                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

 TOMMY L. EAVES,                                  §
                                                                   No. 08-07-00284-CV
                   Appellant,                     §
                                                                      Appeal from the
 v.                                               §
                                                                 County Court at Law No. 5
 UNIFUND CCR PARTNERS,                            §
                                                                  of Dallas County, Texas
                   Appellee.                      §
                                                                   (TC# CC-06-13251-E)
                                                  §

                                           OPINION

       Tommy L. Eaves appeals the jury’s verdict against him in Unifund CCR Partners (“Unifund

Partners”) suit to collect unpaid credit-card debt. We affirm.

                                         BACKGROUND

       Citibank issued an AT&T credit card to Eaves, and Eaves made purchases with the card.

Subsequently, Eaves defaulted on the account in the amount of $7,570.55, and Citibank sold the

account to Unifund Portfolio. Unifund Portfolio assigned the rights to collect the debt, including

litigation, to Unifund Partners. Unifund Partners notified Eaves of the past due amount, including

interest, and that the account was due to be paid in full. It later filed suit alleging open and stated

account, breach of contract, and quantum meruit. Eaves moved for partial summary judgment,

contending that the suit was barred on principles of sworn account and quantum meruit. The trial

court found that Unifund Partners’ claim was not for a sworn account and granted Eaves’ motion

solely as to Unifund Partners’ quantum-meruit claim. The case then proceeded to trial, and the jury,

solely deciding the case on Unifund Partner’s open-account theory, found Eaves liable for the debt,

and that Unifund should collect $12,386.57, which included the defaulted amount plus interest.
                                            STANDING

       Eaves, contending that Unifund Partners lacked standing, first challenges the trial court’s

subject-matter jurisdiction over the suit. According to Eaves, there was no evidence that Unifund

Partners owned the debt since Joseph Lutz’s testimony was incompetent and therefore, no evidence,

and neither the bill of sale from Citibank to Unifund Portfolio, nor the subsequent assignment from

Unifund Portfolio to Unifund Partners, referenced his credit-card account.

                                         Standard of Review

       Standing, a necessary component of subject-matter jurisdiction, is a constitutional

prerequisite to maintaining a suit under Texas law. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 444-45 (Tex. 1993). Standing cannot be waived and can, therefore, be raised for the

first time on appeal. Id. at 445-46. Whether a party has standing to pursue a claim is a question of

law reviewed de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

       Standing is a party’s justiciable interest in a controversy. See Nootsie, Ltd. v. Williamson

County Appraisal Dist., 925 S.W.2d 659, 661-62 (Tex. 1996); Town of Fairview v. Lawler, 252

S.W.3d 853, 855 (Tex. App.–Dallas 2008, no pet.). Only the party whose primary legal right has

been breached may seek redress for an injury. Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 249

(Tex. App.–Dallas 2005, no pet.). Without a breach of a legal right belonging to that party, that party

has no standing to litigate. Cadle Co. v. Lobingier, 50 S.W.3d 662, 669-70 (Tex. App.–Fort Worth

2001, pet. denied). In reviewing standing on appeal, we construe the petition in favor of the plaintiff,

and if necessary, review the entire record to determine if any evidence supports standing. See Air

Control, 852 S.W.2d at 446.

                                   Unifund Partners had Standing

       Unifund Partners’ petition, subsequent responses to Eaves’ motions for summary judgment,
and evidence presented at trial alleged that it was the present owner and holder of Eaves’ account

and was entitled to sue to collect the debt. The bill of sale from Citibank to Unifund Portofolio

conveyed good and marketable title to the account, and more importantly, Unifund Portfolio

expressly assigned the rights to collect on the account, including litigation, to Unifund Partners.

Based on this evidence, we find Unifund Partners had standing to sue to collect the debt. See Sprint

Communications Co., L.P. v. APCC Services, Inc., — U.S. —, 128 S.Ct. 2531, 2541-43, 171

L.Ed.2d 424 (2008) (assignee for collection may properly sue on the assigned claim); Cartwright v.

