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concluding that the affidavit of a bank's vice-president for credit services was not conclusory, where she had personal knowledge of the facts therein as a custodian of records, with control over the business record to which she testified
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No. 01-06-00636-CV
Opinion issued March 20, 2008.
On Appeal from the County Civil Court at Law No. 3, Harris County, Texas, Trial Court Cause No. 844699.
Panel consists of Justices TAFT, KEYES, and ALCALA.
MEMORANDUM OPINION
Citibank (South Dakota), N.A. ("Citibank") sued appellant, Zeke Duran III ("Duran"), for breach of contract for failing to pay a credit card debt. Duran appealed the summary judgment granted in favor of Citibank. We address Duran's arguments that (1) Citibank failed to support its motion for summary judgment with competent evidence; (2) Citibank failed to establish the existence of a contract; (3) Citibank failed to establish damages sustained by Duran's breach of the contract; (4) Citibank failed to prove reasonable and necessary attorney's fees; and (5) the court erred in denying Duran's counterclaims . We affirm the judgment.
Background
In 1991, Duran opened a credit card account with Citibank. The terms of use of the account are set forth in a written agreement ("the Card Agreement"), with periodic changes to the terms of that agreement as noted in documents entitled "Notice of Change in Terms" sent to Duran throughout the time he made charges to the card and payments against the account. Each notice included specific instructions for how to proceed if "you do not wish to accept this change." Duran never followed those instructions, but rather continued to charge purchases to the card after each Notice of Change in Terms was sent to him, the last notice occurring in December of 2003.
Duran continued to use the card until July of 2004, at which time he stopped using the account to make purchases and also stopped making payments toward the incurred debt. In the September 2004 account statement, Citibank notified Duran that his "account is past due and credit privileges have been suspended." Citibank again notified Duran of the account status in the following two statements.
In February of 2005, Citibank assessed a final finance charge against Duran's account, determined Duran's debt to Citibank to be $17,776.09, and filed suit to collect the debt.
Citibank filed a motion for summary judgment, asserting that there was no genuine issue of material fact to litigate on its breach-of-contract claim against Duran. Citibank alternatively argued that the facts showed that Duran was unjustly enriched at Citibank's expense as a matter of law. The trial court granted summary judgment in Citibank's favor without specifying the grounds for its ruling.
Standard of Review
To prevail on a traditional summary judgment motion, a movant has the burden of proving that it is entitled to judgment as a matter of law and that there is no genuine issue of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). A plaintiff moving for summary judgment on its claim must establish its right to summary judgment by conclusively proving all the elements of its cause of action as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Anglo-Dutch Petroleum Int'l, Inc. v. Haskell, 193 S.W.3d 87, 95 (Tex.App.-Houston [1st Dist.] 2006, pet. denied).
We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
Objections to the Form of Citibank's Summary Judgment Evidence
Duran's primary complaint on appeal is that Citibank's business re cord affidavit and the attached documents are "incompetent as evidence." He complains that the affidavit is incomplete and that it indicates "untrustworthy record retention." These are objections to the form, and not the substance, of the evidence. See Seidner v. Citibank (South Dakota), N.A., 201 S.W.3d 332, 335 (Tex.App.-Houston [14 Dist.] 2006, pet. denied.) (holding that complaints that affidavit failed to state that attached documents were kept or made in regular course of business go to form, not substance, of evidence).
To the extent that Duran's arguments go to the form and not the substance of the evidence, he needed not only to object, but also to have secured a ruling on his objections to preserve those complaints for appeal. See id. (citing Grand Prairie I.S.D. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990) (holding that alleged defects in summary judgment affidavit were defects of form) and Alaniz v. Rebello Food Beverage, L.L.C., 165 S.W.3d 7, 19 n. 19 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (holding that alleged defect of form in summary judgment affidavit was not preserved when party failed to lodge objection and to obtain ruling) and Landry's Seafood Rests., Inc. v. Waterfront Cafe, Inc., 49 S.W.3d 544, 551 (Tex.App.-Austin 2001, pet. dism'd) (holding that failure of summary judgment affidavit to state that facts in attached document were true and correct was defect of form that was waived when party failed to object) and Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (holding that objection to form of summary judgment evidence was waived by failure to obtain ruling from trial court)). This Court has adopted the majority position among courts of appeals, which refuses to presume that objections were overruled when a trial court grants a motion for summary judgment. See Delfino v. Homes, 223 S.W.3d 32, 34 (Tex.App.-Houston [1st Dist.] 2006, no pet.); Seidner, 201 S.W.3d at 335; Chapman Children's Tr. v. Porter Hedges, L.L.P., 32 S.W.3d 429, 436 n. 4 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). Duran failed to obtain a ruling on any objections to Citibank's summary judgment evidence. Thus, Duran's complaints regarding the form of Citibank's summary judgment evidence are overruled as not preserved. See TEX. R. APP. P. 38.1.
