Aimee T. Goins v. Discover Bank ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00128-CV
___________________________
AIMEE T. GOINS, Appellant
V.
DISCOVER BANK, Appellee
On Appeal from County Court at Law No. 2
Denton County, Texas
Trial Court No. CV-2019-04030
Before Sudderth, C.J.; Kerr and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Appellant Aimee T. Goins raises two issues complaining of the trial court’s
granting of Appellee Discover Bank’s traditional motion for summary judgment.
First, Goins argues that Discover Bank’s summary judgment evidence was insufficient
to support the trial court’s judgment. Second, Goins argues that the trial court abused
its discretion by overruling her objections to Discover Bank’s summary judgment
evidence. We affirm.
II. BACKGROUND
Discover Bank’s underlying action in this case was for breach of contract
arising from an alleged unpaid balance due on Goins’s Discover Bank credit-card
account. After Goins filed her “original answer and general denial,” Discover Bank
filed its motion for traditional summary judgment and attached a business-records
affidavit by its litigation-support coordinator, Abigail Hewett.1 Attached to Hewett’s
affidavit were three exhibits:
1. A “Cardmember Agreement”;
2. A billing statement ending on March 25, 2019; and
3. A Servicemembers Civil Relief Act (SCRA) Status Report.
The content of Hewett’s affidavit is described in detail below.
1
2
In her response to Discover Bank’s motion, Goins did not attach any
controverting affidavits or evidence, but she did argue that Discover Bank’s evidence
was insufficient to support its motion. Specifically, Goins argued that Discover Bank
had not proved the formation of a contract between her and the bank and that, even
assuming there was a contract, Discover Bank had provided insufficient evidence to
show a breach. Additionally, Goins argued that Hewett’s affidavit was inadmissible
hearsay and did not meet self-authentication requirements and that the Cardmember
Agreement and the Status Report were irrelevant.
On February 19, 2020, the trial court granted Discover Bank’s motion. The
court found that there was “no genuine issue of material fact” and that Discover Bank
was “entitled to judgment as a matter of law.” The trial court’s judgment awarded
Discover Bank $20,160.882 in damages, $332.90 in court costs, and 5.00%
postjudgment per annum interest. This appeal followed.
III. DISCUSSION
A. Admission of Evidence
Because Goins’s second issue addresses her objections to Discover Bank’s
summary judgment evidence, we will address it first. Goins argues that the trial court
abused its discretion by overruling her objections to Hewett’s business-records
2
The billing statement introduced by Discover Bank shows an outstanding
balance of $20,160.88.
3
affidavit and accompanying documents.3 Discover Bank counters that Hewett’s
affidavit testimony is adequately based on personal knowledge and sufficient to
authenticate each of the documents attached to the affidavit. We agree with Discover
Bank.
1. Standard of Review on the Admissibility of Evidence
We review the trial court’s admission or exclusion of evidence for an abuse of
discretion. State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001). This
standard applies whether the evidence is summary judgment evidence or evidence
While not raised by either party, it is arguable that Goins has failed to preserve
3
this issue for our review. Even though the trial court’s order granting Discover
Bank’s motion states that the trial court considered “the pleadings, the other summary
judgment evidence, and the arguments of the parties,” the order does not mention a
ruling regarding Goins’s objections, and we generally may not imply such a ruling
from the granting of summary judgment. See Seim v. Allstate Tex. Lloyds, 551 S.W.3d
161, 166 (Tex. 2018). The only indication that the trial court ruled on the objections
is found on the trial court’s docket sheet, which states, “P’s MSJ by sub - d filed
response (no contra aff) w/ obj - denied obj’s - granted MSJ.” A docket-sheet entry,
however, ordinarily forms no part of the record that may be considered on appeal;
rather, it is a memorandum made for the trial court and clerk’s convenience. In re Bill
Heard Chevrolet, Ltd., 209 S.W.3d 311, 315 (Tex. App.—Houston [1st Dist.] 2006, orig.
proceeding). Docket-sheet entries are inherently unreliable because they lack the
formality of orders and judgments. Id. Because of this unreliability, a docket-sheet
entry is generally considered insufficient to constitute a judgment or decree of the
court. Id. Moreover, where the record does not reflect that the trial court ruled or
refused to rule on objections to summary judgment evidence, we may not infer a
ruling based solely on the trial court’s summary judgment decision. See Seim,
551 S.W.3d at 166. By failing to obtain a ruling on her objections to the summary
judgment evidence, Goins potentially waived the objections for appellate review. See
Tex. R. App. P. 33.1(a); Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 317–18 (Tex.
