Opinion
No. 05-05-01230-CV
Opinion issued October 25, 2006.
On Appeal from the County Court at Law No. 3, Dallas County, Texas, Trial Court Cause No. cc-05-03276-C.
Affirmed.
Before Justices MORRIS, WHITTINGTON, and RICHTER.
MEMORANDUM OPINION
Roy Capers appeals the summary judgment granted in favor of Citibank (South Dakota), N.A. In three issues, appellant contends the trial judge erred in granting summary judgment because (i) genuine issues of material fact exist precluding summary judgment, (ii) evidence offered in support of Citibank's motion for summary judgment was inadmissible, and (iii) an adequate time for discovery had not passed prior to the granting of Citibank's motion for summary judgment. Because we conclude the trial judge did not err, we affirm the trial court's summary judgment.
The standard of review in a traditional summary judgment case is well established. Selz v. Friendly Chevrolet, Ltd., 152 S.W.3d 833, 836 (Tex.App.-Dallas 2005, no pet.); see Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985); Orozco v. Dallas Morning News, Inc., 975 S.W.2d 392, 394 (Tex.App.-Dallas 1998, no pet.). A plaintiff who conclusively proves all elements of its cause of action as a matter of law is entitled to summary judgment. Time Out Grocery v. The Vanguard Group, Inc., 187 S.W.3d 41, 42 (Tex.App.-Dallas 2005, no pet.) (citing MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986) (per curiam)); see Tex. R. Civ. P. 166a(c); Nationwide Prop. Cas. Ins. v. McFarland, 887 S.W.2d 487, 490 (Tex.App.-Dallas 1994, writ denied) (to prevail on summary judgment, plaintiff must conclusively prove all elements of cause of action as matter of law). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Allbritton v. Gillespie, Rozen, Tanner Watsky, P.C., 180 S.W.3d 889, 891 (Tex.App.-Dallas 2005, pet. denied) (citing Triton Oil Gas Corp. v. Marine Contractors Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982)). Once the plaintiff establishes its right to summary judgment as a matter of law, the burden then shifts to the defendant as nonmovant to present evidence which raises a genuine issue of material fact, thereby precluding summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Muckelroy v. Richardson Indep. Sch. Dist., 884 S.W.2d 825, 828 (Tex.App.-Dallas 1994, writ denied).
In his first issue, appellant contends summary judgment was improper because genuine issues of material fact exist, specifically whether appellant owes appellee money. Appellant argues there was "no breach of contract, because Appellant fulfilled [his] duty and paid the account for which Appellant was liable."
Payment is an affirmative defense and must be affirmatively pleaded. See Tex. R. Civ. P. 94; Sugar Land Prop., Inc. v. Becnel, 26 S.W.3d 113, 121 (Tex.App.-Houston [1st Dist.] 2000, no pet.). If a party wishes to prove payment, he must affirmatively plead payment and
file with his plea an account stating distinctly the nature of such payment, and the several items thereof; failing to do so, he shall not be allowed to prove the same, unless it be so plainly and particularly described in the plea as to give the plaintiff full notice of the character thereof.
Tex. R. Civ. P. 95. Any payments relied on by the defendant that are not admitted in the plaintiff's petition must be specifically alleged by the defendant. See Rea v. Sunbelt Sav., FSB, 822 S.W.2d 370, 372 (Tex.App.-Dallas 1991, no writ). The absence of a proper plea of payment renders evidence as to payment inadmissible. Rea, 822 S.W.2d at 372.
In this case, appellant filed a general denial. He did not affirmatively plead payment as required by rule 94 nor did he detail his purported payments as required by rule 95. Because appellant did not affirmatively plead payment and did not file an account with his plea, he was barred from presenting proof of any payments in spite of his argument that he "fulfilled [his] duty and paid the account." See Rea, 822 S.W.2d at 373. Furthermore, appellee's pleadings and summary judgment evidence established the existence of a contract between appellant and appellee, appellant's breach of the contract by failing to make his payment obligations under that contract, and appellee's damages resulting from that breach. Therefore, although he claims summary judgment was improper because fact issues exist on payment, the trial judge did not err in granting summary judgment on this ground.
