                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                               NO. 02-09-00301-CV


DEBORAH OLSON MONTOYA                                               APPELLANT

                                            V.

BLUEBONNET FINANCIAL ASSETS                                          APPELLEE

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            FROM THE 30TH DISTRICT COURT OF W ICHITA COUNTY

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                       MEMORANDUM OPINION                 1




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                                  I. Introduction

      Appellant Deborah Olson Montoya appeals the trial court’s grant of summary

judgment in favor of appellee Bluebonnet Financial Assets. W e affirm in part and

reverse in part.




      1
          … See Tex. R. App. P. 47.4.
                     II. Factual and Procedural Background

      Chase Bank USA, N.A. issued a credit card to Montoya, who made purchases

with the card and subsequently defaulted on her account. On November 3, 2006,

Chase Bank sold the account to CreditMax LLC. CreditMax then sold Montoya’s

account to Bureaus Investment Group Portfolio No. 10, LLC. Bureaus Investment

Group Portfolio No. 10, LLC sold Montoya’s account to Creditor Holdings, LLC d/b/a

Bluebonnet Financial Assets. Bluebonnet then sued Montoya for the unpaid account

balance on September 24, 2008.

      Montoya answered the suit and filed her own counterclaim for a declaratory

judgment, alleging that Bluebonnet’s filing the suit was wrong and was intended to

harass, intimidate, and cause her financial harm; she also filed a counterclaim for

violations of the finance code and the Texas Deceptive Trade Practices Act (DTPA),

as well as intentional infliction of emotional distress.

      Bluebonnet filed a crossclaim, denying the allegations in Montoya’s

counterclaim, alleging that Montoya’s counterclaim was “groundless and brought in

bad faith for purposes of harassment,” and seeking attorney’s fees and court costs.

Bluebonnet also served Montoya with discovery requests, including interrogatories,

requests for admissions, and requests for production of documents and things.

Montoya provided responses to the requests for admissions but did not respond to

Bluebonnet’s other discovery requests. Bluebonnet filed a combined traditional and




                                           2
no-evidence motion for summary judgment on February 18, 2009, which the trial

court granted. Montoya now appeals.

                                   III. Discussion

A. Public policy challenges

      In her first two issues, Montoya argues that, as a matter of public policy, credit

card debt should not be assignable to third-party debt collectors and that debt

collectors should not be able to recover on these delinquent credit card accounts via

the stated account cause of action. Montoya did not raise these issues in the trial

court; instead, she argues them for the first time in this appeal. To preserve a

complaint for appellate review, a party must have presented to the trial court a timely

request, objection, or motion that states the specific grounds for the desired ruling,

if they are not apparent from the context of the request, objection, or motion. Tex.

R. App. P. 33.1(a); see also Tex. R. Evid. 103(a)(1). If a party fails to do this, error

is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W .2d 711,




                                           3
712 (Tex. 1991) (op. on reh’g).2 Because Montoya’s public policy arguments are

unpreserved, we do not address them. We overrule her first and second issues.

B. Bluebonnet’s “Traditional” Motion for Summary Judgment

      In part of her third issue, Montoya argues that Bluebonnet was not entitled to

summary judgment because the evidence did not conclusively establish all essential

elements of its account stated cause of action. In her fourth issue, Montoya claims

that Bluebonnet was not entitled to summary judgment on its quantum meruit claim

because the evidence established that the parties were in an express contractual

relationship, and she disagrees with the amount claimed. And in her sixth issue, she

complains that Bluebonnet was not entitled to summary judgment on either its

traditional or no-evidence summary judgment motions.

      1. Standard of Review

      W e review a summary judgment de novo. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W .3d 844, 848 (Tex. 2009). W e consider the




      2
        … Error is not waived if it falls within the narrow category of “fundamental
error,” which requires no trial court predicate for appellate review. In re B.L.D., 113
S.W .3d 340, 350 (Tex. 2003), cert. denied, 541 U.S. 945 (2004). Fundamental error
exists in those instances in which error directly and adversely affects the interest of
the public generally, as that interest is declared by the statutes or constitution of our
state, or instances in which the record affirmatively and conclusively shows that the
court rendering the judgment was without jurisdiction of the subject matter. Mack
Trucks, Inc. v. Tamez, 206 S.W .3d 572, 577 (Tex. 2006). Montoya does not contend
on appeal that the issue of third-party debt collectors’ suing to collect on delinquent
accounts is one that invokes the fundamental-error doctrine, and we decline to so
hold.

