Arlene J. Rodriguez v. Citibank NA ( 2013 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00777-CV
Arlene J. RODRIGUEZ,
Appellant
v.
Citibank,
CITIBANK, N.A.,
Appellee
From the 216th Judicial District Court, Kerr County, Texas
Trial Court No. 12470A
Honorable N. Keith Williams, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Catherine Stone, Chief Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: August 30, 2013
AFFIRMED
Appellant Arlene J. Rodriguez appeals from a summary judgment in favor of appellee
Citibank, N.A. On appeal, Rodriguez contends the trial court erred in: (1) overruling her objections
to an affidavit filed by Citibank in support of its motion for summary judgment, and (2) granting
summary judgment in favor of Citibank. We affirm the trial court’s judgment.
BACKGROUND
In its petition, Citibank specifically alleged Rodriguez had requested to open a credit card
account with Citibank and that an account bearing number “XXXXXXXXXXXX7174” had been
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opened in her name. Citibank stated that when it referred to the account number, it was referring
to “the full and complete account number assigned to the credit card account by the bank.”
However, for purposes of the petition, it had redacted all but the last four numbers. Citibank
claimed Rodriguez had failed to pay the amounts due and owing on the credit card, prompting the
suit. After Rodriguez answered, Citibank moved for summary judgment on its account stated
claim, seeking recovery of $19,464.80. The trial court granted the motion for summary judgment
and awarded Citibank the entire amount sought. Rodriguez then perfected this appeal.
ANALYSIS
As noted above, Rodriguez claims the trial judge erred in overruling her objections to the
summary judgment affidavit supporting Citibank’s motion for summary judgment, and in granting
the motion for summary judgment. Citibank counters that it established its right to judgment as a
matter of law, and Rodriguez failed to present evidence raising a genuine issue of material fact.
Objections to Affidavit
Rodriguez first complains the trial court erred in denying her objections to the affidavit of
Ryan Cogan, which was included by Citibank in support of its motion for summary judgment.
Specifically, Rodriguez contends the affidavit lacked personal knowledge and included numerous
conclusory statements.
Standard of Review
In determining whether a trial court erred in overruling an objection to summary judgment
evidence, we use an abuse of discretion standard. In re Estate of Denman, 362 S.W.3d 134, 140
(Tex. App.—San Antonio 2011, no pet.). A trial court abuses its discretion when it acts arbitrarily
or unreasonably, without reference to guiding rules and principles. Id. at 141. A trial court does
not abuse its discretion merely because it decides an issue differently than the appellate court
would. Id.
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Lack of Personal Knowledge
Rodriguez begins by arguing Cogan’s affidavit lacks personal knowledge because it does
not show how he became personally familiar with the facts within the affidavit. 1 Rodriguez claims
Cogan’s status as a document control officer did not affirmatively show how he had knowledge of
any agreement between Citibank and Rodriguez. In other words, Rodriguez contends Cogan failed
to establish the basis for his attested personal knowledge regarding the relationship and events
between Citibank and Rodriguez.
In his affidavit, Cogan avers the statements in his affidavit are based on his personal
knowledge and his review of the business records described within the affidavit. Cogan states he
is authorized to make the affidavit on behalf of Citibank and is employed by Citibank or an
affiliate. Cogan asserts he is a “Document Control Officer” and his duties include acting as a
custodian of records with respect to accounts owned by Citibank. He further states that as a
custodian, he has “knowledge of, and access to, account information and records” concerning
Rodriguez’s account, which is the subject of the lawsuit. He then avers the account records
attached to his affidavit contain Rodriguez’s name, address, account number, and account history,
including charges made, interest, fees assessed, and payments or credits received.
We agree with Rodriguez that a mere blanket recitation of personal knowledge of the
matters contained in an affidavit is insufficient. See, e.g., Laidlaw Waste Sys. v. City of Wilmer,
1
Citibank contends Rodriguez failed to preserve her personal knowledge objection for appellate review because she
failed to obtain a ruling from the trial court on her objection. In Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008),
the supreme court held the testimony of witness without personal knowledge is no evidence. Accordingly, it seems a
claim that an affiant lacks personal knowledge is a substantive defect that requires neither an objection nor a ruling.
