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.
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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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