Hinojosa v. Citibank (South Dakota) N.A.,
No. 05-07-0059-CV _______________, (Tex.App.- Dallas 2008, pet. denied)(O'Neill)
(authentication of electronic records with BRA; interest rate proven with credit card agreement and
monthly statements, use of card and contract formation) (sj for plaintiff on BoC affirmed;
trial-level attorney's fees reversed, but not appellate attorney's fees, which were not challenged)
Hinojosa v. Citibank (South Dakota), N.A., No. 05-07-00059-CV, 2008 WL 570601 (Tex.App.-Dallas,
March 4, 2008, pet denied) (mem. op.)
(Court of Appeals concludes the trial court properly granted a traditional summary judgment on
Citibank's breach of contract claim; and did not reach Citibank's other causes of action)(controverting
fee affidavit by defendant's attorney created a fact issue regarding the reasonableness of attorney's
fees awarded for Citibank's attorney's trial work, which precluded summary judgment)
.............................................................
MEMORANDUM OPINION
Before Justices Wright, O'Neill, and Francis
Opinion By Justice O'Neill
This is a simple collection case. Appellee Citibank (South Dakota), N.A. sued appellant Hector Hinojosa,
Jr. to collect over $13,000 in unpaid credit card debt. Citibank moved for traditional summary judgment
on its claims against Hinojosa and filed a no-evidence summary judgment on Hinojosa's counterclaims.
Hinojosa also moved for summary judgment on both traditional and no evidence grounds. The trial
court, after considering all motions and cross- motions, signed a final judgment in favor of Citibank.
On appeal, Hinojosa contends the trial court erred in granting Citibank's traditional and no-evidence
motions for summary judgment and denying his competing motions. We affirm the portion of the trial
court's judgment granting Citibank's traditional and no-evidence motions for summary judgment. We
reverse the portion of the judgment awarding trial attorney's fees for $11, 381.00 and remand for further
proceedings.
Summary Judgment Evidence
We begin by determining what challenges to the summary judgment evidence Hinojosa properly
preserved for our review. Citibank attached the affidavit of Terri Ryning, the vice president of Citicorp
Credit Services, Inc. and custodian of records, to its summary judgment motion. Hinojosa filed written
objections; however, the trial court failed to rule on them. On appeal, he argues her affidavit lacks
personal knowledge, fails to comply with the business records exception to the hearsay rule, and is
conclusory.
Failure to affirmatively show the affiant has personal knowledge is a defect in form and must be
preserved in the trial court. Thompson v. Curtis, 127 S.W.3d 446, 450 (Tex. App.-Dallas 2004, no pet.);
Giese v. NCNB Tex. Forney Banking Ctr., 881 S.W.2d 776, 782 (Tex. App.-Dallas 1994, no writ).
Likewise, objections that an affidavit fails to comply with the business records exception to the hearsay
rule is also a defect in form that must be preserved in the trial court. Seidner v. Citibank (South Dakota),
N.A., 201 S.W.3d 332, 334-35 (Tex. App.-Houston [14th Dist.] 2006, pet. denied). Because Hinojosa
failed to obtain rulings on these objections in the trial court, they have been waived. Tex. R. App. P.
33.1; Giese, 881 S.W.2d at 782.
He also objected to Ryning's affidavit as conclusory. An objection that an affidavit is conclusory raises
a defect in substance and may be considered for the first time on appeal. Thompson, 127 S.W.3d at
450. Therefore, we will address Hinojosa's argument.
He contends Ryning's statement that “The records attached as Attachments 1, 2, and 3 are true and
correct copies of the originals” is conclusory because she fails to describe the records, and the records
are not copies of the originals but are computer generated. First, Hinojosa's computer records
argument is without merit. See, e.g., Voss v. Sw. Bell Tel. Co., 610 S.W.2d 537, 538 (Tex. Civ. App.-
Houston [1st Dist.] 1980, writ ref'd n.r.e.) (noting legislature did not see any necessity for additional
requirements where the records sought to be introduced into evidence were electronically produced);
see also Finn v. Finn, 658 S.W.2d 735, 754 (Tex. App.-Dallas 1983, writ ref'd n.r.e.) (recognizing
computer printouts as business records). Second, Ryning explained the content of the three
attachments in later paragraphs of her affidavit; therefore, her statement is not conclusory.
