Amelia Colvin v. Texas Dow Employees Credit Union

Opinion issued November 15, 2012.

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-11-00342-CV
———————————
AMELIA COLVIN, Appellant
V.
TEXAS DOW EMPLOYEES CREDIT UNION, Appellee

On Appeal from the County Court at Law Number 2
Brazoria County, Texas
Trial Court Case No. CI040448

MEMORANDUM OPINION

Appellant, Amelia Colvin, challenges the trial court’s rendition of summary

judgment in favor of appellee Texas Dow Employees Credit Union (TDECU), in

its suit against Colvin for breach of contract relating to credit card debt and debt
arising from a line of credit. The trial court rendered judgment for TDECU in the

total amount of $37,039.40, plus interest, for the unpaid balance on the three

agreements and $3,500 for attorney’s fees. In eight issues, Colvin contends that

the trial court erred by granting summary judgment in favor of TDECU, overruling

her objections to a TDECU employee’s affidavit, and by not granting her no-

evidence motion for summary judgment.

We affirm in part and reverse in part.

Background

TDECU sued Colvin for past-due debt under three agreements, one credit

card (first agreement) and two amounts drawn against a line of credit (second

agreement and third agreement). TDECU sought damages of $12,444.30 plus

interest at a rate of 7.75 percent under the first agreement; $3,754.92 plus interest

at a rate of 10.25 percent under the second; and $20,840.18 plus interest at a rate of

6.24 percent under the third. TDECU also sought attorney’s fees. Colvin

answered, denying TDECU’s claims and asserting that TDECU failed to prove the

existence of the agreements. Colvin also asserted several affirmative defenses.

A. TDECU’s Motion for Summary Judgment

TDECU moved for summary judgment, asserting that the undisputed

summary judgment evidence showed that Colvin and TDECU had reached

agreements for all three accounts and that Colvin breached by failing to make

2
payments required under those agreements. TDECU’s summary judgment

evidence consisted of the affidavit of Melissa Ramirez, custodian of TDECU’s

business records, which describes three contracts with Colvin, states the interest

rate for each, and states the balance TDECU claims is due on each. TDECU also

submitted documentary evidence related to each of the three agreements and an

affidavit on attorney’s fees. We will address the summary judgment evidence for

each of the agreements in turn.

1. The First Agreement

TDECU’s summary judgment evidence for the first agreement included a

credit card application signed by Colvin. It was marked “approved” with a

notation indicating a credit limit of $2,000. With respect to this agreement,

Ramirez averred in her affidavit that Colvin “executed” an application for a Visa

credit card, which had an interest rate of 7.75 percent and was “payable as therein

set out to the order of [TDECU].” Ramirez averred that Colvin had defaulted

under the first agreement “by failing to make the payments due thereunder.”

Ramirez concluded, “After allowing all lawful offsets, credits and payments

against Agreement 1, principal balance due and payable is Twelve Thousand Four

Hundred Forty Four and 30/100 Dollars ($12,444.30), plus interest at the rate of

seven and 75/100 percent (7.75%) per annum from and after August 23, 2007, and

attorney’s fees.”

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 TDECU also included correspondence it had sent to Colvin regarding

amounts past due. The first notice informed Colvin she was in default and the

second was a notice of acceleration. No summary judgment evidence indicates

how TDECU calculated the $12,444.30 amount it contended was due under this

agreement.

2. Second and Third Agreements

TDECU’s summary judgment evidence for the second and third agreements

included a “Credit and Security Agreement” for an “Open-End” credit plan, which

is signed by Colvin. The agreement specifically stated it was a master agreement

that would govern separate “subaccounts” opened under the plan. The Credit and

Security Agreement explained that money borrowed under the agreement was

subject to a finance charge and set forth the details of how the finance charge

would be calculated:

[The finance charge] begins on the date of each advance. A finance
charge will be computed separately for each separate balance under
the Plan. To compute the finance charge, the unpaid balance for each
day since your last payment (or since an advance if you have not yet
made a payment) is multiplied by the applicable daily periodic rate.
The sum of these amounts is the finance charge owed. The balance
used to compute the finance charge is the unpaid balance each day
after payments and credits to that balance have been subtracted and
any additions to the balance have been made.

The second agreement was for an amount Colvin borrowed under the master

agreement. TDECU’s summary judgment evidence on this agreement included a

4
June 22, 2005 “Open-End Disbursement Receipt,” which reflected a loan of $5,000

made on a subaccount under the Credit and Security Agreement. The receipt

reflects TDECU made this loan with an interest rate of 10.25 percent, a daily

periodic rate of 0.028082 percent, and a monthly payment rate of $107 to begin on

July 22, 2005. The receipt stated that Colvin agreed to make payments in

accordance with the Credit and Security Agreement. Another document, with the

heading “subsequent action” contained the same account information, interest rate,

and monthly payment rate as the unsigned Open-End Disbursement Receipt. It

reflected a balance of $3,977.12 and was signed by Colvin.