                                           4
evidence presented in the light most favorable to the nonmovant, crediting evidence

favorable to the nonmovant if reasonable jurors could, and disregarding evidence

contrary to the nonmovant unless reasonable jurors could not. Id. W e indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801, Inc.

v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A plaintiff is entitled to summary

judgment on a cause of action if it conclusively proves all essential elements of the

claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W .2d 59, 60

(Tex. 1986).

      2. Account Stated

      A party is entitled to relief for a stated account when (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

(S.D.), N.A., 261 S.W.3d 890, 893 (Tex. App.—Dallas 2008, no pet.). Montoya

asserts that the parties did not have an agreement that fixed the amount due

because she did not agree that the sum of $10,058.07 was the amount owing on the

account.

      Bluebonnet’s summary judgment evidence included Montoya’s credit card

statements from April 2005 to June 2006; the last statement shows a $9,101.76

balance due. The November 3, 2006 bill of sale from Chase Bank’s sale of the

account to CreditMax shows a $10,058.07 final balance due. The sale documents


                                         5
for the next two sales of the account—from CreditMax to Bureaus Investment Group

Portfolio No. 10 and then from Bureaus Investment Group Portfolio No. 10 to

Bluebonnet—also list the amount due as $10,058.07. Theadora Stroo, Bluebonnet’s

manager, stated in her affidavit that Bluebonnet’s claim against Montoya for

$10,058.07 was “just and true” and that “all just and lawful offsets, payments[,] and

credits have been allowed.”

      However, the record does not contain statements itemizing the increases in

the balance for any of the months between the June 2006 statement and the

November 2006 sale, nor is the method of calculating interest included to explain the

$956.31 difference between what Montoya owed in June and what was sold by

Chase Bank in November.3        Therefore, Bluebonnet’s own summary judgment

evidence creates a fact issue with regard to the fixed amount due. See Dulong, 261

S.W .3d at 893. W e sustain this portion of Montoya’s third issue. See, e.g., FFP

Mktg Co. v. Long Lane Master Trust IV, 169 S.W.3d 402, 412–13 (Tex. App.—Fort

W orth 2005, no pet.) (holding, in context of collection on notes, that since an

ambiguity existed in the summary judgment proof as to the amount due, reversal

was appropriate). Because of our disposition of this portion of Montoya’s third issue,

we need not address her other contentions with regard to Bluebonnet’s traditional



      3
        … Montoya does not contest that she had an agreement with Chase Bank.
However, the record does not contain evidence of all the terms and conditions of the
parties’ agreement from which we might have been able to determine how the
difference between the two figures was derived.

                                          6
motion for summary judgment for account stated in the remainder of her third issue.

See Tex. R. App. P. 47.1.

      3. Quantum Meruit

      Quantum meruit is an equitable remedy independent of a particular contract,

and a party may recover under quantum meruit only when there is no express

contract covering the services or materials furnished.       Jaramillo v. Portfolio

Acquisitions, LLC, No. 14-08-00939-CV, 2010 W L 1197669, at *7 (Tex.

App.—Houston [14th Dist.] Mar. 30, 2010, no pet.) (mem. op). To recover under

quantum meruit, a plaintiff must prove that (1) valuable services were rendered or

materials furnished, (2) to the defendant, (3) which the defendant used and enjoyed,

(4) under circumstances that reasonably notified the defendant that the plaintiff

expected to be paid for the services or materials. Id. The measure of recovery for

a quantum meruit claim is the reasonable value of the services or materials

furnished. Lamajak, Inc. v. Frazin, 230 S.W .3d 795, 796 (Tex. App.—Dallas 2007,

no pet.); Hudson v. Cooper, 162 S.W .3d 685, 688 (Tex. App.—Houston [14th Dist.]

2005, no pet.).

      Notwithstanding whether the credit card statements and other documents

entered in evidence by Bluebonnet establish an express contractual relationship that

would preclude Bluebonnet’s quantum meruit claim, they also show the reasonable

value of the services or materials furnished to Montoya as $9,101.76, and not the

$10,058.07 claimed by Bluebonnet. Therefore, the same fact issue precluding


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summary judgment on Bluebonnet’s account stated claim also precludes summary

judgment on its quantum meruit claim. See Lamajak, 230 S.W .3d at 796. W e

sustain Montoya’s fourth issue and the portion of her sixth issue pertaining to

Bluebonnet’s traditional summary judgment.

