Deborah L. McGrew v. Citibank (South Dakota) NA ( 2009 )

IN THE
TENTH COURT OF APPEALS
No. 10-07-00343-CV
DEBORAH L. MCGREW,
Appellant
v.
CITIBANK (SOUTH DAKOTA) N.A.,
Appellee
From the County Court at Law No. 1
Johnson County, Texas
Trial Court No. C200700213
MEMORANDUM OPINION
Deborah L. McGrew appeals the trial court’s summary judgment in favor of
Citibank (South Dakota) N.A. (Citibank). We will affirm.
Background
Citibank sued McGrew to recover unpaid credit card debt. In its petition,
Citibank alleged the following: Citibank and McGrew entered into agreements for two
separate credit accounts; at all relevant times, McGrew was the primary cardholder
under the accounts; the accounts were governed by the Citibank Card Agreement, as it
was amended from time to time; pursuant to the express terms of the agreement,
McGrew was responsible for all charges placed on the accounts by persons permitted or
who had access to the credit cards or account numbers; McGrew used the accounts to
make purchases of goods and/or services and/or to receive cash advances; in
accordance with the agreement, Citibank properly billed McGrew for payment of the
charges on the account, but McGrew defaulted in making the payments required by the
agreement; and after all just and lawful offsets, credits and payments were allowed, the
total outstanding balances on each account were $18,802.49 and $7,857.89 respectively.
Citibank asserted four alternative causes of action: (1) “breach of
contract/written or implied-in-fact,” (2) “breach of oral contract,” (3) “account stated”
and (4) “restitution, common law debt, assumpsit, money had [sic] and to remedy
defendant’s unjust enrichment.” McGrew generally denied the allegations. Citibank
subsequently filed what we have determined to be a traditional motion for summary
judgment on its account stated cause of action. Citibank supported the motion with (1)
two business records affidavits from Ramona Chavez, a Litigation Analyst with
Citicorp Credit Services, Inc. USA, a service provider for Citibank, with final billing
statements for each of McGrew’s credit card accounts attached, and (2) an Affidavit in
Support of Attorney Fees. Following McGrew’s response to Citibank’s motion,
Citibank filed a reply to McGrew’s response and a supplement to its summary
judgment motion with additional supporting evidence. The additional evidence
included two business records affidavits from Jay Guenther, another Litigation Analyst
with Citicorp Credit Services, Inc. USA. Attached to the affidavits were copies of the
McGrew v. Citibank (South Dakota) N.A. Page 2
monthly account statements that had been sent to McGrew over the relevant time
period. The trial court granted Citibank’s summary judgment motion.
Objections to Affidavits of Ramona Chavez
In her first issue, McGrew argues that the Chavez affidavits do not satisfy the
business records exception to the hearsay rule because she does not state that she has
personal knowledge of the facts in the affidavits. However, in the summary judgment
context, a nonmovant must obtain a ruling on an objection to the form of a motion or
supporting evidence to preserve the issue for appellate review. See TEX. R. APP. P.
33.1(a)(2); Allen v. Albin, 97 S.W.3d 655, 662-63 (Tex. App.—Waco 2002, no pet.). An
objection that an affidavit fails to comply with the business records exception to the
hearsay rule, as well as an objection that the affiant does not have personal knowledge,
are objections to the form of the affidavit and must be preserved in the trial court.
Dulong v. Citibank (South Dakota), N.A., 261 S.W.3d 890, 893 (Tex. App.—Dallas 2008, no
pet.); Seidner v. Citibank (South Dakota), N.A., 201 S.W.3d 332, 334-35 (Tex. App.—
Houston [14th Dist.] 2006, pet. denied); Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d
235, 241 (Tex. App.—Waco 2003, no pet.). Because McGrew does not cite, nor have we
found, a ruling from the trial court on her objections, McGrew failed to preserve for
review her objections to the summary judgment evidence. See TEX. R. APP. P. 33.1(a)(2).
We overrule her first issue.
Sufficiency of Evidence as to Amount Due
A party is entitled to relief under the common law cause of action for account
stated when (1) transactions between the parties give rise to indebtedness of one to the
McGrew v. Citibank (South Dakota) N.A. Page 3
other; (2) an agreement, express or implied, between the parties fixes an amount due;
and (3) the one to be charged makes a promise, express or implied, to pay the
indebtedness. Dulong, 261 S.W.3d at 893; Neil v. Agris, 693 S.W.2d 604, 605 (Tex. App.—
Houston [14th Dist.] 1985, no writ); Arnold D. Kamen & Co. v. Young, 466 S.W.2d 381, 388
(Tex. Civ. App.—Dallas 1971, writ ref’d n.r.e.).