TDECU also submitted the notice of default and notice of acceleration it

sent Colvin with respect to the second agreement. In her affidavit, Ramirez

averred that after “allowing all lawful offsets, credits and payments” Colvin owed

$3,754.92 plus interest at a rate of 10.25 percent on the second agreement.

For the third agreement, TDECU submitted an additional “Open-End

Disbursement Receipt,” showing a $250 loan at 8.75 percent interest. Colvin

signed this receipt on January 8, 2003, the same day she signed the Credit and

Security Agreement. TDECU also submitted subsequent receipts showing

increases in the credit line available to Colvin. The final receipt showed a line of

credit of $25,000 with an interest rate of 6.24 percent. Although the subsequent

receipts were not signed by Colvin, the first of these receipts was stamped “PER

5
MEMBER REQUEST” on the signature line. TDECU also submitted a notice of

acceleration and demand for payment for the third agreement, stating the balance

due was $20,840.18, plus interest at 6.24 percent. Ramirez averred that TDECU

had applied “all lawful offsets, credits and payments” to the third agreement and

that the balance was $20,840.18 plus interest at a rate of 6.24 percent.

B. Colvin’s Response and No-Evidence Motion for Summary Judgment

Colvin submitted her own affidavit. Colvin averred that she had a

breakdown in her relationship with TDECU. She stated that she had made timely

payments on her loans, but TDECU refused to accept her checks, insisting on cash

or a money order. Colvin attached to her affidavit a copy of a check that she wrote

for $107 and had tendered to TDECU, which it returned to Colvin along with a

letter describing the check as an unacceptable form of payment. Colvin asserted

that TDECU’s actions, not hers, resulted in the loans not being paid.

Colvin also filed her own motion for summary judgment, arguing there was

no evidence demonstrating the existence of the first and second agreements

because there were no signed agreements and no accounting statements or other

evidence to establish the amounts due and owing. In response to Colvin’s motion,

TDECU submitted the evidence supporting its motion for summary judgment, plus

an account statement showing the payment history on the third agreement for the

two years before Colvin’s alleged default.

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 The trial court granted TDECU’s motion for summary judgment and denied

Colvin’s no-evidence motion for summary judgment. The trial court signed a final

judgment awarding the damages requested in TDECU’s petition and attorney’s

fees of $3,500. Colvin appealed.

Standard of Review

We review summary judgments de novo. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005). Summary judgment is proper only when a

movant establishes that there is no genuine issue of material fact and that the

movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). A

plaintiff moving for summary judgment on its claim must establish its right to

summary judgment by conclusively proving all the elements of its cause of action

as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.

1999); Anglo-Dutch Petroleum Int’l, Inc. v. Haskell, 193 S.W.3d 87, 95 (Tex.

App.—Houston [1st Dist.] 2006, pet. denied). In reviewing a summary judgment,

we must indulge every reasonable inference in favor of the non-movant, take all

evidence favorable to the non-movant as true, and resolve any doubts in favor of

the non-movant. Valence Operating Co., 164 S.W.3d at 661.

When a party moves for summary judgment on the ground that there is no

evidence of one or more essential elements of the non-movant’s claims, the movant

must specifically state the elements of the non-movant’s claims as to which there is

7
no evidence. TEX. R. CIV. P. 166a(i); Spradlin v. State, 100 S.W.3d 372, 377 (Tex.

App.—Houston [1st Dist.] 2002, no pet.). The burden then shifts to the non-

movant to produce evidence that raises a fact issue on the challenged elements.

Spradlin, 100 S.W.3d at 377. “The court must grant the motion unless the

respondent produces summary judgment evidence raising a genuine issue of

material fact.” TEX. R. CIV. P. 166a(i).

When, as here, both parties move for summary judgment, the appealing

party may challenge the denial of its own motion as well as the judgment in favor

of the prevailing party. CU Lloyd’s v. Feldman, 977 S.W.2d 568, 569 (Tex. 1998);

Spradlin, 100 S.W.3d at 377. Each party must carry its own burden, however, both

as movant and in response to the other party’s motion, as non-movant. CU

Lloyd’s, 977 S.W.2d at 569; James v. Hitchcock Indep. Sch. Dist., 742 S.W.2d 701,

703 (Tex. App.—Houston [1st Dist.] 1987, writ denied). When both parties move

for summary judgment on the same issues and the trial court grants one motion and

denies the other, the reviewing court considers the summary judgment evidence

presented by both sides, determines all questions presented, and if the reviewing

court determines that the trial court erred, renders the judgment the trial court

should have rendered. Valence Operating Co., 164 S.W.3d at 661.

