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Opinion issued May 17,=20 2007



















In=20 The

Court of=20 Appeals

For=20 The

First=20 District of Texas



NO. = 01-06-00392-CV


MARY = WINCHEK,=20 Appellant



V.


AMERICAN = EXPRESS=20 TRAVEL RELATED

SERVICES = COMPANY,=20 INC., Appellee



On = Appeal from=20 County Civil Court at Law No. 3

Harris = County,=20 Texas

Trial = Court Cause=20 No. 824174



OPINION = ON=20 REHEARING






On April = 19, 2007, we=20 issued an opinion affirming the trial court's judgment. Appellee, = American=20 Express Travel Related Services Company, Inc. ("Amex"), moved for=20 rehearing. We deny the motion, but withdraw the opinion dated = April 19,=20 2007, and issue this opinion in its stead. Our judgment of the = same date=20 remains unchanged.

Amex sued appellant, Mary = Winchek, for=20 breach of contract for failing to pay a credit card debt. Winchek = appealed=20 the summary judgment rendered in favor of Amex.

In what we construed as four = issues,=20 Winchek contends that the trial court erred by granting Amex's = motion for=20 summary judgment on its breach of contract claim=20 (1) because (1) Amex's summary judgment proof was = insufficient=20 to establish the existence of a contract and the damages = sustained; (2)=20 genuine issues of material fact preclude summary judgment; (3) = Winchek's=20 supplemental response was improperly stricken as untimely; and (4) = Winchek's motion for continuance to depose Amex's summary judgment = affiant=20 was improperly denied.

We affirm.


Summary = of Facts and=20 Procedural History

Winchek was the holder of a = credit card,=20 an "American Express Green Card" ("the Card"), issued by Amex. = Winchek=20 used the Card to purchase goods and services on account. The terms = of the=20 account were governed by an "Agreement Between Cardmember and = American=20 Express Travel Related Services Company, Inc." ("the Agreement"). = The=20 Agreement, which Amex contends it sent to Winchek at the time the = Card was=20 issued, stated that by keeping, signing, or using "the enclosed = American=20 Express Card," the cardholder agreed to the terms stated in the = Agreement.=20 It is undisputed that Winchek kept and used the Card.

The Agreement provided that = payment for=20 all charges was due immediately upon receipt of each billing = statement and=20 that unpaid balances were subject to certain late fees. = Certain = purchases,=20 however, could be made under a=20 deferred billing feature, a "Sign and Travel and/or Special = Purchase=20 Account" ("Sign and Travel"),=20 (2) which permitted the cardholder to make a certain = minimum=20 payment each period toward the total balance. The Sign and Travel = balance=20 was subject to certain finance charges.

Each month, Amex sent billing = statements=20 to Winchek, and it is undisputed that Winchek did not challenge = the=20 accuracy of the statements. Winchek made monthly payments to her = account=20 through June, 2003, but failed to make payments in July and = August, 2003.=20 Subsequently, Amex cancelled the Card.

On October 4, 2004, Amex sued = Winchek,=20 alleging breach of contract and "a cause of action for account = stated."=20 Winchek answered with 25 defenses, including release; accord and=20 satisfaction; compromise and settlement; waiver; estoppel; excuse; = usury;=20 fraud; failure of conditions precedent; failure to mitigate; lack = of=20 consideration, capacity, and notice; and that the claims were = barred by=20 the statute of frauds and statute of limitations.

On June 1, 2005, Amex moved for = summary=20 judgment on its claims on the grounds that Winchek had, by = accepting and=20 using the Card, agreed to pay Amex for all amounts charged to her = account,=20 that Amex performed all terms and conditions as provided in the = Agreement,=20 that Winchek breached the Agreement by failing to pay the charges = as=20 agreed, and that damages for the unpaid charges and fees totaled=20 $36,675.17 plus attorney's fees and costs. As evidentiary support, = Amex=20 attached the Agreement, a series of Winchek's account statements, = and the=20 affidavits of Ira Axelrod, Manager of Credit Operations and = custodian of=20 records for Amex, and Jamie Silver, in support of attorney's fees. =

On July 5, 2005, Winchek = responded that=20 Amex had failed to prove the existence of a valid contract and its = terms,=20 had failed to negate Winchek's affirmative defenses, and had = failed to=20 proffer competent summary judgment evidence. Winchek appended the=20 affidavit of her attorney, John Mastriani.