C. Bluebonnet’s No-Evidence Motion for Summary Judgment

      Bluebonnet moved for a no-evidence summary judgment on Montoya’s

counterclaims, arguing that there was “no evidence of each and every element of

each of [Montoya’s] causes of action in her counterclaim.” In her fifth issue, Montoya

asserts that the no-evidence summary judgment was improper because an adequate

time for discovery had not passed. In part of her sixth issue, she challenges the no-

evidence summary judgment by arguing that Bluebonnet either incorrectly set out

the elements or altogether failed to set out the elements of her counterclaims for

intentional infliction of emotional distress, finance code violations, and DTPA

violations.4 She further argues that the motion failed to properly identify those

elements of her causes of action for which there was no evidence.

      1. Standard of Review

      After an adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground that

there is no evidence to support an essential element of the nonmovant’s claim or


      4
       … Montoya does not challenge the trial court’s grant of summary judgment
on her declaratory judgment counterclaim.

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defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the elements

for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286 S.W .3d 306, 310

(Tex. 2009). The trial court must grant the motion unless the nonmovant produces

summary judgment evidence that raises a genuine issue of material fact. See Tex.

R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).

      W hen reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199

S.W .3d 291, 292 (Tex. 2006). W e review a no-evidence summary judgment for

evidence that would enable reasonable and fair-minded jurors to differ in their

conclusions. Hamilton, 249 S.W .3d at 426 (citing City of Keller v. W ilson, 168

S.W .3d 802, 822 (Tex. 2005)). W e credit evidence favorable to the nonmovant if

reasonable jurors could, and we disregard evidence contrary to the nonmovant

unless reasonable jurors could not. Timpte Indus., Inc., 286 S.W .3d at 310 (quoting

Mack Trucks, Inc., 206 S.W .3d at 582). If the nonmovant brings forward more than

a scintilla of probative evidence that raises a genuine issue of material fact, then a

no-evidence summary judgment is not proper. Smith v. O’Donnell, 288 S.W .3d 417,

424 (Tex. 2009).

      2. Adequate Time for Discovery

      W hen a party contends that it has not had an adequate opportunity for

discovery before a summary judgment hearing, it must file either an affidavit


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explaining the need for further discovery or a verified motion for continuance. See

Tenneco Inc. v. Enter. Prods. Co., 925 S.W .2d 640, 647 (Tex. 1996) (citing Tex. R.

Civ. P. 166a(g), 251, 252). Montoya did neither.

      The decision to allow Montoya more time for discovery was within the trial

court’s discretion. See id. Particularly in light of the fact that Montoya had provided

no response to the bulk of Bluebonnet’s discovery requests—including requests for

any and all documents supporting her allegations against Bluebonnet and

interrogatories seeking the reasons behind her claim that she did not owe

Bluebonnet on the account as alleged—the trial court could have reasonably

concluded that more time would not result in any additional discovery. W e hold that

the trial court did not abuse its discretion by determining that an adequate time for

discovery had passed with regard to Bluebonnet’s no-evidence motion for summary

judgment, and we overrule Montoya’s fifth issue.5

      3. No Evidence Raising a Genuine Issue of Material Fact

      Rule 166a(i) does not require a party moving for a no-evidence summary

judgment to state all the elements of its opponent’s claims, but it does require the

motion to “state the elements as to which there is no evidence.” Tex. R. Civ. P.



      5
       … In her fifth issue, as part of her argument that she did not have an
adequate time for discovery, Montoya points out that Bluebonnet filed a crossclaim
against Montoya six days before it filed its motion for summary judgment. However,
she does not argue that summary judgment was inappropriate on the crossclaim.
Therefore, we affirm the trial court’s grant of summary judgment and award of
attorney’s fees on this claim.

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166a(i). The trial court must grant the motion unless the nonmovant produces

summary judgment evidence that raises a genuine issue of material fact. See Tex.

R. Civ. P. 166a(i) & cmt.; Hamilton, 249 S.W .3d at 426. If the nonmovant brings

forward more than a scintilla of probative evidence that raises a genuine issue of

material fact, then a no-evidence summary judgment is not proper. Smith, 288

S.W .3d at 424.

             a. Intentional Infliction of Emotional Distress

      Montoya’s counterclaim for intentional infliction of emotional distress requires

proof that (1) the defendant acted intentionally or recklessly, (2) the defendant’s

conduct was extreme and outrageous, (3) the defendant’s actions caused the

plaintiff emotional distress, and (4) the resulting emotional distress was severe.

Tiller v. McLure, 121 S.W .3d 709, 713 (Tex. 2003). “Severe emotional distress”

means distress so severe that no reasonable person could be expected to endure

it without undergoing unreasonable suffering. Union Pac. R.R. Co. v. Loa, 153

S.W.3d 162, 170 (Tex. App.—El Paso 2004, no pet.). Any party seeking recovery

for mental anguish, even when advancing a cause of action that does not require the

“severe” damages required for intentional infliction of emotional distress, must prove

more than “mere worry, anxiety, vexation, embarrassment, or anger.” Parkway Co.

v. Woodruff, 901 S.W .2d 434, 444 (Tex. 1995).

