                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-058-CV


PATRICK GILLIS                                                    APPELLANT

                                        V.

MBNA AMERICA BANK, N.A.                                             APPELLEE

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      FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

                                    ------------

      This is a suit to confirm an arbitration award in appellee MBNA America

Bank, N.A.’s favor after appellant Patrick Gillis defaulted on a credit card

account. In two issues, Gillis challenges the summary judgment on the grounds

that (1) the trial court granted summary judgment on a cause of action that was

never pled and (2) appellee’s suit is barred by res judicata. We affirm.



      1
          … See Tex. R. App. P. 47.4.
                                   Background

      On December 28, 2006, appellee sued Gillis in County Court at Law

Number One to confirm an arbitration award of $24,255.87 in appellee’s favor

as a result of Gillis’s defaulting on credit card payments.         Gillis filed an

unverified answer, alleging the affirmative defenses of waiver, laches, and

statute of limitations.   Appellee filed a motion for summary judgment on

October 24, 2007, along with an affidavit and business record showing that

Gillis had failed to timely respond to appellee’s request for admissions; appellee

claimed that it was entitled to summary judgment based on those deemed

admissions.

      In its motion for summary judgment, appellee described the suit as a “suit

on an account, plus interest, attorney’s fees, and costs of court.”         In his

response to the motion, Gillis specially excepted to paragraphs I–IV of the

motion on the ground that appellee never pled a “suit on debt and attorney[’s]

fees” in its original petition. He also resisted summary judgment on that ground

and on the ground that a suit on account was barred by res judicata as it had

already been litigated in the arbitration. Gillis further contended that there is a

genuine issue of material fact as to whether he owed a debt to appellee and

whether the statute of limitations bars appellee’s suit because it had been more

than four years since he incurred the original debt. Finally, Gillis asked for a

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continuance to obtain counsel because he did not understand the discovery

deadlines. However, he did not ask to withdraw the deemed admissions. See

Tex. R. Civ. P. 198.3 (“A matter admitted under this rule is conclusively

established as to the party making the admission unless the court permits the

party to withdraw or amend the admission.”).

      The trial court held a hearing on the motion on December 7, 2007.

Having “considered the pleadings and official records on file in [the] cause,” the

trial court rendered summary judgment for appellee in the amount of

$24,255.87 as the balance due on the account, plus court costs and interest

of 7.5%. The judgment states that it is “appealable and finally disposes of all

parties and all claims in [the] cause of action.”

                                    Analysis

      In his first issue, Gillis contends that the trial court granted summary

judgment on an unpled cause of action, suit on an account. Although pleadings

are not competent summary judgment proof, a motion for summary judgment

must be supported by the pleadings on file, and the final judgment of the court

must conform to those pleadings. Elite Towing, Inc. v. LSI Fin. Group, 985

S.W.2d 635, 641 (Tex. App.—Austin 1999, no pet.); Krull v. Somoza, 879




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S.W.2d 320, 322 (Tex. App.—Houston [14th Dist.] 1994, writ denied).2 A trial

court may not grant a summary judgment on an unpled cause of action.

McDuff v. Chambers, 895 S.W.2d 492, 496 (Tex. App.—Waco 1995, writ

denied).

      Here, the original petition alleges that the parties entered into an

agreement for appellee to extend credit to Gillis, which he agreed to repay

monthly, and that any disputes would be resolved by arbitration. It further

states that appellee “hereby sues [Gillis] for confirmation and enforcement of

an arbitration award entered against [Gillis] which remains unpaid.” Attached

to the petition are a copy of the arbitration award and an affidavit from

appellee’s business records custodian averring that Gillis is “truly and justly

indebted to [appellee] by virtue of a balance due and owing on an arbitration

award entered in favor of [appellee] and against” Gillis.

      Although appellee’s motion for summary judgment does not specifically

state that appellee sought a judgment confirming the arbitration award, it does

contend that appellee is entitled to judgment “as prayed for in [appellee’s]




      2
      … The contentions in the written motion for summary judgment are what
the court must consider in determining whether to grant the motion. City of
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Elite
Towing, 985 S.W.2d at 641; see Tex. R. Civ. P. 166a(c) (“The motion for
summary judgment shall state the specific grounds therefor.”).

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Original Petition.” Specifically, it begins, “This cause is a suit on an account,

plus interest, attorney’s fees, and costs of court, as shown in [appellee’s]

Original [P]etition on file in this cause, which petition is incorporated into this

motion as if set out verbatim herein.”        The motion directs the trial court

specifically to the deemed admissions as the proof supporting appellee’s

entitlement to summary judgment. The deemed admissions include admissions

that appellee obtained an arbitration award against Gillis, that Gillis failed to pay

the award, that Gillis failed to object to or move to vacate the award within

ninety days, and that appellee “should recover judgment as requested in its

pleadings.”   Furthermore, the arbitration award is based on the arbitrator’s

finding that Gillis owed a debt to appellee and the award includes amounts for

attorney’s fees and interest.

      Appellee’s pleadings provide fair notice to Gillis of appellee’s claim:

confirmation of an arbitration award based on a debt owed by Gillis to appellee.

And although appellee’s motion for summary judgment never expressly states

that appellee’s claim is to confirm an arbitration award, it is clear from the

motion that it is based on appellee’s claim in its original petition. See Garner

v. Long, 106 S.W.3d 260, 265 (Tex. App.—Fort Worth 2003, no pet.).

Accordingly, we conclude and hold that the trial court did not err by granting

summary judgment on an unpled cause of action. See id.; Langston v. Eagle

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Pub. Co., 719 S.W.2d 612, 628 (Tex. App.—Waco 1986, writ ref’d n.r.e.) (op.

on reh’g). We overrule Gillis’s first issue.

         In his second issue, Gillis claims that appellee’s suit to confirm the

arbitration award is barred by res judicata. However, Gillis did not file a verified

pleading raising res judicata as an affirmative defense. Accordingly, he failed

to preserve that claim. See Tex. R. Civ. P. 94; Garner, 106 S.W.3d at 264.

Moreover, a suit to confirm a previously litigated arbitration award for the

purpose of transforming that award into an enforceable judgment is expressly

permitted by statute.      See Tex. Civ. Prac. & Rem. Code Ann. § 171.087

(Vernon 2005); Crossmark, Inc. v. Hazar, 124 S.W.3d 422, 429 (Tex.

App.— Dallas 2004, pet. denied).        Accordingly, we overrule Gillis’s second

issue.

                                     Conclusion

         Having overruled Gillis’s two issues, we affirm the trial court’s judgment.




                                               TERRIE LIVINGSTON
                                               JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON, and DAUPHINOT, JJ.

DELIVERED: January 8, 2009


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