8
 Colvin’s Objections to the Form of TDECU’s Summary Judgment Evidence

In her third issue, Colvin argues that Ramirez’s affidavit was improper and

should not have been considered by the trial court.1

A. Applicable Law

Defects in the form of an affidavit or its attachments must be preserved by

an objection in the trial court. See TEX. R. CIV. P. 166a(f); see Grand Prairie

Indep. Sch. Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990); Vice v. Kasprzak,

318 S.W.3d 1, 11 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); see also

TEX. R. APP. P. 33.1(a)(1). The party making the objection must also obtain a

ruling at or before the summary judgment hearing. Vice, 318 S.W.3d at 11. “[A]

trial court’s ruling on an objection to summary-judgment evidence is not implicit

in its ruling on the motion for summary judgment.” Delfino v. Perry Homes, 223

S.W.3d 32, 35 (Tex. App.—Houston [1st Dist.] 2006, no pet.). In contrast, an

objection and ruling are not required to preserve a complaint concerning a defect in

substance of an affidavit; such a complaint may be raised for the first time on

appeal. Dodge v. Durdin, 187 S.W.3d 523, 532 (Tex. App.—Houston [1st Dist.]

2005, no pet.) (citing Rizkallah v. Conner, 952 S.W.2d 580, 585 (Tex. App.—

Houston [1st Dist.] 1997, no writ)).

1
As part of her seventh issue, Colvin contends that Ramirez’s affidavit is
conclusory. We address this issue below in our discussion of the merits of the
summary judgment.
9
B. Analysis

In her response to TDECU’s motion for summary judgment, Colvin argued

that the trial court erred in considering the Ramirez affidavit because it was

hearsay and not based on Ramirez’s personal knowledge. She also objected that

Ramirez’s affidavit was not the best evidence of the terms of the agreements. An

objection that the affiant lacks personal knowledge is an objection to the form of

the affidavit. Dodge, 187 S.W.3d at 532 (citing Rizkallah, 952 S.W.2d at 585).

An objection that an affidavit contains hearsay is also an objection to form. Green

v. Indus. Speciality Contractors, Inc., 1 S.W.3d 126, 130 (Tex. App.—Houston

[1st Dist.] 1999, no pet.). Likewise, a best-evidence objection is a form objection.

Ogueri v. Tex. S. Univ., No. 01-10-00228-CV, 2011 WL 1233568, at *6 (Tex.

App.—Houston [1st Dist.] Mar. 31, 2011, no pet.) (mem. op.) (citing Einhorn v.

LaChance, 823 S.W.2d 405, 410 (Tex. App.—Houston [1st Dist.] 1992, writ

dism’d w.o.j.)); see also Crow v. Rockett Special Util. Dist., 17 S.W.3d 320, 324

(Tex. App.—Waco 2000, pet. denied) (stating “best evidence” objection is

objection to form), disapproved of on other grounds by Binur v. Jacobo, 135

S.W.3d 646 (Tex. 2004). Nothing in the record shows that the trial court ruled on

these objections before the summary judgment hearing. Therefore, Colvin has not

preserved her objections concerning the defects in form of Ramirez’s affidavit.

10
See TEX. R. CIV. P. 166a(f); Grand Prairie Indep. Sch. Dist., 792 S.W.2d at 945;

Vice, 318 S.W.3d at 11.

We overrule Colvin’s third issue.

Propriety of Summary Judgment for TDECU

In her first, second, fourth, seventh, and eighth issues, Colvin argues that the

summary judgment evidence did not establish TDECU’s breach-of-contract claims

as a matter of law and that summary judgment was, therefore, improper.

A. Breach of Contract

To be entitled to summary judgment on its breach-of-contract claim,

TDECU was required to prove, as a matter of law, “(1) the existence of a valid

contract; (2) performance or tendered performance by the plaintiff; (3) breach of

contract by the defendant; and (4) damages sustained as a result of the breach.”

Williams v. Unifund CCR Partners, 264 S.W.3d 231, 235–36 (Tex. App.—

Houston [1st Dist.] 2008, no pet.) (citing Winchek v. Am. Exp. Travel Related

Servs. Co., 232 S.W.3d 197, 204 (Tex. App.—Houston [1st Dist.] 2007, no pet.) A

binding contract is formed when the following elements are present: (1) an offer,

(2) an acceptance in strict compliance with the terms of the offer, (3) a meeting of

the minds, (4) each party’s consent to the terms, and (5) execution and delivery of

the contract with the intent that it be mutual and binding. Id. To be enforceable, a

contract must be sufficiently certain to enable a court to determine the rights and

11
responsibilities of the parties. Id. The material terms of a contract must be agreed

upon before a court can enforce the contract. Id. The interest rate is a material

term of a contract for the loan of money. Id. (citing T.O. Stanley Boot Co. v. Bank

of El Paso, 847 S.W.2d 218, 221 (Tex. 1992)).