Balderas v. Saenz, No. 04–11–00873–CV, 2013 WL 346183, at *3 (Tex. App.—San Antonio Jan. 13, 2013, pet.
denied) (mem. op.) (citing TIMOTHY PATTON, SUMMARY JUDGMENTS IN TEXAS § 6.03[5][d] (3d ed. 2012)). We will
therefore assume for purposes of this opinion that Rodriguez preserved this issue for our review. Moreover, construing
her objections liberally, and considering the trial court’s order regarding the objections, it appears Rodriguez objected
to the affidavit based on lack of personal knowledge and that this objection, along with the others she asserted, were
overruled.
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904 S.W.2d 656, 661 (Tex. 1995); Valenzuela v. State & Cnty. Fire Ins. Co., 317 S.W.3d 550, 553
(Tex. App.—Houston [14th Dist.] 2010, no pet.). Rather, the affiant must explain how he has
personal knowledge. Valenzuela, 317 S.W.3d at 55; see Kerlin, 274 S.W.3d at 668. “An affiant’s
position or job responsibilities can qualify him to have personal knowledge of facts and establish
how he learned of the facts.” Valenzuela, 317 S.W.3d at 553. And, an affiant’s personal
knowledge may be acquired not only through his position, but also through his specifically
described job duties. Id.; see, e.g., 1001 McKinney Ltd. v. Credit Suisse First Boston Mortg.
Capital, 192 S.W.3d 20, 27 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (holding affiant’s
personal knowledge resulted from his employment as director of controller’s division which kept
records of licenses and government approvals); First Nat’l Bank in Munday v. Lubbock Feeders,
L.P., 183 S.W.3d 875, 881 (Tex. App.—Eastland 2006, pet. denied) (holding affiant established
personal knowledge because he was yard manager and familiar with customer accounts because
job required him to be familiar with such accounts). Thus, the requirement of personal knowledge
is satisfied when an affiant identifies the position he holds and describes his job responsibilities so
that one can reasonably assume he would be particularly situated to have personal knowledge of
the facts within his affidavit. TIMOTHY PATTON, SUMMARY JUDGMENTS IN TEXAS § 6.03[5][a] (3d
ed. 2012).
Based on our review of Cogan’s affidavit, we hold he has demonstrated personal
knowledge of the facts stated within the affidavit, i.e., Rodriguez’s relationship with Citibank and
the events relating thereto. Cogan asserts that as the “Document Control Officer” for Citibank, his
duties include acting as a custodian of records with respect to accounts owned by Citibank. He
states that as a custodian, he has “knowledge of, and access to, account information and records”
concerning Rodriguez’s account. Accordingly, we disagree with Rodriguez that Cogan has not
established how he would have knowledge of her account or relationship with Citibank–he
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affirmatively explained that as custodian of records he has access to and knowledge of Citibank
accounts, including Rodriguez’s account. Compare Kyle v. Countrywide Home Loans, Inc., 232
S.W.3d 355, 359 (Tex. App.—Dallas 2007, pet. denied) (holding affiant’s testimony that she was
custodian of records for mortgagee with respect to mortgagor’s loan was sufficient to identify her
position and responsibilities, meeting personal knowledge requirement); Rockwall Commons
Assocs., Ltd. v. MRC Mortg Grantor Trust I, 331 S.W.3d 500, 551 (Tex. App.—El Paso 2010, no
pet.) (holding affiant’s testimony that she was custodian of records for appellee and affiliate was
sufficient to establish personal knowledge of underlying transactions between them; as custodian
for both entities, she would have access to all documents) with Landmark Org., L.P. v. Tremco
Inc., No. 03–07–00673–CV, 2010 WL 2629863, at *11 (Tex. App.—Austin June 30, 2010, no
pet.) (mem. op.) (holding affiant did not establish personal knowledge where she failed to explain
how she would have acquired knowledge through role as secretary of general partner); Lawrence
Marshall Dealerships v. Meltzer, No. 14–07–00920–CV, 2009 WL 136908, at *4 (Tex. App.—
Houston [14th Dist.] Jan. 20, 2009, no pet.) (mem. op.) (holding affiant failed to establish personal
knowledge where he stated job title but failed to identify his duties or other basis for personal
knowledge). We therefore hold the trial court did not abuse its discretion in overruling Rodriguez’s
personal knowledge objection.
