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           &nbs= p;            = ;       =20 COURT=20 OF APPEALS

           &nbs= p;            = ;            =   =20 SECOND DISTRICT OF TEXAS

           &nbs= p;            = ;            =             &= nbsp; =20 FORT WORTH

 

 

           &nbs= p;            = ;            =    =20 NO. 2-06-465-CV

 

 

KENNETH = J. MAGNUSON=20            &nbs= p;            = ;            =             &= nbsp;   =20 APPELLANT

 

           &nbs= p;            = ;            =             &= nbsp; =20 V.

 

CITIBANK = (SOUTH=20 DAKOTA) N.A.           &nbs= p;            = ;            =        =20 APPELLEE

 

           &nbs= p;            = ;            =          =20 ------------

 

         =20 FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY

 

           &nbs= p;            = ;            =          =20 ------------

 

           &nbs= p;            = ;       =20 MEMORANDUM=20 OPINION[1]

 

           &nbs= p;            = ;            =          =20 ------------

Appellant=20 Kenneth J. Magnuson appeals from a summary judgment awarding = Appellee=20 Citibank (South Dakota), N.A. damages of $18,815.02, plus = $4,327.45 in=20 attorney=3Ds=20 fees, $1,500 in additional attorney=3Ds=20 fees in the event of an unsuccessful appeal by Magnuson to the = court of=20 appeals, and $2,500 in additional attorney=3Ds=20 fees in the event of an unsuccessful appeal by Magnuson to the = Texas=20 Supreme Court.  = Because we=20 hold that the trial court did not err by granting summary judgment = for=20 Citibank, we affirm.

I.  Facts and Procedural=20 History

On=20 June 18, 2004, Citibank sued Magnuson on claims of account stated, = breach=20 of contract, and quantum meruit for the unpaid balance on=20 Magnuson=3Ds=20 credit card account after he stopped paying on the account.  Magnuson filed an answer = pro=20 se.  On September = 20, 2004,=20 Citibank filed a motion for summary judgment.  Magnuson filed a = response.  Citibank asked for a = hearing by=20 submission, but Magnuson appeared in person on the hearing = date.  The trial court denied=20 Citibank=3Ds=20 motion without prejudice and without considering the merits = because=20 Citibank did not appear.

On=20 November 7, 2005, Citibank filed a second traditional motion for = summary=20 judgment and submitted in support of its motion the affidavit of = Crystal=20 Britt, its representative, stating among other things that demand = had been=20 made on Magnuson more than thirty days prior to suit.  Citibank also attached = copies of=20 the card agreement, Magnuson=3Ds=20 account application, and billing records.  Magnuson filed a = verified response=20 but did not attach any evidence in support.  In his response, he = argued that=20 the application included with Citibank=3Ds=20 evidence is illegible and therefore no contract exists and that = because=20 the cardholder agreement does not contain his signature, the = conditions=20 therein are not a part of any alleged agreement between the = parties. He=20 also asserted that no contract was signed by=20 Citibank.

Magnuson=20 also filed a motion to show authority under Rule 12 of the Texas = Rules of=20 Civil Procedure.[2]  Citibank filed a = response,=20 attaching an affidavit of a vice president for Citicorp Credit = Services,=20 Inc., in which the vice president avers that Citicorp is the = servicer for=20 Citibank, that her duties include supervising attorneys retained = to=20 collect debts on Citibank=3Ds=20 behalf, and that Citicorp retained the acting counsel for the = proceedings=20 against Magnuson.

Both=20 motions were set for a hearing on February 3, 2006.  Citibank had requested a = hearing=20 by submission on its summary judgment motion, and = Citibank=3Ds=20 attorney did not appear in person on that date.  The trial court stated = that it=20 intended to hold a hearing on the Rule 12 motion and asked = Magnuson to=20 offer evidence that Citibank was served with notice of the = hearing.  Magnuson did not have = such=20 evidence with him at the hearing. =20 The trial court then offered to waive the in-person hearing = and=20 base its ruling on the pleadings then on file.  Magnuson declined the = offer and=20 suggested that the trial court swear him in and allow him to = testify that=20 he served Citibank with notice. =20 The trial court instead allowed Magnuson the opportunity to = supplement the file with the confirmation and told Magnuson that, = once the=20 evidence was submitted, he would consider it.  Magnuson did not = supplement with=20 proof of notice.

