                                  NO. 07-10-00274-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                     APRIL 8, 2011


                       UNIFUND CCR PARTNERS, APPELLANT

                                            v.

                             GUS MORELAND, APPELLEE


        FROM THE COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY;

        NO. 2010-078591-2; HONORABLE SIDNEY C. FARRAR, JR., JUDGE


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant Unifund CCR Partners appeals the trial court’s order sustaining the

plea to the jurisdiction of appellee Gus T. Moreland and dismissing the case. We will

reverse and remand the case to the trial court for further proceedings.


                                      Background


      Unifund sued Moreland. In its live petition Unifund alleged: “In the usual course

of business, CITIBANK SOUTH DAKOTA NA, advanced funds to [Moreland] pursuant

to credit card #5491130088816632.        [Unifund] is the assignee of this credit card
agreement.”    On March 5, 2010, Moreland filed a plea to the jurisdiction alleging

“[w]ithout some admissible evidence of the assignment, [Unifund] lacks standing to

bring its claims.” Moreland filed no evidence supporting his plea.


       The clerk’s record contains Unifund’s response, with attached evidence, to

Moreland’s plea. The response, under a cover letter from Unifund’s attorney dated May

12, was received by the county clerk on May 14, 2010. On the same day, the trial court

signed an order dismissing the case for want of jurisdiction. In part, the order states

“[a]fter hearing arguments of counsel and reviewing the documents filed in this cause,

the Court finds that [Moreland’s] Plea should be GRANTED.” Unifund did not file a

motion for new trial but timely perfected this appeal.


                                          Analysis


       Today, on virtually identical facts and arguments,1 we decided Unifund CCR

Partners v. Watson, No. 07-10-0273-CR (Tex.App.--Amarillo, Apr. 8, 2011). Based on

the reasoning and conclusions expressed by our opinion in Watson, we hold in the

present case Unifund sufficiently plead its standing by alleging it was the assignee of

Moreland’s credit card account. When, by plea to the jurisdiction Moreland challenged

the facts supporting Unifund’s allegation, Moreland was obligated to present evidence

conclusively negating the challenged allegation. See Texas Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (the standard generally mirrors that of a

traditional motion for summary judgment); Tex. R. Civ. P. 166a(c).       But Moreland

       1
          Watson and Moreland are represented by the same attorney. Unifund,
likewise, appears in both cases by the same attorney. The briefs filed in the two cases
are essentially mirror images.
                                             2
offered no evidence and therefore did not discharge his evidentiary burden. Thus it was

unnecessary for Unifund to present a response with evidence sufficient to establish the

existence of an issue of fact on its claimed status as assignee of Moreland’s account.

As we further concluded in Watson, we also conclude here Unifund’s claim of error was

sufficiently preserved for appellate review and it was unnecessary for Unifund to bring

forward a court reporter’s record of the plea to the jurisdiction hearing conducted by the

trial court.


        We sustain Unifund’s issue and remand the case to the trial court for

proceedings consistent with this opinion.




                                                       James T. Campbell
                                                            Justice




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