Duran v. Citibank (Tex.App.- Houston [1st Dist.] Mar. 20, 2008)(Taft)
(consumer credit, suit by creditor, summary judgment, attorney's fees, creditor prevails)
Citibank conclusively established the existence of a valid contract under which it
performed and that Duran breached that contract by failing to pay the amounts due and
the damages sustained by Citibank as a result of that breach. The trial court properly
determined that Citibank met its burden to prove that it was entitled to summary
judgment as a matter of law on each element of its cause of action.
AFFIRM TC JUDGMENT: Opinion by Justice Taft
01-06-00636-CV Zeke Duran, III v. Citibank (South Dakota), N.A.
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge: Hon. Lynn Bradshaw-Hull
Notes: Suit by original creditor; objection to BRA by custodian of records overruled
Distinguished from Williams v. Unifund CCR where Unifund failed to produce the Card Agreement or any
document establishing agreed-upon terms, including interest rate and method to determine finance charges.
Attorney's fees affirmed; defendant's attorney disputed reasonableness, but did not offer evidence on what rate
would have been reasonable.
Citibank (South Dakota), N.A. (“Citibank”) sued appellant, Zeke Duran III (“Duran”), for breach of
contract for failing to pay a credit card debt. Duran appealed the summary judgment granted in favor of
We address Duran’s arguments that (1) Citibank failed to support its motion for summary judgment
with competent evidence; (2) Citibank failed to establish the existence of a contract; (3) Citibank failed
to establish damages sustained by Duran’s breach of the contract; (4) Citibank failed to prove
reasonable and necessary attorney’s fees; and (5) the court erred in denying Duran’s counterclaims .
In his first issue, Duran contends that Citibank’s “only proof along with its business record affidavit is
wholly inadequate. [Citibank] failed to proffer any competent evidence for the court to award a
judgment for either a breach of contractor quantum meruit claim which were the only claims plead
[sic].” In his second issue,Duran asserts that “the pleadings and business record affidavit on behalf of
[Citibank] failed to proffer any competent evidence for the court to award the amount and type of
damages awarded by the trial court’s judgment.” In his third issue, Duran contends that Citibank “failed
to establish that it is not liable to Appellant for its counter-claim.” Duran argues all three issues together.
We affirm the judgment.
forth in a written agreement (“the Card Agreement”), with periodic changes to the terms of that
agreement as noted in documents entitled “Notice of Change in Terms” sent to Duran throughout the
time he made charges to the card and payments against the account. Each notice included specific
instructions for how to proceed if “you do not wish to accept this change.” Duran never followed those
instructions, but rather continued to charge purchases to the card after each Notice of Change in
Terms was sent to him, the last notice occurring in December of 2003.
Duran continued to use the card until July of 2004, at which time he stopped using the account to make
purchases and also stopped making payments toward the incurred debt. In the September 2004
account statement, Citibank notified Duran that his “account is past due and credit privileges have
been suspended.” Citibank again notified Duran of the account status in the following two statements.
In February of 2005, Citibank assessed a final finance charge against Duran’s account, determined Duran’s debt to Citibank to
be $17,776.09, and filed suit to collect the debt.
The “new balance” as reflected in the July 26, 2004 statement was $14,832.48. Terri Ryning stated in
her affidavit that the amount due as of August 10, 2005 was $17,776.09. The variance resulted from
finance charges that accrued between July of 2004 and February of 2005. Citibank did not assess any
more finance charges after that date.
Citibank filed a motion for summary judgment, asserting that there was no genuine issue of material
fact to litigate on its breach-of-contract claim against Duran. Citibank alternatively argued that the facts
showed that Duran was unjustly enriched at Citibank’s expense as a matter of law. The trial court
granted summary judgment in Citibank’s favor without specifying the grounds for its ruling.
Standard of Review
To prevail on a traditional summary judgment motion, a movant has the burden of proving that it is
entitled to judgment as a matter of law and that there is no genuine issue of material fact. Tex. R. Civ.
P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). A plaintiff moving for summary
judgment on its claim must establish its right to summary judgment by conclusively proving all the
elements of its cause of action as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223
(Tex. 1999); Anglo-Dutch Petroleum Int’l, Inc. v. Haskell, 193 S.W.3d 87, 95 (Tex. App.—Houston [1st
Dist.] 2006, pet. denied).
We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661
Objections to the Form of Citibank’s Summary Judgment Evidence
Duran’s primary complaint on appeal is that Citibank’s business record affidavit and the attached
documents are “incompetent as evidence.” He complains that the affidavit is incomplete and that it
indicates “untrustworthy record retention.” These are objections to the form, and not the substance, of
the evidence. See Seidner v. Citibank (South Dakota), N.A., 201 S.W.3d 332, 335 (Tex. App.—
Houston [14 Dist.] 2006, pet. denied.) (holding that complaints that affidavit failed to state that attached
documents were kept or made in regular course of business go to form, not substance, of evidence).