App.—San Antonio 2000, no pet.). We will assume without deciding that Goins has
preserved her evidentiary complaints for our review, and we will address her second
issue.
4
introduced at trial. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997). A
trial court abuses its discretion if the court acts without reference to any guiding rules
or principles—that is, if the act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d
609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An
appellate court cannot conclude that a trial court abused its discretion merely because
the appellate court would have ruled differently in the same circumstances. E.I. du
Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low,
221 S.W.3d at 620.
2. Summary Judgment Business-Record Affidavits
In order to be competent summary judgment evidence, an affidavit “shall be
made on personal knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to testify to the
matters stated therein.” Tex. R. Civ. P. 166(f); Kerlin v. Airas, 274 S.W.3d 666, 668
(Tex. 2008); see Rodriguez v. Citibank, N.A., No. 04-12-00777-CV, 2013 WL 4682194, at
*2 (Tex. App.—San Antonio Aug. 30, 2013, no pet.) (mem. op.) (“[T]he 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.”).
The rules of evidence do not require that the predicate witness for the admission of
business records be their creator or have personal knowledge of the contents of the
records; the witness is required only to have personal knowledge of how the records
5
are kept. See Tex. R. Evid. 803(6), 902(10); In re E.A.K., 192 S.W.3d 133, 142 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied); see also 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 foreclosure specialist and custodian of records for mortgagee
with respect to mortgagor’s loan was sufficient to satisfy personal-knowledge
requirement of Rule 166a(f)). And a person’s position or job responsibilities can
peculiarly qualify her to have personal knowledge of facts and establish how she
learned of the facts. Boswell v. Farm & Home Sav. Ass’n, 894 S.W.2d 761, 768 (Tex.
App.—Fort Worth 1994, writ denied).
3. Goins’s Challenges
Goins’s argument in this issue has multiple subparts, and we will address them
in turn. In order to do so, the language of Hewett’s affidavit is relevant. In pertinent
part, Hewett’s affidavit states:
I am a Litigation Support Specialist for DISCOVER PRODUCTS,
INC. . . . . DISCOVER PRODUCTS, INC. is responsible for, among
other things, maintaining account records pertaining to Discover Card
accounts and interacting with Discover Card account holders with regard
to payment owed on these accounts.
This affidavit is made on the basis of my personal knowledge and in
support of the Plaintiff’s suit on account against the Cardmember(s).
In my capacity as Litigation Support Coordinator, I have knowledge
regarding, and access to, records regarding the Discover Card Account
of the above referenced Cardmember(s). DISCOVER PRODUCTS
INC. maintains these records in the ordinary course of its business, and
the records are updated with information on events (such as charges and
payments on the account) by individuals with personal knowledge of
6
those events or by automated processes that track such events at or near
the time that the events occur. The same systems that record this
information also generate periodic statements that are sent to Discover
Cardmember(s), and store copies of these periodic statements. In
addition, these same record-keeping systems contain information about
which version of Discover Bank’s terms and conditions has been
communicated to an account holder and accepted by an account holder
through the use of his or her Discover Card after receipt of the terms
and conditions. I have personally inspected the records pertaining to the
account of the Cardmember(s), including the last periodic statement sent
to the Cardmember(s) by DISCOVER PRODUCTS INC., to ascertain
the applicable terms and conditions, the balance due on said account and
whether the Cardmember(s) have made payments on that balance.
