      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00274-CV



                                    Judson E. Ekpe, Appellant

                                                  v.

                                      CACH, LLC, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
        NO. D-1-GN-07-002746, HONORABLE JEFF L. ROSE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Judson E. Ekpe appeals a final summary judgment awarding damages and

attorney’s fees to appellee CACH, LLC on claims that Ekpe breached a Bank of America credit-card

agreement that was later sold and assigned to CACH. The judgment also dismissed a “counterclaim”

Ekpe had asserted. In three issues, Ekpe asserts that the district court erred because (1) CACH failed

to meet its summary-judgment burden to conclusively establish either the existence of the credit-

card agreement on which its claims were predicated or that Ekpe breached it; (2) CACH failed to

meet its burden as to its “standing” to enforce that agreement as Bank of America’s assignee; and

(3) CACH did not present grounds that could support summary judgment as to Ekpe’s counterclaim.

While we conclude that the district court properly granted summary judgment on CACH’s claims

against Ekpe, we must reverse its judgment and remand as to Ekpe’s counterclaim.
                                         BACKGROUND

               It is undisputed that a few years ago Bank of America entered into an agreement

with Ekpe to provide him a credit card account, that Ekpe incurred charges on that account, and that,

at the time Ekpe incurred the charges material to this appeal, Bank of America had designated the

account with a number that ended in 9902. In August 2007, CACH sued Ekpe alleging that Ekpe

had incurred charges on the account, that Ekpe had failed to repay the charges in accordance with

terms of the account agreement, and that CACH had subsequently been assigned the agreement and

debt from Bank of America. CACH sought to recover the sums it alleged Ekpe owed on the account,

interest, and attorney’s fees. Ekpe responded with a pro se pleading joining issue with CACH’s

allegations. He also asserted a “counterclaim” that, while in large part merely joined issue with

CACH’s allegations, also included some affirmative factual allegations and sought damages for

various claimed forms of emotional distress.

               CACH filed a motion for summary judgment on its affirmative claims and

to “dismiss” Ekpe’s counterclaim. In support, CACH attached summary-judgment evidence that

included account statements and other documentation that purported to pertain to Ekpe’s account.

CACH timely supplemented this evidence several times. Ekpe filed a response in opposition to

CACH’s motion and also what he styled as his own “motion for summary judgment” that chiefly

took issue with CACH’s motion and proof. Ekpe likewise filed a motion for summary judgment

as to his counterclaim. Ekpe did not, however, present any summary-judgment evidence either in

opposition to CACH’s motion or in support of his own, nor did he ever obtain a hearing on

his motions.



                                                 2
                 Following a hearing solely on CACH’s motion, the district court rendered

final judgment awarding CACH $26,006.31 as the balance that had been due on the account

(representing charges Ekpe had incurred plus accrued interest, less any payments made by Ekpe) as

of the date Bank of America had sold the account to CACH, another $19,136.51 in interest that had

accrued thereafter until the date of the order, $10,775.48 in attorney’s fees, and $350 in court costs.

The district court also “dismissed with prejudice” Ekpe’s “alleged counterclaim.” Subsequently,

Ekpe retained counsel, who filed a motion for new trial that was overruled by operation of law. This

appeal ensued.


                                            ANALYSIS

                 Ekpe’s first two issues challenge the district court’s summary judgment as to

CACH’s breach-of-contract claims. We review the district court’s summary judgment de novo.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Summary judgment is proper when there are no

disputed issues of material fact and the movant is entitled to judgment as a matter of law. Tex. R.

Civ. P. 166a(c); Knott, 128 S.W.3d at 215-16. When reviewing a summary judgment, we take as

true all evidence favorable to the non-movant, and we indulge every reasonable inference and

resolve any doubt in the non-movant’s favor. Valence Operating Co., 164 S.W.3d at 661; Knott,

128 S.W.3d at 215.

                 To obtain summary judgment on its own affirmative claims, as CACH seems to

acknowledge, it bore the “traditional” summary-judgment burden of establishing its entitlement

to judgment as a matter of law by conclusively establishing each element of its breach-of-contract


                                                  3
cause of action. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000)

(per curiam) (citing Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999); Oram

v. General Am. Oil Co., 513 S.W.2d 533, 534 (Tex. 1974) (per curiam)). To prevail on its breach-of-

contract cause of action, CACH had to prove the following essential elements: (1) the existence of

a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the contract

by the defendant, and (4) damages sustained as a result of the breach. Winchek v. American Express

Travel Related Servs. 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 burden would have shifted to Ekpe to file a

timely written response presenting grounds for denying summary judgment. See City of Houston

v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Grounds that Ekpe did not expressly

present to the trial court by written response cannot be considered as grounds for reversal on appeal.