      Bluebonnet asserted in its motion for summary judgment that there was no

evidence of mental anguish or emotional distress caused to Montoya. Montoya, in


                                         11
turn, points to her affidavit attached to her response to Bluebonnet’s motion as

raising more than a scintilla of evidence of her claim. Montoya stated in her affidavit

that she had received “obnoxious and unpleasant” phone calls from Bluebonnet’s

attorney and that the creditor had deceived her with regard to the interest rate

charged on her credit card balance. Montoya stated that as a result, she had been

injured “in having to defend this suit, in damage to my credit, in mental anguish,

[and] in aggravation of my existing painful physically debilitating conditions.” She

provides no facts explaining either the nature or degree of her “mental anguish” or

the details of her “debilitating conditions” and how they were aggravated. These

unsupported, conclusory statements are not proper summary judgment evidence.

See El Dorado Motors, Inc. v. Koch, 168 S.W .3d 360, 366 (Tex. App.—Dallas 2005,

no pet.); Dolcefino v. Randolph, 19 S.W .3d 906, 930 (Tex. App.—Houston [14th

Dist.] 2002, pet. denied). Further, these general statements of “mental anguish” and

“aggravation” do not rise to the level of distress so severe that no reasonable person

could be expected to endure it. See Union Pac., 153 S.W .3d at 170. Because

Montoya did not produce more than a scintilla of evidence of severe emotional

distress, we hold that the trial court did not err by granting a no-evidence summary

judgment on Montoya’s intentional infliction of emotional distress claim.

             b. Finance Code Violations

      Montoya also brought a counterclaim alleging that Bluebonnet had violated

sections 392.301 and 392.302 of the finance code, which prohibit debt collectors


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from using threats, coercion, harassment, or abuse to collect debts. Tex. Fin. Code

Ann. §§ 392.301–.302 (Vernon 2006). Montoya alleged that this counterclaim had

arisen from the misrepresentations made to her at the time that she agreed to enter

into credit card transactions with Chase Bank and from Bluebonnet’s conduct with

regard to debt collection actions.      Bluebonnet’s summary judgment motion

challenged this counterclaim by asserting that there was no evidence of any conduct

violating these sections. In response, Montoya again relied upon her affidavit to

provide evidence of her counterclaim.

      In her affidavit, Montoya stated that she had received letters and “obnoxious

and unpleasant” phone calls from Bluebonnet’s lawyer’s office. She claimed that

she had repeatedly told the callers to contact her attorney, leave her alone, and quit

calling her. Nevertheless, after she had been served with the underlying lawsuit,

Bluebonnet’s lawyer left her a phone message stating, “Now that you’ve been

served[,] please contact our office immediately.”       Bluebonnet’s lawyer called

Montoya again after Montoya’s lawyer filed an answer in the suit, but Montoya told

the caller to contact her attorney and hung up the phone on the caller.

      W hile Bluebonnet’s counsel’s phone calls may have been unwelcome and

uninvited, Montoya’s affidavit contains no allegation that Bluebonnet or its counsel

used or attempted to use threats or coercion or that they oppressed or abused her.

See Tex. Fin. Code Ann. §§ 392.301–.302.           Section 392.302 prohibits debt

collectors from making repeated or continuous phone calls with the intent to harass


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a person at the called number, but even if Montoya’s affidavit is some evidence of

repeated or continuous phone calls, it nevertheless provides no facts showing that

Bluebonnet’s counsel made the phone calls with the intent to harass her. See id.

§ 392.302(4). Because Montoya did not produce more than a scintilla of evidence

that Bluebonnet used statutorily prohibited debt collection methods, we hold that the

trial court did not err by granting a no-evidence summary judgment on Montoya’s

finance code violation claim.

             c. DTPA Violations

      Montoya’s DTPA counterclaim alleged that Bluebonnet was liable under the

DTPA based on misrepresentations made by the original credit card issuer and on

the finance code violations discussed above. The DTPA authorizes a consumer to

sue when a false, misleading, or deceptive act or practice upon which the consumer

detrimentally relies is a producing cause of economic damages or damages for

mental anguish. See Tex. Bus. & Com. Code Ann. § 17.50(a) (Vernon Supp. 2009).

Bluebonnet’s no-evidence motion for summary judgment challenged several

elements of Montoya’s DTPA counterclaim, including damages.