The=20 trial court subsequently set a hearing date of June 14, 2006, for = the=20 hearing on the motion for summary judgment and on = Magnuson=3Ds=20 Rule 12 motion.  = Magnuson did=20 not appear, and the trial court orally dismissed the Rule 12 = motion for=20 failure to prosecute.  = The=20 trial court also granted Citibank=3Ds=20 summary judgment motion in a written order without stating the=20 grounds.  On = November 22,=20 2006, the trial court entered a written order denying = Magnuson=3Ds=20 Rule 12 motion.  = Magnuson=20 filed a motion for new trial, including a motion for = reconsideration on=20 his Rule 12 motion, in which he alleged that by filing an answer = to his=20 Rule 12 motion, Citibank made a judicial admission that it had = notice of=20 the February 2006 hearing on the motion.  He further argued that = the trial=20 court had violated Magnuson=3Ds=20 due process rights by failing to sign orders Magnuson had = presented to it=20 after the court granted summary judgment.  Magnuson also alleged = that the=20 June 2006 hearing was essentially a rehearing on the Rule 12 = motion, that=20 the rehearing was granted without proper motion, and that by = granting the=20 rehearing the trial court violated the Texas Code of Judicial = Conduct,=20 held Magnuson to a higher standard than opposing counsel, and = violated=20 Magnuson=3Ds=20 due process and equal protection rights.  The trial court denied = the motion=20 on December 20, 2006.

II.  Analysis

Magnuson=20 presents nine issues on appeal. =20 We begin with Magnuson=3Ds=20 second and third issues, which relate to his Rule 12 motion.  In his second issue, he = asks,=20 AIf=20 a hearing is scheduled and the [m]ovant appears and the nonmovant = fails to=20 appear but files a written answer which is insufficient as a = matter of=20 law, has the movant [sic] waived all objections to said=20 hearing?@  In his third issue, he = questions=20 whether the trial court has a duty to provide relief for the party = that=20 appeared.

In=20 the arguments section of Magnuson=3Ds=20 brief, he states,

Notice = was given=20 and received by the opposing counsel.  Trial judge abused = discretion in=20 not signing order after CITIBANK failed to appear.  All elements of the = requirements=20 of the rule were pleaded. =20 CITIBANK answered with an affidavit of their = representation.  However, the rule = requires a=20 hearing in order to allow cross‑examination of witnesses as = to the=20 authentication and source of the documents.  Without the hearing[,]=20 self‑serving affidavits would replace evidentiary = standards.  It was not within the = trial=20 court[=3D]s = discretion not=20 to hear a motion that invoked a rule that protected the rights of=20 litigants against barratry or frivolous pleadings.  It is the contention of = the=20 Appellant that the attorneys acting to represent CITIBANK are = actually=20 third party debt [collectors] which would equate to fraud upon the = court.

 

This=20 paragraph constitutes the extent of his argument for these issues = in the=20 AArguments@=20 section of his brief. =20

We=20 consider together Magnuson=3Ds=20 contentions that he was entitled to have his motion granted = because=20 Citibank did not appear in person on February 3, 2006, and that by = failing=20 to appear, Citibank waived its objections to the hearing.  The motion was first set = for=20 hearing on February 3, 2006. =20 On that date, Magnuson was unable to show that Citibank had = notice=20 of the hearing.  As = the trial=20 court attempted to explain to Magnuson, notice that a motion has = been=20 filed is not notice of the setting of a hearing on the = motion.  Citibank clearly did = know that=20 Magnuson had filed a Rule 12 motion because, as Magnuson correctly = points=20 out, Citibank filed a response. =20 But that does not signify that Citibank had any notice of = when the=20 hearing on the motion would be held. 

Rule=20 21 of the Texas Rules of Civil Procedure provides that=20

[a]n = application to=20 the court for an order and notice of any hearing thereon, = not=20 presented during a hearing or trial, shall be served upon all = other=20 parties not less than three days before the time specified for the = hearing=20 unless otherwise provided by these rules or shortened by the = court.[3]

 

The=20 local rules of the trial court provide that A[u]pon=20 receiving the date and time of hearing [as scheduled by the court=20 coordinator], the moving party shall immediately notify all other = parties=20 in writing as to the date, time, and subject matter of the=20 hearing.@[4]=20

