     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-09-00438-CV



                                Tressie A. Damron, Appellant

                                               v.

                           Citibank (South Dakota) N.A., Appellee


              FROM COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
        NO. C-1-CV-08-005823, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING



                           MEMORANDUM OPINION


              In a suit to recover a credit-card debt, appellee Citibank (South Dakota), N.A.

(Citibank) obtained a final summary judgment awarding it $5,478.98 on an account-stated claim

against the debtor, appellant Tressie A. Damron. Damron appeals, contending that the trial court

erred (1) in failing to exclude Citibank’s summary-judgment affidavit; (2) in granting

summary judgment on Citibank’s account-stated claim; and (3) in granting summary judgment on

a counterclaim asserted by Damron that was not addressed in Citibank’s summary-judgment motion.

We will affirm the trial court’s judgment as to Citibank’s account-stated claim, but reverse and

remand as to Damron’s counterclaim.


                                       BACKGROUND

              It is undisputed that Citibank issued a credit card to Damron in 2003 and that

Damron incurred charges on the account. In 2008, alleging that Damron had defaulted in making
required monthly payments, Citibank sued Damron, asserting causes of action for breach of contract,

account stated, and debt. Citibank sought recovery of the outstanding balance owed by Damron,

which it alleged to be $5,478.98, plus interest, costs, and attorney’s fees. Citibank then moved for

a traditional summary judgment based only on its account-stated claim. In support of its motion,

Citibank relied upon the affidavit of Ramona Aragon, who testified that she is a “litigation analyst”

with Citicorp Credit Services, Inc., a Citibank affiliate that provides debt-collection services for

Citibank and other affiliated companies.1 Attached to Aragon’s affidavit were what purported to be

reproductions of Damron’s monthly account statements reflecting activity beginning when the

account was opened in March 2003 and concluding with what Aragon termed a “final account

statement” or “final billing statement” in February 2008. Aragon identified the attachments as

accurate reproductions of Damron’s monthly account statements from Citibank’s computer records

and proved them up as Citibank business records. Aragon further testified to a number of facts

related to Damron’s account, including that Damron had failed or refused to repay the amounts

shown as due and owing on the monthly account statements. Aragon testified that according to

information contained in Citibank’s account records, Damron owed Citibank $5,478.98. The same

balance was shown as due and owing in the “final account statement” attached to Aragon’s affidavit.

               Damron filed and served a response to Citibank’s motion. In it, Damron objected to

Aragon’s affidavit on the grounds of hearsay and “evident lack of personal knowledge.” Also, in




       1
         Aragon explained that both Citibank and Citicorp Credit Services, Inc. are subsidiaries of
Citigroup, Inc.

                                                 2
an attempt to raise a fact issue, Damron submitted an affidavit from James S. Damron, her counsel

of record in this proceeding.2 Mr. Damron averred that:


                I received and opened all correspondence that came to defendant from
       plaintiff concerning the transactions that are the subject matter of this suit. No
       final statement of account for transactions involved in this suit, including the one that
       plaintiff alleges was sent, was ever received by me or defendant.

              I made all the payments that were made on the alleged debt, and the payments
       that were made, when properly credited, were sufficient to pay all amounts lawfully
       owed.


In reply, Citibank objected to James Damron’s affidavit as the unsupported statement of an interested

witness and as “conclusory.”

               An oral hearing on Citibank’s summary-judgment motion was scheduled for April 16,

2009, at 2:00 p.m. At 1:54 p.m. on that day, Damron filed a counterclaim in which she alleged that

Citibank “has engaged in unconscionable and deceptive business practices in its dealings with

defendant that have resulted in charges being made to defendant that were not owed . . . . [and]

payments by defendant of money not owed,” and sought actual and punitive damages. Also, at

1:56 p.m., Damron filed a motion to supplement her response to Citibank’s summary-judgment

motion with an objection to “any testimony in plaintiff’s affidavit concerning the existence or

contents of any cardmember agreement or other document not made a part of the affidavit.” At the

hearing, the trial court granted Damron’s request to supplement her response. However, the record




       2
          The record does not indicate whether Damron and her counsel, who shares her surname,
are related.

                                                  3
does not reflect either that Damron explicitly requested leave to file her counterclaim or that the

trial court explicitly granted such leave.

               The trial court granted Citibank’s motion and signed a final judgment awarding

Citibank $5,478.98 on its claims against Damron. The court further ordered that Damron take

nothing on her claims against Citibank. This appeal followed.


                                             ANALYSIS

               In three issues on appeal, Damron argues that the trial court abused its discretion in

failing to exclude Aragon’s affidavit and attachments, erred in granting summary judgment on

Citibank’s account-stated claim, and erred in granting summary judgment on Damron’s counterclaim

because Citibank’s motion did not address it.