On July 13, 2005, the trial = court granted=20 a final summary judgment in favor of Amex, without stating its = basis.=20 Subsequently, Winchek moved for a new trial, complaining that = summary=20 judgment had been granted "exclusively on the sworn account" claim = and=20 that recovery under such theory was not available to a credit card = issuer.=20 Winchek also argued that Amex had improperly attempted to recover = under a=20 quantum meruit theory. In addition, Winchek alleged that Axelrod's = affidavit was insufficient because it had not been formally sworn = to as=20 true and correct. Amex responded that summary judgment had been = properly=20 granted on its breach of contract claim and that it had not = alleged a suit=20 on a sworn account or stated a quantum meruit claim. On September = 14,=20 2005, the trial court granted Winchek's motion for new trial = without=20 stating its basis.

On October 5, 2005, Amex again = moved for=20 summary judgment on the grounds that Winchek had, by accepting and = using=20 the Card, agreed to pay Amex for all amounts charged to her = account, that=20 Amex had performed all terms and conditions as provided in the = Agreement,=20 that Winchek had breached the Agreement by failing to pay the = charges as=20 agreed, and that damages to Amex for the unpaid charges and fees = totaled=20 $36,675.17 at the time of suit, plus attorney's fees. Once again, = Amex=20 attached the Agreement, a series of Winchek's account statements, = the=20 affidavit of Axelrod, and the affidavit of Rhonda M. Ryemon in = support of=20 attorney's fees.

A hearing on the motion was set = for=20 December 30, 2005. On the night of December 27, 2005, Winchek = filed a=20 response to the motion for summary judgment, to which she appended = her own=20 affidavit as evidentiary support. On January 23, 2006, the trial = court=20 struck Winchek's response as untimely and rendered a final summary = judgment in favor of Amex. The trial court found that there was no = genuine=20 issue of material fact and that Amex was entitled to judgment for = the sum=20 of $36,675.17 and attorney's fees of $5,501.28.

On February 28, 2006, Winchek = again moved=20 for a new trial, which the trial court denied. This appeal=20 ensued.

Analysis

In what we construe as four = issues,=20 Winchek contends that the trial court erred by granting Amex's = motion for=20 summary judgment on its breach of contract claim because (1) = Amex's=20 summary judgment proof was insufficient to establish the existence = of a=20 contract and the damages sustained; (2) genuine issues of material = fact=20 preclude summary judgment; (3) Winchek's supplemental response was = improperly stricken as untimely; and (4) Winchek's motion for = continuance=20 to depose Amex's summary judgment affiant was improperly = denied.A.=20 Standard of Review

We review a trial court's = granting of a=20 traditional summary judgment de novo. Provident Life & = Accident=20 Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A summary = judgment under Rule of Civil Procedure 166a(c) is properly granted = only=20 when a movant establishes that there are no genuine issues of = material=20 fact and that it is entitled to judgment as a matter of law. = Tex. R. = Civ. P.=20 166a(c); Knott, = 128 S.W.3d=20 at 215-16. A plaintiff moving for summary judgment = must=20 prove that it is entitled to summary judgment as a matter of law = on each=20 element of its cause of action. Rhone-Poulenc, Inc. v. = Steel, 997=20 S.W.2d 217, 222-23 (Tex. 1999); Rizkallah v. Conner, 952 = S.W.2d=20 580, 582 (Tex. App.--Houston [1st Dist.] 1997, no writ). =

