                                 NO. 07-10-0432-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                DECEMBER 15, 2011

                         ______________________________


            FIA CARD SERVICES, N.A. aka BANK OF AMERICA, APPELLANT

                                          V.

                          FRANK FRAUSTO, JR., APPELLEE


                        _________________________________

           FROM THE COUNTY COURT AT LAW NO. 1 OF RANDALL COUNTY;

                NO. 7760-L1; HONORABLE JAMES ANDERSON, JUDGE

                         _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION


          Appellant, FIA Card Services, N.A. aka BANK OF AMERICA (BOA), appeals

from entry of summary judgment in favor of Appellee, Frank Frausto, Jr., in BOA’s

action seeking to collect delinquent credit card charges. In two issues, BOA asserts the

trial court erred in (1) granting Frausto’s no-evidence motion for summary judgment and

(2) awarding summary judgment prior to ruling on Frausto’s evidentiary objections. We

affirm.
                                        Background


        In February 2010, BOA filed suit alleging Frausto owed it for delinquent cash

advances and credit card charges. In May of that year, Frausto filed a motion for

summary judgment asserting there was no evidence of an essential element of BOA's

cause of action, on which BOA would have the burden of proof at trial, to-wit: that he,

Frausto, signed a credit card agreement or otherwise authorized the charges on the

credit card account.


        In response, BOA filed an affidavit, with records attached, which was signed by

an unnamed employee contending to be a custodian of the records which were

attached to the affidavit.1 The affiant recited that the records attached to the affidavit,

such as the attached cardholder member agreement and the underlying data

compilations pertaining to the credit card account, including the account’s current

balance, were made at or near the time of the act, event or condition recorded and were

kept in the regular course of BOA’s business by a representative with knowledge of the

acts, events or conditions recorded. The affiant’s statements were based on personal

knowledge obtained during his employment with BOA and represented that BOA made

advances to Frausto, either as cash or in payment for purchases, and Frausto accepted

those advances pursuant to the terms of his cardholder agreement.


        Attached to the affidavit was a BOA Cardholder Agreement and billing

statements dating from January 2007 through December 2008, naming Frausto and

addressed to him. According to the affiant, the agreement governed Frausto’s credit

1
The affiant’s signature is illegible.


                                            2
card account with BOA and, according to the terms of that agreement, became effective

when Frausto used his account or failed to close his account within three days of receipt

of the agreement.       The statements showed a constant annual percentage rate of

15.99%, and account activity for purchases, payments, charges, and balance transfers.

Based upon these statements, the affiant stated that the amount of Frausto’s debt at the

time of charge off was $33,888.97 exclusive of court costs.


       On July 7, 2010, a summary judgment hearing was held. Before proceeding on

the merits of Frausto's no-evidence motion for summary judgment, Frausto filed his

Objection To Plaintiff’s Summary Judgment Evidence asserting that BOA’s affidavit (1)

was untimely filed, (2) failed to identify the person signing the affidavit, (3) failed to

establish the affiant’s knowledge of the facts stated in the affidavit, (4) contained

conclusory statements and stated the following legal conclusions, i.e., (5) Frausto and

BOA entered into the agreement, (6) the “account’s current balance,” (7) BOA made

cash advances to Frausto under the agreement, (8) by accepting the advances, Frausto

became bound to pay back each advance under the agreement plus additional charges,

and (9) the amount of Frausto’s debt at the time of the charge off was $33,888.97. The

trial court orally denied Frausto’s first objection, but granted the remaining objections

two through nine.2 Resultantly, the trial court excluded BOA's affidavit, as well as the

attachments appended thereto.          The trial court then granted Frausto's no-evidence

motion for summary judgment.3 This appeal followed.


2
Five days after the hearing, on July 12, 2010, the trial court signed an order entitled Order On
Defendant’s Objection To Plaintiff’s Summary Judgment Evidence, memorializing this ruling.
3
 On July 7, 2010, the trial court signed an order entitled Order Granting Defendant's Motion for No
Evidence Summary Judgment.

                                                3
                                     Discussion


       In its first issue, BOA contends the trial court erred in sustaining Frausto’s

objections to BOA’s affidavit/exhibits and granting Frausto’s no-evidence motion for

summary judgment. BOA asserts the affidavit and attached business records were

admissible and, at the least, raised an issue of material fact regarding whether BOA and

Frausto entered into a contract for a credit card account and whether Frausto is liable

for delinquent advances and/or credit card charges. In its second issue, BOA asserts

the trial court erred by granting Frausto’s no-evidence motion for summary judgment

prior to issuing its written order sustaining Frausto’s evidentiary objections to BOA’s

affidavit/exhibits.