Furthermore, as custodian of records, her personal knowledge of such records provides adequate
factual support for her statement. See, e.g., Choctaw Prop., L.L.C. v. Aledo Indep. Sch. Dist., 127 S.W.
3d 235, 243 (Tex. App.-Waco 2003, no pet.); see also Jones v. Citibank (South Dakota), N.A., 235 S.W.
3d 333, 227-38 (Tex. App.-Fort Worth 2007, no pet.).
He also challenges the following statement: “Attached hereto and incorporated into this Affidavit . . . is a
true and correct copy of the cardmember agreement. . . .” He claims the agreement is incomplete
because a later statement in the agreement references a folder, which is not included in the summary
judgment evidence. We construe this argument as one that speaks to the weight of the evidence as
opposed to its admissibility. As such, it is not conclusory.
The remaining statements he challenges involve the attached billing statements, the attached copies
of checks, Hinojosa's use of the account to make purchases, and the billing of the account. As noted
above, such statements are not conclusory because as the custodian of records, she bears the
responsibility of being familiar with such information. Thus, her background provides adequate factual
support for the alleged “conclusory” statements. Id. Having considered Hinojosa's arguments, we
conclude Ryning's affidavit is not conclusory. See Footnote 1 Therefore, the trial court properly
considered her affidavit in Citibank's motion for summary judgment, and it is properly before this Court
to consider as well.
Breach of Contract
Citibank and Hinojosa entered into a credit card agreement, and Hinojosa defaulted on payments. As of
September 10, 2004, Hinojosa owed $13,381.55 on the account balance. Citibank filed suit against
Hinojosa for account stated, breach of contract, breach of oral contract, restitution, common
law debt, assumpsit, unjust enrichment, and attorney's fees. Hinojosa filed a counterclaim
alleging Texas Finance Code and DTPA violations and unreasonable debt collection practices. Citibank
moved for summary judgment on its claims and Hinojosa's counterclaims, which the trial court granted
without stating the basis for its decision. Thus, if any of its theories are meritorious, we must uphold the
order. Winchek v. Am. Exp. Travel Related Servs. Co., Inc., 232 S.W.3d 197, 202 (Tex. App.-Houston
[1st Dist.] 2007, no pet.).
Hinojosa argues Citibank failed to present the court with any evidence of a binding contract. In
considering his issue, we use the well-established standard of review for traditional summary judgment
motions. See Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985). When, as here,
both sides move for summary judgment and the trial court grants one motion and denies the other, we
review both sides' summary judgment evidence and determine all questions presented and render the
judgment the trial court should have rendered. FM Props. Operating Co. v. City of Austin, 22 S.W.3d
868, 872 (Tex. 2000). After applying the appropriate standard of review, we conclude the trial court
properly granted a traditional summary judgment on Citibank's breach of contract claim.
Ryning's affidavit includes a 1996 credit card agreement stating, “This Agreement is binding on you
unless you cancel your account within 30 days after receiving the card and you have not used or
authorized use of your account.” She also states Hinojosa's account is governed by the agreement “as it
may be amended from time to time.” Two Notices of Change in Terms are also attached to her
affidavit, one effective in May 1999 and the other in May 2000.
Regardless of whether we apply federal, Texas, or South Dakota law, a contract exists between Hinojosa
and Citibank. Under federal law, the issuance of a credit card constitutes a credit offer, and the use of
the card constitutes acceptance. Jones, 235 S.W.3d at 339. Under Texas law, if one party signs a
contract, the other may accept by his acts, conduct, or acquiescence to the terms of the contract,
making it binding on both parties. Id.; see also Benser v. Citibank (South Dakota), N.A., No. 08-99-
00242-CV, 2000 WL 1231386, at *5 (Tex. App.-El Paso Aug. 31, 2000, no pet.) (not designated for
publication) (concluding appellant's use of credit card and payments to account showed he understood
obligation to bank and contract had been formed). Finally, under South Dakota law “the use of an
accepted credit card or the issuance of a credit card agreement and the expiration of thirty days from
the date of issuance without written notice from a card holder to cancel” creates a binding contract. See
S.D. Codified Laws § 54-11-9 (1983).