Only if the movant conclusively = establishes its cause of action does the burden shift to the = nonmovant to=20 respond with evidence raising a genuine issue of material fact = that would=20 preclude summary judgment. Steel, 997 S.W.2d at 222-23; = see=20 Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989). In deciding = whether=20 there is a disputed material fact precluding summary judgment, = evidence=20 favorable to the nonmovant will be taken as true, every reasonable = inference must be indulged in favor of the nonmovant, and any = doubts=20 resolved in its favor. Knott, 128 S.W.3d at 215. =

Here, because Winchek's burden = to respond=20 with evidence raising a genuine issue of material fact that would = preclude=20 summary judgment did not arise unless and until Amex met its = burden to=20 conclusively establish that it is entitled to summary judgment as = a matter=20 of law on each element of its cause of action, we first consider = those of=20 Winchek's issues that relate to whether Amex met its burden. = See=20 Steel, 997 S.W.2d at 222-23. Only if we determine that Amex = met its=20 burden do we consider Winchek's issues that relate to whether she = met her=20 burden to respond with evidence raising a genuine issue of = material fact=20 that would preclude summary judgment. See=20 id.

When, as here, the trial court = does not=20 state the basis for its decision in its summary judgment order, we = must=20 uphold the order if any of the theories advanced is meritorious.=20 Knott, 128 S.W.3d at 216.

B. Applicable=20 Law

To be entitled to summary = judgment on its=20 breach of contract claim, Amex was required to prove, as a matter = of law,=20 the essential elements of a breach of contract claim: (1) the = existence of=20 a valid contract; (2) performance or tendered performance by the=20 plaintiff; (3) breach of the contract by the defendant; (4) = damages=20 sustained as a result of the breach. Prime Products, Inc. v. = S.S.I.=20 Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.--Houston [1st = Dist.]=20 2002, pet. denied).



C. Amex's Summary = Judgment=20 Proof

In her first = issue,=20 Winchek contends that Amex's summary judgment proof was = insufficient to=20 establish the existence of a contract and the damages sustained, = the first=20 and fourth elements of its cause of = action.

1. Existence of a Valid=20 Contract

Winchek contends that Amex = failed to=20 prove that a contract existed because it failed to prove that Amex = delivered the Agreement to Winchek, that the Agreement contained = definite=20 terms, and that Winchek accepted those terms.

Parties form a binding contract = when the=20 following elements are present: (1) an offer, (2) an acceptance in = strict=20 compliance with the terms of the offer, (3) meeting of the minds, = (4) each=20 party's consent to the terms, and (5) execution and delivery of = the=20 contract with the intent that it be mutual and binding. See = id.=20 To be enforceable, a contract must be sufficiently certain to = enable a=20 court to determine the rights and responsibilities of the parties. = T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, = 221=20 (Tex.1992).

As evidentiary support for its = motion for=20 summary judgment, Amex appended the affidavit of Axelrod, its = Manager of=20 Credit Operations and custodian of records. Axelrod attested that, = "[a]t=20 all relevant times, Winchek was the holder of an American Express = Personal=20 Card ("The Personal Card") that enabled her to charge items to an = American=20 Express Card Account (Number 3731 . . . --the "Personal Acount") = and that=20 "[b]y accepting and using the Personal Card, Winchek agreed to all = of the=20 terms and conditions set forth in the Personal Card Member = Agreement with=20 American Express."

The Agreement, which Amex also = appended=20 to its motion, stated that "when you keep, sign or use the = enclosed=20 American Express Card (including any renewal or replacement Cards = issued=20 to you) you agree to the terms of this Agreement." Pursuant to the = Agreement, the holder of the Card was responsible for payment of = amounts=20 charged to the account. The Agreement provided that a billing = statement=20 would be mailed at the end of each billing period, that full = payment was=20 due immediately upon receipt of the billing statement, and that = late fees=20 may be charged if timely payment was not received. The amount of = the late=20 fees depended upon the length of time that an account remained = unpaid and=20 the address to which the bill was sent. The Agreement provided = that Texas=20 cardholders would be assessed a fee of 1.5% on amounts unpaid for = two or=20 more billing periods. In addition, late fees could be added as = long as the=20 account remained unpaid.

