Opinion issued=20
March 20, 2008
In The
Court of=20
Appeals
For=20
The
First =
District of=20
Texas
NO. =
01-06-00636-CV
ZEKE DURAN III,=20
Appellant
V.
CITIBANK (SOUTH DAKOTA), N.A., Appellee
On Appeal from the =
County=20
Civil Court at Law No. 3
Harris County,=20
Texas
Trial Court Cause =
No.=20
844699
=
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; =
&=
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MEMORANDUM=20
OPINION
=
Citibank=20
(South Dakota), N.A. (=E2=80=9CCitibank=E2=80=9D) sued appellant, =
Zeke Duran III=20
(=E2=80=9CDuran=E2=80=9D), for breach of contract for failing to =
pay a credit card debt.=20
Duran appealed the summary judgment granted in favor of Citibank. =
We=20
address Duran=E2=80=99s arguments that (1) Citibank failed to =
support its motion=20
for summary judgment with competent evidence; (2) Citibank failed =
to=20
establish the existence of a contract; (3) Citibank failed to =
establish=20
damages sustained by Duran=E2=80=99s breach of the contract; (4) =
Citibank failed=20
to prove reasonable and necessary attorney=E2=80=99s fees; and (5) =
the court erred=20
in denying Duran=E2=80=99s counterclaims . ![3DFootnote](3D"")
We affirm the =
judgment.=20
Background
<=
/SPAN>In=20
1991, Duran opened a credit card account with Citibank. The terms =
of use=20
of the account are set forth in a written agreement (=E2=80=9Cthe =
Card=20
Agreement=E2=80=9D), with periodic changes to the terms of that =
agreement as noted=20
in documents entitled =E2=80=9CNotice of Change in Terms=E2=80=9D =
sent to Duran throughout=20
the time he made charges to the card and payments against the =
account.=20
Each notice included specific instructions for how to proceed if =
=E2=80=9Cyou do=20
not wish to accept this change.=E2=80=9D Duran never followed =
those instructions,=20
but rather continued to charge purchases to the card after each =
Notice of=20
Change in Terms was sent to him, the last notice occurring in =
December of=20
2003.
<=
/SPAN>Duran=20
continued to use the card until July of 2004, at which time he =
stopped=20
using the account to make purchases and also stopped making =
payments=20
toward the incurred debt. In the September 2004 account statement, =
Citibank notified Duran that his =E2=80=9Caccount is past due and =
credit=20
privileges have been suspended.=E2=80=9D Citibank again notified =
Duran of the=20
account status in the following two statements.
<=
/SPAN>In=20
February of 2005, Citibank assessed a final finance charge against =
Duran=E2=80=99s=20
account, determined Duran=E2=80=99s debt to Citibank to be =
$17,776.09, and filed=20
suit to collect the debt.
<=
/SPAN>Citibank=20
filed a motion for summary judgment, asserting that there was no =
genuine=20
issue of material fact to litigate on its breach-of-contract claim =
against=20
Duran. Citibank alternatively argued that the facts showed that =
Duran was=20
unjustly enriched at Citibank=E2=80=99s expense as a matter of =
law. The trial=20
court granted summary judgment in Citibank=E2=80=99s favor without =
specifying the=20
grounds for its ruling.
Standard of=20
Review
<=
/SPAN>To prevail on a =
traditional=20
summary judgment motion, a movant has the burden of proving that =
it is=20
entitled to judgment as a matter of law and that there is no =
genuine issue=20
of material fact. Tex. R. =
Civ. P.=20
166a(c); Cathey v.=20
Booth, 900=20
S.W.2d 339, 341 (Tex. 1995). A plaintiff moving for summary =
judgment on its=20
claim must establish its right to summary judgment by conclusively =
proving=20
all the elements of its cause of action as a matter of law.=20
Rhone-Poulenc, =
Inc. v.=20
Steel, 997=20
S.W.2d 217, 223 (Tex. 1999); Anglo-Dutch =
Petroleum Int=E2=80=99l,=20
Inc. v. Haskell, 193 S.W.3d 87, 95 =
(Tex.=20
App.=E2=80=94Houston [1st Dist.] 2006, pet. denied).