MBank Corpus Christi, N.A., 865 S.W.2d 546, 549 (Tex. App.–Corpus Christi 1993, writ denied)

(assignee, who pled that it was a holder of the note and entitled to sue on it, was entitled to sue to

collect on the note); Schultz v. Aetna Business Credit, Inc., 540 S.W.2d 530, 532 (Tex. Civ.

App.–San Antonio 1976, no writ) (instrument of assignment, which transferred to assignee of

promissory note the right to collect installments and to take all proceedings as might have been taken

by assignor “[a]gainst all other parties, other than the Buyer” and which stated that assignor

guaranteed payment without insisting that assignee “first . . . proceed against Buyer,” gave assignee

the right to sue “Buyers” who executed the note); Kelley v. Bluff Creek Oil Co., 298 S.W.2d 263

(Tex. Civ. App.–Fort Worth 1956) (where assignment of account had transferred all of assignor’s

“right, title and interest” in account “with full power and authority to collect and receipt therefor,”

even though assignment was made as collateral security for assignor’s debt, assignee had sole power

to sue), aff’d in part, and rev’d in part on other grounds, 158 Tex. 180, 309 S.W.2d 208 (1958).

       Nevertheless, Eaves asserts that because the bill of sale did not expressly reference his

account, there was no evidence that Unifund Portfolio ever obtained ownership of his account. The

bill of sale stated that Citibank sold and assigned the title to the “Accounts described in Section 1.2

of the Agreement . . . .” Presumably, that agreement listed Eaves’ account; however, the agreement
was not attached to the bill of sale, nor was it admitted at trial. Although we do not condone

Unifund Partner’s failure to present the agreement listing Eaves’ account, other evidence exists in

the record that suggests Eaves’ account was sold to Unifund Portfolio. Specifically, the affidavits

attached to the pleadings alleged that Unifund Partners had purchased the debt, and a Unifund

statement was admitted into evidence, which noted Eaves account from Citibank, the defaulted

balance, and that he must tender payment to Unifund. Such evidence, at a minimum, supports the

inference that Citibank sold Eaves’ account to Unifund Portfolio, and that Unifund Partners, assignee

of all accounts that Unifund Portfolio “owns or may acquire from time to time” for collection

purposes, had standing to sue to collect the debt. See Air Control, 852 S.W.2d at 446 (in

determining standing, appellate court should construe the pleadings in plaintiff’s favor and, if

necessary, review the entire record to determine whether any evidence supports plaintiff’s standing

to sue).

           Eaves also asserts that we may not consider Lutz’s trial testimony as that testimony was

prohibited by the parol-evidence rule and therefore, is incompetent evidence. Eaves, however, never

raised a parol-evidence objection to any of Lutz’s testimony. Ins. Co. of N. Am. v. Morris, 928

S.W.2d 133, 156 (Tex. App.–Houston [14th Dist.] 1996), aff’d in part & rev’d in part on other

grounds, 981 S.W.2d 667 (Tex. 1998); Dallas Bldg. & Repair v. Butler, 589 S.W.2d 794, 796 (Tex.

Civ. App.–Dallas 1979, writ dism’d w.o.j.); Ward v. Marino, No. 13-00-00784-CV, 2002 WL

253789, at *1-2 (Tex. App.–Corpus Christi Feb. 21, 2002, no pet.) (op., not designated for

publication); Thompson v. Fausto, No. 04-96-00048-CV, 1997 WL 211475, at *3 (Tex. App.–San

Antonio Apr. 30, 1997, no writ) (op., not designated for publication) (cases finding parol-evidence

complaint not preserved when the complaint was not raised in the trial court). Further, we have

relied on the petitions, responses, and exhibits filed and presented at trial in determining standing,
rather than Lutz’s trial testimony.