Colvin argues that the summary judgment evidence does not establish the

existence of any agreement between her and TDECU because TDECU failed to

present the original loan agreements to prove that Colvin signed an agreement with

TDECU. Colvin also argues that TDECU failed to establish the material terms to

which the parties agreed. Finally, Colvin argues that the evidence was insufficient

to prove TDECU’s alleged damages. We address each agreement in turn.

1. First Agreement

Colvin contends that TDECU’s summary judgment evidence does not prove

TDECU’s damages as a matter of law because the Visa application indicates a

credit limit of $2,000 but TDECU sought $12,444.30 in damages on this agreement

without offering any proof of how it calculated its alleged damages.

In support of its motion for summary judgment, TDECU offered Colvin’s

signed credit card application and Ramirez’s affidavit stating the applicable

interest rate and the amount due after all lawful offsets, credits and payments.

Ramirez averred:

“Exhibit “A-1” is a true and correct copy of that certain Visa
Application dated August 6, 2003, executed by Amelia Colvin,
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 bearing interest at the rate of seven and 75/100 percent (7.75%) per
annum (“Agreement 1”), being payable as therein set out to the order
of Texas Dow Employees Credit Union.

“By the terms of Agreement 1, Defendant agreed to pay to Plaintiff all
sums advanced on behalf of Defendant by Plaintiff, together with
interest at the rate of seven and 75/100 percent (7.75%) per annum
....

....

. . . . After allowing all lawful offsets, credits and payments against
Agreement 1, principal balance due and payable is Twelve Thousand
Four Hundred Forty Four and 30/100 Dollars ($12,444.30), plus
interest at the rate of seven and 75/100 percent (7.75%) per annum
from and after August 23, 2007, and attorney’s fees.

TDECU offered no other evidence demonstrating how it calculated its alleged

damages. In other words, there is no evidence—for example, monthly

statements—explaining how a credit card account with a $2,000 limit allegedly

yielded a principal balance of over $12,000.

Summary judgment evidence of damages in credit card cases is sufficient

where it “provide[s] detailed explanations of the cost of credit” and “the

methodology employed” to calculate the balance owed. Winchek, 232 S.W.3d at

205; see also Duran v. Citibank (S.D.), N.A., No. 01-06-00636-CV, 2008 WL

746532, at *5 (Tex. App.—Houston [1st Dist.] Mar. 20, 2008, no pet.) (mem. op.)

(affirming summary judgment where evidence “provided detailed explanations of

the cost of credit and the methodology employed to determine the applicable

interest rate”). However, in Wande v. Pharia, L.L.C., this court reversed a
13
summary judgment for the creditor on a credit card debt on the basis that the

creditor had not established its alleged damages as a matter of law. No. 01-10-

00481-CV, 2011 WL 3820774, at *5 (Tex. App—Houston [1st Dist.] Aug. 25,

2011, no pet.) (mem. op). Pharia, the creditor, adduced as summary judgment

evidence a cardholder agreement and monthly statements reflecting charges

incurred on the account. Id. at *2. The cardholder agreement expressly referred to

another document as part of the overall Credit Card Agreement and stated that the

other document indicated the applicable interest rate. Id. at *4–5. Additionally,

the most recent monthly statement indicated that Wande owed a balance of

$13,220.41, but Pharia sought $24,418.82 in damages. Id. at *5 & n.2. This court

noted that the cardholder agreement had a section entitled “Finance Charges” that

was illegible in the copy submitted as summary judgment evidence. Id. at *5. The

cardholder agreement expressly referred to another document containing terms of

the overall Credit Card Agreement, but that other document was not introduced

into evidence. Id. This court also explained that Pharia had not adduced any

evidence “setting forth the calculations used by Pharia to arrive at its claimed

outstanding balance,” noting that the claimed balance was almost double the last

outstanding balance shown in a monthly statement. Id. at *5 & n.2. Concluding

“Pharia does not direct us to any document in the record supporting the entire

14
claimed amounts,” this court reversed because the evidence did not conclusively

establish Pharia’s damages. Id. at *5.

