Wynne v. Citibank South Dakota N.A. (Tex.App.- Amarillo, Apr. 25, 2008)(Campbell)
AFFIRMED: Opinion by Justice Campbell [ PDF ]
We conclude that Citibank met its burden to establish the existence of a valid contract as a matter
of law and accordingly, the trial court did not err in granting summary judgment in Citibank's favor.
Before Chief Justice Quinn, Justices Campbell and Pirtle
07-06-00162-CV Shari A. Wynne v. Citibank South Dakota N.A.
Transfer Case No: 03-06-00167-CV
Appeal from County Court at Law No 1 of Travis County
Trial Court Judge: Honorable J. David Phillips
Attorney for consumer/deendant: Jerry J. Jarzombek
Attorneys for CitiBank: Allen L. Adkins, Mark A. Palm
MEMORANDUM OPINION
Appellant Shari A. Wynne appeals from a summary judgment for appellee Citibank (South Dakota), N.A., in
its suit to recover the amounts owed on two credit card accounts. We affirm.
Citibank's suit sought recovery of the $34,276.27 balance of the two accounts under theories of breach of
contract, account stated, open account, and, in the alternative, quantum meruit and unjust enrichment.
Wynne answered with a general denial.
Citibank filed a traditional motion for summary judgment, supported by affidavits of Courtney Gilbert and
attorney Allen Adkins. Billing statements and credit card agreements for the two accounts were
appended to Gilbert's affidavit. Wynne filed a response to the motion and an attached affidavit,
controverting Adkins's affidavit testimony on attorney's fees. After a hearing, the trial court entered
a partial summary judgment for CitiBank finding Wynne liable for the $34,276.27 balance, but finding the
proper amount of Citibank's attorney's fees remained in controversy.
Citibank then submitted another affidavit in support of attorney's fees, followed by a motion for summary
judgment on attorney's fees. After Wynne filed a response, Citibank, on December 15, 2005, filed an
amended affidavit in support of its attorney's fees. Also on December 15, 2005, the trial court signed a
final judgment awarding Citibank $34,276.27, plus attorney's fees in the amount of $915,
post-judgment interest and costs.
Wynne filed a motion for new trial, which was overruled by operation of law, followed by her notice of
appeal. On appeal, Wynne presents a single Malooley (1) point asserting the trial court erred by granting
summary judgment for Citibank.
Standard of Review
Our review of a summary judgment is de novo to determine whether a party's right to prevail is established
as a matter of law. Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). We take as
true all evidence favorable to the non-movant, and indulge every reasonable inference and resolve any
doubt in the non-movant's favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.
1985). To obtain summary judgment in its favor, a plaintiff must conclusively prove its entitlement to prevail
on each element of its cause of action as a matter of law. Thompson v. Chrysler First Business Credit
Corp., 840 S.W.2d 25, 28 (Tex.App.-Dallas 1992, no writ).
A motion for summary judgment must expressly present the grounds on which it is made and must stand or
fall on these grounds alone. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997). When,
as here, a trial court's order granting summary judgment does not specify the grounds relied upon, the
reviewing court must affirm summary judgment if any of the summary judgment grounds are meritorious.
FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000); Star-Telegram, Inc. v.
Doe, 915 S.W.2d 471, 473 (Tex. 1995).
Summary Judgment Evidence
Wynne begins her challenge to the summary judgment by contending Gilbert's affidavit is substantively
defective because it is conclusory. (2) She bases that contention on an argument the affidavit does not
demonstrate it is based on Gilbert's personal knowledge. (3) The affidavit states that Gilbert is an account
representative of Citicorp Credit Services, Inc. (USA), a "servicer" for Citibank, that she is one of the
custodians of records for Citibank, and her duties include having custody and control of records relating to
Wynne's accounts. Texas courts have found similar affidavit testimony by other Citibank "servicer"
personnel adequate to establish the affiant's personal knowledge for the purpose of authentication of the
attached records. See Jones v. Citibank (South Dakota), N.A., 235 S.W.3d 333, 337 (Tex.App.-Fort Worth
2007, no pet.); Hay v. Citibank (South Dakota) N.A., No. 14-04-01131-CV, 2006 WL 2620089, *3
(Tex.App.-Houston [14th Dist.], Sept. 14, 2006, no pet.) (mem. op.). We find Gilbert's affidavit adequate for
the purpose here. Duran v. Citibank (South Dakota), N.A., No. 01-06-00636-CV, 2008 WL 746532
(Tex.App.-Houston [1st Dist.], March 20, 2008, no pet. h.) (mem. op.).
Wynne also argues Gilbert's affidavit fails to comply with the requirements of Rule of Evidence 803(6). We
find no merit in the argument. As noted, Gilbert's affidavit states she is one of the custodians of the
records presented. The affidavit is substantially in the form set forth in Rule of Evidence 902(10)(b). Tex.