According to the records maintained by DISCOVER PRODUCTS
INC., during the period of time that account statements were generated,
such statements were either provided to the Cardmember(s)
electronically or mailed to the Cardmember(s) at the address maintained
on file during that time period. According to the records maintained by
DISCOVER PRODUCTS INC., the last known address associated with
the Cardmember(s) is/are:
....
The account is in default because the Cardmember(s) have not paid the
amounts due and owing to Discover Bank on the account.
The business records maintained by DISCOVER PRODUCTS INC.
and described above show that the Cardmember(s)’ account with
Discover Bank is governed by terms and conditions referred to as
“terms level 26K.” A true and correct copy of these terms and
conditions have been provided to DISCOVER PRODUCTS INC.’s
counsel in this case and is attached hereto as Exhibit A.
Exhibit B is a true and accurate copy of the last periodic statement sent
by DISCOVER PRODUCTS INC. to the Cardmember(s), retrieved
from the record-keeping system described above, and shows the amount
that is now due and owing Discover Bank on the Account.
7
a. Alleged Extraneous Statements
In part of her second issue, Goins argues that Hewett’s affidavit and
accompanying records contain “extraneous statements which exceeded the simple
authentication requirements of a business records affidavit and must be excluded.”
Specifically, Goins takes exception to two statements in Hewett’s affidavit: (1) that
“the account is in default because the Cardmember(s) have not paid the amounts due
and owing to Discover Bank on the account,” and (2) that “the business records
maintained by DISCOVER PRODUCTS INC. and described above show that the
Cardmember(s)’ account with Discover Bank is governed by terms and conditions
referred to as ‘terms level 26k.’”4 Goins argues that these statements are not truly
based on Hewett’s personal knowledge because they are based on her review of
Discover Bank’s own records, which Goins argues are “out of court statements and
documents.” We disagree.
Under the business-records exception to the hearsay rule, the proponent of
records must show (1) the records were made and kept in the course of a regularly
conducted business activity, (2) it was the regular practice of the business activity to
make the records, (3) the records were made at or near the time of the event that they
4
Hewett’s affidavit states that Goins’s account is governed by the terms and
conditions referred to as “terms level 26k.” She also said that the Cardmember
Agreement attached to her affidavit was a true and correct copy of these terms and
conditions. The Cardmember Agreement also displays the title “CM.
TL26K.LIN.0218” in the upper right-hand corner of the document.
8
record, and (4) the records were made by a person with knowledge who was acting in
the regular course of business. See Tex. R. Evid. 803(6); E.A.K., 192 S.W.3d at 141.
Furthermore, an affiant’s acknowledgement of the sources from which she gathered
her knowledge does not violate the personal-knowledge requirement. See In re E.I.
DuPont de Nemours & Co., 136 S.W.3d 218, 224 (Tex. 2004) (rejecting the contention
that an affidavit was not based on personal knowledge when affiant stated his
determinations were based on his review of the company’s human-resources database
for the legal department); Asshauer v. Glimcher Realty Tr., 228 S.W.3d 922, 926 (Tex.
App.—Dallas 2007, no pet.) (concluding affiant did not lack personal knowledge
based on her review of her clients’ business records and documents executed as part
of transaction at issue).
Here, Hewett averred that in her capacity as Discover Bank’s litigation-support
coordinator, she possessed “knowledge regarding, and access to, records” regarding
Goins’s account. She also stated that Discover Bank maintained these account
records in the ordinary course of business, that it was the practice of Discover Bank
to make and maintain the records, that they were updated with information based on
events “at or near the time the events occur[ed],” that the records were made and
updated by individuals with personal knowledge of the events recorded in the records,
and that she had personally inspected the records pertaining to Goins’s account.
Thus, the personal-knowledge requirement of the statements that Goins complains of
was satisfied, and the statements were proper inclusions in Hewett’s affidavit. See
9
Kaldis v. U.S. Bank Nat’l Ass’n, No. 14-11-00607-CV, 2012 WL 3229135, at *3 (Tex.