To the extent that Duran’s arguments go to the form and not the substance of the evidence, he needed
not only to object, but also to have secured a ruling on his objections to preserve those complaints for
appeal. See id. (citing Grand Prairie I.S.D. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990) (holding that
alleged defects in summary judgment affidavit were defects of form) and Alaniz v. Rebello Food &
Beverage, L.L.C., 165 S.W.3d 7, 19 n.19 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding that
alleged defect of form in summary judgment affidavit was not preserved when party failed to lodge
objection and to obtain ruling) and Landry’s Seafood Rests., Inc. v. Waterfront Cafe, Inc., 49 S.W.3d
544, 551 (Tex. App.—Austin 2001, pet. dism’d) (holding that failure of summary judgment affidavit to
state that facts in attached document were true and correct was defect of form that was waived when
party failed to object) and Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex. App.—
Houston [14th Dist.] 2000, no pet.) (holding that objection to form of summary judgment evidence was
waived by failure to obtain ruling from trial court)). This Court has adopted the majority position among
courts of appeals, which refuses to presume that objections were overruled when a trial court grants a
motion for summary judgment. See Delfino v. Homes, 223 S.W.3d 32, 34 (Tex. App.—Houston [1st
Dist.] 2006, no pet.); Seidner, 201 S.W.3d at 335; Chapman Children’s Tr. v. Porter & Hedges, L.L.P.,
32 S.W.3d 429, 436 n.4 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).
The Fort Worth Court of Appeals, however, has held that when a trial court grants a motion for summary judgment, this operates
as an implicit overruling of any objection the non-movant has made to the summary judgment evidence. See e.g.,Blum v. Julian,
977 S.W.2d 819, 823 (Tex. App.—Fort Worth 1998, no pet.).
Duran failed to obtain a ruling on any objections to Citibank’s summary judgment evidence. Thus,
Duran’s complaints regarding the form of Citibank’s summary judgment evidence are overruled as not
preserved. See Tex. R. App. P. 38.1.
Sufficiency of the Business Records Affidavit
Duran complains generally about the evidence produced by Citibank to support its summary judgment
motion, including the business records affidavit of Terri Ryning and the attached documents, which
we liberally construe as attacks on the substance of the evidence, including arguments that Citibank
did not provide sworn or certified copies of the documents referenced in Ryning’s affidavit and that the
affidavit is conclusory.
Ryning testified in her affidavit (1) that she “has personal knowledge regarding the facts stated herein”
and that those facts are “true and correct”; (2) that she is Vice-President for Citicorp Credit Services,
Inc., which “performs certain services including the collection of unpaid accounts for [Citibank],” and
that she is authorized to testify concerning the matters in the affidavit; (3) that she is a custodian of
records for Citibank, with duties including custody and control over Duran’s account with Citibank; and
(4) that these records are kept in the regular course of business and made at or near the time of the
recorded events by a person with personal knowledge of the events. Ryning further testified that the
documents attached to her affidavit were true and correct copies of the originals, with certain
information redacted to protect confidential information. Finally, Ryning testified that Duran opened the
account with Citibank, used the account, made payments on the account, and ultimately incurred
charges totaling $17,776.09 “after all just and lawful offsets, credits and payments have been allowed.”
Ryning indicated that demand for payment was made, that Duran failed to pay the amounts due and
owing, and that Citibank had to employ an attorney to collect the amounts owed.
Ryning properly authenticated the documents referenced in her affidavit as “business records.” See
Tex. R. Evid. 803(6), 902(10). Duran did not present any evidence to raise a fact issue as to whether
the documents were properly authenticated business records. Further, Duran has failed to identify any
statements in the affidavit that he contends are opinions or legal conclusions. We have reviewed the
affidavit and have determined that it contains sufficient factual support and is not, therefore, conclusory.
See 8920 Corp. v. Alief Alamo Bank, 722 S.W.2d 718, 720 (Tex. App.—Houston [14th Dist.] 1986,
writ ref’d n.r.e.). To the extent that Duran attacks Ryning’s affidavit and the attached documents on
these grounds, we overrule his complaints.
Existence of a Valid Contract
To be entitled to summary judgment on its breach-of-contract claim, Citibank was required to prove, as
a matter of law, (1) the existence of a valid contract; (2) performance or tendered performance by the
plaintiff; (3) breach of contract by the defendant; and (4) damages sustained as a result of the breach.
