MEMORANDUM OPINION

This appeal arises out of a debt collection action filed by Centurion Capital Corporation (“Centurion”), assignee of Discover, against appellant, Jose A. Landaverde. Landaverde appeals from a summary judgment rendered in favor of Centurion. In his first issue, Landaverde challenges the trial court’s grant of summary judgment in favor of Centurion on its claims.

In his second issue, Landaverde argues that the trial court erred in denying his plea in abatement. In Landaverde’s third issue, he complains that the trial court erred in “ignoring” his motion to strike Centurion’s evidence. In his final issue, Landaverde contends that the trial court erred in dismissing his counterclaim.

We reverse and remand.

In his first issue, Landaverde argues that the trial court erred in granting Centurion’s motion for summary judgment. In a traditional motion for summary judgment, the movant bears the burden of establishing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 749 (Tex. 1999). In deciding whether there is a disputed material fact issue precluding summary judgment, summary judgment evidence favorable to the nonmovant will be taken as true, every reasonable inference must be indulged in favor of the nonmovant, and any doubts are resolved in the nonmovant’s favor. KPMG, 988 S.W.2d at 749; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985).

We review de novo the trial court’s decision to grant summary judgment. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).

Centurion based its summary judgment motion on:

• Landaverde’s alleged failure to file a verified denial of Centurion’s suit on an account, and
• deemed admissions which Centurion contends established every element of its suit.

Texas Rule of Civil Procedure 185 requires a defendant to file a verified denial in response to a plaintiff’s sworn suit on an account. Tex. R. Civ. P. 185. We have previously held that a sworn account, as intended in Rule 185, applies only “to transactions between persons, in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing.” Hou-Tex Printers, Inc. v. Marbach, 862 S.W.2d 188, 190 (Tex. App.- Houston [14th Dist.] 1993, no writ).

After evaluating Centurion’s original petition, it does not appear that the account subject of this suit involves such a transaction. Centurion’s petition states that Centurion and/or its predecessor “extended credit to Defendant for the Defendant to purchase of (sic) one or more items of goods, wares, merchandise, or services, or for cash advances. Defendant accepted the credit extended by making charges on said credit card account, or by authorizing another person to make said charges on this account.”

Additionally, Centurion was assigned this account from “Discover.”[1] It thus appears that this account was a credit card account extended to Landaverde for his general use by a financial institution that was not the seller of the goods or services purchased with the credit card. Rule 185 is therefore unavailable to Centurion. See Bird v. First Deposit Nat’l Bank, 994 S.W.2d 280, 282 (Tex. App.- El Paso 1999, pet. denied) (holding that – a credit card issued by a financial institution does not create the sort of debtor-creditor relationship required in order to bring suit under Texas Rule of Civil Procedure 185”); Marbach, 862 S.W.2d at 190 (finding that a suit on a promissory note is not included in Rule 185′s definition of a sworn account); Dunham v. Providian Nat. Bank, No. 14?01?00027?CV, 2002 WL 192336, at *1 (Tex. App.- Houston [14th Dist.] Feb. 7, 2002, no pet.) (not designated for publication) (noting that Rule 185 does not apply to a credit card account which involves only an advance of money).

Centurion attached the following requests for admissions to its original petition which the return of service shows was hand delivered to Landaverde on October 26, 2005:

• Defendant [Landaverde] entered an agreement whereby Plaintiff [Centurion] or Plaintiff’s original assignor extended credit to Defendant.


• Defendant was extended credit on the account or accounts the subject of this suit.


• Plaintiff or Plaintiff’s original assignor extended credit to Defendant for the purchase of goods, wares, merchandise or services or for cash advances on the account or accounts the subject of this suit.


• Defendant or another with permission of Defendant accepted the credit extended for the purchase of the goods, wares, merchandise, or services referred to in Request Number 03.


• The prices charged for the goods, wares, merchandise, or services referred to in Request Number 03 were the prices agreed to by Defendant or another with permission of Defendant.


• The prices charged for the goods, wares, merchandise, or services referred to in Request Number 03 were the usual and customary prices therefore at the time when delivered and in the county where delivered.


• The balance due and owing to Plaintiff from Defendant on the account or accounts the subject of this suit is at least $ 6353.38.


• More than thirty (30) days ago, Plaintiff presented to Defendant a demand for payment of the outstanding balance stated in Request No. 07.

Landaverde filed an answer (which included a certificate of service recitation) to Centurion’s complaint on November 15, 2005 and included denials: (1) that Centurion or its predecessors extended credit to him; and (2) that Centurion demanded payment of the debt.

Texas Rule of Civil Procedure 198.2 requires a party to respond to a request for admission within 30 days, except that a defendant served with a request before his answer is due has 50 days to respond to the request. Tex. R. Civ. P. 198.2(a). If a response is not timely served, the request is deemed admitted. Id. 198.2(c). Landaverde’s responses filed on November 15, 2005 were timely; therefore, those denials are given full effect. The requests for admissions which Landaverde did not respond to were deemed admitted. See id. We must determine if Centurion established the elements of its suit through the matters deemed admitted.