App.—Houston [14th Dist.] Aug. 9, 2012, pet. dism’d w.o.j.) (mem. op.) (concluding
that statements in business-records affidavit that were obtained from sources created
by other individuals did not violate personal-knowledge requirement of a business-
records affidavit).
Citing Ortega v. Cach, LLC, 396 S.W.3d 622 (Tex. App.—Houston [14th Dist.]
2013, no pet.), Goins asserts that when “a business records affidavit contains evidence
beyond the simple authentication requirements of TEX. R. EVID[.] 902, the
extraneous portions of the affidavit constitute inadmissible hearsay.” Goins’s reliance
on Ortega is misplaced. In Ortega, the court held that three different affidavits were
inadmissible. Id. at 630–31. The first affidavit the Ortega court held inadmissible was
because it contained statements that were “neither created nor relied upon in the
course of [the debt-collector’s] regular debt-collection activities” and that had been
created solely in anticipation of litigation. Id. at 631. The Ortega court rejected the
second affidavit because it contained a date that made the affidavit either incorrect or
referenced an account other than Ortega’s. Id. And the Ortega court rejected the third
affidavit because it was clear that the records discussed were made a year after the
events they recorded and thus could not have been made “‘at or near the time of the
event’ that it purports to record.” Id.
In the case of Hewett’s affidavit, nothing shows that Discover Bank did not
create or rely upon the records she reviewed as the bases of her statements. Further,
10
the affidavit contains nothing indicating that it was addressing any account other than
Goins’s or that the records Hewett reviewed were not made at or near the time of the
events the documents purport to record. To the contrary, Hewett referred to each of
the account statements, and Goins did not offer any evidence to counter Hewett’s
sworn statements. We hold that the affidavit statements that Goins complains about
were admissible; thus, we overrule this portion of Goins’s second issue. See Kaldis,
2012 WL 3229135, at *3.
b. The Relevance of the Cardmember Agreement
In the next part of Goins’s second issue, she complains that the Cardmember
Agreement attached to Hewett’s affidavit is irrelevant and should not have been
considered by the trial court. See Tex. R. Evid. 402. But Goins’s complaint that the
Cardmember Agreement is irrelevant is predicated on her position that Hewett’s
affidavit contained inadmissible out-of-court statements, a position we have already
rejected. We overrule this portion of Goins’s second issue.
c. The Prejudicial Effect of the Cardmember Agreement
In the final portion of her second issue, Goins argues that, even assuming the
Cardmember Agreement is relevant, “the risk of confusion and unfair prejudice of
presenting a finder of fact with specific account terms that may or may not hold any
relevance to the Account substantially outweighs whatever minimal probative weight
the document may hold.” See Tex. R. Evid. 403. But like her relevance argument,
Goins’s position is predicated on her argument that Hewett’s affidavit does not
11
establish personal knowledge of the Cardmember Agreement. Having already
rejected this argument, we overrule this portion of her second issue.
We conclude that Goins’s objections to Hewett’s affidavit and its attachments
were not well founded. Thus, we overrule Goins’s second issue in its entirety.
B. Propriety of Summary Judgment
In her first issue, Goins argues that Discover Bank did not conclusively
establish its breach-of-contract claim. Specifically, Goins argues that there is no
conclusive proof regarding the formation of a contract between her and Discover
Bank, but that even if there is conclusive evidence of a contract, Discover Bank did
not conclusively establish its damages. Discover Bank argues that Hewett’s business-
records affidavit, the Cardmember Agreement, and the monthly billing statement
showing the balance due and owed on Goins’s credit-card account are sufficient to
conclusively establish its claim and support the trial court’s summary judgment. We
agree with Discover Bank.
1. Standard of Review for Summary Judgment
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light
most favorable to the nonmovant, crediting evidence favorable to the nonmovant if
reasonable jurors could and disregarding evidence contrary to the nonmovant if
reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve
12
any doubts in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.