Citibank established Hinojosa accepted the card and used it; therefore, it established the existence of a
contract as a matter of law.
In an attempt to preclude summary judgment, Hinojosa asserts because Citibank attached a 1999 card
agreement to a previous motion for summary judgment, a fact issue exists regarding the controlling
agreement-whether it is the 1996 version or the 1999 version. His argument is without merit. First,
Ryning's affidavit establishes the agreement may be amended from time to time. Therefore, the 1999
agreement is not a different agreement, but rather the same agreement as it may be amended from time
to time. Second, the agreements contain the same language detailing when it becomes binding and how
to cancel it, if necessary.
Thus, Hinojosa's argument fails to create a genuine issue of material fact regarding the contract.
Hinojosa also claims a fact issue exists on his acceptance of the agreement's terms because Citibank
did not provide the annual interest rate. The agreement states “This Agreement and the folder
containing the card are your Citibank Card Agreement. The folder contains important account
information, including the annual percentage rate and an indication whether there is a membership fee.
Please read and keep both the folder and this Agreement for your records.” Because the folder is not
included in Citibank's evidence, he argues an important term is missing. Again, Hinojosa's argument fails.
Although the folder is not in evidence, the agreement and the Notice of Change in Terms specifically
states “the annual percentage rate in effect and any subsequent changes to it will appear on the billing
statement.” Citibank included in its summary judgment evidence Hinojosa's billing statements, which
include the applicable interest rate. Therefore, the contract is not missing an essential term. See
Footnote 2
Because Hinojosa failed to dispute Citibank's evidence that he entered into a credit card agreement as
a matter of law and because he failed to provide evidence contradicting the validity of the card
agreement under any laws, the trial court properly granted Citibank's traditional motion for summary
judgment. Tex. R. Civ. P. 166(c). As such, we need not address whether summary judgment was
appropriate under Citibank's other causes of action. See Winchek, 232 S.W.3d at 202.
Hinojosa's Counterclaims
Hinojosa filed counterclaims against Citibank for violations of the Texas Finance Code and Deceptive
Trade Practices Act. Citibank filed a no-evidence summary judgment motion challenging these claims,
which the trial court granted. Hinojosa challenges this ruling, which we review under the well-established
standard for no-evidence motions for summary judgment. Lee v. Haynes & Boone, L.L.P., 129 S.W.3d
192, 196 (Tex. App.-Dallas 2004, pet. denied).
Hinojosa claims Citibank used false and deceptive means to collect consumer debt in violation of Texas
Finance Code section 392.304(a)(19) and misrepresented the consumer debt in violation of section
392.304(a)(8). See Tex. Fin. Code Ann. § 392.304(a)(8), (19) (Vernon 2006). He argues alleged
discrepancies between Paula Sullinger's affidavit and her deposition testimony establish
misrepresentations.
After reviewing the documents, we disagree. Hinojosa fails to articulate how any of the alleged
discrepancies between Sullinger's deposition and affidavit are material to his indebtedness or establish
that Citibank “misrepresent[ed] the character, extent, or amount of a consumer debt” or “us[ed] any
other false representation or deceptive means to collect debt. . . .” Id. Thus, he has not presented more
than a scintilla of probative evidence to raise a genuine issue of material fact. Lee, 129 S.W.3d at 196.
He also asserts Citibank violated the finance code by representing under oath that two different
agreements, one dated 1996 and another dated 1999, govern his account. As previously discussed, the
1999 agreement is not a different agreement, but rather the same agreement as it may be amended
from time to time. Therefore, Hinojosa failed to produce more than a scintilla of probative evidence to
raise a genuine issue of material fact to support his counterclaim for violations of the Texas Finance
Code.
