Appeal Reversed, Rendered, and Remanded; Opinion Filed December 7, 2012.




                                              In The
                                        Q1ourt of ppeat
                           jTiftj itritt of cxa at afta
                                        No. 05-i1-00154-CV

                      CITIBANK (SOUTH DAKOTA), N.A., Appellant

                                                   V.

                                 RANDY E. DURDEN, Appellee

                       On Appeal from the 68th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DC-09-09657


                             MEMORANDUM OPINION

                          Before Justices Moseley, Fillmore, and Myers
                                  Opinion By Justice Moseley

       Following a jury trial in this debt collection case, the court rendered a take-nothing

judgment    on    plaintiff/appellant   CitiBank        (South   Dakota),   N.A,’s   claims   against

defendant/appellant Randy Durden and awarded Durden attorney’s fees. In six issues, CitiBank

contends the trial court erred by (1) rendering a take-nothing judgment, (2) rendering a final

judgment on conflicting jury answers, (3) awarding Durden injunctive relief, (4) awarding

attorney’s fees directly to Durden’s counsel, and (5) failing to award attorney’s fees to CitiBank.

in its sixth issue CitiBank argues that those errors were harmful. Because the facts are well

known to the parties and the law is well established, we issue this memorandum opinion. See
TEx. R. App. P. 47.1. We reverse and render judgment in favor of CitiBank. We remand tor the

determination of pos[-)udgment interest.

       Durden acquired a Citil3ank credit card in 200!. lIe made charges on the card, received

statements, and made payments on the account until August of 2008 when he stopped making

payments. CitiBank continued to mail statements without receiving a response from I)urden.

CitiBank sent a written demand letter on May 1 5, 2009, which included the last account

statement and demanded payment of the amount owed. No evidence was presented in the trial

court that showed any attempt by Durden to dispute his receiving the statements, the amount

owed as shown in the statements, or any evidence that he challenged the contents of the

statements.

       After negotiations broke down between a debt settlement company employed by Durden

and CitiBank, this lawsuit was commenced. The jury found that Durclen owed $23,658.21 on his

CitiBank credit card account but found that CitiBank was not damaged by Durden’s failure to

comply with his credit card account. The jury further found that, although CitiBank had not yet

violated the Texas Debt Collection Act, it would do so in the future if not enjoined by the court.

The court also awarded Durden $5,200 for attorney’s fees.

                                  DEBT CoLLEcTIoN CLAIMs

       We decide issues one and two—those relating to the jury’s finding of no damages on

CitiBank’s debt collection claims—together.

A. Standard of Review

       To evaluate the legal sufficiency of the evidence to support a finding, we must

“determine whether the proffered evidence as a whole rises to a level that would enable

reasonable and fair-minded people to differ in their conclusions.” Transp. Ins. Co. v. Moriel,

879 S.W.2d 10, 25 (Tex. 1994); see also St. Joseph Hosp. v. Wolff 94 S.W.3d 513, 519 (Tex.
2002) (plurality op.). We view the evidence in the light most favorable to the finding, crediting

favorable evidence if a reasonable fact-finder could, and disregarding contrary evidence unless a

reasonable fact-finder could not, City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

         To evaluate the factual sufficiency of the evidence to support a finding, we consider all

the evidence and set aside the finding only if the evidence supporting it is so weak or so against

the overwhelming weight of the evidence that the finding is clearly wrong and unjust. See Cain

v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.

1985).

B. Applicable Law

         To prove it was entitled to relief under its account-stated claim, CitiBank was required to

show (I) transactions between it and Durden gave rise to the indebtedness, (2) an agreement,

express or implied, between the parties that fixed the amount due, and (3) Durden made an

express or implied promise to pay the indebtedness. See Dulong v. CitiBank (S.D.), NA., 261

S.W.3d 890, 893 (Tex. App.—Dallas 2008, no pet.). CitiBank was not required to produce a

written agreement if it produced other evidence of an agreement between the parties because an

account-stated claim can be based on either an express or an implied agreement. Compton v.