A=20 trial court=3Ds=20 final dismissal of a plaintiff's cause of action without proper = notice is=20 an abuse of discretion.[5]  Thus, the trial court = did not=20 abuse its discretion by requiring that Magnuson show proof of = service on=20 Citibank before granting his motion and striking = Citibank=3Ds=20 pleadings.  It is = irrelevant=20 for purposes of Magnuson=3Ds=20 issue whether Magnuson later established that he had served = Citibank with notice of the hearing date because on the date of = the=20 hearing, the time at which Magnuson alleges the trial court = erred,=20 Magnuson offered no evidence that Citibank had notice of the = hearing.  Without proof of service = on=20 Citibank, Magnuson was not entitled to any sort of default ruling = on his=20 motion, and Citibank did not waive objections to the hearing.[6]

Magnuson=20 makes a related argument in the AConclusion@=20 section of his brief.  = There=20 he contends that the trial court created a heightened pleading = standard=20 for him, a nonattorney, when the trial court failed to grant his = Rule 12=20 motion on February 3, 2006, after Citibank did not appear at the=20 hearing.  He argues = that this=20 heightened standard violates due process and equal protection.=20

Magnuson=20 cites no authority for this argument.[7]  Further, as we discussed = above=20 (and as the trial court attempted to explain to him on that date), = there=20 is a difference between having notice that a motion has been filed = with=20 the trial court and having notice of the date of a hearing on that = motion.  The trial = court did=20 not create a heightened pleadings standard by requiring Magnuson = to offer=20 such evidence; rather, the trial court applied the Texas Rules of = Civil=20 Procedure.[8]  =

We=20 note that the trial court set a hearing date for June 14, 2006, = and that=20 Magnuson did not appear.  = It=20 was Magnuson=3Ds=20 responsibility to diligently pursue his motion, and by failing to = show up=20 at the hearing, he faced dismissal of his motion.[9]  Accordingly, the trial = court=20 dismissed the motion for want of prosecution, rather than ruling = on the=20 merits either with or without an oral hearing, and Magnuson does = not=20 challenge the propriety of that dismissal on appeal.  Thus, the question of = whether Rule=20 12 requires an oral hearing before a ruling on the merits may be = issued is=20 irrelevant to this appeal, and we do not consider it.[10]<= SPAN=20 style=3D"mso-spacerun: yes">  Accordingly, we overrule = issues=20 two and three.

In=20 his first issue, Magnuson asks, AMay=20 a litigant file a second Motion for Summary Judgment without any = change in=20 their pleadings?@=20 In issue four, Magnuson asks, does Athe=20 opposing party have the authority to reset a hearing or in effect = have a=20 rehearing of a motion filed by opposing counsel without filing a = motion to=20 rehear?@  Issue five relates to = the trial=20 court=3Ds=20 grant of Citibank=3Ds=20 second motion for summary judgment and asks, ADoes=20 any court have the ability to rule in favor of a summary judgment = motion=20 that had been previously denied?@  Issue six questions = whether a=20 trial court has discretion to grant a summary judgment motion if = the=20 nonmoving party fails to appear on the date set for the summary = judgment=20 hearing.  Magnuson = makes no=20 argument in support of these issues; therefore, they present = nothing for=20 this court to review.[11]<= SPAN=20 style=3D"mso-spacerun: yes">  Accordingly, we overrule = issues=20 one, four, five, and six as inadequately briefed.[12]<= o:p>

Issues=20 seven through nine relate to Magnuson=3Ds=20 access to reporter=3Ds=20 records under Rule 145 of the Texas Rules of Civil Procedure and = Rule 20.1=20 of the Texas Rules of Appellate Procedure for the purpose of = proving a=20 motion for new trial.[13]<= SPAN=20 style=3D"mso-spacerun: yes">  He states in his brief = that he=20 filed a motion for new trial, and Citibank=3Ds=20 counsel argued in response that there was no hearing on the Rule = 12 motion=20 Aand=20 that no transcript has been provided to demonstrate that a hearing = had in=20 fact occurred.@  Magnuson then notes that = he is=20 indigent and that he filed Athe=20 necessary documents@=20 under Rule 145 and Rule 20.1 to prove his indigency, and that he = had made=20 a request for Athe=20 transcript to provide evidence of the hearing and the opposing=20 parties[>]=20 absences from that hearing,@=20 which the trial court denied. =20 With that preface, Magnuson asks,

Seven:  Does the lack of access = to an=20 indigent to hearing transcripts in rehearings or in a New Trial = Motion=20 deny the indigent the right to due process and equal protection = under the=20 U.S. Constitution?