Because his DTPA counterclaim is based exclusively on his finance code violation, we likewise conclude
he has failed to present evidence raising a genuine issue of material fact on this cause of action. Thus,
the trial court properly granted Citibank's no-evidence motion for summary judgment on Hinojosa's
counterclaims.
Attorney's Fees
Citibank's attorney, Jennifer J. Spencer, filed an affidavit seeking reimbursement of $11,831.00 in
reasonable fees, which included eighty-eight hours spent litigating the case. The trial court awarded
$11,831.00, plus $5,000 for any unsuccessful post-judgment motions, $5,000 for an unsuccessful
appeal to the court of appeals, and $5,000 for an unsuccessful petition for review to the Supreme Court
of Texas. Hinojosa contends he created a fact issue when his attorney, Jerry J. Jarzombek, filed a
controverting affidavit. We agree.
Generally, a trial court does not abuse its discretion when an attorney testifies the fees incurred were
reasonable and necessary and summarizes the hours worked and rate charged. Hachar v. Hachar,
153 S.W.3d 138, 143 (Tex. App.-San Antonio 2004, no pet.). However, the award of such fees is
improper unless the evidence of the reasonableness of those fees is uncontroverted. Guity v. C.C.I.
Enter., Co., 54 S.W.3d 526, 528 (Tex. App.-Houston [1st Dist.] 2001, no pet.). An affidavit filed by non-
movant's counsel that simply criticizes the fees sought by the movant as unreasonable without setting
forth the affiant's qualifications or the basis for his opinion will not be sufficient to defeat summary
judgment. Basin Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372, 373 (Tex. App.-San Antonio 1999,
pet. denied). That is not the case here, given that Hinojosa's attorney filed an affidavit setting forth his
qualifications and why Citibank's trial fees are unreasonable. Thus, his affidavit created a fact issue
regarding the reasonableness of attorney's fees awarded for Spencer's trial work, which precluded
summary judgment.
However, he failed to create a fact issue as to the reasonableness of appellate fees awarded; therefore,
the trial court properly awarded these fees. As such, we reverse and remand to the trial court for further
proceedings the reasonableness of attorney's trial fees. See Guity, 54 S.W.3d at 529.
Conclusion
After considering Hinojosa's issues, we affirm the portion of the trial court's judgment granting Citibank's
traditional motion for summary judgment and no-evidence motion for summary judgment on Hinojosa's
counterclaims. We reverse the portion of the judgment awarding attorney's trial fees for $11,831.00 and
remand for further proceedings.
MICHAEL J. O'NEILL
JUSTICE
070059F.P05
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Footnote 1 He also challenges two other statements involving the balance due on the account and whether all conditions
precedent have been performed. He claims Ryning has no personal knowledge of this information, and it is based on
“rank hearsay.” Because a trial court must rule on objections to personal knowledge and hearsay before they are
properly preserved, and no such ruling appears in the record, these objections are not properly before us. Thompson,
127 S.W.3d at 450; St. Paul Ins. Co. v. Mefford, 994 S.W.2d 715, 721 (Tex. App.-Dallas 1999, pet. denied).
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Footnote 2 Hinojosa relies on Tully v. Citibank (South Dakota), N.A., 173 S.W.3d 212 (Tex. App.-Texarkana 2005, no pet.)
to support his interest rate argument. The facts here are distinguishable. We question whether the interest issue was
properly before the court despite the court's liberal construction of the issue. Id. at 217 fn.4. The Tully court determined
the contract introduced into evidence did not specify the agreed upon interest rate, and the only evidence of the rate was
specified on the monthly statements. Id. at 217. Here, the contract specifically states the annual percentage rate in effect
appears on the monthly statements and such statements are in evidence. Thus, we conclude Tully does not support
Hinojosa's argument.
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File Date[03/04/2008]
File Name[070059F]
File Locator[03/04/20
08-070059F]