In this case, as in Wande, TDECU has not established as a matter of law the

amount it claims under the first agreement. The Visa application indicates that the

Visa card had a credit limit of $2,000. But Ramirez averred in her affidavit that

Colvin’s “principal balance due and payable is Twelve Thousand Four Hundred

Forty Four and 30/100 Dollars ($12,444.30), plus interest at the rate of seven and

75/100 percent (7.75%) per annum from and after August 23, 2007.” Although

Ramirez also averred that Colvin agreed to a 7.75% interest rate, Ramirez does not

explain how TDECU arrived at its claimed damages figure. Nor did TDECU offer

any monthly statements or other documentary evidence reflecting charges,

payments, or interest calculations supporting the $12,444.30 amount. In other

words, the summary judgment evidence does not explain how TDECU suffered

damages in the amount to $12,444.30 when the credit card application on which it

relies indicates a credit limit of $2,000. We therefore hold that TDECU has failed

to adduce sufficient evidence of damages to be entitled to summary judgment on

the first agreement. See id.; see also Williams, 264 S.W.3d at 236 (reversing

summary judgment because, although creditor offered affidavit stating agreed

interest rate, creditor “did not produce the actual agreement or any other document

that established the agreed terms, including the applicable interest rate or the

15
method for determining the applicability and amount of finance charges” and

noting creditor offered no explanation of how debt doubled from last billing

statement to amount sought at trial).

We sustain Colvin’s issues concerning summary judgment on the first

agreement.

2. Second Agreement

Colvin also argues that the evidence was insufficient to show formation of a

contract with respect to the second agreement. Colvin argues no evidence

establishes the material terms of the agreement, her consent to the terms, or

delivery of the contract.

Material Terms

As summary judgment evidence pertaining to the second agreement,

TDECU submitted a Credit and Security Agreement signed by Colvin on January

8, 2003. Under the terms of this agreement, different lines of credit would be

opened as “subaccounts” for Colvin. A receipt and a “subsequent action”

agreement dated June 22, 2005 showed a $5,000 loan and specified a 10.25 percent

interest rate and the applicable daily periodic rate, but it was not signed by Colvin.

The subsequent action agreement, signed by Colvin, identified the original loan by

date—June 22, 2005—and showed a loan with an interest rate of 10.25 percent, a

balance of $3,977.12, and monthly payments of $107. These documents show the

16
material terms of the agreement—the amount of the loan, the interest rate, and the

method of calculating finance charges. See Duran, 2008 WL 746532, at *4

(holding credit card agreement that explained how minimum monthly payment

determined and how finance charges calculated “was sufficiently definite to enable

a court to determine the rights and responsibilities of each party”).

Consent to the Terms and Delivery of the Contract

Colvin argues that the evidence does not show that she consented to an

agreement with TDECU because it does not reflect that she signed any agreement.

However, Colvin signed both the Credit and Security Agreement and the document

titled subsequent action. In any event, a signature is not an absolute requirement to

show consent to a contract. Both consent and the delivery of a contract may be

shown by “acts or words showing that the parties intended the contract to become

effective.” Duran, 2008 WL 746532, at *4 (quoting Awad Tex. Enters., Inc. v.

Homart Dev. Co., 589 S.W.2d 817, 819–820 (Tex. Civ. App.—Dallas 1979, no

writ)). “[W]hen the parties manifest an intent through their actions and words that

the contract become effective, delivery is shown.” Id. (quoting Winchek, 232

S.W.3d at 204). “In other words, when parties manifest an intent through their

actions and words that a contract become effective, manual delivery is immaterial

to contract validity.” Id. In response to TDECU’s motion for summary judgment,

Colvin included a check she made payable to TDECU for $107, the amount due

17
under the subsequent action agreement. Colvin’s attempted payment on the

account for the amount shown as due on the agreement is sufficient to show that

she assented to the terms of the agreement. We conclude the summary judgment

evidence establishes that Colvin agreed to the terms of the contract

notwithstanding the lack of her signature on every document and the purported

failure of TDECU to manually deliver the contract. See Winchek, 232 S.W.3d at

204 (holding that use of credit card and payments to account demonstrated assent

to and delivery of contract); Duran, 2008 WL 746532 at *4 (noting that appellant’s

use of credit card and payments made on card without disputing accuracy of credit

card statement showed both that appellant assented to terms and delivery of

contract).

Damages

Colvin also argues that “there is no financial accounting whatsoever that

proves any damages.” The Credit and Security Agreement explains that TDECU

would calculate finance charges based on the applicable periodic rate and the

receipt specified a daily periodic rate of 0.028082%. The subsequent action

document showed payments had been credited against the account so that a

balance of $3,977.12 remained as of the date the document was created. And

Ramirez averred that Colvin failed to make any payments on the second agreement

account after August 22, 2007 and that, after all credits, offsets, and payments, she

18
owed $3,754.92 plus interest at a rate of 10.25 percent.