Improper Legal and Factual Conclusions
Rodriguez also contends the trial court should have sustained her objections to numerous
statements in Cogan’s affidavit. She specifically complains about the following statements in the
affidavit:
• Citibank’s record regarding the Account contain . . . the minimum payment
due and the total outstanding balance due on the Account
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• defendant [Rodriguez] did eventually fail to make the payments due on the
Account
• defendant [Rodriguez] is presently in default on the Account
• the balance on the Account is $19,464.80
• the Account balance of $19,464.80 is due and owing
Rodriguez contends these statements are improper legal and factual conclusions and cannot
support summary judgment. 2 We disagree.
Texas courts have long held that conclusory statements in affidavits are insufficient to
establish the existence of a fact in support of a motion for summary judgment. See, e.g., Ryland
Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996); Brownlee v. Brownlee, 665 S.W.2d 111,
112 (Tex. 1984); James L. Gang & Assocs., Inc. v. Abbott Labs., Inc., 198 S.W.3d 434, 442 (Tex.
App.—Dallas 2006, no pet.); Fulenwider v. City of Teague, 680 S.W.2d 582, 584–85 (Tex. App.—
Waco 1984, no writ). “A conclusory statement is one that does not provide the underlying facts
to support the conclusion.” Weech v. Baptist Health Sys., 392 S.W.3d 821, 826 (Tex. App.—San
Antonio 2012, no pet.) (quoting Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.—Houston
[1st Dist.] 1997, no pet.)). Thus, an affidavit that is merely a sworn statement of the allegations in
a pleading or that simply paraphrases statutory language is conclusory and lacks probative force.
See Selz v. Friendly Chevrolet, Ltd., 152 S.W.3d 833, 837 (Tex. App.—Dallas 2005, no pet.)
(holding affiant’s sworn repetitions of allegations in pleadings were conclusory and insufficient to
2
Rodriguez also complains about the following statement, which she alleges appears in Cogan’s affidavit:
“defendant [Rodriguez] . . . under the Agreement became bound to pay Discover Bank the amounts
of such advances, plus additional charges.”
However, this statement is not in Cogan’s affidavit. Moreover, this statement refers to amounts due to “Discover
Bank,” which is not a party to this action.
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raise fact issue on summary judgment); Nichols v. Lightle, 153 S.W.3d 563, 570 (Tex. App.—
Amarillo 2004, pet. denied) (holding affidavit that merely paraphrased statutory language was
conclusory and insufficient to raise fact issue on summary judgment). However, logical
conclusions based on stated underlying facts within the affidavit or attachments thereto are not
improper conclusions and are probative. Rizkallah, 952 S.W.3d at 587.
Reviewing the challenged statements in Cogan’s affidavit, we hold they are not conclusory.
Rather, the statements are logical conclusions based on facts stated within Cogan’s affidavit
regarding Rodriguez’s account as well as information contained within the account documents
attached to Cogan’s affidavit. Cogan states in his affidavit the account documents contain
Rodriguez’s name and billing address, her account number, the history of the account, which
includes charges, interest, and fees assessed, minimum payments due, and the total outstanding
balance. The documents, when considered together, provide a factual basis for each statement
challenged by Rodriguez. Thus, Rodriguez’s complaint about the statements in Cogan’s affidavit
is without merit.