Tex. R. Civ. P. 166a(c); Clear Creek Basin Auth., 589 S.W.2d at 678. CACH’s motion must stand

on its own merits, however, and thus Ekpe is not precluded from contending for the first time

on appeal that the grounds presented in CACH’s motion were legally insufficient to entitle

it to summary judgment. Rhône-Poulenc, 997 S.W.2d at 223 (citing Clear Creek Basin Auth.,

589 S.W.2d at 678). Additionally, CACH bears the burden on appeal of showing that there is

no genuine issue of material fact and that it is entitled to judgment as a matter of law. See id. Ekpe,

as previously noted, did not present summary-judgment evidence in an attempt to raise fact issues.

To challenge the summary judgment on appeal, Ekpe focuses his efforts on attacking the

legal sufficiency of CACH’s motion.

               In his second issue, Ekpe argues that CACH’s summary-judgment proof fell short of

conclusively establishing either the existence of the credit-card agreement on which the judgment

                                                  4
was predicated or that he breached that agreement. As Ekpe acknowledges, CACH’s summary-

judgment proof included a document titled “Visa or Mastercard Cardmember Agreement” that

set forth various terms, including the interest rate and fees Bank of America would charge and

its monthly minimum payment requirements. However, observing that this Agreement contains

no reference either to him or his account number, Ekpe asserts that CACH failed to conclusively

prove that it supplied the terms of the particular credit-card agreement he had with Bank of America.

We disagree.

               Among other evidence, CACH presented the affidavit of Maria Hwang, a

CACH authorized agent and records custodian who averred that she had personal knowledge of

the record-keeping practices of both CACH and Bank of America. Attached to Hwang’s affidavit

were documents that, she indicated, were all related to Ekpe’s account. These documents included

the “Visa or Mastercard Cardmember Agreement.” They also included Bank of America monthly

statements for a credit card account under the name of Judson E. Ekpe, with an account number

ending in 9902, with billing dates beginning on August 13, 2003, through August 13, 2004.1 The


       1
             In regard to this and other documentary proof in the summary-judgment record,
Ekpe complains that CACH’s accompanying business-records affidavits were defective
or insufficient. See Tex. R. Evid. 901(10). He particularly emphasizes that in some affidavits,
CACH representatives, like Hwang, have purported to testify regarding the record-keeping practices
of Bank of America. These are ultimately complaints that the district court abused its discretion
in failing to exclude this evidence. To preserve these sorts of complaints for appellate review, Ekpe
was required to object to the admission of the evidence and obtain a ruling on his objection. See,
e.g., McFarland v. Citibank (S.D.), N.A., 293 S.W.3d 759, 762 (Tex. App.—Waco 2009, no pet.);
Dulong v. Citibank (S.D.), N.A., 261 S.W.3d 890, 893 (Tex. App.—Dallas 2009, no pet.). Ekpe
insists on appeal that we should construe his filings below to contain what are in substance
objections to the defects he perceives in CACH’s business-records affidavits. Assuming that such
objections were indeed raised, we can find no indication in the record that Ekpe ever obtained
a ruling on them, nor does Ekpe refer us to any. Consequently, any complaints regarding the
admission of CACH’s summary-judgment evidence would not be preserved for appellate review.

                                                 5
account statements also referenced various terms of the Agreement and reflected that Ekpe used the

credit card (constituting acceptance of its terms and conditions2), made some payments, but ceased

to make further payments after February 2004.

                Ekpe also argues that CACH’s own summary-judgment evidence raised fact issues

as to whether he had two separate accounts with Bank of America—one ending in 9902, the other in

6239—such that CACH failed to conclusively establish which account it purchased and the amount

owed on it. Ekpe relies primarily on a statement in a June 26, 2008 affidavit of a Bank of America

officer, Vicki Kyle, who averred, “[A]ccount number [redacted]6239 was opened on 1/06/07

by JUDSON E. EKPE.”3 This statement, in Ekpe’s view, is an assertion that Ekpe’s account was

identified by a number ending in 6239 at the time he opened it in 1997, thus creating “discrepancies”

or “contradictions” with CACH’s proof regarding Ekpe’s account ending in 9902. Similarly, Ekpe

argues that there are “discrepancies” between the total outstanding balance for account 9902 shown

on the final, August 13, 2004, Bank of America account statement—$12,258.69—and evidence that

the outstanding balance on an account designated 6239 was $26,006.31 at the time it was sold and

assigned to CACH. However, the inferences that Ekpe would draw of “conflicts” or “discrepancies”



