                                 IN THE
                         TENTH COURT OF APPEALS

                               No. 10-07-00343-CV

DEBORAH L. MCGREW,
                                                           Appellant
v.

CITIBANK (SOUTH DAKOTA) N.A.,
                                                           Appellee



                     From the County Court at Law No. 1
                           Johnson County, Texas
                         Trial Court No. C200700213


                         MEMORANDUM OPINION


      Deborah L. McGrew appeals the trial court’s summary judgment in favor of

Citibank (South Dakota) N.A. (Citibank). We will affirm.

                                     Background

      Citibank sued McGrew to recover unpaid credit card debt.         In its petition,

Citibank alleged the following: Citibank and McGrew entered into agreements for two

separate credit accounts; at all relevant times, McGrew was the primary cardholder

under the accounts; the accounts were governed by the Citibank Card Agreement, as it
was amended from time to time; pursuant to the express terms of the agreement,

McGrew was responsible for all charges placed on the accounts by persons permitted or

who had access to the credit cards or account numbers; McGrew used the accounts to

make purchases of goods and/or services and/or to receive cash advances; in

accordance with the agreement, Citibank properly billed McGrew for payment of the

charges on the account, but McGrew defaulted in making the payments required by the

agreement; and after all just and lawful offsets, credits and payments were allowed, the

total outstanding balances on each account were $18,802.49 and $7,857.89 respectively.

       Citibank    asserted    four      alternative   causes   of   action:   (1)   “breach   of

contract/written or implied-in-fact,” (2) “breach of oral contract,” (3) “account stated”

and (4) “restitution, common law debt, assumpsit, money had [sic] and to remedy

defendant’s unjust enrichment.” McGrew generally denied the allegations. Citibank

subsequently filed what we have determined to be a traditional motion for summary

judgment on its account stated cause of action. Citibank supported the motion with (1)

two business records affidavits from Ramona Chavez, a Litigation Analyst with

Citicorp Credit Services, Inc. USA, a service provider for Citibank, with final billing

statements for each of McGrew’s credit card accounts attached, and (2) an Affidavit in

Support of Attorney Fees.         Following McGrew’s response to Citibank’s motion,

Citibank filed a reply to McGrew’s response and a supplement to its summary

judgment motion with additional supporting evidence.                 The additional evidence

included two business records affidavits from Jay Guenther, another Litigation Analyst

with Citicorp Credit Services, Inc. USA. Attached to the affidavits were copies of the


McGrew v. Citibank (South Dakota) N.A.                                                     Page 2
monthly account statements that had been sent to McGrew over the relevant time

period. The trial court granted Citibank’s summary judgment motion.

                       Objections to Affidavits of Ramona Chavez

       In her first issue, McGrew argues that the Chavez affidavits do not satisfy the

business records exception to the hearsay rule because she does not state that she has

personal knowledge of the facts in the affidavits. However, in the summary judgment

context, a nonmovant must obtain a ruling on an objection to the form of a motion or

supporting evidence to preserve the issue for appellate review. See TEX. R. APP. P.

33.1(a)(2); Allen v. Albin, 97 S.W.3d 655, 662-63 (Tex. App.—Waco 2002, no pet.). An

objection that an affidavit fails to comply with the business records exception to the

hearsay rule, as well as an objection that the affiant does not have personal knowledge,

are objections to the form of the affidavit and must be preserved in the trial court.

Dulong v. Citibank (South Dakota), N.A., 261 S.W.3d 890, 893 (Tex. App.—Dallas 2008, no

pet.); Seidner v. Citibank (South Dakota), N.A., 201 S.W.3d 332, 334-35 (Tex. App.—

Houston [14th Dist.] 2006, pet. denied); Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d

235, 241 (Tex. App.—Waco 2003, no pet.). Because McGrew does not cite, nor have we

found, a ruling from the trial court on her objections, McGrew failed to preserve for

review her objections to the summary judgment evidence. See TEX. R. APP. P. 33.1(a)(2).

We overrule her first issue.

                        Sufficiency of Evidence as to Amount Due

       A party is entitled to relief under the common law cause of action for account

stated when (1) transactions between the parties give rise to indebtedness of one to the


McGrew v. Citibank (South Dakota) N.A.                                               Page 3
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. Dulong, 261 S.W.3d at 893; Neil v. Agris, 693 S.W.2d 604, 605 (Tex. App.—

Houston [14th Dist.] 1985, no writ); Arnold D. Kamen & Co. v. Young, 466 S.W.2d 381, 388

(Tex. Civ. App.—Dallas 1971, writ ref’d n.r.e.).