Motion for Summary Judgment
Having determined Cogan’s affidavit was not objectionable on the grounds asserted by
Rodriguez, we must now address her contention that the trial court erred in granting summary
judgment in favor of Citibank. Rodriguez argues Citibank did not establish it was entitled to
judgment as a matter of law, or that she produced sufficient evidence to defeat summary judgment.
Standard of Review
We review a trial court’s order granting summary judgment de novo. In re Estate of
Denman, 362 S.W.3d 134, 142 (Tex. App.—San Antonio 2011, no pet.) (citing Traveler’s Ins. Co.
v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Hauser v. Cuellar, 345 S.W.3d 462, 463 (Tex.
App.—San Antonio 2011, pet. denied) (en banc)). A traditional motion for summary judgment is
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granted only when the movant establishes there are no genuine issues of material fact, and the
movant is entitled to judgment as a matter of law. Lesieur v. Fryar, 325 S.W.3d 242, 246 (Tex.
App.—San Antonio 2010, pet. denied) (citing Browning v. Prostok, 165 S.W.3d 336, 244 (Tex.
2005)). When a plaintiff moves for summary judgment on its own cause of action, it must prove
it is entitled to summary judgment by establishing each element of its claim as a matter of law.
Certain Underwriters at Lloyd’s v. LM Ericsson Telefon, AB, 272 S.W.3d 691, 694 (Tex. App.—
Dallas 2008, pet. denied). If the plaintiff proves it is entitled to judgment as a matter of law, the
burden shifts to the nonmovant defendant who must come forward with summary judgment
evidence sufficient to raise a fact issue to preclude summary judgment. Kyle, 232 S.W.3d at 358;
see Dickey v. Dickey, 908 S.W.2d 311, 312 (Tex. App.—San Antonio 1995, no writ). In
determining whether the nonmovant has raised a fact issue, we must: (1) review the evidence in
the light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors could
do so, (2) disregard contrary evidence unless reasonable jurors could not, and (3) indulge every
reasonable inference from the evidence in favor of the nonmovant. Lesieur, 325 S.W.3d at 246
(citing Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997)); see Mack Trucks, Inc. v.
Tamez, 206 S.W.3d 572, 582 (Tex. 2006) (applying City of Keller v. Wilson, 168 S.W.3d 802, 827
(Tex. 2005) in summary judgment context).
Summary Judgment–Account Stated
A party is entitled to recover under the common law cause of action for account stated
where: (1) transactions between the parties give rise to indebtedness of one to the 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. Busch v. Hudson & Keyse,
LLC, 312 S.W.3d 294, 299 (Tex. App.—Houston [14th Dist.] 2010, no pet.); Dulong v. Citibank
(South Dakota), N.A., 261 S.W.3d 890, 893 (Tex. App.—Dallas 2008, no pet.). Because the
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agreement can be express or implied, contrary to Rodriguez’s contention, the party seeking to
recover need not prove the existence of a written contract, but can simply present evidence of acts
and conduct by the parties that give rise to an implied agreement fixing an amount due and that
the indebted party agreed to pay the indebtedness. See Busch, 312 S.W.3d at 299. In a case
involving a credit card debt, acts and conduct that are sufficient to establish the agreement may
include the cardholder’s payment on the account and acquiescence in the credit card company’s
imposition of interest, fees, and charges. See id.
Cogan’s affidavit and the monthly statements attached thereto show Citibank issued
Rodriguez a credit card. Cogan identifies the account ending in number 7174 as belonging to
Rodriguez. Cogan specifically states Citibank’s records show Rodriguez opened and used the
account. According to Cogan, the documents relevant to that account contain Rodriguez’s name
and billing address, the account history (charges made, interest or fees assessed, and payments or
credits received), as well as the outstanding balance. He specifically avers the billing statements
describing the charges made by Rodriguez, interest incurred, fees assessed, payments made,
amounts credited, and the amount due on the account, were provided to Rodriguez. The billing
statements were mailed to the same address for Rodriguez each time, and the account documents
reflect Rodriguez, at times, made payments on the account – usually the minimum monthly amount
due as stated on the billing statement. There is no indication in the account records Rodriguez
ever objected to the increased interest rate – assessed for late or nonpayment – or any of the other
fees or charges assessed and stated on the monthly billing statement. The summary judgment
evidence establishes Citibank continued to send statements to Rodriguez until April of 2011. At
that time, the account documents show Rodriguez owed $19,464.80 on the account.
