Etheldria Carey v. First Class American Credit Union ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-165-CV
ETHELDRIA CAREY APPELLANT
V.
FIRST CLASS AMERICAN APPELLEE
CREDIT UNION
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FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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In one issue, Appellant Etheldria Carey, pro se, challenges the trial court’s
grant of summary judgment in favor of Appellee First Class American Credit
Union (“FCACU”). We will affirm.
FCACU sued Carey to recover a credit card indebtedness in the amount
of $3,101.59 plus interest. Carey answered the suit and generally denied
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 See Tex. R. App. P. 47.4.
FCACU’s allegations. FCACU later filed a traditional motion for summary
judgment on its debt claim, arguing that it was entitled to judgment as a matter
of law in the amount of $4,933.93 ($3,101.59 plus interest in the amount of
$1,832.34). Presumably in response to FCACU’s motion for summary
judgment, Carey filed her “Defendant’s Original Answer.” This response
includes only the following:
COMES NOW the defendant(s) in the above-styled case, who
enters a general denial pursuant to Texas Rule of Civil Procedure
92, denying the allegations set forth in the plaintiff’s petition and
denying plaintiff’s claim.
Wherefore, premise considered, defendant prays that the
plaintiff take nothing in this case; and the defendant go hence
without day and cost of said suit be taxed against plaintiff.
The trial court granted FCACU’s motion for summary judgment and signed a
judgment awarding FCACU $4,933.93 plus attorneys’ fees in the amount of
$1,500.
In her sole issue, Carey argues that the trial court erred by granting
FCACU’s motion for summary judgment because (1) the account referenced in
FCACU’s original petition is a Visa account, but the exhibit attached to the
petition references a MasterCard account, and (2) FCACU filed a 1099-C
Cancellation of Debt notice with the Internal Revenue Service on December 19,
2005, which made the debt unenforceable. Carey did not raise these
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arguments in her response to FCACU’s motion for summary judgment as issues
expressly precluding the summary judgment. Because Carey did not assert
these arguments in her response to FCACU’s motion for summary judgment,
she may not raise them for the first time on appeal as reasons to reverse the
summary judgment. See Tex. R. Civ. P. 166a(c) (providing that issues not
expressly presented to the trial court by written motion, answer, or response
shall not be considered on appeal as grounds for reversal); Tex. R. App. P.
33.1(a)(1) (requiring that as a prerequisite for presenting a complaint for
appellate review, record must show that the complaint was made to trial court
by timely request, objection, or motion); McConnell v. Southside ISD, 858
S.W.2d 337, 341 (Tex. 1993); City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 677 (Tex. 1979); Pinnacle Anesthesia Consultants, P.A. v. Fisher,
No. 05-07-01042-CV, 2009 WL 1801032, at *9, *10, *11 (Tex. App.—Dallas
June 25, 2009, no pet.) (reasoning that arguments not made in response to
motion for summary judgment cannot be raised on appeal as reasons to reverse
summary judgment); Priddy v. Rawson, 282 S.W.3d 588, 597 (Tex.
App.—Houston [14th Dist.] 2009, pet. denied) (reasoning that argument not
expressly presented to the trial court in response to motion for summary
judgment was waived). To the extent her “Defendant’s Original Answer” was
not filed as a response to FCACU’s motion for summary judgment, Carey does
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not argue that FCACU’s evidence is insufficient as a matter of law to support
the summary judgment. See City of Houston, 589 S.W.2d at 678 (reasoning
that while the nonmovant need not file an answer or response to the motion for
summary judgment, on appeal the nonmovant may only contend that the
movant’s evidence supporting the motion was insufficient as a matter of law
or that the grounds in the motion do not dispose of all the claims in the case).
Accordingly, we overrule Carey’s only issue and affirm the trial court’s
judgment.
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and MEIER, JJ.
DELIVERED: February 4, 2010
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