 

Eight:  If it does not in = Question 7=20 above, how can a person place evidence of errors or omissions = before the=20 trial court without having to appeal it first in order to be = provided the=20 transcripts under the Texas Rules of Appellant Procedure=20 20.1?

 

Nine:  In considering the = situation in=20 the above scenario and questions create; explain how an indigent = person=20 can persuade a trial court of mistakes made in previous hearings = if they=20 are denied transcripts and cannot afford them, when the same court = bars=20 tape records as a standing rule? =20 Is this not a de facto denial of access to the courts with = an equal=20 footing as the opposing party?

In support=20 of these issues, Magnuson argues that Rule 145 does not allow for=20 reporter=3Ds records=20 to be provided to indigent parties for purposes of filing motions = for=20 rehearing or motions for new trial, and the denial of access to = the=20 reporter=3Ds record=20 of the hearings in this case denied him due process, violated his = equal=20 protection rights, and denied him access to the courts.=20

While=20 Magnuson phrases his issues in terms of indigent defendants in = general, we=20 consider only whether the denial of access to the = reporter=3Ds record=20 for purposes of filing a motion for new trial or motion for = rehearing=20 violated Magnuson=3Ds rights,=20 not the rights of other indigent defendants.[14]<= SPAN=20 style=3D"mso-spacerun: yes">  We conclude that we need = not=20 determine whether Magnuson has been denied due process, equal = protection,=20 or access to the courts because Magnuson has not shown any harm.[15] =

A party=20 has several avenues for obtaining a remedy for trial court = error.  A party can try to = persuade the=20 trial court to remedy the error by filing a motion for new trial = or a=20 motion for rehearing.[16]<= SPAN=20 style=3D"mso-spacerun: yes">  In addition, the party = can file an=20 appeal and try to persuade a court of appeals to remedy the = alleged=20 error.[17]<= SPAN=20 style=3D"mso-spacerun: yes">  =

In this=20 case, Magnuson claims that he could not persuade the trial court = of=20 mistakes made or show the trial court evidence of errors or = omissions=20 without having access to the reporter=3Ds=20 record.  But = Magnuson did have=20 access to the reporter=3Ds record=20 in making his appeal.  = This=20 court has the authority to remedy error and grant a new trial in = the=20 appropriate circumstances.[18]<= SPAN=20 style=3D"mso-spacerun: yes">  Thus, if Magnuson wished = the trial=20 court to cure error by granting a new trial, this court could have = cured=20 the error with the same remedy if such remedy was = appropriate.  And although Magnuson = appears to=20 assert that there should be some procedure, other than filing an = appeal,=20 for gaining access to the reporter=3Ds record=20 in order to raise a point of error in the trial court, in this = case,=20 Magnuson has not demonstrated how he was harmed by the absence of = such a=20 procedure.  Despite = the fact=20 that Magnuson has now been given access to the = reporter=3Ds record,=20 he has not told this court what arguments he would have made to = the trial=20 court or what evidence of errors or omissions he would have noted = in his=20 motion for new trial or motion for rehearing if he had been able = to=20 examine the reporter=3Ds record=20 before drafting the motions. =20 Thus, Magnuson has not shown any error of law that probably = caused=20 the rendition of an improper verdict.[19]<= o:p>

Magnuson=20 could have also demonstrated harm by showing that the trial court = made an=20 error of law that probably prevented him from properly presenting = his case=20 to this court on appeal.[20]<= SPAN=20 style=3D"mso-spacerun: yes">  Under Rule 324(b) of the = Texas=20 Rules of Civil Procedure, in some instances, a complaint must be = made as a=20 point in a motion for new trial as a prerequisite to making the = complaint=20 on appeal.[21]<= SPAN=20 style=3D"mso-spacerun: yes">  For example, a party = complaining=20 about the factual sufficiency of the evidence supporting a jury = finding=20 must raise the complaint in a motion for new trial.[22]<= SPAN=20 style=3D"TEXT-TRANSFORM: uppercase"> =20 Magnuson has not argued, much less demonstrated, = that denial=20 of access to the reporter=3Ds record=20 prevented him raising a Rule 324(b) point in a motion for new = trial (and=20 thus prevented him from raising it on appeal) or that it in any = other way=20 prevented him from properly presenting his case to this court.[23]<= SPAN=20 style=3D"mso-spacerun: yes">  We overrule issues = seven, eight,=20 and nine.