Standard of review

               We review the trial court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott,

128 S.W.3d 211, 215 (Tex. 2003). Summary judgment is proper when there are no disputed issues

of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c);

Knott, 128 S.W.3d at 215-16. In deciding whether there is a disputed material fact issue precluding

summary judgment, we take as true proof favorable to the non-movant, and we indulge every

reasonable inference and resolve any doubt in favor of the non-movant. Randall’s Food Mkts., Inc.

v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).




                                                 4
               As a movant seeking summary judgment on its account-stated cause of action,

Citibank had the initial burden of establishing its entitlement to judgment as a matter of law by

conclusively establishing each element of that cause of action. See M.D. Anderson Hosp. & Tumor

Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam) (citing Rhône-Poulenc, Inc. v. Steel,

997 S.W.2d 217, 222-23 (Tex. 1999); Oram v. General Am. Oil Co., 513 S.W.2d 533, 534

(Tex. 1974) (per curiam)). Assuming Citibank met this burden, the burden shifted to Damron to file

a timely written response presenting grounds for denying summary judgment. See City of Houston

v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Grounds that Damron did not

expressly present to the trial court by written response cannot be considered as grounds for reversal

on appeal. Tex. R. Civ. P. 166a(c); Clear Creek Basin Auth., 589 S.W.2d at 678. Citibank’s motion

must stand on its own merits, however, and thus Damron is not precluded from contending

on appeal that the grounds presented in Citibank’s motion were legally insufficient to entitle it

to summary judgment. Rhône-Poulenc, 997 S.W.2d at 223 (citing Clear Creek Basin Auth.,

589 S.W.2d at 678). Additionally, Citibank bears the burden on appeal of showing that there is no

genuine issue of material fact and that it is entitled to judgment as a matter of law. See id.

               We review the trial court’s rulings concerning the admission or exclusion

of summary-judgment evidence for an abuse of discretion. See, e.g., Fairfield Fin. Group, Inc.

v. Synnott, 200 S.W.3d 316, 319 (Tex. App.—Austin 2009, no pet.) (admission of summary-

judgment evidence); Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497, 499

(Tex. App.—Houston [14th Dist.] 2004, pet. denied) (exclusion of summary-judgment evidence).

An abuse of discretion exists only when the court’s decision is made without reference to any



                                                  5
guiding rules and principles or is arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241-42 (Tex. 1985). We must uphold the district court’s evidentiary ruling if

there is any legitimate basis for it. See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35,

43 (Tex. 1998). Moreover, we will not reverse a judgment based on a claimed error in admitting

or excluding evidence unless the complaining party shows that the error probably resulted in

an improper judgment. Tex. R. App. P. 44.1; Malone, 972 S.W.2d at 43; City of Brownsville

v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). A successful challenge to a trial court’s evidentiary

rulings requires the complaining party to demonstrate that the judgment turns on the particular

evidence excluded or admitted. Texas Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000).


Aragon affidavit

               In her first issue, Damron contends that the trial court abused its discretion in failing

to exclude the Aragon affidavit and attachments. Specifically, Damron urges that Aragon failed

to demonstrate her personal knowledge underlying her testimony proving up the attached

account statements as Citibank business records. This is ultimately a complaint that the trial court

abused its discretion in failing to exclude the account statements as hearsay. To preserve this

complaint for appellate review, Damron was required to obtain a ruling on her objection. See, e.g.,

McFarland v. Citibank (S.D.), N.A., 293 S.W.3d 759, 762 (Tex. App.—Waco 2009, no pet.); Dulong

v. Citibank (S.D.), N.A., 261 S.W.3d 890, 893 (Tex. App.—Dallas 2009, no pet.). Damron does not

cite, nor have we found, any ruling by the trial court overruling her objection. Consequently, she

failed to preserve the objection for appellate review. Tex. R. App. P. 33.1(a)(2).




                                                  6
                Alternatively, to the extent Damron’s complaint goes to the competence of Aragon’s

testimony and could be raised for the first time on appeal, see Kerlin v. Arias, 274 S.W.3d 666,

668 (Tex. 2008) (per curiam); Sprayberry v. Siesta MHC Income Partners, L.P., No. 03-08-00649-

CV, 2010 WL 1404598, at *2-4 (Tex. App.—Austin Apr. 8, 2010, no pet.) (mem. op.), we conclude

that it is without merit. The gravamen of Damron’s complaint is that there is some reason to doubt

whether Aragon’s testimony regarding Citibank’s record-keeping procedures was based on her

personal knowledge because she is employed by a Citibank affiliate rather than Citibank itself and

is an “interested witness” who helps Citibank collect its debts. Damron further suggests that various

statements by Aragon regarding Damron’s account history “are highly suspect as coming from

personal knowledge” and cast doubt on her claims to personal knowledge of Citibank record-keeping

procedures. To the contrary, Aragon adequately demonstrates her competence to give the testimony

she provided.