R. Evid. 803(6); 902(10).
Wynne further contends some of the billing statements appended to Gilbert's affidavit are not proper
summary judgment evidence. She first points to the statement in Gilbert's affidavit that the attachments
"are true and correct copies of duplicate monthly statements sent to Defendant for the Account over the
relevant time period." Wynne questions why the affidavit refers to duplicate statements rather than "true
and correct copies of the original statements." Wynne also points to dates that appear near the upper right
corner of the statements appended to the affidavit. In some instances, those dates are well after the
statement closing date that also appears on the statement. (4) The dates also are after the date of
Gilbert's affidavit, which, according to its jurat, she signed on November 4, 2004. Wynne further points out
that three of the statements appended to the affidavit (5) are dated after the date of Gilbert's affidavit and
thus cannot have existed at the time she executed the affidavit. As Wynne's brief states, one explanation
for the differences in dates appearing on the statements is that Citibank printed them from electronic
records for attachment to the affidavit, and that the dates appearing in the upper right corner are the
dates of their printing. She asserts that another reasonable conclusion is that Gilbert, contrary to her
affidavit statement, had no personal knowledge regarding the billing statements attached to her affidavit.
Wynne couches these assertions as challenges to the substance of Gilbert's affidavit. We find they assert
defects in the form of the attachments. Mathis, 982 S.W.2d at 60.
Wynne makes a similar attack on the card agreements appended to Gilbert's affidavit. She points to the
copyright date of 2003 appearing on the card agreements and questions how they can provide
evidence of credit card accounts whose statements begin in 1996. These also are assertions of defects in
the form of Citibank's affidavit attachments. Id. Because they were not raised in the trial court, they cannot
serve as grounds for reversal of the summary judgment. Thompson v. Curtis, 127 S.W.3d 446, 450
(Tex.App.-Dallas 2004, no pet.); Mathis, 982 S.W.2d at 58-59. Gilbert's affidavit and its attachments were
properly considered by the trial court. (6)
Breach of Contract
We agree with Wynne that Citibank's motion for summary judgment was grounded only on its breach of
contract claim. The judgment thus must stand or fall on that ground alone. Science Spectrum, 941 S.W.2d
at 912. Wynne argues the summary judgment evidence does not conclusively establish Citibank's
entitlement to judgment on its breach of contract claim. In support, she contends the evidence of the
existence of a valid contract is lacking. See Hussong v. Schwan's Sales Enterprises, Inc., 896 S.W.2d
320, 326 (Tex.App.-Houston [1st Dist.] 1995, no writ) (listing elements of breach of contract action to
include the existence of a valid contract). Citibank's summary judgment evidence is, in all material
respects, like that Texas courts have found sufficient to establish a valid contract in other credit card
cases. See Duran v. Citibank (South Dakota), N.A., No. 01-06-00636-CV, 2008 WL 746532
(Tex.App.-Houston [1st Dist.], March 20, 2008, no pet. h.) (mem. op.); Hinojosa v. Citibank (South Dakota),
N.A., No. 05-07-00059-CV, 2008 WL 570601 (Tex.App.-Dallas, March 4, 2008, no pet. h.) (mem. op.);
Jones v. Citibank (South Dakota), N.A., 235 S.W.3d 333, 337 (Tex.App.-Fort Worth 2007, no pet.); Hay v.
Citibank (South Dakota) N.A., No. 14-04-01131-CV, 2006 WL 2620089, *3 (Tex.App.-Houston [14th Dist.],
Sept. 14, 2006, no pet.) (mem. op.) (finding conclusive evidence of contract under South Dakota, federal
and Texas law).
The billing statements establish Wynne's acceptance and use of the Citibank credit card.
We do not find the 2003 copyright dates on the Citibank card agreements attached to Gilbert's affidavit
fatal to its summary judgment motion. The affidavit says that the card agreements attached are true and
correct copies of the "written contract entered into by [Wynne] for use of the [a]ccount[s]." Indulging in
Wynne's favor every reasonable inference raised by the summary judgment evidence, her contentions do
not demonstrate how the 2003 date raises a material issue of fact, in light of the undisputed information
contained in the billing statements.
Wynne finally presents an argument based on Tully v. Citibank (South Dakota), N.A., 173 S.W.3d 212
(Tex.App.-Texarkana 2005, no pet.), in which the court found Citibank had not conclusively established the
amount due under the breached credit card agreement because its summary judgment evidence did not
prove Tully had agreed to the interest rate used in the bank's calculations. The court in Hinojosa
rejected a similar argument, and we reject it here for the same reason. See Hinojosa, 2008 WL 570601.