In her second issue, McGrew contends that the Guenther affidavits provide no
evidence to support summary judgment against her because the affiant does not state
that (1) “the balances shown on the statements are true and correct,” (2) “whether any
payments or offsets after the dates of the last statements have been allowed,” and (3)
“what the balances of the accounts are at the time of the filing of suit or even as of the
dates of the affidavits or at any time relevant to this case.” McGrew contends that by
failing to state the actual true and correct balances owed on the accounts, there is no
evidence to support the summary judgment as to the amounts, if any, owed by McGrew
to Citibank. We disagree.
Contrary to McGrew’s argument, Guenther states in each of his affidavits:
“I have personal knowledge of the facts stated, and they are all true and correct.”
“The records attached as Exhibits [D-1 and E-1 respectively] are true and correct
reproductions of the originals.”
“Attached hereto and incorporated into this Affidavit as Exhibit [D-1 and E-1
respectively] are true and correct copies of duplicate monthly statements sent to
Defendant for the Account over the relevant time period. These statements
identify and describe every transaction made on the account during that period.”
“After failing or refusing to pay the amount shown as due and owing on the
statements for three (3) months[,] the account was closed to further transactions.
The entire amount of the unpaid debt is due an [sic] owing.”
McGrew v. Citibank (South Dakota) N.A. Page 4
“At the time the last account statement was sent to the Defendant, the amount
due . . . was [$18,802.49 and $7,857.89 respectively]. In addition, the Card
Agreement provides that Defendant shall pay interest on the Account, along
with attorney fees and court costs. However, Citibank is not including any
interest or fees which have accrued on this account since the date of the last
statement attached hereto. Further, all just and lawful offsets, payments and
credits made prior to said last account statement have been allowed as set out on
the monthly statements of account attached hereto.”
“Demand for payment was made on the Defendant more than thirty (30) days
prior to the making of this Affidavit, for the amount due on the Account set out
above, and that amount has not been paid by Defendant.”
Furthermore, each of the Chavez affidavits state:
“The record attached hereto as Exhibit [“A-1” and “B-1” respectively] is a true
and correct duplicate of the original.”
“Because the subject debt owed by Defendant to Plaintiff is past due, Plaintiff has
demanded in writing immediate payment of the entire balance owed by
Defendant, and Defendant has in all things failed or refused to pay that amount.
There are no just debts, set-offs, credits, or allowances due or to become due
from the Plaintiff to the Defendant, other than those that would have been set out
on the monthly statements provided to Defendant.”
“Exhibit [“A-1” and “B-1” respectively] attached hereto is the final billing
statement provided to Defendant setting out the total amount owed on the
account at that time. After receiving the final billing statement and prior to filing
this lawsuit, Defendant did not state any specific reason for disputing the total
amount owed set out on that final billing statement.”
“According to the Defendant’s Account Information contained in Plaintiff’s
account records, the total balance owed by Defendant to Plaintiff is [$18,802.49
and $7,857.89 respectively].”
Based on these affidavits, Citibank established as a matter of law the amounts
owed by McGrew to Citibank. See Dulong, 261 S.W.3d at 894 (“Based on the series of
transactions reflected on the account statements, it is reasonable to infer that Dulong
agreed to the full amount shown on the statements and impliedly promised to pay the
McGrew v. Citibank (South Dakota) N.A. Page 5
indebtedness.”); see also Butler v. Hudson & Keyse, L.L.C., No. 14-07-00534-CV, 2009 WL
402329, at *3 (Tex. App.—Houston [14th Dist.] Feb. 19, 2009, no pet.) (mem. op.)
(“[B]ased on appellants’ usage of the credit card, we may reasonably infer that they
impliedly agreed to pay a fixed amount equal to the purchases and cash advances they
made, plus interest.”). Furthermore, McGrew has raised no fact issues that would
preclude summary judgment. Tex. Workers’ Comp. Ins. Fund v. Simon, 980 S.W.2d 730,
733 (Tex. App.—San Antonio 1998, no pet.) (citing City of Houston v. Clear Creek Basin
Auth., 589 S.W.2d 671, 678 (Tex. 1979)). McGrew has not presented any evidence
suggesting a different amount is owed. We therefore overrule McGrew’s second issue.
Conclusion
Having overruled each of McGrew’s issues, we affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed June 17, 2009
[CV06]
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