       Finally, even if we were to consider Lutz’s testimony, we do not find it incompetent under

a legal-sufficiency review, contrary to Eaves’ other assertions raised in his appellate brief. See City

of Keller v. Wilson, 168 S.W.3d 802, 812 (Tex. 2005) (incompetent evidence will not support a

judgment on legal-sufficiency grounds even if the evidence was admitted without objection). Eaves

attacks Lutz’s statements that Unifund Partners owns the debt by focusing on Lutz’s testimony and

assertions in his first and third affidavits, which swore that Unifund Partners purchased the debt from

Citibank, when the bill of sale was actually between Citibank and Unifund Portfolio, a fact Lutz

acknowledged in his second affidavit, and the subsequent assignment of the account from Unifund

Portfolio to Unifund Partners stated that Unifund Portfolio retained title and ownership of the

account. However, Lutz explained that Unifund Portfolio is an umbrella or holding company created

within certain banking restrictions to obtain funds and purchase defaulted accounts. According to

Lutz, Unifund Portfolio, acting as an agent for Unifund Partners, purchased the debt, at Unifund

Partners’ direction, for Unifund Partners. Once the accounts were purchased, Unifund Portfolio

assigned the rights to collect on the accounts, including litigation, to Unifund Partners. Thus, Lutz

concluded that Unifund Partners now owns the account and the right to sue to collect the debt. This

is in accord with the general legal principle that the assignee stands in the shoes of the assignor and

may assert those rights that the assignor could assert. See Gulf Ins. Co. v. Burns Motors, Inc., 22

S.W.3d 417, 420 (Tex. 2000); Jackson v. Thweatt, 883 S.W.2d 171, 174 (Tex. 1994); Equitable

Recovery, L.P. v. Heath Ins. Brokers, 235 S.W.3d 376, 387 (Tex. App.–Dallas 2007, pet. dism’d);

Lavender v. Bunch, 216 S.W.3d 548, 552 (Tex. App.–Texarkana 2007, no writ). In other words,

Lutz’s testimony was not contrary to the other evidence in the record.

       Having determined that Unifund Partners had standing to sue to collect the debt, the trial
court had subject-matter jurisdiction. Eaves’ first issue is overruled.

                                       DIRECTED VERDICT

        Eaves’ second issue alleges the trial court erred by denying his directed verdict on Unifund

Partners’ claims of breach of contract, account stated, and open account. We disagree.

                                          Standard of Review

        A trial court may properly grant a directed verdict if no evidence of probative force raises a

material fact issue. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.

2000). A directed verdict in favor of a defendant may be proper when (1) a plaintiff fails to present

evidence raising a fact issue essential to the plaintiff’s right of recovery, or (2) the plaintiff admits,

or the evidence conclusively establishes, a defense to the plaintiff’s cause of action. See id. We

review a directed verdict under the same standard of review as a legal-sufficiency, or no-evidence

challenge. See Keller, 168 S.W.3d at 823. Accordingly, we consider the evidence in the light most

favorable to the party against whom the verdict was directed, and indulge every reasonable inference

that would support the verdict. Id. We also credit favorable evidence if reasonable jurors could and

disregard contrary evidence unless reasonable jurors could not. Id. at 827; AVCO Corp. v. Interstate

Sw., Ltd., 251 S.W.3d 632, 667 (Tex. App.–Houston [14th Dist.] 2007, pet. denied).

                                          Breach of Contract

        Recovery under a breach-of-contract claim requires proof of four 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 by the plaintiff as a result of the breach. Orix

Capital Mkts., L.L.C. v. Wash. Mut. Bank, 260 S.W.3d 620, 623 (Tex. App.–Dallas 2008, no pet.).

In this case, the evidence showed that Eaves opened the account with Citibank, used the account to

buy goods and services, and promised to pay for the account, but failed to do so. The card
agreement, which noted the terms, interest rates, and other charges, was admitted into evidence at

trial and provided that the agreement was binding unless Eaves cancelled the account within 30 days

and did not use the card. The evidence also showed that Unifund Portfolio purchased the account

from Citibank and was therefore, entitled to payment. Unifund Portfolio further assigned the account

to Unifund Partners for collection purposes. Account statements, including one from Unifund,

specifically identified the account number and Eaves’ name and address. Account statements, an

account summary, and supporting affidavits established the amount due on the account as of the date

of default, the date of the last payment, and the application of payments to the outstanding balance.

       Based on this evidence, the trial court could have determined that a valid contract existed

between Citibank and Eaves, that Citibank tendered performance by allowing Eaves to use the card

for purchases, that Eaves purchased goods and services with the card, and made payments on the

card, and that Eaves defaulted by failing to pay the outstanding balance of $7,570.55. The trial court

could have further determined that Citibank sold the account to Unifund Portfolio, that Unifund

Portfolio assigned the account to Unifund Partners for collection purposes, and that Unifund Partners

was entitled to collect the debt. Accordingly, the trial court did not err by denying Eaves’ motion

for directed verdict based on allegations that Unifund Partners failed to prove a breach of contract.