We conclude that Ramirez’s affidavit, combined with the Credit and

Security Agreement, the June 22, 2005 receipt, and the subsequent action

document were sufficient to establish damages.2 See Winchek, 232 S.W.3d at 204

(affirming summary judgment where creditor’s representative testified to total

outstanding balance, and credit card agreement and monthly statements established

applicable interest rate and method of calculating interest and finance charges);

Rogers v. Unifund CCR Partners, No. 01-10-01146-CV, 2012 WL 1379631, at *5

(Tex. App.—Houston [1st Dist.] Apr. 19, 2012, no pet.) (mem. op.) (affirming

summary judgment where evidence included credit card agreement, monthly

statements, and creditor’s affidavit, showing amount of past-due principal and

interest and interest rate and explained increase from last monthly statement to

damages sought at trial was based on applying agreed interest rate to last balance).

2
In her seventh issue, Colvin contends that Ramirez’s statements concerning
damages are conclusory and therefore no evidence. An affidavit is conclusory if it
states “a conclusion without any explanation” or asks the fact-finder to “take my
word for it.” Arkoma Basin Exp. Co. v. FMF Assocs. 1990-A Ltd., 249 S.W.3d
380, 389 (Tex. 2008); see also Black’s Law Dictionary 308 (9th ed. 2009)
(defining “conclusory” as “[e]xpressing a factual inference without stating the
underlying facts on which the inference is based”). Affidavits containing
conclusory statements—statements that fail to provide the underlying facts to
support the conclusion—are not proper summary judgment evidence. Dolcefino v.
Randolph, 19 S.W.3d 906, 925–27 (Tex. App.—Houston [14th Dist.] 2000, pet.
denied). Here, Ramirez’s affidavit is supported by documentary evidence
establishing the underlying facts—the terms of the agreement and the method for
calculating the balance owed. Because it is supported by facts, the affidavit is not
conclusory. See Arkoma Basin Exp. Co., 249 S.W.3d at 389. We overrule
Colvin’s seventh issue.
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 We conclude that TDECU met its burden to establish the existence of a valid

contract and its damages as a matter of law, and Colvin has not raised any genuine

issues of material fact with respect to the second agreement.

3. Third Agreement

Colvin also argues that the trial court erred in granting summary judgment

with respect to the third agreement. Her arguments are essentially identical to

those made concerning the second agreement, and, for similar reasons, we overrule

them.

The evidence that TDECU presented on the third agreement included the

Credit and Security Agreement and receipts issued pursuant to that agreement.

TDECU also submitted a September 11, 2009 statement showing payments made

and fees charged on the account from March 1, 2007 until April 29, 2009. The

statement reflected an ending balance of $20,840.18. In an affidavit Colvin denied

that she signed any documents forming the agreements. The Credit and Security

Agreement bears her signature. Additionally, in one of her affidavits Colvin

admitted she “had performed the greater part of the covenants into which was

entered [sic] from 2005 until 2007” and that she “performed [her] duties under the

alleged contract by sending a check or making deposits into an account [from]

which TDECU could withdraw.” A signature is not necessary to show the

existence of an agreement between parties. See Winchek, 232 S.W.3d at 204.

20
Here, by making payments on the account, Colvin effectively consented to the

terms of the agreement. See id. (holding use of credit card and payments to

account demonstrated existence of contract and consent by debtor to be bound by

contract).

Moreover, the evidence was sufficient to establish TDECU’s damages as a

matter of law. TDECU provided a Credit and Security Agreement specifying the

method for calculating finance charges. It also included documentation showing

increases in Colvin’s available credit and billing statements reflecting charges and

payments to the account. This evidence, combined with Ramirez’s affidavit,

establishes the amount of damages owed to TDECU. See id. (affirming summary

judgment where evidence included card agreement, billing statements, and

creditor’s affiant testified about total outstanding balance and that appellant failed

to make payments in full on balances due); see also Rogers, 2012 WL 1379631, at

*5. We conclude that TDECU met its burden and established the existence of a

valid contract as a matter of law and Colvin has not raised any genuine issues of

material fact with respect to the third agreement.

We sustain Colvin’s arguments concerning the first agreement and overrule

the arguments concerning the second and third agreements.

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B. Statute of Limitations

In her first issue, Colvin argues that the statute of limitations barred

TDECU’s right to recovery. Colvin, as the party relying on an affirmative defense

to defeat summary judgment, had the burden to come forward with summary

judgment evidence establishing a fact issue on each element of the affirmative

defense. Suttles v. Thomas Bearden Co., 152 S.W.3d 607, 614 (Tex. App.—

Houston [1st Dist.] 2004, no pet.). Colvin did not offer any evidence in support of

her statute-of-limitations defense. In her response to TDECU’s motion, Colvin

only referred to the copies of the agreements and documents attached to TDECU’s

motion, arguing that they were dated more than four years before TDECU filed

suit and thus TDECU’s claims were barred “[o]n the face [o]f it.”

