statements for a cre dit car d acc ount under the name of J udson E. Ekpe, with an acc ount number ending in 9902, with billing dates beg inning on August 13, 2003, throug h August 13, 2004. The 1

I n reg ard to this and other documentar y pro o f i n t he summary -judg ment rec ord, 1 E kp e compl ains that CACH’s acc ompanying business-re cords aff idavits wer e defe ctive or insufficient. See Tex. R. Evid. 901(10). He particula rly emphasizes that in some aff idavits, CACH repr esentatives, like Hwang , have purported to testify reg arding the rec ord-ke eping prac tices of Ba nk of Americ a. These are ultimately complaints that the dis t ri ct co u rt abused its discretion in failing to exclude this evidenc e. To prese rve these sorts of complaints for appellate revie w, Ekpe was required to object to the admis sion of t he ev i d en ce and obt ain a ruling on his objection. See, e.g. , McFarland v. Citi bank ( S.D.) , N.A. , 293 S.W .3d 759, 762 (Tex. App.—Waco 2009, no pet.); Dulong v. Citi bank (

S.D.) , N.A. , 2 6 1 S

. W

. 3 d 890, 893 (Tex. App.—Dallas 2009, no pet.). Ekpe insists on appea l that we should construe his filings below t o contain what are in substance objections to the defe cts he perc eives in CACH’s business-re cords aff idavits. Assuming that such objections wer e indeed raised, we can find no indication in the rec ord th at Ekpe ever obtained a ruling on them, nor does Ekpe ref er us to an y . Consequently , any complaints reg arding the admission of

CACH’s summary -judg ment evidenc e would not be pr eser ved for appellate revie w. 5acc ount statements also ref ere nced various terms of the Ag ree ment and ref lected that Ekpe used the

cre dit car d (constituting acc eptanc e of its terms and conditions ), made some pay ments, but cea sed 2 to make fur

ther pa y ments after

Fe bruar y 2004. Ekpe a lso argues that CACH’s own summary -judg ment evidenc e raised f act issues

as to whether he had two separ ate acc ounts with Ba nk of Americ a—one ending in 9902, the other in 6239—such that CACH failed to conclusively establish which acc ount it purcha sed and the amount owed on it. Ekpe relies primarily on a statement in a J une 26, 2008 aff idavit of a Ba

nk of Americ a office r, Vicki Kyle, wh o aver red, “[A]ccount number [redacte d] 6239 was opened on 1/06/07 by JUDSON E. EKP E .” This statement, in E kpe’s view, is an asser tion that Ekpe’s acc ount was 3 identified by a number ending in 6239 at the time he opened it in 1997, thus cre ating “discre pancie s”

or “contr adictions” with CACH’s proof reg arding Ekpe’s acc ount ending in 9902. Simi larly , Ekpe argues that there are “discre pancie s” betwee n the total outstanding balanc e for acc ount 9902 shown

on the final, Aug ust 13, 2004, Ba nk of Americ a acc ount statement—$12,258.69—and evidenc e that the outstanding balanc e on an acc ount de signated 6239 was $26,006.31 at the time it wa s sold a nd assig ned to CACH. Howeve r, the infere nces that Ekpe would draw of “conf licts” or “discre pancie s”

Tex. R. App. P. 33.1( a)( 2). In any event, we note that this Court and others have rec og nized that a witness may have persona l knowledg e and competenc e to t estify reg arding the rec ord-ke eping prac tices of a person ot h er t h an his or her employ er. See Simien v. Unifund CCR Partners ., 321 S.W .3d 235, 244-45 (Tex

. App.—Houston [1st Dist.] 2010, no. pet.) (op. on reh’ g); Da mr o n v. Citi b a n k (

S.D.) N.A. , No. 03-09-00438- CV, 2010 Tex. App. L EXI S 7054, *9-12 (Tex. App.—Austin Aug . 25, 2010, pet. denied)

.

S ee Jones v. Citi bank, N.A. , 235 S.W .3d 333, 338-39 (Tex. App.—For t Worth 2007, 2 no pet.). Ekpe also ref

ers to other claimed “discre pancie s” in documentation relating to the acc ount, 3 but these docume nts were not included or incor porate d in the summary -judg ment rec ord. 6in CA C H’ s s ummary -judg ment proof are not rea sonable when the evidence on which Ekpe relies

is considere d in context with other uncontrove rted summary -judg ment evidenc e. See City of Keller

v. W ilson , 168 S.W .3d 802, 811-12 (Tex. 2005) (discussing contextual e vidence ). Hwang , among others, testified that the a ccount number for Ekpe ’s account was chang ed from 9902 to 6239 after Ba nk of America ch arg ed it off and sold it to CACH in 2006. Considered in this context, Kyle’s statement i s ref

