                               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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                                                                                       04-12-00777-CV


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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                                                                                  04-12-00777-CV


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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