                Aragon testified that in her role as litigation analyst, she is required to

have knowledge regarding Citibank’s policies and procedures and that she has acquired

personal knowledge regarding how account records are made and kept by Citibank. She added that

she has access to Citibank account records and is “required to be familiar with facts regarding

account holders who are involved in active litigation with [Citibank].” In that role, Aragon

explained, she acquired access to and knowledge regarding Damron’s account records. Aragon

then identified the attachments as true and correct copies of Damron’s account statements and

proved them up as Citibank business records. She went on to offer observations and conclusions

based on the account records and her knowledge of Citibank’s record-keeping procedures, including



                                                 7
summarizing Damron’s account activity, Citibank’s imposition of interest and charges, Damron’s

default, and the amount Damron ultimately owed.

               Contrary to what Damron suggests, the rules of evidence do not require that

the qualified witness who lays the predicate for the admission of business records be their creator

or have personal knowledge of the contents of the record; the witness is required only to

have personal knowledge of the manner in which the records were kept. See Tex. R. Evid. 803(6),

902(10); see also Bridges v. Citibank (S.D.) N.A., No. 02-06-00081-CV, 2006 WL 3751404, at *2

(Tex. App.—Fort Worth Dec. 21, 2006, no pet.) (mem. op.) (citing In re K.C.P., 142 S.W.3d.

574, 578 (Tex. App.—Texarkana 2004, no pet.)). We conclude that Aragon’s testimony adequately

demonstrated the basis for her personal knowledge of the manner in which Citibank kept

its records and the other facts to which she testified. Other Texas courts have considered similar

affidavit testimony by other Citibank “servicer” personnel as adequate to establish the basis

for the affiants’ personal knowledge and competence. See, e.g., McFarland, 293 S.W.3d at 762

(affidavit “not conclusory” because based on “personal knowledge derived from her

work as a Litigation Analyst”; provided proper basis for admitting business records); Wynne

v. Citibank (S.D.) N.A., No. 07-06-000162-CV, 2008 WL 1848286, at *2 (Tex. App.—Amarillo

Apr. 25, 2008, pet. denied) (mem. op.); Jones v. Citibank (S.D.), N.A., 235 S.W.3d 333,

337 (Tex. App.—Fort Worth 2007, no pet.); Hay v. Citibank (S.D.) N.A., No. 14-04-01131-CV,

2006 WL 2620089, at *3 (Tex. App.—Houston [14th Dist.] Sept. 14, 2006, no pet.) (mem. op.). We

overrule Damron’s first issue.




                                                8
Citibank’s account-stated claim

               In her second issue, Damron argues that the trial court erred in granting

summary judgment on Citibank’s account-stated claim. The elements of the common-law cause

of action for account stated are: (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, 261 S.W.3d at 893. Because the requisite agreement can be express or implied, the plaintiff

need not adduce evidence of a written cardmember contract, but can instead present evidence of acts

and conduct by the parties that give rise to an implied agreement fixing an amount due and that

the defendant agreed to pay the indebtedness. See Busch, 312 S.W.3d at 299; Dulong, 261 S.W.3d

at 894. Such acts and conduct may include the cardholder’s use of the card to make purchases,

the cardholder’s making of payments on the account, and the cardholder’s acquiescence in the

card issuer’s imposition of interest, fees, and charges. See Busch, 312 S.W.3d at 299-300; Dulong,

261 S.W.3d at 894.

               Aragon’s affidavit and the attached monthly statements reflected that Citibank

issued Damron a credit card in March 2003. Thereafter, Citibank mailed, to the same address for

Damron each time, monthly statements showing extensions of credit, the applicable interest rate

or rates, interest charges and any fees imposed, and the amount of any payments by Damron.

Damron maintained a zero balance until September 25, 2003, when she made a balance transfer of

$4,499.00—$1.00 below her $4,500 credit limit. Thereafter, on May 11 and 12, 2005, Damron



                                                9
made two purchases. Interest was charged on these extensions of credit at varying rates and over-

limit and late fees were periodically assessed. In response to the monthly statements, Damron

made payments on the account, generally the minimum monthly payment specified on the statement.