err ing to the account designate d by number 6239 at t he ti me o f h er 2008 aff idavit, which, Hwang ’s testimony makes clea r, is the same acc ount that had previously been numbere d 9902. And, as for the differ en ce betwee n the amount due on the August 2004 statement and the
amount at the time of the acc ount’s October 2006 assig nmen t , this is acc ounted for, as CACH observe s, by

interest that continued to a ccr ue in the mea

ntime. We overrule E kpe’s se cond issue. I n his third issue, Ekpe urg es th at C AC H fa iled to meet its burden to conclusively establish that it had acquir ed Ba nk of Americ a’s rig hts in his cre dit-car d acc ount and there by had “standing ” to asser

t them. Ekpe points to a document included in CACH’s summary -judg ment evidenc e, an October 30, 2006, “B ill of Sale” betwee n Ba nk of Americ a and CACH that incorporates both an attached lis t of accounts (which incl u d ed an acc ount of “Ekpe, J udson E.,” in the amount of $26,006.31, with a “plac ement date” of November 3, 2006) and the terms of a “F orwa rd Flow Ag ree ment,” which was not attache d. In addition to re-ug ing the arguments reg arding “discre pancie s” betwee n acc ount numbers and outstanding balanc es that we have alre ady reje cted, Ekpe c ontends that CACH’s failure to attach the “ For war d Flow Agree ment” and “ discrepa ncies” betwee n the various dates appea ring in th es e d o cuments leave s fac t issues as to whether CACH
actua lly purcha sed t he credit-ca rd account i t purported to sue on. W e disagree . CACH prese nted
uncontrove rted testimony fr o m Hwang and Kyle, among others, that Ba nk of Americ a sold 7Ekpe’s acc ount to CAC H o n October 30, 2006, and that CACH now owns the debt. No materia l

fac ts reg arding CACH’s “standing ” rema ined for resolution. See Eave s v. Unifund CCR Partners , 301 S.W .3d 402, 405 (Tex. App.—El Paso 2010, no pet.). We overr ule Ekpe’ s third issue. Ekpe’s rema ining issue, his fi rs t i ssue, challeng es the district court’s dismiss al of his counter claim. I n the first para g raph of his counter claim, Ekpe pled that evidenc e he intended to elicit with acc ompanying disc overy reque sts “will aid in establishing That CACH, L L C actingfor bank of Americ a may have fra udulently prepa

red and Submit ted a false documents to this court with the intension that this co u rt wi l l re l y On the false document to the detriment of J udson E. Ekpe [si cs].” Then, following pleading s a d d r e s s in g th e a

p plicable discovery control plan, jurisdiction, and
venue, Ekpe pled six “fa cts.” Whil e most of these “fa cts” mere ly joined issue with various CACH alleg ations, Ekpe did make the following aff irmative alleg ations:

• “Counterc laim defe ndant’s ac tions amount to ex tortion.”

• “Counterc laim defe ndant har rassments continued e ven af ter their suit wa s filed [sic] .” 4

Ekpe’s othe r “f

acts” wer e (sic thr oug hout): 4

• “Counterc laim plaintiff disputes that bank of Americ a authorized this action by Deleg ating authority to CACH, L L C, and demands strict pr oof.”

• “Co unterc laim defe ndant[’] s only evidenc e to support their claims ag ainst counter claim Plaintiff is their status as a bill collector that wa nts make money

by any means.”

• “Counterc laim plaintiff disputes that he owes bank of Americ a money as prese nted By bill collector CACH, L L C, demands strict proof.”

• “Counterc laim defe ndant cannot state weather this acc ount was issued only in Re sponse to an application. proof demande d.” 8Ekpe further alleg ed that he had incurre d dam a g e s “ a s a r esult of counter claim Def endant’ s conduct,” including va

rious forms of “ emotional distress” and phy sical manife stations of it. I n the sole portion of its motion addre ssed to Ekpe’s counter claim, CACH asser ted:

6. Defendant’

s Counterclaim

. Def

endant’ s counter claim is u n s u b s ta ntiated and no materia l and/or documentar y evidenc e has been produce d to the Plaintiff supporting Def

endant’ s counter cla i m all eg ations. Plaintiff curr ently has a Motion to Compel and Motion for Sanctions pending in this honorable Court ag ainst Def

endant’ s failure to timely respon d t o discovery reque sts sent to Def endant

. . . . Def

endant’ s willful disreg ard to p roperly respond to discovery reque sts shows a lack of Def endant’ s conviction, and the fac t there is absolutely

no evidenc e to support the allega tions along with Defe ndant’s failure to respond to discovery reque sts, Def endant’ s Counterclaim should be dismiss [ed] as to the Plaintiff, CACH, L L C. Although this para g raph sug g ests in part that CACH was seeking dismiss al as a discovery sanction, the parties appea

r to concur that the district court’s judgme nt of di s m i s s al can stand only if the para g raph is construed as a no-evide nce summary -judg ment challeng e. Ekpe argues that to the
extent CACH was asser

ting a no-evide nce challeng e, the challeng e was leg ally insufficient beca use it did not ide ntify the essential element or elements that CACH w as challeng ing. See Tex. R. Civ. P. 166a(i) (“The motion must state the elemen t s as t o which there is no evidenc e.”) ; id