The Agreement also provided = that for=20 purchases = made under=20 the Sign and Travel, or deferred billing, feature, a minimum = payment was=20 due at the end of each billing cycle, as reflected in the billing=20 statements. The minimum amount due would be the greater of $20 or = 1/50th=20 of the new balance shown on each statement, plus any previously = unpaid=20 minimum payments. The Agreement provided for finance charges, as=20 follows:

The daily=20 periodic rate ("DPR") for Account charges depends on [the] = adherence to=20 the terms of this Agreement each month up to the 12-month period = preceding=20 each billing period (each such period being referred to as a = "Review=20 Period"). . . . The DPR for Account charges is based on an [annual = percentage rate ("APR")] which may be adjusted monthly. The APR = for all=20 billing periods ending during any month is calculated by adding = 9.9% to=20 the "Prime Rate." . . . Notwithstanding the foregoing, the = APR will=20 be a fixed rate of 23.46% with a DPR of .0643% in any review = period (a)=20 any portion of any Minimum Payment on [the] account was included = within=20 any unpaid previous balance on billing statements on three or more = occasions, (b) any portion of any Minimum Payment on [the] Account = was=20 included within an unpaid previous balance on two consecutive = billing=20 statements, (c) [there is a] breach of the terms of any other = American=20 Express account, or (d) [the] Account is considered in default for = any=20 reason and/or is cancelled. . . . For purposes of this=20 Agreement, the "Prime Rate" for billing periods ending in any = month is the=20 Prime Rate listed in The Wall Street Journal on the 15th = day . .=20 . of the prior month.



The=20 Agreement provided that the average daily method for calculating = finance=20 charges would be applied and explains the methodology.

In addition, Amex appended to = its motion=20 Winchek's billing statements for August, 2002, through August, = 2003. The=20 statements show that a specific Card and account number were = issued to=20 Winchek and that she used the Card to charge goods and services to = her=20 account under both the "due in full" and the "Sign and Travel" = features.=20 The statements reflect that Winchek was charged a DPR of 0.0657% = (or an=20 APR of 23.99%) on her "Sign and Travel" purchases. The statements = reflect=20 that each month, from August, 2002 through May, 2003, Winchek paid = the=20 total "due in full" amount and the minimum payment due on her Sign = and=20 Travel account. In June, 2003, Winchek paid less than the total = amount due=20 on her account; and, in July and August, Winchek did not make = payments.=20

First, Winchek contends that no = contract=20 exists because Amex failed to prove that it ever delivered the = Agreement=20 to her, citing Awad Tex. Enters., Inc. v. Homart Dev. = Co., 589=20 S.W.2d 817 (Tex. Civ. App.--Dallas 1979, no writ). Generally, = delivery is=20 essential to the validity of a contract. Prime Products, = 97=20 S.W.3d at 636. However, as Homart points out, when the = parties=20 manifest an intent through their actions and words that the = contract=20 become effective, delivery is shown. See Homart Dev. Co., = 589=20 S.W.2d at 820 (holding that, because parties treated lease as = effective=20 upon execution and lessee moved in and paid rent, question of = delivery of=20 lease was "immaterial" to contract validity).

Here, as in Homart, = Winchek's=20 conduct in using the card and making payments on the account for = the=20 purchases and charges reflected on her monthly billing statements=20 manifested her intent that the contract become effective. As Amex=20 contends, a contract was created when Winchek used the Card, not = upon=20 manual delivery of the Agreement. See id. (stating that = manual=20 delivery is not essential to validity); see e.g., Hay = v.=20 Citibank (South Dakota) N.A., No. 14-04-01131-CV, 2006 WL = 2620089, at=20 *3 (Tex. App.--Houston [14th Dist.] Sept. 14, 2006, no pet.) = (holding that=20 use of credit card and payments to account demonstrate existence = of=20 contract).