Finally,=20 we consider one additional argument raised by Magnuson.  In the arguments section = of his=20 brief, he argues that no written contract signed by the parties = exists and=20 that without a formal written contract, the amount of damages, if = any,=20 cannot be calculated.  = This=20 argument does not clearly relate to any of the issues he raised in = the=20 AIssues=20 Presented@=20 section of his brief, but we will consider it.[24]<= o:p>

In=20 addition to its breach of contract claim, Citibank filed for = summary=20 judgment on its claim on account stated.  The trial court did not = specify=20 whether it granted summary judgment on the breach of contract = claim or on=20 the account stated claim, and on appeal, Magnuson challenges only = the=20 propriety of the summary judgment as to the breach of contract = claim.  We therefore must affirm = the=20 summary judgment on the account stated ground.[25]<= o:p>

Having=20 affirmed the summary judgment on procedural grounds, we need not = address=20 the merits of Magnuson=3Ds=20 argument.  = Nevertheless, in=20 the interest of justice, we note that the agreement on which an = account=20 stated claim is based can be express or implied, and therefore a = plaintiff=20 bringing a claim on an account stated does not have to produce a = written=20 contract to recover on the claim. =20 Assuming arguendo that a past due balance on a = credit card=20 can give rise to damages on an account stated claim, Citibank did = not have=20 to produce a written contract to recover on its claim against = Magnuson, as=20 long as it could produce other evidence of the agreement between = the=20 parties sufficient to meet its burden of proof.[26] =

Further,=20 we disagree that Citibank did not provide evidence of a contract = and that=20 the amount of damages cannot be calculated.  AThe=20 elements of a valid contract are (1) an offer, (2) an acceptance, = (3) a=20 meeting of the minds, (4) each party=3Ds=20 consent to the terms, and (5) execution and delivery of the = contract with=20 the intent that it be mutual and binding.@[27]<= SPAN=20 style=3D"FONT-SIZE: 13pt; LINE-HEIGHT: 200%; mso-bidi-font-family: = Univers">=20  ADelivery=20 may be proved by acts or words showing that the parties intended = the=20 contract to become effective.@[28]<= SPAN=20 style=3D"FONT-SIZE: 13pt; LINE-HEIGHT: 200%; mso-bidi-font-family: = Univers">  A[W]hen=20 the parties manifest an intent through their actions and words = that the=20 contract become effective, delivery is shown.@[29]<= SPAN=20 style=3D"FONT-SIZE: 13pt; LINE-HEIGHT: 200%; mso-bidi-font-family: = Univers"> 

To=20 its summary judgment motion, Citibank attached evidence in the = form of=20 copies of billing statements from January 20, 1998, to July 26, = 2005.  The statements reflect = charges=20 made on the account; they also reflect payments made.  Citibank also attached = the=20 cardmember agreement (the AAgreement@)=20 for the account.  = The=20 Agreement states that the cardmember is responsible for all = amounts owed=20 on the account and that the cardmember agrees to pay such amounts=20 according to the terms of the Agreement.  It further provides that = it is=20 effective when the cardmember uses the card.  The Agreement sets out = how the=20 monthly minimum payment is determined and how finance charges are=20 determined.

Citibank=20 also attached the application for the credit card account.  The application has the = name=20 AKenneth=20 J. Magnuson@=20 and an address preprinted on it. =20 The address is the same address that Magnuson provided to = this=20 court as his current address. =20 The application states that it is for a pre-approved credit = line up=20 to $25,000, and it shows a signature and a = date.

These=20 documents establish (1) an offer, (2) an acceptance by Magnuson, = (3) a=20 meeting of the minds, (4) each party=3Ds=20 consent to the terms, and (5) execution and delivery of the = contract with=20 the intent that it be mutual and binding.  The terms of the = contract are set=20 out in the Agreement, which, as the Agreement states, Magnuson = accepted by=20 using the card.  The = billing=20 statements show that he used the card.  Nothing in the record = establishes=20 that Magnuson disputed any of the terms of the account while using = the=20 card.  Delivery was=20 established by Magnuson=3Ds=20 use of the card and by his making payments on the account for the = charges=20 shown on his monthly billing statement.[30]<= SPAN=20 style=3D"mso-spacerun: yes">  We overrule = Magnuson=3Ds=20 argument. =20

III.  = Conclusion

Having=20 overruled Magnuson