=
We review summary =
judgments=20
de novo. Valence Operating =
Co. v.=20
Dorsett,=20
164 S.W.3d 656, 661 (Tex. 2005).
Objections to the=20
Form of Citibank=E2=80=99s Summary Judgment =
Evidence
<=
/SPAN>Duran=E2=80=99s=20
primary complaint on appeal is that Citibank=E2=80=99s business =
record affidavit=20
and the attached documents are =E2=80=9Cincompetent as =
evidence.=E2=80=9D He complains=20
that the affidavit is incomplete and that it indicates =
=E2=80=9Cuntrustworthy=20
record retention.=E2=80=9D These are objections to the form, and =
not the=20
substance, of the evidence. See Seidner v. =
Citibank (South=20
Dakota), N.A., 201 =
S.W.3d 332, 335=20
(Tex. App.=E2=80=94Houston [14 Dist.] 2006, pet. denied.) (holding =
that complaints=20
that affidavit failed to state that attached documents were kept =
or made=20
in regular course of business go to form, not substance, of=20
evidence).
<=
/SPAN>To=20
the extent that Duran=E2=80=99s arguments go to =
the form and not the =
substance of the =
evidence,=20
he needed not only to object, but also =
to have=20
secured a ruling on his objections to =
preserve those=20
complaints for appeal. See id. (citing Grand =
Prairie=20
I.S.D. v. Vaughan, 792 S.W.2d 944, =
945 (Tex.=20
1990) (holding that alleged defects in summary judgment affidavit =
were=20
defects of form) and =
Alaniz v. =
Rebello Food=20
& Beverage, L.L.C., 165 S.W.3d 7, 19 =
n.19 (Tex.=20
App.=E2=80=94Houston [14th Dist.] 2005, no pet.) (holding that =
alleged defect of=20
form in summary judgment affidavit =
was not=20
preserved when party failed to lodge objection and to =
obtain=20
ruling) and Landry=E2=80=99s =
Seafood Rests.,=20
Inc. v. Waterfront Cafe, Inc., 49 S.W.3d 544, =
551 (Tex.=20
App.=E2=80=94Austin 2001, pet. dism=E2=80=99d) (holding that =
failure of summary judgment affidavit =
to state=20
that facts in attached document were true and correct was defect =
of form that was =
waived when=20
party failed to object) and =
Hou-Tex, Inc. v. =
Landmark=20
Graphics,=20
26 S.W.3d 103, 112 (Tex. App.=E2=80=94Houston [14th Dist.] 2000, =
no pet.) (holding=20
that objection to form of summary judgment evidence =
was waived=20
by failure to obtain ruling from trial court)). This Court has =
adopted the=20
majority position among courts of appeals, which refuses to =
presume that=20
objections were overruled when a trial court grants a motion for =
summary judgment. =
See Delfino v.=20
Homes, 223=20
S.W.3d 32, 34 (Tex. App.=E2=80=94Houston [1st Dist.] 2006, no =
pet.);=20
Seidner, 201 =
S.W.3d at=20
335; =
Chapman=20
Children=E2=80=99s Tr. v. Porter & Hedges, =
L.L.P., 32 S.W.3d 429, =
436 n.4=20
(Tex. App.=E2=80=94Houston [14th Dist.] 2000, pet. =
denied).
Duran failed to =
obtain a=20
ruling on any objections to Citibank=E2=80=99s summary judgment =
evidence. Thus,=20
Duran=E2=80=99s complaints regarding the form of =
Citibank=E2=80=99s summary judgment=20
evidence are overruled as not preserved. See Tex. R. App. P.=20
38.1.