      Again, Montoya pointed to her affidavit, in which she stated, “I have been

injured in having to defend this suit, in damage to my credit, in mental anguish, [and]

in aggravation of my existing painful physically debilitating conditions.” And again,

Montoya offered nothing in the way of facts to support these conclusory statements.

She does not provide details of any economic loss suffered as a result of the alleged


                                          14
misrepresentations, and she does not provide details of her claimed painful physical

condition or of the degree of the claimed mental anguish and its impact on her daily

life. See id.; see, e.g., St. Paul Surplus Lines Ins. Co. v. Dal-Worth Tank Co., 974

S.W .2d 51, 53 (Tex. 1998) (requiring that, to recover damages for loss of credit

reputation, a plaintiff must first show that a loan was actually denied or a higher

interest rate was charged); Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 54 (Tex.

1997) (requiring that, to recover mental-anguish damages, a plaintiff must introduce

evidence of a high degree of mental pain and distress that is more than mere worry,

anxiety, vexation, embarrassment, or anger); Bridges v. Citibank (S.D.) N.A., No. 02-

06-00081-CV, 2006 W L 3751404, at *3 (Tex. App.—Fort W orth Dec. 21, 2006, no

pet.) (mem. op.) (“Conclusory statements in affidavits are not proper summary

judgment evidence if there are no facts to support the conclusions.”) Because

Montoya did not produce more than a scintilla of evidence of damages, and because

we have already held that she did not produce more than a scintilla of evidence of

debt collection violations, we hold that the trial court did not err by granting a no-

evidence summary judgment on Montoya’s DTPA claim.

      Because we have concluded that the trial court did not err by granting

Bluebonnet’s    no-evidence    motion   for   summary     judgment    on   Montoya’s

counterclaims, we overrule the portion of Montoya’s sixth issue pertaining to this

argument.




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D. Attorney’s Fees

      In her seventh issue, Montoya raises several complaints concerning the trial

court’s award of attorney’s fees to Bluebonnet. Most of these complaints were not

raised in the trial court and, therefore, are not preserved for appellate review. See

Tex. R. App. P. 33.1(a); Bushell, 803 S.W.2d at 712. However, because we have

held that Bluebonnet was not entitled to prevail on its traditional motion for summary

judgment, it was also not entitled to the $1,650 in attorney’s fees and the $296 in

court costs awarded by the trial court for prevailing on that claim. And because

Montoya is partially successful on appeal, we must reverse the judgment’s

unconditional award of $10,000 for attorney’s fees in the event of an appeal of the

summary judgment for $10,058.07.6 See Arena v. Arena, 822 S.W .2d 645, 651

(Tex. App.—Fort W orth 1991, no writ) (holding that when a decree awarding

attorney’s fees does not contain language conditioning the award upon such party’s

success in prevailing on appeal, the error is nonreversible only if that party is

completely successful on appeal, and that “[a] trial court may not penalize a party for

taking a successful appeal by taxing him with attorney’s fees if he takes it.”).

Because Montoya does not challenge the portion of the trial court’s order awarding



      6
        … Bluebonnet’s no-evidence motion pertained strictly to Montoya’s
counterclaim, upon which the trial court stated she would take nothing but did not
otherwise award any attorney’s fees or expenses to Bluebonnet. W e cannot
determine from the order whether the trial court intended to award part of the $1,650
in attorney’s fees and the $296 in court costs at trial and the $10,000 in attorney’s
fees on appeal for the no-evidence summary judgment.

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summary judgment to Bluebonnet on its crossclaim, we affirm the amounts awarded

in that portion of the judgment. W e sustain Montoya’s seventh issue as it pertains

to attorney’s fees and damages for Bluebonnet’s traditional motion for summary

judgment, and we overrule the remainder of Montoya’s seventh issue.

                                  IV. Conclusion

      Having sustained in part Montoya’s third, fourth, sixth, and seventh issues, we

reverse the portion of the trial court’s judgment granting traditional summary

judgment to Bluebonnet and awarding $10,058.07 in damages; $1,650 in attorney’s

fees and $296 in court costs at trial; and $10,000 in attorney’s fees in the event of

appeal. Having overruled the remainder of Montoya’s dispositive issues, we affirm

the trial court’s judgment granting no-evidence summary judgment to Bluebonnet

and granting summary judgment on Bluebonnet’s crossclaim and the amounts

awarded in support of the crossclaim summary judgment.




                                              BOB MCCOY
                                              JUSTICE

PANEL: DAUPHINOT, W ALKER, and MCCOY, JJ.

DELIVERED: October 28, 2010




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