Tex. R. App. P. 33.1(a)(2). In any event, we note that this Court and others have recognized that a
witness may have personal knowledge and competence to testify regarding the record-keeping
practices of a person other than his or her employer. 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); Damron
v. Citibank (S.D.) N.A., No. 03-09-00438-CV, 2010 Tex. App. LEXIS 7054, *9-12
(Tex. App.—Austin Aug. 25, 2010, pet. denied).
        2
            See Jones v. Citibank, N.A., 235 S.W.3d 333, 338-39 (Tex. App.—Fort Worth 2007,
no pet.).
        3
         Ekpe also refers to other claimed “discrepancies” in documentation relating to the account,
but these documents were not included or incorporated in the summary-judgment record.

                                                 6
in CACH’s summary-judgment proof are not reasonable when the evidence on which Ekpe relies

is considered in context with other uncontroverted summary-judgment evidence. See City of Keller

v. Wilson, 168 S.W.3d 802, 811-12 (Tex. 2005) (discussing contextual evidence). Hwang, among

others, testified that the account number for Ekpe’s account was changed from 9902 to 6239 after

Bank of America charged it off and sold it to CACH in 2006. Considered in this context, Kyle’s

statement is referring to the account designated by number 6239 at the time of her 2008 affidavit,

which, Hwang’s testimony makes clear, is the same account that had previously been numbered

9902. And, as for the difference between the amount due on the August 2004 statement and the

amount at the time of the account’s October 2006 assignment, this is accounted for, as CACH

observes, by interest that continued to accrue in the meantime. We overrule Ekpe’s second issue.

               In his third issue, Ekpe urges that CACH failed to meet its burden to conclusively

establish that it had acquired Bank of America’s rights in his credit-card account and thereby

had “standing” to assert them. Ekpe points to a document included in CACH’s summary-judgment

evidence, an October 30, 2006, “Bill of Sale” between Bank of America and CACH that incorporates

both an attached list of accounts (which included an account of “Ekpe, Judson E.,” in the amount

of $26,006.31, with a “placement date” of November 3, 2006) and the terms of a “Forward

Flow Agreement,” which was not attached. In addition to re-uging the arguments regarding

“discrepancies” between account numbers and outstanding balances that we have already rejected,

Ekpe contends that CACH’s failure to attach the “Forward Flow Agreement” and “discrepancies”

between the various dates appearing in these documents leaves fact issues as to whether CACH

actually purchased the credit-card account it purported to sue on. We disagree. CACH presented

uncontroverted testimony from Hwang and Kyle, among others, that Bank of America sold

                                                7
Ekpe’s account to CACH on October 30, 2006, and that CACH now owns the debt. No material

facts regarding CACH’s “standing” remained for resolution. See Eaves v. Unifund CCR Partners,

301 S.W.3d 402, 405 (Tex. App.—El Paso 2010, no pet.). We overrule Ekpe’s third issue.

                Ekpe’s remaining issue, his first issue, challenges the district court’s dismissal of

his counterclaim. In the first paragraph of his counterclaim, Ekpe pled that evidence he intended to

elicit with accompanying discovery requests “will aid in establishing That CACH, LLC acting for

bank of America may have fraudulently prepared and Submitted a false documents to this court with

the intension that this court will rely On the false document to the detriment of Judson E. Ekpe

[sics].” Then, following pleadings addressing the applicable discovery control plan, jurisdiction, and

venue, Ekpe pled six “facts.” While most of these “facts” merely joined issue with various CACH

allegations, Ekpe did make the following affirmative allegations:


•      “Counterclaim defendant’s actions amount to extortion.”

•      “Counterclaim defendant harrassments continued even after their suit was filed [sic].”4




       4
           Ekpe’s other “facts” were (sic throughout):

•      “Counterclaim plaintiff disputes that bank of America authorized this action by Delegating
       authority to CACH, LLC, and demands strict proof.”

•      “Counterclaim defendant[’]s only evidence to support their claims against counterclaim
       Plaintiff is their status as a bill collector that wants make money by any means.”

•      “Counterclaim plaintiff disputes that he owes bank of America money as presented By bill
       collector CACH, LLC, demands strict proof.”

•      “Counterclaim defendant cannot state weather this account was issued only in Response to
       an application. proof demanded.”

                                                  8
Ekpe further alleged that he had incurred damages “as a result of counterclaim Defendant’s conduct,”

including various forms of “emotional distress” and physical manifestations of it.