2008). A plaintiff is entitled to summary judgment on a cause of action if it
conclusively proves all essential elements of a claim and, thereby, establishes its right
to judgment as a matter of law. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones,
710 S.W.2d 59, 60 (Tex. 1986).
2. Breach-of-Contract Law
A plaintiff asserting a breach-of-contract claim must prove (1) the existence of
a valid contract; (2) the plaintiff performed or tendered performance as the contract
required; (3) the defendant breached the contract by failing to perform or tender
performance as the contract required; and (4) the plaintiff sustained damages as a
result of the breach. USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 501 n.21
(Tex. 2018); see, e.g., Ifiesimama v. Haile, 522 S.W.3d 675, 685 (Tex. App.—Houston [1st
Dist.] 2017, pet. denied).
To prove the first element (the existence of a valid contract), the plaintiff
generally must establish that (1) an offer was made; (2) the other party accepted in
strict compliance with the terms of the offer; (3) the parties had a meeting of the
minds on the essential terms of the contract (mutual assent); (4) each party consented
to those terms; and (5) the parties executed and delivered the contract with the intent
that it be mutual and binding. See, e.g., E–Learning LLC v. AT & T Corp., 517 S.W.3d
849, 858 (Tex. App.—San Antonio 2017, no pet.). In a credit-card case, these
elements are satisfied when there is an issuance of a credit card by one party and the
13
use of the credit card by the other party. Jones v. Citibank (S.D.), N.A., 235 S.W.3d
333, 338 (Tex. App.—Fort Worth 2007, no pet.) (holding that a contract was formed
under federal, Texas, and South Dakota law, even if the cardmember never signed the
card agreement because cardmember obtained and used credit card).
3. Contract Formation
In part of her first issue, Goins argues that Discover Bank did not conclusively
establish the existence of a contract between her and Discover Bank. We disagree.
Goins’s first contention regarding this issue is that the Cardmember Agreement
is insufficient to support that she and Discover Bank had a contract. Specifically,
Goins claims that the Agreement contains no information identifying her, no account
numbers, and “no specific details sufficient to determine that the specific
Cardmember Agreement provided was actually related to the account in question.”
Goins goes on to claim that there is “no evidence of how or when the Cardmember
Agreement was communicated to” her. But it is not the Cardmember Agreement
alone that establishes that Goins and Discover Bank had a valid contract. What links
the Cardmember Agreement to Goins are Hewett’s sworn statements that the record-
keeping systems, of which she had personal knowledge, contained information “about
which version of Discover Bank’s terms and conditions has been communicated to an
account holder and accepted by an account holder through the use of . . . her
Discover Card after receipt of the terms and conditions.” Hewett also stated that she
had personally inspected the records pertaining to Goins’s account to determine the
14
“applicable terms and conditions” and that the records showed that Goins’s account
was “governed by terms and conditions referred to as ‘terms level 26K.’” Hewett
averred that the Cardmember Agreement attached to her affidavit was a “true and
correct” copy of these terms and conditions. Moreover, the Cardmember Agreement
states that an account holder accepts the agreement if the cardmember uses the
account. And the billing statement attached to Hewett’s affidavit shows that there has
been interest charged on “purchases” made on Goins’s account, indicating that she
has used the account in the past. This is conclusive proof that Goins and Discover
Bank had a contract regarding Goins’s account. See Jones, 235 S.W.3d at 338 (“The
issuance of a credit card constitutes a credit offer, and the use of the card constitutes
acceptance of the offer.”).
Further, despite Goins’s claim to the contrary, there is evidence that the
Cardmember Agreement was delivered or communicated to her. In her affidavit,
Hewett stated that Discover Bank’s record-keeping systems contained information
about the Cardmember Agreement being communicated to and accepted by Goins.
This, coupled with both Discover Bank’s actions of offering the account and Goins’s
making purchases on the account, shows that the parties had a contract. See Duran v.