Second, Winchek contends that = no contract=20 was formed because the terms of the Agreement--apparently the type = of=20 account Winchek held and the applicable fees and finance = charges--were=20 fatally indefinite. The statements clearly show that all purchases = were=20 charged to one account number. The statements also clearly show = which=20 purchases were categorized as "due in full" and which were deemed = "Sign=20 and Travel" and subject to finance charges. For the months = reflected in=20 the statements appended to Amex's motion, Winchek consistently = paid the=20 total amount of the "due in full" account and paid the minimum = payment=20 required by the deferred payment account. We conclude that Amex's = evidence=20 shows that the Agreement was sufficiently definite to enable a = court to=20 determine the rights and responsibilities of each party and that = Winchek's=20 conduct in using the card and making payments on the account for = the=20 purchases and charges reflected on her monthly billing statements = shows=20 that she understood her obligations to Amex and that a contract = was=20 formed. See T.O. Stanley Boot Co., 847 S.W.2d at 221; = see=20 also Hay, 2006 WL 2620089, at *3 & n.5.

Finally, Winchek contends that = Amex=20 failed to show proof of her acceptance of the terms of the = Agreement. As=20 the Agreement states, however, use of the Card constituted = acceptance of=20 the terms governing the use of the Card, as stated in the = Agreement.=20 Winchek does not dispute that she used the Card. In addition, = Winchek made=20 payments each month without ever disputing the accuracy of the = statements=20 or the stated terms.

We conclude that Amex met its = burden to=20 show the first element of its claim, that a contract existed = between Amex=20 and Winchek. See Prime Products, 97 S.W.3d at 636. =

2. Damages

In addition, under her first = issue,=20 Winchek contends that Amex's summary judgment proof is = insufficient to=20 establish the damages sustained, the fourth element of its cause = of=20 action. Specifically, Winchek contends that Amex failed to = establish the=20 amount "that is owed and due," that all just and lawful offsets = had been=20 allowed, and the applicable rate of interest.

As fully discussed above, the = Agreement=20 and Winchek's statements provided detailed explanations of the = cost of=20 credit to Winchek and the methodology employed by Amex. = As to the = specific=20 charges to Winchek, = Winchek's billing=20 statements for August, 2002 through August, 2003 show that Winchek = used=20 the Card to charge goods and services to her account under both = the "due=20 in full" and the "Sign and Travel" features. Contrary to Winchek's = contention, the statements in the record before us do not reflect = that=20 interest was charged on the "due in full" transactions. The = statements=20 reflect that Winchek was charged a DPR of 0.0657% (or an APR of = 23.99%) on=20 her "Sign and Travel" purchases, and each statement contains a = detailed=20 explanation of the computation of the interest rate as applied to = her=20 account.

The statements reflect that = each month,=20 from August, 2002 through May, 2003, Winchek paid the total "due = in full"=20 amount and the minimum payment amount reflected on her Sign and = Travel=20 account. In June, 2003, Winchek paid less than the total amount = due on her=20 account; and, in July and August, no payments are reflected. The = total=20 outstanding balance owed, as reflected on the August 12, 2003 = statement,=20 was $33,995.96.

The record shows that Amex's = affiant,=20 Axelrod, attested that Amex duly sent monthly statements of = account to=20 Winchek, that each statement set forth in detail all

the debits and credits to = Winchek's=20 account, and that each statement "reflected the total amounts due = and=20 owing by Winchek to [Amex]." Axelrod testified that Winchek = breached "the=20 Personal Card Agreement requiring payment in full of the balances = due on=20 the Personal Account" and that Winchek "has not made said payments = to=20 [Amex] with respect to the Personal Monthly Statements." Axelrod = attested=20 that the "total outstanding, overdue and unpaid balance owed by = Winchek to=20 [Amex] on the Personal Account [was] $36,675.17 as of May 31, = 2005."=20 Finally, Axelrod attested that this sum was after all payments and = offsets=20 had been made to Winchek's account by Amex.