See Gellatly v. Unifund CCR Partners, No. 01-07-00552-CV, 2008 WL 2611894, at *5-6 (Tex.

App.–Houston [1st Dist.] July 3, 2008, no pet.) (mem. op., not designated for publication) (deemed

admissions that established the existence of a contract between card holder and Unifund’s

predecessor in interest, that Unifund’s predecessor in interest performed on the contract, that

Unifund now owns the debt, that card holder breached the contract by failing to make payments, and

that Unifund’s predecessor in interest and, therefore, Unifund were damaged by card holder’s failure

to pay sufficient to establish breach of contract).
                                           Stated Account

       A party is entitled to relief for a stated account where (1) transactions between the parties

give rise to indebtedness of one to the other; (2) an agreement, express or implied, between the

parties fixes an amount due, and (3) the one to be charged makes a promise, express or implied, to

pay the indebtedness. Dulong v. Citibank (South Dakota), N.A., 261 S.W.3d 890, 893 (Tex.

App.–Dallas 2008, no pet.); Neil v. Agris, 693 S.W.2d 604, 605 (Tex. App.–Houston [14th Dist.]

1985, no writ); McFarland v. Citibank (South Dakota), N.A., No. 10-07-00277-CV, — S.W.3d —,

2009 WL 1693406, at *3 (Tex. App.–Waco June 17, 2009, no pet.) (not yet reported). Again, the

evidence showed that Citibank issued a credit card to Eaves, that Eaves used the credit card to make

purchases, and that Eaves made payments on the account. The card-member agreement was

admitted into evidence and provided that Citibank would allow Eaves to purchase goods and services

with credit in exchange for payment. Further, the record showed that Eaves defaulted on the account

and owed over $7,570.55, plus interest. Based on the card-member agreement and Eaves’ usage of

the credit card, we may reasonably infer that he impliedly agreed to pay a fixed amount equal to the

purchases and cash advances he made, plus interest. See Dulong, 261 S.W.3d at 894; McFarland,

2009 WL 1693406, at *3-4 (cases holding creditor could collect debt on account stated where, based

on the series of transactions reflected on the account statements, creditor established that card holder

agreed to the full amount shown on the statements and impliedly promised to pay the indebtedness).

Further, because the evidence also showed that Eaves’ account was purchased by Unifund Portfolio

and that Unifund Portfolio assigned the rights to collect on the account to Unifund Partners, Eaves

has not shown that Unifund Partners could not bring a cause of action on a stated account. Butler

v. Hudson & Keyse, L.L.C., No. 14-07-00534-CV, 2009 WL 402329, at *3 (Tex. App.–Houston

[14th Dist.] Feb. 19, 2009, no pet.) (mem. op., not designated for publication) (holding assignee
could collect debt on stated account). Accordingly, the trial court did not err in denying Eaves’

motion for directed verdict on Unifund Partners’ failure to prove its stated-account claim.

                                                  Open Account

         The elements of an open account include transactions between the parties, creating a creditor-

debtor relationship through the general course of dealing, with the account still being open, and with

the expectation of further dealing.1 Livingston Ford Mercury, Inc. v. Haley, 997 S.W.2d 425, 427

(Tex. App.–Beaumont 1999, no writ) (“As used in the statutes of this state, in act referred to, we

believe that the word ‘account’ is used in its popular sense, rather than in a technical sense, and that

it applies to transactions between persons in which, by sale upon the one side and purchase upon the

other, the title to personal property passes from the one to the other, and the relation of debtor and

creditor is thereby created by general course of dealing . . . .”), quoting McCamant v. Batsell, 59 Tex.

363, 367-69 (1883). As noted before, Citibank issued a credit card to Eaves, Eaves used the credit

card to make purchases, and Eaves made payments on the account. Therefore, the record not only

reflects transactions between the parties through the course of dealing, but also a creditor-debtor

relationship between Citibank and Eaves, which was extended to Unifund Portfolio and Unifund

Partners when Eaves’ account was subsequently sold to Unifund Portfolio with the rights to collect

on the account assigned to Unifund Partners.