       I.      Issue One – Motion for Summary Judgment

       A.     Standard of Review


       In its no-evidence motion for summary judgment, Frausto asserted there was no

evidence to support an essential element of BOA’s claim, to-wit: that a contract existed

between BOA and Frausto. Specifically, he asserted there was no evidence that he

signed a credit card agreement or otherwise authorized charges on the credit card

account. See Tex. R. Civ. P. 166a(i). In reviewing a no-evidence summary judgment

motion, we examine the record in the light most favorable to the nonmovant. Forbes

Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). If the nonmovant

brings forth more than a scintilla of probative evidence to raise a genuine issue of

material fact, summary judgment is improper. Tex. R. Civ. P. 166a(i); Forbes Inc., 124

S.W.3d at 172 (citing Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.


                                           4
2002)). “Less than a scintilla of evidence exists when the evidence is ‘so weak as to do

no more than create a mere surmise or suspicion’ of a fact.” King Ranch v. Chapman,

118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61,

63 (Tex. 1983)). Thus, if BOA presented any evidence creating more than a surmise or

suspicion that a contract existed between Frausto and BOA, or that he authorized

charges to the credit card account that were delinquent, then the granting of summary

judgment would have been improper.


       B.   Frausto’s Evidentiary Objections


       Because    the   trial   court’s   ruling   regarding   the   admissibility   of   BOA’s

affidavit/exhibits is pivotal to our determination, we will first address whether the trial

court abused its discretion in excluding the contents of BOA’s affidavit/exhibits.

Because we find the trial court did not err in excluding BOA’s only summary judgment

evidence, i.e., the affidavit/exhibits, we find that BOA failed to create a genuine issue of

material fact as to whether a contract existed or whether Frausto authorized the charges

to the credit card account.


       1.      Standard of Review


       We apply an abuse of discretion standard in reviewing a trial court’s ruling

excluding evidence. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43

(Tex. 1998).     A trial court abuses its discretion when it acts in an arbitrary or

unreasonable manner without reference to guiding rules or principles. Samlowski, M.D.

v. Wooten, 332 S.W.3d 404, 410 (Tex. 2009). Further, an appellate court must uphold

the trial court’s evidentiary ruling if there is any legitimate basis for the ruling, and we

                                               5
will not reverse a trial court for an erroneous evidentiary ruling unless the error probably

caused the rendition of an improper judgment. Owens-Corning Fiberglas Corp., 972

S.W.2d at 43.


         2.    Failure to Identity Affiant


         During the summary judgment proceedings below, Frausto asserted that BOA’s

affidavit/exhibits were inadmissible because BOA’s affidavit failed to identify the affiant

and, as such, is not in substantial compliance with Rules 803 and Rule 902 of the Texas

Rules of Evidence. See Tex. R. Evid. 803(6), 902(10).4


         Evidence offered in support of or in opposition to a summary judgment motion

must be in admissible form to constitute competent summary judgment evidence. See

Tex. R. Civ. P. 166a(f). In addition, there is no difference between the standards for

evidence that would be admissible in a summary judgment proceeding and those

applicable at a regular trial. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex.

1997).


         As a proponent of hearsay in the summary judgment proceedings below, BOA

bore the burden of showing its affidavit/exhibits fit within an exception to the general rule

prohibiting the admission of hearsay evidence. Volkswagon of Am., Inc. v. Ramirez,

159 S.W.3d 897, 908 n.5 (Tex. 2004) (citing Skillern & Sons, Inc. v. Rosen, 359 S.W.2d

298, 301 (Tex. 1962)). See also Tex. R. Evid. 802. Rule 803 provides the following

hearsay exception for business records and, in pertinent part, states as follows:

4
 For convenience, provisions of the Texas Rules of Evidence shall be cited as “Rule ___” throughout the
remainder of his opinion.


                                                  6
       A memorandum, report, record, or data compilation, in any form, of acts,
       events, conditions, opinions . . . made at or near the time by, or from
       information transmitted by, a person with knowledge, if kept in the course
       of a regularly conducted business activity, and if it was the regular practice
       of that business activity to make the memorandum, report, record, or data
       compilation, all as shown by the testimony of the custodian or other
       qualified witness, or by affidavit that complies with Rule 902(10), unless
       the source of information or the method or circumstances of preparation
       indicate lack of trustworthiness.

Tex. R. Evid. 803(6) (Emphasis added).

       Rule 902(10) provides, in pertinent part, as follows:


       Any record or set of records or photographically reproduced copies of
       such records, which would be admissible under Rule 803(6) or (7), shall
       be admissible in evidence in any court in this state upon affidavit of the
       person who would otherwise provide the prerequisites of Rule 803(6) or
       (7), that such records attached to such affidavit were if fact so kept as
       required by Rule 803(6) or (7), provided further, that such record or
       records along with such affidavit are filed with the clerk of the court for
       inclusion with the papers in the cause . . . at least fourteen days prior to
       the day upon which trial of said cause commences, and provided the other
       parties to said cause are given prompt notice by the party filing same of
       the filing of such record or records and affidavit, which such notice shall
       identify the name and employer, if any, of the person making the affidavit
       and such records shall be made available to the counsel for other parties
       to the action or litigation for inspection and copying.

Tex. R. Evid. 902(10)(a) (Emphasis added).