Amex also appended the = affidavit of=20 Rhonda M. Ryemon, who attested that "a reasonable sum for = attorney's fees=20 in this case is 15% of the unpaid balance, which is the sum of = $5,501.28,=20 which is allowed under the Agreement." The Agreement states that = if an=20 unpaid account is referred to an attorney the cardholder agrees to = pay=20 "all court costs plus attorney's fees of 15% of the then unpaid = balance."=20

We conclude that Amex met its = burden to=20 show the fourth element of its claim, the damages sustained by = Winchek's=20 breach. See Prime Products, 97 S.W.3d at 636.

3. Competence of Axelrod=20 Affidavit

In a sub-issue, Winchek = contends that=20 Amex's summary judgment proof, the business records affidavit of = Axelrod,=20 was not competent to support summary judgment. Specifically, = Winchek=20 contends that the affidavit is conclusory and that Axelrod failed = to show=20 that the affidavit was made on personal knowledge, failed to set = forth=20 facts that would be admissible in evidence, and failed to show=20 affirmatively that he was competent to testify to the matters = stated.=20

Rule of Civil Procedure 166a(f) = requires=20 that "affidavits shall be made on personal knowledge, shall set = forth such=20 facts as would be admissible in evidence, and shall show = affirmatively=20 that the affiant is competent to testify to the matters stated = therein."=20 Tex. R. Civ. P. 166a(f).

Here, the record shows that = Axelrod=20 attested in his affidavit that the facts he sets out are based on = his=20 personal knowledge and that he derives his knowledge from 26 years = of=20 employment with Amex in the legal and collections units, his = position as=20 Manager of Credit Operations for Amex, and his personal = familiarity with=20 the policies and procedures Amex uses in creating and keeping=20 records--which Axelrod discusses in great detail in his affidavit. = Axelrod=20 attested that he is personally responsible for the archived = documents=20 regarding accounts in active litigation, "especially high balance = account=20 holders such as . . . Winchek."

Axelrod has satisfied the = requirement=20 that "affidavits shall be made on personal knowledge" because he = has made=20 an affirmative showing of how he became personally familiar with = the=20 facts. Waite v. BancTexas-Houston, N.A., 792 S.W.2d 538, = 540=20 (Tex. App.--Houston [1st Dist.] 1990, no writ). Axelrod's job=20 responsibilities qualify him to have personal knowledge of the = facts=20 stated in the affidavit. See id.

Winchek also contends that = Axelrod's=20 affidavit is conclusory and fails to state any objective facts. = Conclusory=20 statements in affidavits are not competent evidence to support a = summary=20 judgment. Rizkallah, 952 S.W.2d at 587. A conclusory = statement is=20 one that does not provide the underlying facts to support the = conclusion.=20 Id. at 587. Winchek has not pointed to any specific = language in=20 Axelrod's affidavit to support her contention. The record shows = that=20 Axelrod attested that he is the custodian of records for Amex, = that he=20 bears the responsibility for archived documents regarding accounts = in=20 active litigation, and that he is required to have knowledge of = the facts=20 regarding high-balance account holders involved in litigation, = such as=20 Winchek. As stated in detail above, Axelrod attested to the facts=20 regarding Winchek's account. We conclude that Axelrod's affidavit = was not=20 conclusory. See Choctaw Properties, L.L.C. v. Aledo = I.S.D., 127=20 S.W.3d 235, 242-43 (Tex. App.--Waco 2003, no pet.). We further = conclude=20 that Axelrod's affidavit constituted competent summary judgment=20 proof.

In sum, we have concluded that = Amex met=20 its burden to prove the first element of its claim, that a valid = contract=20 exists. The second and third elements, that of breach by Winchek = and=20 performance by Amex, are established because it is undisputed that =

Winchek failed to pay the = amounts due as=20 stated in the billing statements and that Amex fully performed its = obligations with regard to servicing Winchek's account under the=20 Agreement. Finally, we have concluded that Amex proved the fourth = element=20 of its claim, the damages sustained. We hold that Amex met its = burden to=20 prove that it is entitled to summary judgment as a matter of law = on each=20 element of its cause of action. See Prime = Products, 97=20 S.W.3d at 636.