Sufficiency of the Business Records=20
Affidavit
=
Duran=20
complains generally about the evidence produced by Citibank to =
support its=20
summary judgment motion, including the business records affidavit =
of Terri=20
Ryning and the attached documents, which we liberally construe as =
attacks=20
on the substance of the evidence, including arguments that =
Citibank did=20
not provide sworn or certified copies of the documents referenced =
in=20
Ryning=E2=80=99s affidavit and that the affidavit is conclusory.=20
=
Ryning=20
testified in her affidavit (1) that she =E2=80=9Chas personal =
knowledge regarding=20
the facts stated herein=E2=80=9D and that those facts are =
=E2=80=9Ctrue and correct=E2=80=9D; (2)=20
that she is Vice-President for Citicorp Credit Services, Inc., =
which=20
=E2=80=9Cperforms certain services including the collection of =
unpaid accounts for=20
[Citibank],=E2=80=9D and that she is authorized to testify =
concerning the matters=20
in the affidavit; (3) that she is a custodian of records for =
Citibank,=20
with duties including custody and control over Duran=E2=80=99s =
account with=20
Citibank; and (4) that these records are kept in the regular =
course of=20
business and made at or near the time of the recorded events by a =
person=20
with personal knowledge of the events. Ryning further testified =
that the=20
documents attached to her affidavit were true and correct copies =
of the=20
originals, with certain information redacted to protect =
confidential=20
information. Finally, Ryning testified that Duran opened the =
account with=20
Citibank, used the account, made payments on the account, and =
ultimately=20
incurred charges totaling $17,776.09 =E2=80=9Cafter all just and =
lawful offsets,=20
credits and payments have been allowed.=E2=80=9D Ryning indicated =
that demand for=20
payment was made, that Duran failed to pay the amounts due and =
owing, and=20
that Citibank had to employ an attorney to collect the amounts =
owed.=20
=
Ryning=20
properly authenticated the documents referenced in her affidavit =
as=20
=E2=80=9Cbusiness=20
records.=E2=80=9D=20
See Tex. R. Evid. 803(6), =
902(10).=20
Duran did not present any evidence to raise a fact issue as to =
whether the=20
documents were properly authenticated business records. Further, =
Duran has=20
failed to identify any statements in the affidavit that he =
contends are=20
opinions or legal conclusions. We have reviewed the affidavit and =
have=20
determined that it contains sufficient factual support and is not, =
therefore, conclusory. See 8920 Corp. v. =
Alief Alamo=20
Bank, 722=20
S.W.2d 718, 720 (Tex. App.=E2=80=94Houston [14th Dist.] 1986, writ =
ref=E2=80=99d n.r.e.).=20
To the=20
extent that Duran attacks Ryning=E2=80=99s affidavit and the =
attached documents on=20
these grounds, we overrule his complaints.
Existence of a Valid =
Contract
=
To be entitled to =
summary=20
judgment on its breach-of-contract claim, Citibank was required to =
prove,=20
as a matter of law, (1) the existence of a valid contract; (2) =
performance=20
or tendered performance by the plaintiff; (3) breach of contract =
by the=20
defendant; and (4) damages sustained as a result of the breach.=20
Williams v.=20
Unifund CCR Partners Assignee Of Citibank, =
=E2=80=94 SW3d =E2=80=94, =
2008 WL 339855, at=20
*3 (Tex. App.=E2=80=94Houston [1st Dist.] Feb. 7, 2008, no pet. =
h.) (citing Winchek =
v. Am.=20
Express Travel Related Servs. Co., 232 S.W.3d 197, =
202 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 2007, no pet.)). Parties form a =
binding contract=20
when the following elements are present: (1) an offer, (2) an =
acceptance=20
in strict compliance with the terms of the offer, (3) meeting of =
the=20
minds, (4) each party=E2=80=99s consent to the terms, and (5) =
execution and=20
delivery of the contract with the intent that it be mutual and =
binding.=20
Id. To be =
enforceable, a=20
contract must be sufficiently certain to enable a court to =
determine the=20
rights and responsibilities of the parties. Id. The material terms =
of a=20
contract must be agreed upon before a court can enforce the =
contract.=20
Id. (citing T.O. Stanley Boot =
Co. v.=20
Bank of El Paso, 847 S.W.2d 218, =
221 (Tex.=20
1992)).