Williams v. Unifund CCR Partners Assignee Of Citibank, — SW3d —, 2008 WL 339855, at *3 (Tex.
App.—Houston [1st Dist.] Feb. 7, 2008, no pet. h.) (citing Winchek v. Am. Express Travel Related
Servs. Co., 232 S.W.3d 197, 202 (Tex. App.—Houston [1st Dist.] 2007, no pet.)).
Parties form a binding contract when the following elements are present: (1) an offer, (2) an
acceptance in strict compliance with the terms of the offer, (3) meeting of the minds, (4) each party’s
consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and
binding. Id. To be enforceable, a contract must be sufficiently certain to enable a court to determine the
rights and responsibilities of the parties. Id. The material terms of a contract must be agreed upon
before a court can enforce the contract. Id. (citing T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.
2d 218, 221 (Tex. 1992)).
First, Duran contends that Citibank failed to provide proof of delivery of an agreement or acceptance
of its terms and that, therefore, no valid contract could exist to support Citibank’s breach-of-contract
“Delivery may be proved by acts or words showing that the parties intended the contract to become
effective.” Awad Tex. Enters., Inc. v. Homart Dev. Co., 589 S.W.2d 817, 819–820 (Tex. Civ. App.—
Dallas 1979, no writ). “[W]hen the parties manifest an intent through their actions and words that the
contract become effective, delivery is shown.” Winchek, 232 S.W.3d at 204 (op. on reh’g). In other
words, when parties manifest an intent through their actions and words that a contract become
effective, manual delivery is immaterial to contract validity. Awad Tex. Enters., Inc., 589 S.W.2d at 819–
To its summary judgment motion, Citibank attached evidence in the form of copies of billing
statements from January of 1998 to July of 1994. The statements reflect charges made on the account;
they also reflect payments made. Citibank also attached the Card Agreement for the account. The
Card Agreement stated that the cardmember was responsible for the use of each card used in relation
to the account “according to the terms of this Agreement.” The Agreement set out how the monthly
minimum payment was determined and how finance charges were determined. The terms of the
contract were set out in the agreement and were accepted when Duran began using the card. The
billing statements showed that he used the card after each change in terms, again accepting those
changes by his use of the card. Delivery was established by Duran’s use of the card and by his making
payments on the account for the charges shown on his monthly billing statements. See id. In response
to the motion for summary judgment, Duran did not present any competent evidence that he did not
receive the agreement or notices of changes in the agreement.
Duran did file an affidavit in which he contended, among other things, that he never received the Card
Agreement, did not receive some portions of the Card Agreement, did not receive notice of changes
to the Card Agreement, and did not understand the Card Agreement. He also stated that he had never
spoken with anyone on behalf of Citibank, but also asserted that he received telephone calls on behalf
of Citibank, which caused anxiety and stress that “were continuous in nature and meant to place
[Duran] and did cause [Duran] mental duress and pressure to pay this alleged debt. [Duran] also
received calls from [Citibank] after [Duran] advised [Citibank] that [Duran] was represented by an
Moreover, Duran denied the account in its entirety, denied that all just and lawful offsets had been
allowed, and asserted that he did not agree to the “interest charges, fees, or other charges made on
this account.” In order to be competent summary judgment evidence, the affidavit of an interested
witness must be clear, positive, direct, otherwise credible, free from contradictions and
inconsistencies, and readily controvertible. Tex. R. Civ. P. 166a(c). Duran’s affidavit is not credible, is
not free from contradictions and inconsistencies, and is not readily controvertible. Thus, it is not
competent summary judgment evidence.
Because Duran used his card and made some payments, he manifested intent that the agreement
become effective. See id.
Second, Duran contends that no valid contract exists because the terms of the Card Agreement were
indefinite. But the statements showed that Duran’s amount owed was clearly itemized, showing
purchases and payments made and specifying the finance charges. Citibank’s evidence showed that
the Card Agreement was sufficiently definite to enable a court to determine the rights and
responsibilities of each party and that Duran’s conduct in using the card and making payments on the
account for the charges reflected in the monthly billing statements showed that Duran understood his
obligations to Citibank and that a contract was formed. See Winchek, 232 S.W.3d at 204.
Third, Duran argues that Citibank failed to prove that he accepted the terms of the contract. Duran
does not dispute that he used the card and made payments while never disputing the accuracy of the
statements. Thus, we reject this contention. See id.
We conclude that Citibank met its burden to establish the existence of a valid contract as a matter of
We distinguish this case from our decision in Williams v. Unifund CCR Partners Assignee Of Citibank,
— SW3d —, 2008 WL 339855, at *4 (Tex.App.—Houston [1st Dist.] Feb. 7, 2008, no pet. h.), in which
Unifund neglected to produce the Card Agreement “or any document that established the agreed
terms, including the applicable interest rate or the method for determining the applicability and amount
of finance charges.”