Citibank (S.D.), N.A., No. 01-06-00636-CV, 2008 WL 746532, at *4 (Tex. App.—
Houston [1st Dist.] Mar. 20, 2008, no pet.) (mem. op.) (“[W]hen parties manifest an
intent through their actions and words that a contract become effective, manual
delivery is immaterial to contract validity.”).
15
Goins also argues that because the billing statement shows that Goins had been
a cardmember since 2003 and because the Cardmember Agreement bears a 2018
copyright stamp, the Cardmember Agreement could not apply to any account she
might have opened in 2003. This argument fails as well. In addition to the statements
that Hewett made in her affidavit about how she had personal knowledge that the
Cardmember Agreement contained the applicable terms and conditions, the
Agreement states that Discover Bank has the right to add or delete any term to the
agreement. See Hinojosa v. Citibank (S.D.), N.A., No. 05-07-00059-CV, 2008 WL
570601, at *4 (Tex. App.—Dallas Mar. 4, 2008, pet. denied) (mem. op.) (“As
previously discussed, the 1999 agreement is not a different agreement, but rather the
same agreement as it may be amended from time to time.”). Even though a copyright
stamp might not be considered a term of the agreement, the agreement does state that
it can be modified. See id. And Goins has pointed to no authority for the proposition
that a credit-card agreement may not be updated to reflect a legal copyright date, even
if it is affixed to an agreement that previously held a different date or no copyright
stamp at all. We overrule the portion of Goins’s first issue where she argues that
there is no evidence of a contract between Discover Bank and her. See Taylor v.
Discover Bank, No. 03-17-00677-CV, 2018 WL 4016611, at *1 (Tex. App.—Austin
Aug. 23, 2018, no pet.) (mem. op.).
16
4. Breach of Contract
Goins next argues that Discover Bank failed to conclusively prove that she had
breached her contract with Discover Bank. Specifically, Goins argues that Discover
Bank failed to demonstrate that she was in default on her account. Goins contends
that because the billing statement provided as evidence shows that she was not
charged a late fee in accordance with the Cardmember Agreement and because
Discover Bank did not provide proof of a “charge off,” Discover Bank failed to prove
default.
Discover Bank, however, provided direct evidence that Goins was in default on
her account. The Cardmember Agreement specifically states that a cardmember is in
default if any number of conditions are met, one of which is if Discover Bank has “a
reasonable belief that [the cardmember is] unable or unwilling to repay [the
cardmember’s] obligation” to Discover Bank. The Cardmember Agreement also
states that if the cardmember is in default, it “may declare the entire balance of [the]
Account immediately due and payable without notice.” The billing statement shows
that Goins’s account owed a previous balance of $19,915.13, that there had been no
payments or credits made during the billing cycle, and that Goins was being charged
interest on past purchases. Monroe v. Unifund CCR Partners, No. 01-09-00101-CV, 2010
WL 1948332, at *7 (Tex. App.—Houston [1st Dist.] May 13, 2010, no pet.) (mem.
op.). Moreover, in her affidavit, Hewett averred that Goins’s “account is in default
because the Cardmember(s) have not paid the amounts due and owing to Discover
17
Bank on the account.” See id. (“Similarly, Lutz’s statement that a balance was owed on
the account, plus the admission of a Citibank Agreement showing that the cardholder
was obligated to pay as charged, was evidence supporting the trial court’s [breach of
contract] findings.”) This evidence established that Goins breached her agreement
with Discover Bank. See Taylor, 2018 WL 4016611, at *4.
Goins argues that the billing statement does not reflect that Discover Bank
charged her any late fees in accordance with the Cardmember Agreement, thus,
according to Goins, this is direct evidence that she was not in default. But the billing
statement states that if Discover Bank did not receive Goins’s minimum payment by
the payment due date, Goins “may have to pay a late fee of up to $37.00.” As the
billing statement provides, Discover Bank had the ability to charge Goins for the lack
of payment, but it was discretionary on the bank’s part. Contrary to Goins’s position,
the lack of a charged late fee does not demonstrate that she was not in default, and
the lack of evidence of a late charge does not overcome the direct evidence of default
that Discover Bank provided. Moreover, Goins did not provide controverting
evidence that might cast doubt on the veracity of the billing statement, such as an
affidavit asserting that information in the statement was incorrect. See id. (“The Bank
established as a matter of law that Taylor breached the contract by failing to pay the
amount due on the credit card.”). We overrule this portion of Goins’s first issue.