       In her second issue, McGrew contends that the Guenther affidavits provide no

evidence to support summary judgment against her because the affiant does not state

that (1) “the balances shown on the statements are true and correct,” (2) “whether any

payments or offsets after the dates of the last statements have been allowed,” and (3)

“what the balances of the accounts are at the time of the filing of suit or even as of the

dates of the affidavits or at any time relevant to this case.” McGrew contends that by

failing to state the actual true and correct balances owed on the accounts, there is no

evidence to support the summary judgment as to the amounts, if any, owed by McGrew

to Citibank. We disagree.

       Contrary to McGrew’s argument, Guenther states in each of his affidavits:

       “I have personal knowledge of the facts stated, and they are all true and correct.”

       “The records attached as Exhibits [D-1 and E-1 respectively] are true and correct
       reproductions of the originals.”

       “Attached hereto and incorporated into this Affidavit as Exhibit [D-1 and E-1
       respectively] are true and correct copies of duplicate monthly statements sent to
       Defendant for the Account over the relevant time period. These statements
       identify and describe every transaction made on the account during that period.”

       “After failing or refusing to pay the amount shown as due and owing on the
       statements for three (3) months[,] the account was closed to further transactions.
       The entire amount of the unpaid debt is due an [sic] owing.”


McGrew v. Citibank (South Dakota) N.A.                                              Page 4
       “At the time the last account statement was sent to the Defendant, the amount
       due . . . was [$18,802.49 and $7,857.89 respectively]. In addition, the Card
       Agreement provides that Defendant shall pay interest on the Account, along
       with attorney fees and court costs. However, Citibank is not including any
       interest or fees which have accrued on this account since the date of the last
       statement attached hereto. Further, all just and lawful offsets, payments and
       credits made prior to said last account statement have been allowed as set out on
       the monthly statements of account attached hereto.”

       “Demand for payment was made on the Defendant more than thirty (30) days
       prior to the making of this Affidavit, for the amount due on the Account set out
       above, and that amount has not been paid by Defendant.”

Furthermore, each of the Chavez affidavits state:

       “The record attached hereto as Exhibit [“A-1” and “B-1” respectively] is a true
       and correct duplicate of the original.”

       “Because the subject debt owed by Defendant to Plaintiff is past due, Plaintiff has
       demanded in writing immediate payment of the entire balance owed by
       Defendant, and Defendant has in all things failed or refused to pay that amount.
       There are no just debts, set-offs, credits, or allowances due or to become due
       from the Plaintiff to the Defendant, other than those that would have been set out
       on the monthly statements provided to Defendant.”

       “Exhibit [“A-1” and “B-1” respectively] attached hereto is the final billing
       statement provided to Defendant setting out the total amount owed on the
       account at that time. After receiving the final billing statement and prior to filing
       this lawsuit, Defendant did not state any specific reason for disputing the total
       amount owed set out on that final billing statement.”

       “According to the Defendant’s Account Information contained in Plaintiff’s
       account records, the total balance owed by Defendant to Plaintiff is [$18,802.49
       and $7,857.89 respectively].”

       Based on these affidavits, Citibank established as a matter of law the amounts

owed by McGrew to Citibank. See Dulong, 261 S.W.3d at 894 (“Based on the series of

transactions reflected on the account statements, it is reasonable to infer that Dulong

agreed to the full amount shown on the statements and impliedly promised to pay the


McGrew v. Citibank (South Dakota) N.A.                                                Page 5
indebtedness.”); see also Butler v. Hudson & Keyse, L.L.C., No. 14-07-00534-CV, 2009 WL

402329, at *3 (Tex. App.—Houston [14th Dist.] Feb. 19, 2009, no pet.) (mem. op.)

(“[B]ased on appellants’ usage of the credit card, we may reasonably infer that they

impliedly agreed to pay a fixed amount equal to the purchases and cash advances they

made, plus interest.”). Furthermore, McGrew has raised no fact issues that would

preclude summary judgment. Tex. Workers’ Comp. Ins. Fund v. Simon, 980 S.W.2d 730,

733 (Tex. App.—San Antonio 1998, no pet.) (citing City of Houston v. Clear Creek Basin

Auth., 589 S.W.2d 671, 678 (Tex. 1979)).      McGrew has not presented any evidence

suggesting a different amount is owed. We therefore overrule McGrew’s second issue.

                                         Conclusion

       Having overruled each of McGrew’s issues, we affirm the trial court’s judgment.



                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed June 17, 2009
[CV06]




McGrew v. Citibank (South Dakota) N.A.                                           Page 6
