COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-058-CV
PATRICK GILLIS APPELLANT
V.
MBNA AMERICA BANK, N.A. APPELLEE
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FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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This is a suit to confirm an arbitration award in appellee MBNA America
Bank, N.A.’s favor after appellant Patrick Gillis defaulted on a credit card
account. In two issues, Gillis challenges the summary judgment on the grounds
that (1) the trial court granted summary judgment on a cause of action that was
never pled and (2) appellee’s suit is barred by res judicata. We affirm.
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… See Tex. R. App. P. 47.4.
Background
On December 28, 2006, appellee sued Gillis in County Court at Law
Number One to confirm an arbitration award of $24,255.87 in appellee’s favor
as a result of Gillis’s defaulting on credit card payments. Gillis filed an
unverified answer, alleging the affirmative defenses of waiver, laches, and
statute of limitations. Appellee filed a motion for summary judgment on
October 24, 2007, along with an affidavit and business record showing that
Gillis had failed to timely respond to appellee’s request for admissions; appellee
claimed that it was entitled to summary judgment based on those deemed
admissions.
In its motion for summary judgment, appellee described the suit as a “suit
on an account, plus interest, attorney’s fees, and costs of court.” In his
response to the motion, Gillis specially excepted to paragraphs I–IV of the
motion on the ground that appellee never pled a “suit on debt and attorney[’s]
fees” in its original petition. He also resisted summary judgment on that ground
and on the ground that a suit on account was barred by res judicata as it had
already been litigated in the arbitration. Gillis further contended that there is a
genuine issue of material fact as to whether he owed a debt to appellee and
whether the statute of limitations bars appellee’s suit because it had been more
than four years since he incurred the original debt. Finally, Gillis asked for a
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continuance to obtain counsel because he did not understand the discovery
deadlines. However, he did not ask to withdraw the deemed admissions. See
Tex. R. Civ. P. 198.3 (“A matter admitted under this rule is conclusively
established as to the party making the admission unless the court permits the
party to withdraw or amend the admission.”).
The trial court held a hearing on the motion on December 7, 2007.
Having “considered the pleadings and official records on file in [the] cause,” the
trial court rendered summary judgment for appellee in the amount of
$24,255.87 as the balance due on the account, plus court costs and interest
of 7.5%. The judgment states that it is “appealable and finally disposes of all
parties and all claims in [the] cause of action.”
Analysis
In his first issue, Gillis contends that the trial court granted summary
judgment on an unpled cause of action, suit on an account. Although pleadings
are not competent summary judgment proof, a motion for summary judgment
must be supported by the pleadings on file, and the final judgment of the court
must conform to those pleadings. Elite Towing, Inc. v. LSI Fin. Group, 985
S.W.2d 635, 641 (Tex. App.—Austin 1999, no pet.); Krull v. Somoza, 879
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S.W.2d 320, 322 (Tex. App.—Houston [14th Dist.] 1994, writ denied).2 A trial
court may not grant a summary judgment on an unpled cause of action.
McDuff v. Chambers, 895 S.W.2d 492, 496 (Tex. App.—Waco 1995, writ
denied).
Here, the original petition alleges that the parties entered into an
agreement for appellee to extend credit to Gillis, which he agreed to repay
monthly, and that any disputes would be resolved by arbitration. It further
states that appellee “hereby sues [Gillis] for confirmation and enforcement of
an arbitration award entered against [Gillis] which remains unpaid.” Attached
to the petition are a copy of the arbitration award and an affidavit from
appellee’s business records custodian averring that Gillis is “truly and justly
indebted to [appellee] by virtue of a balance due and owing on an arbitration
award entered in favor of [appellee] and against” Gillis.
Although appellee’s motion for summary judgment does not specifically
state that appellee sought a judgment confirming the arbitration award, it does
contend that appellee is entitled to judgment “as prayed for in [appellee’s]
2
… The contentions in the written motion for summary judgment are what
the court must consider in determining whether to grant the motion. City of
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Elite
Towing, 985 S.W.2d at 641; see Tex. R. Civ. P. 166a(c) (“The motion for
summary judgment shall state the specific grounds therefor.”).
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Original Petition.” Specifically, it begins, “This cause is a suit on an account,
plus interest, attorney’s fees, and costs of court, as shown in [appellee’s]
Original [P]etition on file in this cause, which petition is incorporated into this
motion as if set out verbatim herein.” The motion directs the trial court
specifically to the deemed admissions as the proof supporting appellee’s
entitlement to summary judgment. The deemed admissions include admissions
that appellee obtained an arbitration award against Gillis, that Gillis failed to pay
the award, that Gillis failed to object to or move to vacate the award within
ninety days, and that appellee “should recover judgment as requested in its
pleadings.” Furthermore, the arbitration award is based on the arbitrator’s
finding that Gillis owed a debt to appellee and the award includes amounts for
attorney’s fees and interest.
Appellee’s pleadings provide fair notice to Gillis of appellee’s claim:
confirmation of an arbitration award based on a debt owed by Gillis to appellee.
And although appellee’s motion for summary judgment never expressly states
that appellee’s claim is to confirm an arbitration award, it is clear from the
motion that it is based on appellee’s claim in its original petition. See Garner
v. Long, 106 S.W.3d 260, 265 (Tex. App.—Fort Worth 2003, no pet.).
Accordingly, we conclude and hold that the trial court did not err by granting
summary judgment on an unpled cause of action. See id.; Langston v. Eagle
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Pub. Co., 719 S.W.2d 612, 628 (Tex. App.—Waco 1986, writ ref’d n.r.e.) (op.
on reh’g). We overrule Gillis’s first issue.
In his second issue, Gillis claims that appellee’s suit to confirm the
arbitration award is barred by res judicata. However, Gillis did not file a verified
pleading raising res judicata as an affirmative defense. Accordingly, he failed
to preserve that claim. See Tex. R. Civ. P. 94; Garner, 106 S.W.3d at 264.
Moreover, a suit to confirm a previously litigated arbitration award for the
purpose of transforming that award into an enforceable judgment is expressly
permitted by statute. See Tex. Civ. Prac. & Rem. Code Ann. § 171.087
(Vernon 2005); Crossmark, Inc. v. Hazar, 124 S.W.3d 422, 429 (Tex.
App.— Dallas 2004, pet. denied). Accordingly, we overrule Gillis’s second
issue.
Conclusion
Having overruled Gillis’s two issues, we affirm the trial court’s judgment.
TERRIE LIVINGSTON
JUSTICE
PANEL: CAYCE, C.J.; LIVINGSTON, and DAUPHINOT, JJ.
DELIVERED: January 8, 2009
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Patrick Gillis v. MBNA America Bank, N.A.
Combined Opinion