Richard Carr and Walt Williams Construction v. Lubbock-Cooper Independent School District, Midwest Concrete, Inc., General Electric Capital Corporation

Citation: Not availableDocket: 07-03-00169-CV

Court: Court of Appeals of Texas; September 22, 2003; Texas; State Appellate Court

Original Court Document: View Document

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Richard Carr, the appellant, filed a joint motion to reverse a judgment in favor of Lubbock-Cooper Independent School District, requesting remand to the trial court for the entry of a "First Amended Final Judgment" based on a settlement agreement. The Court of Appeals granted the motion, reversing the judgment and remanding the case without addressing the merits of the appeal, following precedent from Dunn v. Canadian Oil and Gas Services, Inc. The court stated that no rehearing motion would be entertained and that the mandate would issue immediately.

In a separate discussion regarding summary judgment, the court emphasized that to obtain summary judgment, a plaintiff must prove each element of their cause of action conclusively. It is noted that a motion for summary judgment must clearly outline its grounds and that if a trial court's order does not specify the grounds, the reviewing court will affirm if any grounds are valid. 

The case also involved a challenge to the adequacy of an affidavit submitted by Gilbert, a representative from Citicorp Credit Services, which Wynne claimed was conclusory and lacked personal knowledge. The court found Gilbert's affidavit sufficient for authentication purposes, referencing similar cases where such testimony was accepted. Wynne's arguments regarding compliance with the Rules of Evidence were deemed without merit, as the affidavit met the requisite standards, including being in a proper form under Rule of Evidence 902(10)(b). Additionally, Wynne contested the admissibility of certain billing statements but the court did not find these arguments persuasive.

Wynne challenges Gilbert's affidavit, questioning the reference to "duplicate" rather than "original" statements, and highlights discrepancies in the dates on the statements, some of which postdate Gilbert's affidavit (signed on November 4, 2004). She argues that this suggests the statements were printed from electronic records after the affidavit was executed and implies Gilbert lacked personal knowledge about them. Wynne also contests the card agreements' copyright date of 2003, questioning their relevance to accounts dating back to 1996. These challenges focus on purported defects in the form of the affidavit attachments. However, since these arguments were not raised in the trial court, they cannot serve as grounds for reversing the summary judgment. The court confirms that Gilbert's affidavit and attachments were appropriately considered. Citibank's summary judgment is rooted solely in its breach of contract claim, which Wynne argues is not conclusively supported by evidence of a valid contract. Despite Wynne's assertions, the court finds that the summary judgment evidence, including billing statements, sufficiently establishes Wynne's acceptance and use of the Citibank credit card. The 2003 copyright date on the card agreements does not undermine the summary judgment, as the affidavit asserts that they are true copies of the contract Wynne entered into. Ultimately, Wynne's contentions do not raise a material issue of fact regarding the validity of the contract.

Wynne argued that Citibank failed to conclusively establish the amount owed under a breached credit card agreement, referencing *Tully v. Citibank*, where the court ruled that the bank did not prove the interest rate was agreed upon. This argument was rejected, mirroring the decision in *Hinojosa*, which stated that the card agreement's annual percentage rate would be reflected in monthly billing statements, which were present in the record. The court concluded that Citibank had established the existence of a valid contract and upheld the trial court's summary judgment in Citibank's favor.

Regarding attorney's fees, Wynne contested the reasonableness of Citibank's claimed fees of $7,883.54, while Citibank provided an affidavit from attorney Allen Adkins stating reasonable fees totaled $915. After Wynne pointed out a defect in the initial affidavit, Citibank submitted an amended affidavit omitting the problematic phrasing. The trial court granted summary judgment for the attorney's fees despite Wynne's objections. The court concluded that the defect in the June affidavit was one of form rather than substance, and since Wynne did not receive a ruling on her objection at trial, she waived her right to contest the affidavit on appeal. The trial court's grant of summary judgment on attorney's fees was affirmed. The document also notes that while defects of form must be raised in the trial court, substantive defects can be asserted on appeal.

Failure to demonstrate that an affiant possesses personal knowledge is a formal defect that must be preserved in the trial court. In this case, Wynne contends that Gilbert's affidavit lacks personal knowledge, arguing that it is conclusory and presents a substantive defect that can be raised on appeal for the first time. Wynne points out inconsistencies in dates on financial statements, noting that "11/10/04" appears on statements dated from July 25, 2001, to June 25, 2002, and "01/28/05" on those from July 25, 2002, to January 25, 2005. These statements are documented in the clerk's record. Additionally, Wynne's motion for a new trial does not provide support, as objections to defects in affidavit forms raised for the first time in such motions are insufficient to preserve error. The response to the affidavit is dated December 8 and file-marked December 12, 2005, and Wynne's appellate objection to Adkins's affidavit filed on December 15 does not require further consideration.