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5. Damages
In part of her first issue, Goins argues that Discover Bank failed to conclusively
prove damages. We disagree.
An authenticated account statement submitted by a bank showing the balance
owed proves the amount of damages in a claim for breach of contract. See Ghia v.
Am. Express Travel Related Servs., No. 14-06-00653-CV, 2007 WL 2990295, at *3 (Tex.
App.—Houston [14th Dist.] Oct. 11, 2007, no pet.) (mem. op.). In Ghia, Ghia argued
that American Express failed to establish the amount “owed and due.” Id. The Ghia
court reasoned that because American Express had provided the most recent account
statement showing a balance of $21,781.75 (the amount of the judgment) and because
American Express’s custodian of records had authenticated the account statement, the
bank had conclusively proved its damages. Id.Similarly, in this case, Discover Bank attached to its summary judgment motion
a billing statement associated with Goins’s account showing an outstanding balance of
$20,160.88 (the amount of the judgment in this case). Moreover, Hewett
authenticated that the billing statement was a true and accurate copy of the last
periodic statement sent by Discover Bank to Goins. This evidence conclusively
proved Discover Bank’s damages and supported the trial court’s award of damages on
summary judgment. See id.; see also Matkin v. Am. Express Centurion Bank, No. 05-17-
01438-CV, 2018 WL 5816744, at *2 (Tex. App.—Dallas Nov. 7, 2018, no pet.) (mem.
op.) (“The account statement submitted by the bank showing the balance owed was
19
sufficient evidence of the amount of the debt.”). We overrule this portion of Goins’s
first issue.
6. The Applicable Annual Percentage Rate
Finally, citing Tully v. Citibank (S.D.), N.A., 173 S.W.3d 212 (Tex. App.—
Texarkana 2005, no pet.) and Hay v. Citibank (S.D.) N.A., No. 14-04-01131-CV, 2006
WL 2620089 (Tex. App.—Houston [14th Dist.] Sept. 14, 2006, no pet.) (op. on reh’g),
Goins argues in the remainder of her first issue that while Discover Bank did provide
evidence of what interest rate was used by providing a billing statement that displays
the rate, it “failed to provide evidence substantiating the appropriateness of using that
interest rate.” We conclude that this case is more akin to those cases where courts
have declined to follow Tully, instead holding that because the annual percentage rate
was listed on the respective billing statements, the contracts were not missing an
essential term. See Hinojosa, 2008 WL 570601, at *3 (“Citibank included in its
summary judgment evidence Hinojosa’s billing statements, which include the
applicable interest rate. Therefore, the contract is not missing an essential term.”);5 see
also Wynne v. Citibank (S.D.) N.A., No. 07-06-0162-CV, 2008 WL 1848286, at*3 (Tex.
App.—Amarillo Apr. 25, 2008, pet. denied) (mem. op.) (“The court in Hinojosa
rejected a similar argument, and we reject it here for the same reason.”). Because
Discover Bank provided summary judgment evidence that Goins would be charged
The Hinojosa court also questioned whether the interest issue addressed in Tully
5
was properly before the Tully court. Hinojosa, 2008 WL 570601, at *3 n.2.
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an annual percentage rate pursuant to the Cardmember Agreement and because the
billing statement lists the specific annual percentage rate applicable to Goins’s
account, we hold that Discover Bank established as a matter of law the applicable
interest rate. See Hinojosa, 2008 WL 570601, at *3. We overrule Goins’s first issue in
its entirety.
IV. CONCLUSION
Having overruled both of Goins’s issues on appeal, we affirm the trial court’s
judgment.
/s/ Dana Womack
Dana Womack
Justice
Delivered: February 25, 2021
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