<=
/SPAN>First,=20
Duran contends that Citibank failed to provide proof of delivery =
of an=20
agreement or acceptance of its terms and that, therefore, no valid =
contract could exist to support Citibank=E2=80=99s =
breach-of-contract claim.=20
=
=E2=80=9CDelivery may be =
proved by=20
acts or words showing that the parties intended the contract to become =
effective.=E2=80=9D=20
Awad Tex. Enters., Inc. v. Homart Dev. Co., 589 S.W.2d 817, =
819=E2=80=93820=20
(Tex. Civ. App.=E2=80=94Dallas 1979, no writ). =E2=80=9C[W]hen the parties =
manifest=20
an intent through their actions and words that the contract become =
effective,=20
delivery is=20
shown.=E2=80=9D=20
Winchek, 232 S.W.3d at 204 =
(op. on=20
reh=E2=80=99g). In other words, when parties manifest an intent =
through their=20
actions and words that a contract become =
effective,=20
manual delivery is =
immaterial to contract validity. =
Awad Tex.=20
Enters., Inc., 589 S.W.2d at =
819=E2=80=9320.=20
=
To its summary judgment motion, =
Citibank=20
attached evidence in the form of copies of billing statements from =
January=20
of 1998 to July of 1994. The statements reflect charges made on =
the=20
account; they also reflect payments made. Citibank also attached =
the Card=20
Agreement for=20
the account. The Card Agreement stated that the cardmember was =
responsible=20
for the use of each card used in relation to the account =
=E2=80=9Caccording to the=20
terms of this Agreement.=E2=80=9D The Agreement set out how the =
monthly minimum=20
payment was determined and how finance charges were=20
determined.=20
The =
terms of=20
the contract were set =
out in the=20
agreement and were accepted when Duran began using the card. The =
billing=20
statements showed that he used the card after each change in =
terms, again=20
accepting those changes by his use of the card. Delivery was =
established by=20
Duran=E2=80=99s use of the card and by his making payments on the =
account for the=20
charges shown on his monthly billing statements. See id. In response to the =
motion=20
for summary judgment, Duran =
did not=20
present any competent evidence that he did not receive the =
agreement or=20
notices of changes in the agreement.
Because Duran used =
his card=20
and made some payments, he manifested intent that the agreement =
become=20
effective. See id.
=
Second,=20
Duran contends that no valid contract exists because the terms of =
the Card=20
Agreement were indefinite. But the statements showed that =
Duran=E2=80=99s amount=20
owed was clearly itemized, showing purchases and payments made and =
specifying the finance charges. Citibank=E2=80=99s evidence showed =
that the Card=20
Agreement was sufficiently definite to enable a court to determine =
the=20
rights and responsibilities of each party and that Duran=E2=80=99s =
conduct in=20
using the card and making payments on the account for the charges=20
reflected in the monthly billing statements showed that Duran =
understood=20
his obligations to Citibank and that a contract was formed. See =
Winchek, 232 S.W.3d at 204.
=
Third,=20
Duran argues that Citibank failed to prove that he accepted the =
terms of=20
the contract. Duran does not dispute that he used the card and =
made=20
payments while never disputing the accuracy of the statements. =
Thus, we=20
reject this contention. See id.
=
We=20
conclude that Citibank met its burden to establish the existence =
of a=20
valid contract as a matter of law.
Damages
=
Duran argues that =
Citibank=20
failed to establish the applicable interest rate and, thereby, =
failed to=20
establish as a matter of law the amount of damages that it =
incurred from=20
Duran=E2=80=99s breach of the Card Agreement. The agreement and =
billing statements=20
provided detailed explanations of the cost of credit and the =
methodology=20
employed to determine the applicable interest rate. See id. =
at 205.=20
Duran fails to identify any specific charges for which he contends =
the=20
applicable interest rate was not proven. The Card Agreement and =
the=20
comprehensive compilation of account statements from 1998 through =
2004=20
conclusively established the amount that Duran owed, including the =
applicable interest rates. Further, to the extent that Duran =
contends that=20
the evidence failed to establish that all just and lawful offsets =
had been=20
allowed, we reject that contention. The summary judgment evidence =
reflects=20
that =E2=80=9Call just and =
lawful offsets,=20
credits and payments have been allowed.=E2=80=9D In response to the =
motion=20
for summary judgment, Duran =
did not=20
present any competent, contradictory evidence. =
=
We=20
hold that Citibank proved its damages as a matter of=20
law.