CitiBank (S.D.), W.A., 364 S.W.3d 415, 418 (Tex. App.—Dallas 2012, no pet.). An agreement to

the amount owed can be implied from proof that account statements were sent to the defendant,

the defendant made charges and payments on the account, fees and interest were assessed on the

account, and the defendant retained credit card statements reflecting the fees and charges on the

account without disputing them. See id.; Hays v. CitiBank (S.D.), N.A., 05-11-00187-CV, 2012

WL 929673, at *3 (Tex. App.—Dallas Mar. 16, 2012, no pet.) (mem. op.).
C. Discussion

           Here, the evidence was undisputed that Durden entered into an agreement with CitiBank

by using the provided credit card for various transactions and account transfers. Durden testified

he had received the card, used the card regularly, received the statement at issue, and had not

contested it. As a matter of law, Durden’s receipt and retention of the credit card statement

without complaint implies both an agreement to the amount stated on the statement and an

agreement to repay the amount owed. See Compton, 364 S.W.3d at 418; Dulong, 261 SAV.3d at

894. Durden offered no evidence that could be construed by a reasonable juror as contesting any

of the elements making up CitiBank’s account-stated claim.
                                                    1

           Because CitiBank established its right to a favorable judgment under an account-stated

theory as a matter of law, we sustain CitiBank’s first and second issues, reverse the take-nothing

judgment, and render judgment for CitiBank for damages in the amount of $23,658.21.

                                                 DURDEN’S ATToRNEY’s FEES

           In its third issue, CitiBank argues the trial court erred by rendering judgment in favor of

Durden and awarding attorney’s fees to him under the Texas Protection of Consumers of

Financial Services chapter of the finance code or, alternatively, under the Uniform Declaratory

Judgments Act.
          2

A. Applicable Law

           “[A] person who successfully maintains an action under Subsection (a) is entitled to

attorney’s fees reasonably related to the amount of work performed and costs.” TEX. FIN. CODE

ANN.     § 392.403(b) (West 2006). In order to be awarded attorney’s fees under the Texas Debt

        CitiBank claimed in its motion to reform the judgment that in post-verdict interviews, several jurors expressed confusion regarding the
outcome of the case. They believed their answer of “none” to the damages question only applied to extra damages, ic. emotional damages or
other similar non-economic damages suffered by CitiBank, They believed their entering of $23,658.21 for the “amount owed” question awarded
that amount to CitiBank on its debt collection claim. A review of the record shows that a statement by defendant during closing argument
intimated that this was the correct interpretation of the jury questions.
        We do not discuss CitiBank’s fourth issue—the award of attorney’s fees directly to Durden’s counsel—because the issue is mooted by our
disposition of CitiBank’s third issue.



                                                                    -4-
(‘ollec tion Act, the underlying stilt for injunction must be success t’ul. Sec Marauder C’op. v.

Ben/I, 301 S.W.3d $17. $23 (Te. App.-- -Dallas 2009. no pet.).

        A declaratory judgment is a remedial   action   that determines the rights of’ the parties and

affords relief from uncertainty with respect to rights, status, and legal relations, TEX. Civ. PRAC.

& REM. CoDE ANN.       § 37.002 (West 2008); Tucker v. Graham, 878 S.W.2d 681, 683 (Tex.
App.—Eastland 1994, no writ). Thus. “a court ot record, within its jurisdiction has power to

declare rights, status, and other legal relations whether or not further relief could he claimed.”

TEx. Civ. PRAC. & REM. CODE ANN.         § 37.003(a). A declaratory      judgment is not available,

however, to settle legal disputes already pending before the court.         BliP Petroleum Co. v.

Millard, 800 S.W.2d $38, $41 (Tex. 1990). This nile applies when a plaintiffs cause of action is

mature and enforceable and the pending suit involves the same parties and the same issues

involved in the declaratory judgment action. Tucker, 878 S.W.2d at 683.

B. Discussion

        Here, Durden counterclaimed for statutory damages for harassing debt collection calls

and for an injunction to stop future calls. The jury found that although CitiBank had not yet

harassed Durden, it would do so in the future if not enjoined. In the original judgment, the trial

court entered an injunction against future harassing phone calls. However, following CitiBank’s

motion to modify the judgment, the court modified the judgment to remove the injunction

against Citil3ank.

