THOMAS OWUSU v. CITIBANK SOUTH DAKOTA (2011)

MEMORANDUM OPINION

Opinion By Justice Bridges

Thomas A. Owusu, appearing pro se, appeals from a summary judgment entered in favor of Citibank (South Dakota), N.A. We affirm.

Background

In March of 2009, Citibank filed suit against Owusu to recover a delinquent credit card debt, alleging claims for breach of contract, account stated, and common law debt.   Owusu answered the petition on June 4, 2009.   In November of 2009, Citibank filed its first amended motion for summary judgment, seeking judgment on its breach of contract and account stated causes of action.   Owusu did not file a response to the motion.   In February of 2010, the trial court granted summary judgment in favor of Citibank.   This appeal ensued.

Standard of Review

The standards for reviewing a traditional summary judgment are well established.   The party moving for summary judgment has the burden of showing no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.   See Tex.R. Civ. P. 166a(c);  Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985).   In deciding whether a disputed material fact issue exists, precluding summary judgment, evidence favorable to the non-movant will be taken as true.  Nixon, 690 S.W.2d at 548–49.   Further, every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor.   Id. A motion for summary judgment must expressly present the grounds upon which it is made and must stand or fall on those grounds alone.   McConnell v. Southside Indep.   Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993);  Espalin v. Children's Med. Ctr. of Dallas, 27 S.W.3d 675, 688 (Tex.App.-Dallas 2000, no pet.).

To prevail on its breach of contract cause of action, Citibank had to prove the following essential elements:  (1) the existence of a valid contract, (2) performance or tendered performance by Citibank, (3) breach of the contract by Owusu, and (4) damages sustained as a result of the breach.   See Winchek v. American Express Travel Related Servs.   Co., 232 S.W.3d 197, 202 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (op. on reh'g).   A party is entitled to relief 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.   See Dulong v. Citibank (South Dakota), N.A., 261 S.W.3d 890, 893 (Tex.App.-Dallas 2008, no pet.).

Analysis

We construe pro se briefs liberally;  however, we hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure.  Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex.1978).   From his brief, it appears that Owusu raises five issues for our review.   First, Owusu argues that Citibank is not the creditor of his account and, therefore, is not entitled to summary judgment.   In his brief, appellant argues that the amount owed, as alleged by appellee, is an amount he owes to AT & T Universal Card and not Citibank.   However, the summary judgment evidence demonstrates Universal Bank, N.A., the owner of the debt owed by Owusu, merged with Citibank in 2002.   See Dulong, 261 S.W.3d at 894.   Under the heading “Important Message,” the January–February 2002 AT & T Universal Card statement sent to Owusu states, “Universal Bank, N.A. has merged with Citibank (South Dakota), N.A. See page 2 ‘Merger’ for details.”   On page 2, the statement contains the following language:

Merger:  Now the words “we, us and our” as used in your Cardmember Agreement refer to Citibank (South Dakota), N.A. and the terms and enforcement of the Cardmember Agreement will be governed by federal law and the law of South Dakota․  Please continue to utilize the payment address and Customer Service telephone numbers listed on your statement.

Owusu did not offer any contradicting evidence that raised a fact issue about Citibank's ownership of the debt.   Further, the evidence shows that Owusu continued to make charges, balance transfers, and payments on the credit card after he was provided notice of the merger.   Therefore, we conclude the evidence established that Citibank owned the debt.   See Moir v. Citibank (South Dakota), N.A., No. 05–09–00641–CV, 2010 WL 2574212 (Tex.App.-Dallas June 29, 2010, no pet.) (considering the identical issue of merger between Universal Bank, N.A. and Citibank).   The record before us also establishes, as a matter of law, that Citibank and Owusu had an implied agreement fixing an amount due and that Owusu impliedly promised to pay Citibank the amount due.   See id. (citing Dulong, 261 S.W.3d at 894)).   The record further demonstrates that, at one point, Owusu failed to or refused to repay the amounts shown on the account statements resulting in Owusu's indebtedness to Citibank in the amount of $8,383.97.   Thus, Citibank has standing to bring suit against Owusu and file its motion for summary judgment.  Nursing Ctr. v. Lovato, 171 S.W.3d 845, 848 (Tex.2005) (plaintiff has standing to bring suit if he has justiciable interest in suit.)   We overrule Owusu's first issue.

In his second issue, Owusu contends he did not receive service of citation and, therefore, Citibank was not entitled to summary judgment.   However, on June 4, 2009, Owusu filed a letter with the trial court which bore his name, address, and signature.   The letter also referenced the parties and the trial court cause number.   This letter was properly treated as an answer.   See Smith v. Lippmann, 826 S.W.2d 137, 138 (Tex.1992) (“a defendant, who timely files a pro se answer by a signed letter that identifies the parties, the case, and the defendant's current address, has sufficiently appeared by answer and deserves notice of any subsequent proceedings in the case”).  “An answer shall constitute an appearance of the defendant so as to dispense with the necessity for the issuance or service of citation upon him.”  Tex.R. Civ. P. 121.   Therefore, we overrule Owusu's second issue.

In his third issue, Owusu complains:

[Citibank's] motion for judicial notice of merger of CITIBANK (South Dakota) NA with Universal Bank, N.A. did not mention there was a merger between CITIBANK (South Dakota) NA and AT & T UNIVERSAL CARD. Universal Bank is not AT & T UNIVERSAL CARD.

However, Owusu has failed to present evidence to raise a fact question as to whether Universal Bank, N.A. owned the amounts owing from the transactions on Owusu's AT & T Universal Card. As discussed with regard to his first issue, the evidence before us demonstrates Universal Bank, N.A. was the original owner of the debt since Owusu was notified of a merger between Universal Bank, N.A. and Citibank on his January–February 2002 AT & T Universal Card statement.   We overrule Owusu's third issue.   See Dulong, 261 S.W.3d at 894.

In his fourth issue, appellant complains the trial court improperly entered summary judgment prior to the scheduled trial date.   However, a summary judgment may be filed “at any time after the adverse party has appeared or answered.”  Tex.R. Civ. P. 166a.   Owusu appeared and answered on June 4, 2009.   Citibank filed its motion for summary judgment on November 2, 2009.   The trial court granted summary judgment in favor of Citibank on February 4, 2010.   The trial court followed proper procedure.   See Church v. Ortho Diagnostic Systems, Inc., 694 S.W.2d 552, 556 (Tex.App.-Corpus Christi 1985, writ ref'd n.r.e.) (“The function of a summary judgment proceeding is to eliminate patently unmeritorious claims and untenable defenses and to avoid delays of trial where there are no genuine issues of fact.”)   We overrule Owusu's fourth issue.

In his fifth issue, Owusu argues “[n]o court reporter's record was made to validate court judgment” and suggests this “may be an evidence of concealing records and documents.”   However, the reporter's record of a summary judgment hearing is unnecessary to the appeal of a summary judgment.  Rios v. Northwestern Steel and Wire Co., 974 S.W.2d 932, 936 (Tex.App.-Houston [14th Dist.]1998, no pet.);   see also Martin v. Cohen, 804 S.W.2d 201, 203 (Tex.App.-Houston [14th Dist.] 1991, no writ) (A hearing on a motion for summary judgment is purely one of law and no oral testimony is allowed at the hearing.)   We overrule Owusu's fifth issue.

We, therefore, conclude Owusu has failed to raise a genuine issue of material fact and affirm the judgment of the trial court.  Nixon, 690 S.W.2d at 548–49.

100175F.P05

DAVID L. BRIDGES JUSTICE