We hold the summary judgment evidence provided by Citibank establishes, as a matter of
law, the elements of an account stated, thereby entitling Citibank to summary judgment. Cogan’s
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affidavit and the attached account documents establish transactions between Citibank and
Rodriguez, and that those transactions gave rise to an indebtedness by Rodriguez to Citibank. See
id. The account documents show an amount due, and an implied promise to pay by Rodriguez,
especially in light of the fact that at times she did make payments. See id. Contrary to Rodriguez’s
claim, the existence of a written contract is not necessary if there is evidence she made payments
on the account and acquiesced in Citibank’s imposition of interest, fees, and charges. See id.
We find no merit to Rodriguez’s assertion that Citibank failed to meet its burden because
it failed to provide the entire account number in its summary judgment evidence. Citibank stated
in its original petition that it was redacting all but the last four digits of the account. Cogan
specifically identified the account by the final four digits, which is customary in this day of stolen
identities and credit card fraud. Moreover, the local rules of this court specifically require
redaction of credit card numbers. See 4TH TEX. APP. (SAN ANTONIO) LOC. R. 10(d)(4). Finally,
proof of a sixteen–digit account number was not necessary to establish Citibank’s account stated
claim. Citibank merely had to prove transactions between the parties that gave rise to an
indebtedness, and that Rodriguez promised to pay it. See Busch, 312 S.W.3d at 299; Dulong, 261
S.W.3d at 893.
We also disagree with Rodriguez’s contention that Citibank was required to prove she
actually received the statements in order to establish she promised to pay the indebtedness.
Rodriguez argues the third element of an account stated claim – that Rodriguez made a promise,
express or implied, to pay the indebtedness – can be met only if Citibank proves she physically
received the billing statements. Otherwise, according to Rodriguez, Citibank cannot show she
acquiesced in the company’s imposition of interest, fees, and charges. The law states the third
element can be proven by the fact that the cardholder paid on the account. See id. The summary
judgment evidence establishes Rodriguez made payments on the account identified as belonging
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to her. Rodriguez’s payments, which she does not dispute, coupled with the undisputed fact the
billing statements shows all charges assessed, establishes acquiescence in Citibank’s imposition
of fees, interest, and charges. See id.
Finally, Rodriguez contends her summary judgment evidence, specifically her affidavit,
was sufficient to create a fact issue precluding summary judgment. Again, we disagree.
In her affidavit, Rodriguez stated: (1) she never signed an agreement with Citibank, (2)
never had an account with the number “XXXXXXXXXXXX7174,” (3) never agreed to pay
interest in excess of 6% per annum, (4) never agreed to be charged a monthly premium to be
included in the CreditShield program, and (5) never saw the billing statements until she reviewed
Citibank’s motion for summary judgment. We hold these statements in Rodriguez’s affidavit are
nothing more than a series of denials, much like the general denial in her answer. See Selz, 152
S.W.3d at 837 (holding affidavit that is merely sworn statement of allegations in pleading lacks
probative force). Accordingly, Rodriguez’s affidavit is insufficient to defeat Citibank’s summary
judgment. See id. (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.
1979) (holding allegations that simply mirror pleadings themselves do not constitute summary
judgment evidence)). Accordingly, we hold Rodriguez failed to present more than a scintilla of
summary judgment evidence to defeat Citibank’s motion for summary judgment.
CONCLUSION
Based on the foregoing, we hold the trial court did not err in (1) overruling Rodriguez’s
objections to Citibank’s summary judgment evidence, and (2) granting Citibank’s motion for
summary judgment. We therefore overrule Rodriguez’s issues and affirm the trial court’s
judgment.
Marialyn Barnard, Justice
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