Accordingly, we overrule = Winchek's first=20 issue.

D. = Issue of=20 Material Fact

Because Amex met its summary = judgment=20 burden, the burden shifted to Winchek to respond with evidence of = a=20 genuine issue of material fact that would preclude summary = judgment.=20 See Steel, 997 S.W.2d at 222-23. =

1. Untimely Response

In her second issue, Winchek = contends=20 that the trial court erroneously struck her supplemental response = as=20 untimely.

Except on leave of court, the = nonmovant=20 for summary judgment must file any response or opposing affidavits = "not=20 later than seven days prior to the day of the [summary judgment] = hearing."=20 Tex. R. Civ. P. 166a(c). Here, the record shows that Amex filed = its motion=20 for summary judgment on October 5, 2005, and a hearing was set for = December 30, 2005. Winchek's response was due by December 23, = 2005.=20 See id. Winchek did not file her response until 9:56 p.m. = on=20 December 27, 2005. Amex moved to strike the response as untimely,=20 additionally contending that it had not received the response = until the=20 day of the hearing and that it had been unfairly surprised. =

Winchek contended in the trial = court that=20 her response was timely filed on December 27, 2005 because it was = her=20 first opportunity to file. Winchek contended that "December 23, = 2005 was a=20 holiday [and] December 24 and 25 was a weekend." Winchek did not, = however,=20 contend in her response to Amex's motion to strike that December = 26, 2005=20 was unavailable for filing, as she contends on appeal. Issues not=20 presented to the trial court cannot be considered on appeal. = City of=20 Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. = 1979);=20 Gulf Coast v. Clarke, 902 S.W.2d 156, 158 (Tex. = App.--Houston=20 [1st Dist.] 1995, writ denied).

We conclude that Winchek failed = to show=20 that her motion, filed on December 27, 2005, less than three days = prior to=20 the hearing, was timely. See Tex. R. Civ. P. 166a(c). =

Accordingly, Winchek's second = issue is=20 overruled.

2. Issue of Material=20 Fact

In her third issue, Winchek = contends that=20 she raised genuine issues of material fact that preclude summary = judgment.=20 Specifically, Winchek contends that she filed an affidavit in = which she=20 "controvert[ed] the testimony of Axelrod and establishe[d] genuine = issues=20 of material fact." In her affidavit, Winchek attested that she did = not=20 receive the Agreement, that "she was charged an incorrect late = fee," and=20 that she was charged insurance premiums that she never agreed to = pay.=20

Winchek's affidavit, however, = was solely=20 appended to and filed with her supplemental response, which the = trial=20 court struck as untimely. Having concluded that the trial court = did not=20 abuse its discretion in striking Winchek's supplemental response = as=20 untimely, we do not consider her affidavit in this appeal. See = Tex. R. Civ. P. 166a(c); City of Houston, 589 S.W.2d = at=20 678.

Accordingly, Winchek's third = issue is=20 overruled.

3. Motion for=20 Continuance

In her fourth issue, Winchek = contends=20 that the trial court improperly denied her motion for a = continuance to=20 allow her to depose Amex's summary judgment affiant, Axelrod. =

Winchek's motion for = continuance was=20 contained in her supplemental response, which we have already = concluded=20 was properly struck as untimely. However, even if we were to = consider her=20 issue, we note that Winchek's presentation of her contention is = comprised=20 of two sentences that do not contain any citations to the record = or to=20 authority. We will not decide an issue on appeal without proper = argument=20 and authority showing why the actions of the trial court were = erroneous.=20 See Tex. R. App. P. 38.1(h).

Accordingly, Winchek's fourth = issue is=20 overruled.

CONCLUSION


We affirm the judgment of the = trial=20 court.





Laura Carter Higley

Justice


Panel consists of Justices = Nuchia, Keyes,=20 and Higley.


1. '=20

2. =

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