       The predicate for admission of business records may be established “by affidavit

that complies with Rule 902(10).” Tex. R. Evid. 803(6). Rule 902(10)(a) provides that

business records “shall be admissible in evidence in any court in this state upon the

affidavit of the person who would otherwise provide the requisites of Rule 803(6) or (7)”

and requires notice of affiant’s name and employer. Rule 902(10)(a). Rule 902(10)

further provides a form affidavit for compliance with the requirements of Rule 902(10)(a)

and states that such affidavit “shall be sufficient if it follows this form though this form


                                             7
shall not be exclusive, and an affidavit which substantially complies with the provisions

of this rule shall suffice.” Tex. R. Evid. 902(10)(b). The form affidavit expressly names

the affiant in the prefatory statement by a Notary Public and in the first sentence of the

body of the affidavit.5        BOA’s affidavit wholly fails to identify who is making the

statements contained therein either by name or by title. Because BOA’s affidavit neither

names the affiant in the body of the affidavit or the jurat, and the affiant’s signature is

completely illegible, we find that BOA’s affidavit does not substantially comply with Rule

902(10) and is insufficient to establish the business records exception to the hearsay

rule under Rule 803(6).6 Accordingly, we find the trial court did not abuse its discretion

in sustaining Frausto’s objection to the admission of BOA’s summary judgment

evidence.


        Because BOA’s only summary judgment evidence is inadmissible, we also find

that BOA failed to present any evidence to establish a genuine issue of material fact as

to whether BOA and Frausto entered into a credit card contract or defaulted on any

credit card debt. See Fort Brown Villas III Condominium Assoc., Inc. v. Gillenwater, 285

S.W.3d 879, 883-84 (Tex. 2009) (Supreme Court held that, where plaintiff’s expert

5
The form affidavit contains, in pertinent part, the following language:

        Before me, the undersigned authority, personally appeared _______, who, being by me
        duly sworn, deposed as follows:
               My name is __________, I am of sound mind, capable of making this affidavit,
        and personally acquainted with the facts herein stated:

Tex. R. Evid. 902(10)(b).
6
 That BOA’s affidavit may meet the general requirements for affidavits under section 312.011(1) of the
Texas Government Code as suggested by BOA does not qualify the affidavit under the specific provisions
of the business records exception to the hearsay rule under the Texas Rules of Evidence. See Springer
v. Johnson, 280 S.W.3d 322, 329 (Tex.App.—Amarillo 2008, no pet.) (it is a “fundamental and universally
accepted rule of construction . . . that a general provision must yield to a succeeding specific provision
dealing with the same subject matter.” Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282, 285-86
(1948)).

                                                     8
affidavit was properly excluded by the trial court from consideration as summary

judgment evidence, trial court properly granted summary judgment because there was

no evidence of an element of plaintiff’s claim). BOA’s first issue is overruled.


        II.     Issue Two – Timing of the Trial Court’s Evidentiary Ruling


        BOA next asserts that, "[b]ecause at the time summary judgment was rendered

Frausto had not secured a ruling on his objections, it was improper for the court to grant

Frausto's no-evidence motion for summary judgment." This premise is simply wrong.

The trial court did rule on Frausto's objections prior to considering the no-evidence

motion for summary judgment,7 it merely failed to sign a written order to that effect until

after summary judgment had been granted.8 Because BOA's premise is wrong, its

conclusion is equally flawed. Accordingly, BOA’s second issue is overruled.




7
 At the hearing held July 7, 2010, prior to proceeding on the merits of the no-evidence motion for
summary judgment, the trial court addressed Frausto's evidentiary objections saying,

COURT:          Right. Okay. As for the other objections in the Defendant's objection to Plaintiff's
                summary judgment evidence, that has been filed today and the Court will grant those
                other eight points. So that would be points 2 through 9, and I will therefore strike [BOA's
                affidavit/exhibits].

COUNSEL:        I believe that's it with relation to the preliminary matters, Your Honor.

COURT:          All right. Then let's proceed with the hearing on the [summary judgment] motion.
8
 “[A] trial court may reduce its rulings on summary judgment evidence to writing as long as it retains
plenary jurisdiction.” Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex.App.—Houston [14th Dist.] 2000,
pet. denied). See Crocker v. Paulyne’s Nursing Home, 95 S.W.3d 416, 420-21 (Tex.App.—Dallas 2002,
no pet.) (summary judgment order issued eighty-nine days prior to written evidentiary ruling on summary
judgment evidence held effective); Hill v. Crowson, No. 10-09-00006-CV, 2009 Tex. App. LEXIS 8924, at
*3-5 (Tex.App.—Waco 2009, no pet.) (summary judgment order issued one month prior to written
evidentiary ruling on summary judgment evidence held effective). Here, the trial court still had plenary
jurisdiction to sign its evidentiary order on July 12, 2010, five days after its summary judgment ruling.



                                                      9
                               CONCLUSION


The trial court’s judgment is affirmed.



                                           Patrick A. Pirtle
                                               Justice




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