Sufficiency of the Business Records Affidavit
Duran complains generally about the evidence produced by Citibank to support its summary judgment motion, including the business records affidavit of Terri Ryning and the attached documents, which we liberally construe as attacks on the substance of the evidence, including arguments that Citibank did not provide sworn or certified copies of the documents referenced in Ryning's affidavit and that the affidavit is conclusory.
Ryning testified in her affidavit (1) that she "has personal knowledge regarding the facts stated herein" and that those facts are "true and correct"; (2) that she is Vice-President for Citicorp Credit Services, Inc., which "performs certain services including the collection of unpaid accounts for [Citibank]," and that she is authorized to testify concerning the matters in the affidavit; (3) that she is a custodian of records for Citibank, with duties including custody and control over Duran's account with Citibank; and (4) that these records are kept in the regular course of business and made at or near the time of the recorded events by a person with personal knowledge of the events. Ryning further testified that the documents attached to her affidavit were true and correct copies of the originals, with certain information redacted to protect confidential information. Finally, Ryning testified that Duran opened the account with Citibank, used the account, made payments on the account, and ultimately incurred charges totaling $17,776.09 "after all just and lawful offsets, credits and payments have been allowed." Ryning indicated that demand for payment was made, that Duran failed to pay the amounts due and owing, and that Citibank had to employ an attorney to collect the amounts owed.
Ryning properly authenticated the documents referenced in her affidavit as "business records." See TEX. R. EVID. 803(6), 902(10). Duran did not present any evidence to raise a fact issue as to whether the documents were properly authenticated business records. Further, Duran has failed to identify any statements in the affidavit that he contends are opinions or legal conclusions. We have reviewed the affidavit and have determined that it contains sufficient factual support and is not, therefore, conclusory. See 8920 Corp. v. Alief Alamo Bank, 722 S.W.2d 718, 720 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.). To the extent that Duran attacks Ryning's affidavit and the attached documents on these grounds, we overrule his complaints.
Existence of a Valid Contract
To be entitled to summary judgment on its breach-of-contract claim, Citibank was required to prove, as a matter of law, (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 sustained as a result of the breach. Williams v. Unifund CCR Partners Assignee Of Citibank, — SW3d-, 2008 WL 339855, at *3 (Tex.App.-Houston [1st Dist.] Feb. 7, 2008, no pet. h.) (citing Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex.App.-Houston [1st Dist.] 2007, no pet.)). Parties form a binding contract when the following elements are present: (1) an offer, (2) an acceptance in strict compliance with the terms of the offer, (3) meeting of the minds, (4) each party's consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. Id. To be enforceable, a contract must be sufficiently certain to enable a court to determine the rights and responsibilities of the parties. Id. The material terms of a contract must be agreed upon before a court can enforce the contract. Id. (citing T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992)).
First, Duran contends that Citibank failed to provide proof of delivery of an agreement or acceptance of its terms and that, therefore, no valid contract could exist to support Citibank's breach-of-contract claim.
"Delivery may be proved by acts or words showing that the parties intended the contract to become effective." Awad Tex. Enters., Inc. v. Homart Dev. Co., 589 S.W.2d 817, 819?820 (Tex.Civ.App.-Dallas 1979, no writ). "[W]hen the parties manifest an intent through their actions and words that the contract become effective, delivery is shown." Winchek, 232 S.W.3d at 204 (op. on reh'g). In other words, when parties manifest an intent through their actions and words that a contract become effective, manual delivery is immaterial to contract validity. Awad Tex. Enters., Inc., 589 S.W.2d at 819?20.
To its summary judgment motion, Citibank attached evidence in the form of copies of billing statements from January of 1998 to July of 1994. The statements reflect charges made on the account; they also reflect payments made. Citibank also attached the Card Agreement for the account. The Card Agreement stated that the cardmember was responsible for the use of each card used in relation to the account "according to the terms of this Agreement." The Agreement set out how the monthly minimum payment was determined and how finance charges were determined. The terms of the contract were set out in the agreement and were accepted when Duran began using the card. The billing statements showed that he used the card after each change in terms, again accepting those changes by his use of the card. Delivery was established by Duran's use of the card and by his making payments on the account for the charges shown on his monthly billing statements. See id. In response to the motion for summary judgment, Duran did not present any competent evidence that he did not receive the agreement or notices of changes in the agreement. Because Duran used his card and made some payments, he manifested intent that the agreement become effective. See id.