. at C omment—1997 (“The motion must be specific in challeng ing the evidentiar y support for an element of a claim or defe nse; para g raph ( i) does not authorize conc lusory motions or g ener al noevidenc e cha lleng es to an oppone nt’s case .”). We a g ree with Ekpe.

At most, CACH’s motion asser ted a broad no-evide nce summary -judg ment challeng e to any

thing and ever

y thing that E kp e was alleg ing in his counter claim—the sort of “g ener al no -e vidence challeng e[] to an opponent’s case ” that rule 166a(i) square ly prohibits. Id

.
9at Comment—1997. I t may well be questionable whether Ekpe has pled any viable cause s of action

in his counter claim (although he urg es on appea l that his fac tual alleg ations can be construed to implicate sever al differ ent cause s of action). Reg ardle ss, it rema ins that C AC H purports to have challeng ed Ekpe’s pleading throug h a no-evide nce summary -judg ment motion rathe r than throug h other proce dural mecha

nisms that might be more appropr iate. By doing so, CACH bound itself to 5 comply with rule 166a( i)’s re quirements. It did not comply

. CACH does not appea

r to contend otherwise. Inste ad , i t re sponds that Ekpe waived any complaint with the “spec ificity ” of its no-evide nce challeng e by failing to object or specia lly except below. Although some prior opinions of this Court and others have sug g ested that

a complaint with the “spec ificity ” of a no-evide nce motion must be prese rv ed b y o b j ection or specia l exception in the trial court, the Texas Supreme Court has more rec ently indicated that the 6 failure to specify the essential elements being challeng ed or making “g ener al no-evide nce challeng es to an opponent’s case ,” amounts to the omission of the no-evide nce challeng es as summary judgme nt g rounds—a matter g oing to the l eg al s ufficie ncy of t he mot ion. See Timpte Indus., Inc.

v. Gish , 286 S.W .3d 306, 310 (Tex. 2009); see also Ellen v. F.H. Partners, L.L.C

. , No. 03-09-00310- C V, 2 0 10 Tex. App. L EXI S 9540, *4 n.1 (Tex. App.—Austin Dec

. 1, 2010, no pet.) (mem. op.) (citing Gish an d h o l d i n g that no-evide nce motion’s failure to specify elements of claim being challeng ed rende red motion “def ective an d insufficient to support summary judgme nt”).

E.g ., specia l exceptions. 5 See Leifester v. Dodge Country, Ltd. , No. 03-06-00044- CV, 2007 Tex. App. L EXI S 790, 6 at *9 n.3 (Tex. A

pp.—Austin F eb. 1, 2007, no pet.) (mem. op.) ( compiling case s and noting “split of authority

on this iss ue” a

mong c ourts of appe als).

10Conse qu en t l y , Ekpe’s complaint can be raised for the first time on appea l. Rhône-P oulenc ,

997 S.W .2d at 223 (c iting Clear Creek Basin Auth. , 589 S.W .2d at 678).

Acc ording ly , b eca

use CACH did not prese nt g rounds that could support summary judgme nt as to Ekpe’s counter claim, we must reve rse the p o rt i o n of the district court’s judgme nt dismiss ing that claim. See McConnell v. Southside Indep. Sch. Dist. , 858 S.W .2d 337, 341 (Tex. 1993) (“A [sum mary -judg ment] motion must stand or fall on the g rounds expressly prese nted in the m otion.”); see also Damron v. Citi bank (S.D .) N.A. , No. 03-09-00 4 3 8 -CV, 2010 Tex. App. L EXI S 7054, *17 (Tex. App.—Austin Aug

. 25, 2010, pet. denied) (in simil ar suit to rec over cre ditcar d debt, reve rsing summary judgme nt on debtor’s counter claim wher e cre ditor’s motion had failed to addre ss it). W e sustain Ekpe’ s third issue.

CONCLUSION We aff irm the district court’s summary judgme nt as to CACH’s claims ag ainst Ekpe. Howeve r, we reve rse its judgme nt dismiss ing Ekpe’s counter claim and rema nd that portion of the cause for further p ro ce eding s. We express no opinion as to the ultimate viability of Ekpe’s
counter claim.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Affir med in part; Rever sed and Rema nded in par

t Filed: Mar ch 16, 2011

11