Here, the Card Agreement explained, “To determine your New Balance, we begin with the outstanding
balance on your account at the beginning of each billing period . . . . We then add any purchases and
case advances that are recorded on your account and subtract any payments and credits received.
We then add any other adjustments . . . and finally add the appropriate finance charges and fees.” The
Card Agreement further explained how the finance charges will be applied, explaining that Citibank will
“multiply the “balance subject to finance charge” by 1.65%, the monthly periodic rate, which
corresponds to a 19.8% annual percentage rate. This amount is your finance charge on purchases.”
The Card Agreement similarly explains finance charges for cash advance transactions.
Furthermore, each Notice of Change in Terms detailed the annual percentage rate then applicable,
stating that the rate would be calculated by “adding the applicable margin to the Prime Rate published
in The Wall Street Journal. . . .” Lastly, the monthly account statements reflected the balance subject to
a finance charge, the periodic rate, the nominal annual percentage rate, and the annual percentage
Duran argues that Citibank failed to establish the applicable interest rate and, thereby, failed to
establish as a matter of law the amount of damages that it incurred from Duran’s breach of the Card
Agreement. The agreement and billing statements provided detailed explanations of the cost of credit
and the methodology employed to determine the applicable interest rate. See id. at 205. Duran fails to
identify any specific charges for which he contends the applicable interest rate was not proven. The
Card Agreement and the comprehensive compilation of account statements from 1998 through 2004
conclusively established the amount that Duran owed, including the applicable interest rates. Further,
to the extent that Duran contends that the evidence failed to establish that all just and lawful offsets had
been allowed, we reject that contention. The summary judgment evidence reflects that “all just and
lawful offsets, credits and payments have been allowed.” In response to the motion for summary
judgment, Duran did not present any competent, contradictory evidence.
We hold that Citibank proved its damages as a matter of law.
Finally, Duran contends that a fact issue exists as to whether the attorney’s fees awarded to Citibank
are reasonable and necessary. Jennifer Spencer, attorney for Citibank, provided an affidavit in
which she swore that she was “familiar with attorneys’ fees charged in the Harris County area in the
year 2006,” that “firm attorneys and legal assistants have expended in excess of 76 hours in
preparation of this case,” and that “a reasonable and customary charge for legal services performed to
date on behalf of Citibank in connection with this action is an amount in excess of $10,088.50.”
She further testified that “Citibank is entitled to recover reasonable and necessary attorneys’ fees in
the amount of $5,000.00; $5,000.00 if the case is appealed to the Texas Court of Appeals; and
$5,000.00 if the case is appealed to the Texas Supreme Court.” The court awarded $10,088.50 in
attorney’s fees plus $5,000.00 additional for each of postjudgment motions, appeal to the Court of
Appeals, and appeal to the Texas Supreme Court.
Duran’s attorney, John Mastriani, filed an affidavit in which he stated that he is “familiar with the normal
and customary attorney fees for an action such as this” and opined that the fees charged ($150.00 per
hour for attorneys and $95.00 per hour for paralegals) were “outrageous and excessive.” However,
Mastriani failed to provide evidence of an alternative rate that he would deem reasonable and
necessary or otherwise to controvert Spencer’s affidavit with controverting evidence.
We hold that Citibank conclusively established that it was entitled to recover its attorney’s fees as
awarded by the trial court. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (Vernon Supp. 2007); see
also Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owners Ass’n, 205 S.W.3d 46, 56
(Tex. App.—Dallas 2006, pet. denied).
Citibank conclusively established the existence of a valid contract under which it performed and that
Duran breached that contract by failing to pay the amounts due and the damages sustained by
Citibank as a result of that breach. The trial court properly determined that Citibank met its burden to
prove that it was entitled to summary judgment as a matter of law on each element of its cause of
action. See Winchek, 232 S.W.3d at 206. We overrule issues one and two.
With regard to Duran’s third issue, in which he states that Citibank failed to establish that it was not
liable to Duran for his counterclaim, Duran presents no legal arguments or citations to authority. Thus,
this issue is inadequately briefed. See Tex. R. App. P. 38.1(h); Stephens v. Dolcefino, 126 S.W.3d
120, 130 (Tex. App.—Houston [1st Dist.] 2003), pet. denied, 181 S.W.3d 741 (Tex. 2005).
Citibank challenged any claims raised by Duran in its no-evidence summary judgment motion.
We overrule issue three.
We affirm the judgment of the trial court.
Panel consists of Justices Taft, Keyes, and Alcala.