Second, Duran contends that no valid contract exists because the terms of the Card Agreement were indefinite. But the statements showed that Duran's amount owed was clearly itemized, showing purchases and payments made and specifying the finance charges. Citibank's evidence showed that the Card Agreement was sufficiently definite to enable a court to determine the rights and responsibilities of each party and that Duran's conduct in using the card and making payments on the account for the charges reflected in the monthly billing statements showed that Duran understood his obligations to Citibank and that a contract was formed. See Winchek, 232 S.W.3d at 204.
Third, Duran argues that Citibank failed to prove that he accepted the terms of the contract. Duran does not dispute that he used the card and made payments while never disputing the accuracy of the statements. Thus, we reject this contention. See id.
We conclude that Citibank met its burden to establish the existence of a valid contract as a matter of law.
Damages
Duran argues that Citibank failed to establish the applicable interest rate and, thereby, failed to establish as a matter of law the amount of damages that it incurred from Duran's breach of the Card Agreement. The agreement and billing statements provided detailed explanations of the cost of credit and the methodology employed to determine the applicable interest rate. See id. at 205. Duran fails to identify any specific charges for which he contends the applicable interest rate was not proven. The Card Agreement and the comprehensive compilation of account statements from 1998 through 2004 conclusively established the amount that Duran owed, including the applicable interest rates. Further, to the extent that Duran contends that the evidence failed to establish that all just and lawful offsets had been allowed, we reject that contention. The summary judgment evidence reflects that "all just and lawful offsets, credits and payments have been allowed." In response to the motion for summary judgment, Duran did not present any competent, contradictory evidence.
We hold that Citibank proved its damages as a matter of law.
Attorney's Fees
Finally, Duran contends that a fact issue exists as to whether the attorney's fees awarded to Citibank are reasonable and necessary. Jennifer Spencer, attorney for Citibank, provided an affidavit in which she swore that she was "familiar with attorneys' fees charged in the Harris County area in the year 2006," that "firm attorneys and legal assistants have expended in excess of 76 hours in preparation of this case," and that "a reasonable and customary charge for legal services performed to date on behalf of Citibank in connection with this action is an amount in excess of $10,088.50." She further testified that "Citibank is entitled to recover reasonable and necessary attorneys' fees in the amount of $5,000.00; $5,000.00 if the case is appealed to the Texas Court of Appeals; and $5,000.00 if the case is appealed to the Texas Supreme Court." The court awarded $10,088.50 in attorney's fees plus $5,000.00 additional for each of postjudgment motions, appeal to the Court of Appeals, and appeal to the Texas Supreme Court.
Duran's attorney, John Mastriani, filed an affidavit in which he stated that he is "familiar with the normal and customary attorney fees for an action such as this" and opined that the fees charged ($150.00 per hour for attorneys and $95.00 per hour for paralegals) were "outrageous and excessive." However, Mastriani failed to provide evidence of an alternative rate that he would deem reasonable and necessary or otherwise to controvert Spencer's affidavit with controverting evidence. We hold that Citibank conclusively established that it was entitled to recover its attorney's fees as awarded by the trial court. See TEX. CIV. PRAC. REM. CODE ANN. § 38.001 (Vernon Supp. 2007); see also Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owners Ass'n, 205 S.W.3d 46, 56 (Tex.App.-Dallas 2006, pet. denied).
Citibank conclusively established the existence of a valid contract under which it performed and that Duran breached that contract by failing to pay the amounts due and the damages sustained by Citibank as a result of that breach. The trial court properly determined that Citibank met its burden to prove that it was entitled to summary judgment as a matter of law on each element of its cause of action. See Winchek, 232 S.W.3d at 206. We overrule issues one and two.
Duran's Counterclaim
With regard to Duran's third issue, in which he states that Citibank failed to establish that it was not liable to Duran for his counterclaim, Duran presents no legal arguments or citations to authority. Thus, this issue is inadequately briefed. See TEX. R. APP. P. 38.1(h); Stephens v. Dolcefino, 126 S.W.3d 120, 130 (Tex.App.-Houston [1st Dist.] 2003), pet. denied, 181 S.W.3d 741 (Tex. 2005). We overrule issue three.
Conclusion
We affirm the judgment of the trial court.