In the remainder of his first issue and in his second issue, appellant claims appellee did not meet its burden of proof because its summary judgment evidence was inadmissible. Specifically, appellant argues the computerized monthly statements offered in support of Citibank's motion for summary judgment were not properly authenticated. Because appellant relies on article 3737e of the Texas Revised Civil Statutes which is no longer in effect, we conclude his complaint lacks merit. See Act of May 14, 1951, 52d Leg., R.S., ch. 321, 1951 Tex. Gen. Laws 545, 545-46, amended by Act of May 15, 1969, 61st Leg., R.S., ch. 353, 1969 Tex. Gen. Laws 1076, 1076-78, amended by Act of May 3, 1973, 6rd Leg., R.S., ch. 128, 1973 Tex. Gen. Laws 276, 276-78, repealed Nov. 23, 1982 under authority of Act of May 12, 1939, 46th Leg., R.S., ch. 25, § 1, 1939 Tex. Gen. Laws 201, 201-03. Nevertheless, we have reviewed the summary judgment evidence under Texas Rules of Evidence 803(6) and 902(10) and conclude appellant's claims that the affidavit accompanying the records is "facially defective, absolutely without merit, self-serving hearsay, and entirely void of foundation" lack merit.
Under rule 803(6), evidence is not excluded by the hearsay rule if it is
[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
Tex. R. Evid. 803(6). Rule 902(10) sets out a form of affidavit to be used when introducing business records under rule 803(6). Tex. R. Evid. 902(10). Rule 902(10) provides, however, that the form set out in the rule is not exclusive; an affidavit which substantially complies with the affidavit set out in the rule will suffice. Tex. R. Evid. 902(10); Fullick v. City of Baytown, 820 S.W.2d 943, 944 (Tex.App.-Houston [1st Dist.] 1991, no writ).
The affidavit of Amanda Carter, an employee of Citibank, accompanies copies of appellant's signed credit card application, credit card statements in appellant's name dating from March 2002 until December 2004, and notifications of changes to the terms of the agreement. The affidavit states it is based on Carter's personal knowledge of the facts and that Carter is a custodian of the records with Citibank. The summary judgment record reflects that the attachments to the affidavit are (i) true and correct duplicate statements of monthly credit card statements identifying every charge or cash advance made on the account during the relevant period, (ii) kept in the regular course of business, and (iii) made, in the regular course of business, by an employee or representative with personal knowledge of the account at or near the time of the event recorded or reasonably soon thereafter. Carter's affidavit accompanying the evidence substantially complies with rule 902(10). See Tex. R. Evid. 902(10)(b); Fullick, 820 S.W.2d at 944. Therefore, the monthly statements, along with the affidavit, were admissible as exceptions to the hearsay rule under rule 803(6). See Fullick, 820 S.W.2d at 945. We conclude appellant's complaints about Carter's affidavit and the accompanying documents are meritless. We overrule appellant's first and second issues.
In his final issue, appellant complains discovery was not complete, and therefore, the trial judge prematurely granted summary judgment. We conclude the trial judge did not err.
When a party contends that he has not had adequate time for discovery prior to a hearing on a summary judgment motion, he "must file either an affidavit explaining the need for further discovery or a verified motion for continuance." Tenneco Inc. v. Enter. Prod. Co., 925 S.W.2d 640, 647 (Tex. 1996). Although appellant contends the trial judge did not allow sufficient time for discovery, he did not file an affidavit explaining why he needed additional time for discovery nor did he file a verified motion for continuance. Because he did not avail himself of either an affidavit or a motion for continuance, we cannot conclude the trial judge erred. We overrule appellant's final issue.
We affirm the trial court's summary judgment.