The statute of limitations on a claim for debt based on breach of contract is

“four years after the day the cause of action accrues.” TEX. CIV. PRAC. & REM.

CODE ANN. § 16.004(a)(3) (West 2002); Williams, 264 S.W.3d at 234. Colvin

argues that the action accrued with respect to the first agreement on the day she

signed her application, August 6, 2003, and for the second and third agreements,

on the day she first borrowed against the line of credit, June 22, 2005, and January

8, 2003, respectively. “It is well-settled law that a breach of contract claim accrues

when the contract is breached.” Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002).

TDECU submitted the notices of default it sent to Colvin for each of the three

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agreements. The notices indicate that Colvin breached the first and second

agreement in August 2007, when she failed to make the payments due. TDECU

filed its original petition in this case on March 31, 2008. The notice concerning the

third agreement indicated Colvin breached it by failing to make a payment due on

December 12, 2008. TDECU’s amended petition asserting breach of the third

agreement was filed within four years of that date, on August 9, 2010. Nothing

“on the face of” TDECU’s petition or summary judgment motion and evidence

indicates that the four-year limitations period had expired on any of TDECU’s

breach-of-contract claims, and Colvin offered no other summary judgment

evidence to raise a fact issue on limitations. See Williams, 264 S.W.3d at 234

(holding debtor failed to raise fact issue on limitations defense when summary

judgment evidence showed suit commenced within four years of debtor’s last

payment and debtor offered no contradicting evidence).

We overrule Colvin’s first issue.

Texas Rule of Civil Procedure 185

In her fifth and seventh issues, Colvin argues that the trial court erroneously

granted summary judgment under Texas Rule of Civil Procedure 185.

Texas Rule of Civil Procedure 185 pertains to sworn accounts. See TEX. R.

CIV. P. 185. This Court has previously held that suits for collection of credit-card

debt are not suits on sworn account under Rule 185, unless the card issuer is also

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the provider of the purchased goods or services. Williams, 264 S.W.3d at 235; see

also Dulong v. Citibank (S.D.), N.A., 261 S.W.3d 890, 893 n.3 (Tex. App.—Dallas

2008, no pet.) (noting that Rule 185 suit on sworn account “is not a proper tool for

credit card collection”). Moreover, TDECU did not plead in its petition that Rule

185 applied or that this was a suit on a sworn account. Nor did TDECU move for

summary judgment on Rule 185 grounds. Rather, in both its petition and motion

for summary judgment, TDECU argued that the trial court should grant summary

judgment under a breach of agreement theory.

We overrule Colvin’s fifth and seventh issues to the extent that they

challenge the trial court’s allegedly erroneous reliance on Rule 185.

Colvin’s No-Evidence Motion for Summary Judgment

In her sixth issue, Colvin argues that the trial court erred in denying her no-

evidence summary judgment motion. Because we have concluded that TDECU

showed the existence of an agreement as a matter of law with respect to the second

and third agreement, we consider the evidence relating to the first agreement only.

We review a no-evidence summary judgment by construing the record in the

light most favorable to the non-movant and disregarding all contrary evidence and

inferences. Patriacca v. Frost, 98 S.W.3d 303, 306 (Tex. App.—Houston [1st

Dist.] 2003, no pet.). A trial court improperly renders a no-evidence summary

judgment if the non-movant presents more than a scintilla of probative evidence to

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raise a genuine issue of material fact. Greathouse v. Alvin Indep. Sch. Dist., 17

S.W.3d 419, 423 (Tex. App.—Houston [1st Dist.] 2000, no pet.). More than a

scintilla of evidence exists when the evidence “would allow reasonable and fair-

minded people to differ in their conclusions.” Forbes Inc. v. Granada Biosciences,

Inc., 124 S.W.3d 167, 172 (Tex. 2003).

1. Affirmative Defenses

After adequate time for discovery, a party “may move for summary

judgment on the ground that there is no evidence of one or more essential elements

of a claim or defense on which an adverse party would have the burden of proof at

trial.” TEX. R. CIV. P. 166a(i); accord Waite v. Woodard, Hall & Primm, P.C., 137

S.W.3d 277, 280 (Tex. App.—Houston [1st Dist.] 2004, no pet.). A no-evidence

motion for summary judgment, therefore, is proper only when filed by the party

that does not have the burden of proof at trial. See TEX. R. CIV. P. 166a(i); Waite,

137 S.W.3d at 280–81. Colvin frames her arguments as the failure of TDECU to

refute Colvin’s affirmative defenses, but here, Colvin, as the non-movant, was the

party who bore the burden of proof at trial with respect to the affirmative defenses.

Therefore Colvin could not properly seek a no-evidence motion on any of her

affirmative defenses. See TEX. R. CIV. P. 166a(i); Waite, 137 S.W.3d at 280

(stating party with burden of proof may not move for no-evidence motion for

summary judgment).