         We further find that the account was still open with the expectation of further dealing. Eaves

contends that those elements are not met as Lutz testified that Unifund Partners does not currently


         1
            Eaves did not contend in his motion for directed verdict or in his appellate brief that the open account
was a suit on a sworn account, which is prohibited in credit-card collection cases. See Dulong, 261 S.W .3d at 894;
Williams v. Unifund CCR Partners, 264 S.W .3d 231, 234 (Tex. App.–Houston [1st Dist.] 2008, no pet.); Sherman
Acquisition II LP v. Garcia, 229 S.W .3d 802, 807 (Tex. App.–W aco 2007, no pet.); Tully v. Citibank (South
Dakota), N.A., 173 S.W .3d 212, 216 (Tex. App.–Texarkana 2005, no pet.); Bird v. First Deposit Nat’l Bank, 994
S.W .2d 280, 282 (Tex. App.–El Paso 1999, pet. denied); Hou-Tex Printers, Inc. v. Marbach, 862 S.W .2d 188, 190
(Tex. App.–Houston [14th Dist.] 1993, no writ). Therefore, we do not reach that issue and assume that a collection
agency may sue to collect a credit-card debt on an open-account theory.
hold an open account for him, and that there was no expectation that Unifund Partners would ever

loan him a dime. At its core, Eaves’ argument would force creditors to keep credit available to

nonpaying debtors and allow those debtors to continue debiting their accounts after having defaulted.

We decline to accept Eaves’ argument.

        Black’s Law Dictionary defines an open account as “[a]n unpaid or unsettled account,” or

“[a]n account that is left open for ongoing debit and credit entries by two parties and that has a

fluctuating balance until either party finds it convenient to settle and close, at which time there is a

single liability.” See Black’s Law Dictionary 21 (9th Ed. 2009). Once a debtor defaults on his

account, although the debtor may not be able to withdraw on the account, his obligation to pay still

remains. Here, although Eaves defaulted on his account with Citibank, he still maintained his

obligation to pay the debt; therefore, the account was still open with the expectation of further

dealings, that is, that Eaves would tender the amount owed. Accordingly, the trial court did not err

in denying Eaves’ motion for directed verdict on Unifund Partners’ failure to prove its open-account

claim. Eaves’ second issue is overruled.

                                       FINAL JUDGMENT

        Eaves’ final issue contends that the trial court erred by signing the final judgment on the

jury’s verdict because “[n]o reasonable juror could have found that [Unifund Partners] owned the

debt upon which it sued . . . .” Eaves’ complaint, however, consists of only three conclusory

sentences unsupported by any legal analysis or authority addressing arguments identical or analogous

to that uttered at bar. His third issue, therefore, is inadequately briefed. See TEX . R. APP . P. 38.1;

Sterling v. Alexander, 99 S.W.3d 793, 799 (Tex. App.–Houston [14th Dist.] 2003, pet. denied) (issue

inadequately briefed when party failed to make proper citations to authority or the record and in

failing to make a cogent argument); Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex.
App.–Houston [1st Dist.] 2002, no pet.) (issue inadequately briefed when party did little more than

summarily state his point of error, without citations to legal authority or substantive analysis).

Further, Eaves did not file a judgment non obstante verdicto or motion for new trial contending that

the jury’s finding was against the overwhelming weight of the evidence. Accordingly, Eaves’ third

issue is not preserved for our review. See TEX . R. CIV . P. 324(b)(3); Darryl v. Ford Motor Company,

440 S.W.2d 630, 633 (Tex. 1969); Moore v. Kitsmiller, 201 S.W.3d 147, 152 (Tex. App.–Tyler

2006, pet. denied) (requiring complaining party to file a motion for new trial before appellate court

may address factual sufficiency).

                                         CONCLUSION

       Having overruled Eaves’ three issues, we affirm the judgment of the trial court.




                                              GUADALUPE RIVERA, Justice

November 18, 2009

Before Chew, C.J., McClure, and Rivera, JJ.