       Because no injunction was granted and Durden received no other favorable relief under

the Texas Debt Collection Act, there is nothing to support an award of attorney’s fees in his

favor under the Texas Finance Code. See Beau, 301 S.W.3d at 823. Furthermore, the attorney’s

fees cannot be supported by the declaratory judgment requested in Durden’s third amended

counterclaim. Durden sought a declaratory judgment to determine his level of debt, the rate of
interest on the card, the minimum amounts owed, whether a breach of the credit card agreement

had occurred, and whether he had defaulted. But these were precisely the issues that Citil3ank

presented to the court in its initial lawsuit. Because Durden did not properly raise any matters

not already mature, enforceable, and pending before the court, his declaratory judgment

counterclaim was improper. A party may not seek declaratory relief simply to pave the way to

recover attorney’s fees. See US Bank, ALA. v. Prestige Ford Garland Ltd. P’ship, 170 S.W.3d

272, 278—79 (Tex. App,—DaHas 2005, no pet.); John C’hezik Buick Co. v, Friendly Chevrolet

Co., 749 S.W.2d 591, 594—95 (Tex. App.—Dallas 1988, writ denied).

        Because neither the Texas Debt Collection Act nor the Texas Declaratory Judgment Act

support an award of attorney’s fees to Durden, we sustain CitiBank’s third issue and reverse the

portion of the judgment awarding attorney’s fees to Durden.

                                 CITIBANK’S ATTORNEY’S FEES

        in its fifth issue, CitiBank argues the trial court erred by failing to award it attorney’s

fees.

A. Applicable Law

        Texas Civil Practice and Remedies Code section 38.00 1 authorizes a prevailing party in a

claim based on a sworn account or an oral or written contract to recover attorney’s fees. TEx.

Civ. PRAC. & REM. CoDE ANN.,       §   38.001 (West 2008). A party may recover attorney’s fees

under Chapter 38 based upon an account-stated claim. See Busch v. Hudson & Keyse, LLC, 312

S.W.3d 294, 300 (Tex. App.—Houston [14th Dist.], no pet.). In order to recover attorney’s fees

a party must be represented by counsel and must present the claim to the opposing party. Id. If

the opposing party has not tendered payment within thirty days, the presenting party is entitled to

recover attorney’s fees in addition to the claim. Id.
B. Discussion

       Having reversed the trial court’s judgment in favor of Durden, and rendered judgment in

favor of CitiBank. CitiBank is now the prevailing party. The uncontroverted evidence presented

to the trial court showed that CitiBank presented a claim, including the account statement at issue

and a demand for repayment of the debt owed by Durden, more than thirty days before judgment.

As the prevailing party on an account-stated claim under the Chapter 38, CitiBank is entitled to

attorney’s fees. See Busch, 312 S.W.3d at 300. The jury provisionally answered the question of

CitiBank’s attorney’s fees in question five. The jury decided that a fair and reasonable fee for

CitiBank’s legal representation was $5,384.00 at the trial level and $3,000.00 for a successful

appeal to this Court. As such, we sustain CitiBank’s fifth issue and render judgment awarding

attorney’s fees of $8,384.00 to CitiBank.

                                            CoNcLusioN

       Having found in favor of CitiBank on its account-stated claim, we reverse the trial court’s

judgment and render judgment that Durden take nothing on his counterclaim and that CitiBank

recover from Durden the sum of $23,658.21 plus reasonable and necessary attorney’s fees of

$8,384.00. We remand to the trial court for the determinath5n of pqit-judgment interest.
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                                                     JIM 4OSELEY


1 10l54F.P05




                                               —7—
                                     Qtourt of (ppta1
                          ifuftb   itritt of t!xa at aUa
                                        JUDGMENT

CITIBANK (SOUTH DAKOTA), NA.,                      Appeal from the 68th Judicial District
Appellant                                          Court of Dallas County, Texas (Trial Court
                                                   No. DC-09-09657).
No. 05-1 l-00l54-CV        V.                      Opinion delivered by Justice Moseley,
                                                   Justices Fillmore and Myers participating.
RANDY E. DURDEN, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and judgment is RENDERED that Randy E. Durden take nothing on his counterclaims and that
CitiBank (South Dakota), NA. recover from Randy E. Durden the amount of $23,658.21, plus
reasonable and necessary attorney’s fees in the amount of $8,384.00.               This cause is
REMANDED to the trial court for determination of post-judgment interest. it is ORDERED
that appellant CitiBank (South Dakota), N.A. recover its costs of this appeal from appellee
Randy E. Durden.

Judgment entered December 6, 2012.
