08-0425
KENNETH J. MAGNUSON v. CITIBANK (SOUTH DAKOTA) N.A.; from Denton County; 2nd district
(02-06-00465-CV, ___ SW3d ___, 02-14-08, pet. denied Aug 2008) (suit on credit card debt by original
creditor, card issuer, Rule 12 motion, hearing by submission, failure to appear)
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Magnuson v. Citibank (South Dakota) N.A., No. 02-06-00465-CV, ___ SW3d ___,
02-14-08, pet. denied Aug 2008) (credit card debt suit)
Plaintiff was original creditor and supported motion for summary judgment against
card holder with signed application, copy of cardmember agreement, and series of
monthly statements; summary judgment affirmed by default on account stated theory
(rather than breach of contract) because that theory was not challenged.
MEMORANDUM OPINION [1]
Appellant Kenneth J. Magnuson appeals from a summary judgment awarding Appellee Citibank (South
Dakota), N.A. damages of $18,815.02, plus $4,327.45 in attorney's fees, $1,500 in additional attorney's
fees in the event of an unsuccessful appeal by Magnuson to the court of appeals, and $2,500 in
additional attorney's fees in the event of an unsuccessful appeal by Magnuson to the Texas Supreme
Court. Because we hold that the trial court did not err by granting summary judgment for Citibank, we
affirm.
I. Facts and Procedural History
On June 18, 2004, Citibank sued Magnuson on claims of account stated, breach of contract, and
quantum meruit for the unpaid balance on Magnuson's credit card account after he stopped paying on
the account. Magnuson filed an answer pro se. On September 20, 2004, Citibank filed a motion for
summary judgment. Magnuson filed a response. Citibank asked for a hearing by submission, but
Magnuson appeared in person on the hearing date. The trial court denied Citibank's motion without
prejudice and without considering the merits because Citibank did not appear.
On November 7, 2005, Citibank filed a second traditional motion for summary judgment and submitted in
support of its motion the affidavit of Crystal Britt, its representative, stating among other things that
demand had been made on Magnuson more than thirty days prior to suit. Citibank also attached copies
of the card agreement, Magnuson's account application, and billing records. Magnuson filed a verified
response but did not attach any evidence in support. In his response, he argued that the application
included with Citibank's evidence is illegible and therefore no contract exists and that because the
cardholder agreement does not contain his signature, the conditions therein are not a part of any
alleged agreement between the parties. He also asserted that no contract was signed by Citibank.
Magnuson also filed a motion to show authority under Rule 12 of the Texas Rules of Civil Procedure.[2]
Citibank filed a response, attaching an affidavit of a vice president for Citicorp Credit n filed is not notice of the setting of a hearing on the
motion. Citibank clearly did know that Magnuson had filed a Rule 12 motion because, as Magnuson
correctly points out, Citibank filed a response. But that does not signif appeal, and we do not
consider it.[10] Accordingly, we overrule issues two and three.
In his first issue, Magnuson asks, “May a litigant file a second Motion for Summary Judgment without any
change in their pleadings?” In issue four, Magnuson asks, does “the opposing party have the authority
to reset a hearing or in effect have a rehearing of a motion filed by opposing counsel without filing a
motion to rehear?"