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 2. First Agreement

Colvin contends that there is no evidence that TDECU is the legal and

equitable holder of the agreement, that Colvin defaulted, or that TDECU credited

Colvin for all just and lawful offsets. Colvin also asserts that there is no evidence

that she signed an agreement with TDECU.

Although Colvin argues that the Ramirez affidavit is inadmissible evidence,

we have already concluded that the trial court did not err in considering the

affidavit. A summary judgment may be based on an affidavit that is “clear,

positive, and direct, otherwise credible and free from contradictions and

inconsistencies, and could have been easily controverted.” TEX. R. CIV. P.

166A(c). In her affidavit, Ramirez stated that TDECU was the legal and equitable

holder of all three accounts, and Colvin did not controvert this. Therefore, there

was some evidence that TDECU owned the accounts. See Hou-Tex Printers, Inc.

v. Marbach, 862 S.W.2d 188, 191 (Tex. App.—Houston [14th Dist.] 1993, no writ)

(stating ownership of note may be established through affidavit) (citing Zarges v.

Bevan, 652 S.W.2d 368, 369 (Tex. 1983)); E. Plano Retail Joint Venture v.

Amwest Sav. Ass’n, No. 05-93-01573-CV, 1994 WL 450433, at *4 (Tex. App.—

Dallas Aug. 18, 1994, writ denied) (mem. op.) (citing Zarges, 652 S.W.2d at 369)

(holding uncontroverted affidavit established plaintiff was owner and holder of

note for summary judgment purposes). Ramirez also averred that Colvin had

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defaulted by failing to make required payments, and Colvin did not controvert this

testimony. Ramirez also stated that all “lawful offsets, credits, and payments” had

been applied to the account, and Colvin failed to controvert this. Finally,

concerning Colvin’s contention that there is no evidence that she signed an

agreement, we have already explained that the existence of an agreement can be

shown even absent the signature of the credit card debtor. See Winchek, 232

S.W.3d at 204. Because TDECU raised a fact issue on each challenged element on

which it bore the burden of proof, we conclude that the trial court did not err by

denying Colvin’s no-evidence motion for summary judgment on the first

agreement.

We overrule Colvin’s sixth issue.

Attorney’s fees

Within her eighth issue, Colvin raises several challenges to the trial court’s

award of attorney’s fees. For the reasons that follow we conclude that we must

remand the issue of attorney’s fees and therefore do not address this portion of

Colvin’s eighth issue.

An award of attorney’s fees must be supported by evidence that the fees

were both reasonable and necessary. Powell Elec. Sys., Inc. v. Hewlett Packard

Co., 356 S.W.3d 113, 127 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

“Generally, the determination of reasonable attorney’s fees is a question of fact and

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the testimony of an interested witness, such as a party to the suit, though not

contradicted, does no more than raise a fact issue to be determined by the jury.”

Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010). The trier of fact can consider

the amount in controversy, the time and effort required, and the expertise of

counsel in arriving at a reasonable amount of attorney’s fees. Powell Elec. Sys.,

Inc., 356 S.W.3d at 128; see also Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d

545, 547 (Tex. 2009) (amount involved and results obtained are among factors for

trier of fact to consider when awarding attorney’s fees). When an amount of

damages is meaningfully reduced, the issue of attorney’s fees should ordinarily be

retried unless we are “reasonably certain that the jury was not significantly

influenced” by the erroneous damage award. Barker v. Eckman, 213 S.W.3d 306,

314 (Tex. 2006); see also Young v. Qualls, 223 S.W.3d 312, 314–15 (Tex. 2007)

(applying the same reasoning to a trial court’s award of attorney’s fees); Bossier

Chrysler–Dodge II, Inc. v. Rauschenberg, 238 S.W.3d 376, 376 (Tex. 2007);

Powell Elec. Sys., Inc., 356 S.W.3d at 128. Here, because the amount of damages

for the first agreement accounts for over one third of the total damages, we cannot

be reasonably certain that the trial court was not significantly influenced by the

erroneous damage award. See Lone Starr Multi-Theatres, Ltd. v. Max Interests,

Ltd., 365 S.W.3d 688, 705 (Tex. App.—Houston [1st Dist.] 2011, no pet.)

(remanding issue of attorney’s for retrial when on appeal trial court’s judgment

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was reduced by over half).

We therefore remand this case on the issue of attorney’s fees.

Conclusion

We reverse the trial court’s summary judgment on the first agreement and

affirm the trial court’s judgment for the second and third agreements. We also

reverse the trial court’s award of attorney’s fees. We remand this case for further

proceedings consistent with this opinion.

Rebeca Huddle
Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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