In addition to its attempt at using the procedural vehicle of Rule 185, Centurion sued under a breach of contract and quantum meruit theory. In order to prove a breach of contract claim, the plaintiff must show: (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 to the plaintiff resulting from the breach. Frost Nat’l Bank v. Burge, 29 S.W.3d 580, 593 (Tex. App. – Houston [14th Dist.] 2000, no pet.).

The elements of quantum meruit are: (1) the plaintiff rendered valuable services or furnished materials; (2) for the party sought to be charged; (3) the party sought to be charged accepted and enjoyed the services or materials; and (4) the party sought to be charged had reasonable notice that the plaintiff, in performing the services or providing the materials, expected payment. Vortt Expl. Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990); Wohlfahrt v. Holloway, 172 S. W.3d 630, 634 (Tex. App.- Houston [14th Dist.] 2005, pet. denied).

The deemed admissions here do not support either of Centurion’s claims. As mentioned above, Landaverde timely denied: (1) that he was extended credit from Centurion or any of its predecessors, and (2) that Centurion demanded payment from him. As a result, Centurion did not prove that it or its predecessors performed or tendered performance to Landaverde. See Burge, 29 S.W.3d at 593. Landaverde’s denial that Centurion or its predecessors extended credit to him negates the request intended to show performance. That same denial negates the quantum meruit elements requiring Centurion to show that it rendered services or materials and that Landaverde accepted such services or materials. See Vortt, 787 S.W.2d at 944; Wohlfahrt, 172 S.W.3d at 634. Consequently, Centurion did not establish its suit through deemed admissions. Therefore, there was no basis on which the trial court could have granted summary judgment on Centurion’s claims. We sustain Landaverde’s first issue.

In his second issue, Landaverde argues that the trial court erred in dismissing his plea in abatement which was based on Centurion’s alleged incapacity to sue. There is nothing in the record, however, to indicate that the trial court granted a hearing on the issue or made any other type of ruling regarding the issue. Landaverde has therefore waived this issue for purposes of this appeal. Tex. R. App. P. 33.1; Bossier Chrysler Dodge II, Inc. v. Rauschenberg, 201 S.W.3d 787, 798 (Tex. App.- Waco, 2006, pet. filed) (holding that a party filing a verified pleading should seek a hearing on the issue).

In his third issue, Landaverde complains that the trial court erred “when it ignored my motions to strike the evidence introduced by the Plaintiff.” Landaverde filed a motion to strike an affidavit Centurion attached to its original complaint. The record does not reflect that the trial court ruled on this issue either, as Landaverde’s statement that the trial court “ignored” his motions seems to indicate. Landaverde has failed to preserve this issue for review. Tex. R. App. P. 33.1.

In his fourth issue, Landaverde contends that the trial court erred when it dismissed his counterclaim. Landaverde filed a counterclaim alleging Centurion violated the Federal and Texas Fair Debt Collection Practices Acts.[2] Centurion did not address Landaverde’s counterclaim in its motion for summary judgment. Nevertheless, in its order granting summary judgment, the trial court stated, “All relief not expressly granted herein is denied, as this judgment is appealable and finally disposes of all parties and all claims in this cause of action.” The supreme court has provided, as an example of words indicating a trial court’s clear intent for a judgment to be final, language essentially the same as the language in the trial court’s order in this case. See Lehmann v. Har?Con Corp., 39 S.W.3d 191, 206 (Tex. 2001) (stating that “[a] statement like, ‘This judgment finally disposes of all parties and all claims and is appealable,’ would leave no doubt about the court’s intention” for a judgment to be final). Therefore, the trial court’s order was final. See Lehmann, 39 S.W.3d at 200 (holding that if the trial court’s intent to finally dispose of the case is clear, then the order is final and appealable).

The implication of that finality is that the trial court granted summary judgment in favor of Centurion on Landaverde’s counterclaim. As mentioned above, however, Centurion did not raise the issue of Landaverde’s counterclaim in its motion for summary judgment. A judgment that grants more relief than a party is entitled to is subject to reversal. Id. Thus, it was reversible error for the trial court to grant summary judgment for Centurion on a claim it did not raise in its motion for summary judgment. We sustain Landaverde’s fourth issue.

We reverse the trial court’s grant of summary judgment in favor of Centurion on its claims and Landaverde’s counterclaim. We find, for purposes of this appeal, that Landaverde waived his complaints regarding his plea in abatement and his motion to strike Centurion’s evidence. We remand these issues to the trial court for further proceedings consistent with this opinion.

/s/ Adele Hedges
Chief Justice

Judgment rendered and Memorandum Opinion filed June 28, 2007.

Panel consists of Chief Justice Hedges and Justices Hudson and Guzman.

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[1] While it is not clear from the record, it appears ADiscover is a reference to Discover Financial Services (DFS), a prominent credit card issuer, considering Centurion’s discussion in its petition of a Acredit card account.

[2] In bringing his counterclaim, Landaverde asked for Athe standard monetary relief authorized@ by the Federal and Texas Debt Collection Practices Acts. Both Acts do, in fact, provide for damages in the event that one of the provisions under those Acts is violated. See 15 U.S.C. ‘ 1692k; Tex. Fin. Code ‘ 392.403(a). Therefore, it does not appear that Landaverde intended to use his Acounterclaim@ merely as a defense to Centurion’s claims.