               In the sole portion of its motion addressed to Ekpe’s counterclaim, CACH asserted:


       6.      Defendant’s Counterclaim. Defendant’s counterclaim is unsubstantiated and
               no material and/or documentary evidence has been produced to the Plaintiff
               supporting Defendant’s counterclaim allegations. Plaintiff currently has a
               Motion to Compel and Motion for Sanctions pending in this honorable Court
               against Defendant’s failure to timely respond to discovery requests sent to
               Defendant . . . . Defendant’s willful disregard to properly respond to
               discovery requests shows a lack of Defendant’s conviction, and the fact there
               is absolutely no evidence to support the allegations along with Defendant’s
               failure to respond to discovery requests, Defendant’s Counterclaim should be
               dismiss[ed] as to the Plaintiff, CACH, LLC.


Although this paragraph suggests in part that CACH was seeking dismissal as a discovery sanction,

the parties appear to concur that the district court’s judgment of dismissal can stand only if

the paragraph is construed as a no-evidence summary-judgment challenge. Ekpe argues that to the

extent CACH was asserting a no-evidence challenge, the challenge was legally insufficient because

it did not identify the essential element or elements that CACH was challenging. See Tex. R. Civ.

P. 166a(i) (“The motion must state the elements as to which there is no evidence.”); id. at

Comment—1997 (“The motion must be specific in challenging the evidentiary support for an

element of a claim or defense; paragraph (i) does not authorize conclusory motions or general no-

evidence challenges to an opponent’s case.”). We agree with Ekpe.

               At most, CACH’s motion asserted a broad no-evidence summary-judgment

challenge to anything and everything that Ekpe was alleging in his counterclaim—the sort of

“general no-evidence challenge[] to an opponent’s case” that rule 166a(i) squarely prohibits. Id.


                                                 9
at Comment—1997. It may well be questionable whether Ekpe has pled any viable causes of action

in his counterclaim (although he urges on appeal that his factual allegations can be construed to

implicate several different causes of action). Regardless, it remains that CACH purports to have

challenged Ekpe’s pleading through a no-evidence summary-judgment motion rather than through

other procedural mechanisms that might be more appropriate.5 By doing so, CACH bound itself to

comply with rule 166a(i)’s requirements. It did not comply.

                CACH does not appear to contend otherwise. Instead, it responds that Ekpe

waived any complaint with the “specificity” of its no-evidence challenge by failing to object or

specially except below. Although some prior opinions of this Court and others have suggested that

a complaint with the “specificity” of a no-evidence motion must be preserved by objection or

special exception in the trial court,6 the Texas Supreme Court has more recently indicated that the

failure to specify the essential elements being challenged or making “general no-evidence challenges

to an opponent’s case,” amounts to the omission of the no-evidence challenges as summary-

judgment grounds—a matter going to the legal sufficiency of the motion. 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-

CV, 2010 Tex. App. LEXIS 9540, *4 n.1 (Tex. App.—Austin Dec. 1, 2010, no pet.) (mem. op.)

(citing Gish and holding that no-evidence motion’s failure to specify elements of claim being

challenged rendered motion “defective and insufficient to support summary judgment”).



       5
           E.g., special exceptions.
       6
          See Leifester v. Dodge Country, Ltd., No. 03-06-00044-CV, 2007 Tex. App. LEXIS 790,
at *9 n.3 (Tex. App.—Austin Feb. 1, 2007, no pet.) (mem. op.) (compiling cases and noting “split
of authority on this issue” among courts of appeals).

                                                10
Consequently, Ekpe’s complaint can be raised for the first time on appeal. Rhône-Poulenc,

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

                Accordingly, because CACH did not present grounds that could support

summary judgment as to Ekpe’s counterclaim, we must reverse the portion of the district court’s

judgment dismissing that claim. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341

(Tex. 1993) (“A [summary-judgment] motion must stand or fall on the grounds expressly presented

in the motion.”); see also Damron v. Citibank (S.D.) N.A., No. 03-09-00438-CV, 2010 Tex. App.

LEXIS 7054, *17 (Tex. App.—Austin Aug. 25, 2010, pet. denied) (in similar suit to recover credit-

card debt, reversing summary judgment on debtor’s counterclaim where creditor’s motion had failed

to address it). We sustain Ekpe’s third issue.


                                         CONCLUSION

                We affirm the district court’s summary judgment as to CACH’s claims against Ekpe.

However, we reverse its judgment dismissing Ekpe’s counterclaim and remand that portion of

the cause for further proceedings. We express no opinion as to the ultimate viability of Ekpe’s

counterclaim.



                                                 __________________________________________

                                                 Bob Pemberton, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Affirmed in part; Reversed and Remanded in part

Filed: March 16, 2011


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