Attorney=E2=80=99s =
Fees
=
Finally,=20
Duran contends that a fact issue exists as to whether the =
attorney=E2=80=99s fees=20
awarded to Citibank are reasonable and necessary. Jennifer =
Spencer,=20
attorney for Citibank, provided an affidavit in which she swore =
that she=20
was =E2=80=9Cfamiliar with attorneys=E2=80=99 fees charged in the =
Harris County area in=20
the year 2006,=E2=80=9D that =E2=80=9Cfirm attorneys and legal =
assistants have expended in=20
excess of 76 hours in preparation of this case,=E2=80=9D and that =
=E2=80=9Ca reasonable=20
and customary charge for legal services performed to date on =
behalf of=20
Citibank in connection with this action is an amount in excess of=20
$10,088.50.=E2=80=9D She further testified that =E2=80=9CCitibank =
is entitled to recover=20
reasonable and necessary attorneys=E2=80=99 fees in the amount of =
$5,000.00;=20
$5,000.00 if the case is appealed to the Texas Court of Appeals; =
and=20
$5,000.00 if the case is appealed to the Texas Supreme =
Court.=E2=80=9D The court=20
awarded $10,088.50 in attorney=E2=80=99s fees plus $5,000.00 =
additional for each=20
of postjudgment motions, appeal to the Court of Appeals, and =
appeal to the=20
Texas Supreme Court.
=
Duran=E2=80=99s=20
attorney, John Mastriani, filed an affidavit in which he stated =
that he is=20
=E2=80=9Cfamiliar with the normal and customary attorney fees for =
an action such=20
as this=E2=80=9D and opined that the fees charged ($150.00 per =
hour for attorneys=20
and $95.00 per hour for paralegals) were =E2=80=9Coutrageous and =
excessive.=E2=80=9D=20
However, Mastriani failed to provide evidence of an alternative =
rate that=20
he would deem reasonable and necessary or otherwise to controvert=20
Spencer=E2=80=99s affidavit with controverting evidence. We hold =
that Citibank=20
conclusively established that it was entitled to recover its =
attorney=E2=80=99s=20
fees as awarded by the trial court. See Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 38.001 (Vernon Supp. 2007); see also =
Hackberry Creek=20
Country Club, Inc. v. Hackberry Creek Home Owners =
Ass=E2=80=99n, 205 S.W.3d=20
46, 56 (Tex. App.=E2=80=94Dallas 2006, pet. =
denied).
=
Citibank=20
conclusively established the existence of a valid contract under =
which it=20
performed and that Duran breached that contract by failing to pay =
the=20
amounts due and the damages sustained by Citibank as a result of =
that=20
breach. The=20
trial court properly determined that Citibank met its burden to =
prove that=20
it was entitled to summary judgment as a =
matter of law=20
on each element of its cause of action. See Winchek, 232 S.W.3d at=20
206. =
We=20
overrule issues one and=20
=
two.
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Counterclaim
<=
/SPAN>With=20
regard to Duran=E2=80=99s third issue, in which he states that =
Citibank failed to=20
establish that it was not liable to Duran for his counterclaim, =
Duran=20
presents no legal arguments or =
citations to=20
authority. Thus, this issue is inadequately =
briefed. =
See Tex. R. App. P. 38.1(h); =
Stephens v.=20
Dolcefino,=20
126 S.W.3d 120, 130 (Tex. App.=E2=80=94Houston [1st Dist.] 2003), =
pet. =
denied, 181 S.W.3d 741 =
(Tex.=20
2005).
We overrule issue three.Conclusion
&nbs=
p;We affirm the judgment of the =
trial=20
court.
&nbs=
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; =
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sp; Tim=20
Taft
Justice
Panel consists of Justices =
Taft, Keyes,=20
and Alcala. |