Like the card agreement in Hinojosa, the card agreement here states the annual percentage rate in effect
will appear on the monthly billing statements, and the billing statements are in the record. Id.
We conclude that Citibank met its burden to establish the existence of a valid contract as a matter of law
and accordingly, the trial court did not err in granting summary judgment in Citibank's favor.
Summary Judgment on Attorney's Fees
As noted, Wynne filed a response to Citibank's initial motion for summary judgment, controverting the
reasonableness and necessity of its claimed $7883.54 in attorney's fees. Citibank later filed an affidavit of
Allen Adkins, its attorney, dated June 1, 2005, and stating reasonable attorney's fees in the case totaled
$915. It then filed a motion for summary judgment on attorney's fees, giving notice of hearing on the
motion for December 15, 2005. Wynne filed a response to the motion, pointing out Adkins's affidavit
conditioned its assertion of the truth of its statements on "the best of [affiant's] knowledge and belief." (7)
Wynne's response asserted such an affidavit is no evidence, and asked that Citibank's motion be denied.
On the day of the hearing, December 15, Citibank filed an amended affidavit, the contents of which are
substantively identical to the June affidavit but omitted the "best of knowledge and belief" statement.
Wynne contends on appeal the trial court erred by granting Citibank summary judgment for $915 in
attorney's fees. We will overrule the contention.
Wynne is correct that Adkins's June 1 affidavit was defective. The defect, however, was one of form, not
substance. As Wynne's objection at trial and her brief on appeal point out, the defect caused by the
improper inclusion of the "best of knowledge and belief" statement in the June 1 affidavit closely resembles
that in International Turbine Serv., Inc. v. Lovitt, 881 S.W.2d 805, 808 (Tex.App.-Fort Worth 1994, writ
denied), in which the court found defective an affidavit by counsel based on best knowledge.
But the court also found that the right to complain of the defect on appeal was subject to waiver. Id. Wynne
filed an objection in the trial court to Adkins's June 1 affidavit, but the record does not reflect a ruling on
the objection. Cf. Martinez v. IBP, Inc., 961 S.W.2d 678, 685 (Tex.App.-Amarillo 1998, pet. denied) (trial
court overruled objection to summary judgment affidavit). Accordingly, no objection to the trial court's
reliance on Adkins's June 1 affidavit may be asserted now. (8) McConnell v. Southside Indep. Sch. Dist.,
858 S.W.2d 337, 343 n.7 (Tex. 1993); Youngblood v. U.S. Silica Co., 130 S.W.3d 461, 468-69
(Tex.App.-Texarkana 2004, pet. denied).
The trial court did not err by granting summary judgment on attorney's fees.
Concluding the trial court did not err by its grant of summary judgment, we overrule Wynne's issue and
affirm the judgment.
James T. Campbell
Justice
1. In Malooley Bros, Inc. v. Napier, 461 S.W.2d 119 (Tex. 1970), the Supreme Court concluded that a point
of error stating generally that the trial court erred by granting summary judgment authorizes review of all
possible grounds of trial court error in granting the summary judgment.
2. Although defects of form must be raised in the trial court, substantive defects in summary judgment
evidence may be asserted for the first time on appeal. Mathis v. Bocell, 982 S.W.2d 52, 58-59
(Tex.App.-Houston [1st Dist.] 1998, no pet.). Challenges to summary judgment affidavits as conclusory
allege a defect in substance. Tex. R. Civ. P. 166a(f); Nichols v. Lightle, 153 S.W.3d 563, 570
(Tex.App.-Amarillo 2004, pet. denied); Dailey v. Albertsons, Inc., 83 S.W.3d 222, 225 (Tex.App.-El Paso
2002, no pet.).
3. Failure to affirmatively show that the affiant had personal knowledge is a defect in form and must be
preserved in the trial court. Grand Prairie Indep. School Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex.
1990). Here, Wynne has alleged that Gilbert's affidavit is not founded on personal knowledge as part of
her argument that the affidavit is conclusory and therefore suffers from a substantive defect that may be
raised for the first time on appeal.
4. For example, Wynne notes the date "11/10/04" also appears on statements with closing dates from July
25, 2001 through June 25, 2002, and the date "01/28/05" appears on statements with closing dates from
July 25, 2002 through January 25, 2005.
5. The statements appear as pages 69, 70 and 71 of the clerk's record.
6. Wynne's motion for new trial does not assist her here. See Gomez v. Allstate Texas Lloyds Ins. Co., 241
S.W.3d 196, 202 (Tex.App.-Fort Worth 2007, no pet.) (objections to defects in form of affidavits or
attachments to a summary judgment motion raised for the first time in a motion for new trial are insufficient
to preserve error).
7. The response is dated December 8 and file-marked December 12, 2005.
8. We need not address Wynne's appellate objection to Adkins's affidavit filed on December 15.