Damron twice made larger payments that would have almost satisfied the account balance, but

both times her payment was returned for insufficient funds. There was no indication in the

account records that Damron ever objected to or disputed any charges or fees Citibank imposed prior

to Citibank’s filing suit. Damron ceased making payments after July 30, 2007. Citibank continued

to send monthly statements to her until February 2008. At that point, Aragon testified and the

statements reflected, Damron owed Citibank $5,478.98. This evidence meets Citibank’s summary-

judgment burden to establish a series of transactions between Citibank and Damron, as well as acts

and conduct establishing that Citibank and Damron had an implied agreement fixing an amount due

equal to the cash advance she received and the purchases she made, less payments and credits to her

account, plus interest and fees, and that Damron impliedly promised to pay Citibank the amount due.

See, e.g., McFarland, 293 S.W.3d at 763; Dulong, 261 S.W.3d at 894.

               Damron argues that Citibank was not entitled to summary judgment on its account-

stated claim because Citibank “judicially admitted” there was an express cardmember agreement

governing the parties’ transactions. However, as previously noted, Citibank was not required to

prove the agreement’s existence solely through evidence of the express cardmember agreement, but

could rely instead on evidence of the parties’ acts and conduct that established an agreement by

implication. See Busch, 312 S.W.3d at 299; Dulong, 261 S.W.3d at 894. Damron also argues that

Citibank could not recover on an account-stated claim because the transactions sued upon did not



                                                10
involve the transfer of title to goods or services from Citibank to Damron. However, an account-

stated claim does not require proof that the sued-upon transactions involved the transfer of title to

goods or services between the parties. See Dulong, 261 S.W.3d at 893 & n.3. Damron seems to

confuse the elements of the common-law cause of action for account stated with the requirements

for a suit on an account under Texas Rule of Civil Procedure 185. See id. Citibank has asserted an

account-stated cause of action independent of rule 185.

               Damron also insists that the affidavit of James S. Damron raises a fact issue that

precludes summary judgment. Specifically, Damron relies on the statement that, “No final statement

of account for transactions involved in this suit, including the one that plaintiff alleges was sent,

was ever received by me or defendant.” Damron evidently assumes that the existence of the requisite

implied agreement and promise to pay rests solely upon proof of her acquiescence to Citibank’s

final account statement after receiving it. However, Citibank’s summary-judgment evidence also

included proof—which remains uncontroverted—that Damron received all prior monthly statements,

that the statements reflected her outstanding account balance and the interest rate or rates being

charged, that Damron never objected to or disputed any charges, and that the final amount due and

owing was $5,478.98. This uncontroverted evidence establishes Citibank’s entitlement to judgment

as a matter of law on its account-stated claim. See, e.g., McFarland, 293 S.W.3d at 763; Dulong,

261 S.W.3d at 894. We overrule Damron’s second issue.


Damron’s counterclaim

               In her third issue, Damron asserts that the trial court erred in granting

summary judgment as to her literally last-minute counterclaim because Citibank’s summary-

                                                 11
judgment motion failed to address it. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337,

341 (Tex. 1993) (“A [summary-judgment] motion must stand or fall on the grounds expressly

presented in the motion.”). In response, Citibank argues only that the counterclaim was not before

the trial court, insisting that the record belies the court’s having impliedly granted leave for Damron

to file her counterclaim late and considered it. See Goswami v. Metropolitan Savings & Loan Ass’n,

751 S.W.2d 487, 490 (Tex. 1988) (holding that if record offers no basis to conclude that late

pleading was not considered by the trial court and opposing party does not show surprise or

prejudice, leave of court to file late pleading is presumed). We disagree with Citibank. The

final judgment reflects that the trial court considered the counterclaim, as it explicitly rendered

judgment that Damron take nothing on her claims. Because Citibank’s motion did not address the

counterclaim, summary judgment on it was error. See Smith v. Heard, 980 S.W.2d 693, 697-98

(Tex. App.—San Antonio 1998, pet. denied).3 We sustain Damron’s third issue.


                                          CONCLUSION

               Having overruled Damron’s issues challenging summary judgment as to

Citibank’s account-stated claim, we affirm that portion of the trial court’s judgment. However,

because the judgment indicates or we must presume that the trial court considered Damron’s

counterclaim when granting summary judgment, and this claim was not addressed in Citibank’s




       3
         As the issue has not been raised, we express no opinion regarding the viability of Damron’s
counterclaim in the face of our judgment affirming summary judgment on Citibank’s account-stated
claim.

                                                  12
summary-judgment motion, we must reverse this portion of the trial court’s judgment and remand for

further proceedings.




                                             __________________________________________

                                             Bob Pemberton, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Affirmed in part; Reversed and Remanded in part

Filed: August 25, 2010




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