Opinion
No. 05-11-00013-CV
03-09-2012
BRENDA E. CASTILLA, Appellant v. CITIBANK (SOUTH DAKOTA), N.A., Appellee
AFFIRM; Opinion Filed March 9, 2012.
On Appeal from the 101st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-10-04107
MEMORANDUM OPINION
Before Justices Lang, Murphy, and Myers
Opinion By Justice Lang
Appellant Brenda E. Castilla appeals the trial court's summary judgment in favor of appellee Citibank (South Dakota), N.A. ("Citibank") in a suit brought by Citibank to collect $3,110.09 in unpaid credit card debt. In six issues on appeal, Castilla asserts (1) her testimony created a fact issue about the terms that were agreed to, if any; (2) there is no evidence of Castilla agreeing to any certain amount owed or that statements pertaining to the account were delivered to Castilla; (3) Citibank's own evidence created a fact issue on the applicable finance charge; (4) summary judgment as to an implied contract is improper because Citibank claimed an express contract between the parties concerning the same transaction; (5) there is a fact question as to whether Castilla "impliedly acknowledged the amount due or any other terms contained on an account statement when there is evidence that she had not seen any account statements"; and (6) if Castilla was a party to the alleged contract, she was entitled to rely upon its terms rather than any other terms or amounts due.
For the reasons stated below, we affirm the trial court's judgment. I. FACTUAL AND PROCEDURAL BACKGROUND
Citibank filed this lawsuit on April 7, 2010. In its petition, Citibank alleged Castilla entered into an agreement with Citibank for a credit account (the "account") and was the primary cardholder on that account "[a]t all times relevant hereto." According to Citibank, the account number assigned to Castilla's credit card account was "XXXXXXXXXXXX4526." Citibank asserted the account was "used to make purchases of goods and/or services and/or to receive cash advances" and Castilla was properly billed for payment of the extensions of credit on the account. Citibank contended Castilla "has failed to pay the amounts due and owing," which total $3,110.09. Pleading in the alternative, Citibank asserted causes of action for (1) breach of contract, (2) account stated, and (3) common law debt.
Citibank states that in the interest of privacy, "the account number has been redacted in connection with this litigation" to show only the last four digits.
Castilla filed an answer that included a general denial, a verified denial, and specific denials and affirmative defenses not relevant to this analysis. Additionally, Castilla sought "reimbursement for reasonable attorney's fees and costs of court."
On August 2, 2010, Citibank filed a motion for traditional summary judgment on its breach of contract and account stated claims pursuant to Texas Rule of Civil Procedure 166a(c). See Tex. R. Civ. P. 166a(c). Citibank contended there was no genuine issue of material fact that
[Citibank] provided [Castilla] with extensions of credit requested by [Castilla]; that [Citibank] transmitted [Castilla] monthly statements describing the extensions of credit requested by [Castilla], payments made by [Castilla], the installment due and owing and the total balance owed; that [Castilla] defaulted by failing to pay the installment amounts shown as owing on the monthly statements when they were due; and that as a result of [Castilla's] default the entire balance is due and owing and [Citibank] is entitled to recover the sums due and owing as a matter of law.
Evidentiary support for Citibank's motion for summary judgment included "Exhibit A," which consisted of an affidavit of Abbie Motley, a "Recovery Operations Support Representative" for a subsidiary of Citibank, respecting account number XXXXXXXXXXXX4526, and three attachments to that exhibit: (1) "Exhibit A-1," which consisted of purported account statements for account number XXXXXXXXXXXX4526 for the relevant time period; (2) "Exhibit A-2," which consisted of a document titled "Notice of Change in Terms, Right to Opt Out and Information Update" that also contained the heading "Citibank Card Agreement for The Home Depot and the EXPO Design Center Consumer Credit Card Program"; and (3) "Exhibit A-3," which consisted of a "Pre-Approved Credit Card Response Certificate" for a "Home Depot Consumer Credit Card" and bore the name and purported signature of Castilla.
Castilla filed a response to Citibank's motion for summary judgment in which she, inter alia, objected to Motley's affidavit on the grounds that it was conclusory, constituted hearsay, and lacked "required requisites." Additionally, attached to Castilla's response was an affidavit in which Castilla testified as follows:
My name is Brenda E. Castilla. I am presently over the age of eighteen (18) years and competent to make this affidavit. I have personal knowledge of all the facts stated herein and the facts are true and correct.
I have reviewed the alleged credit card agreement, attached as Exhibit A-2 to [Citibank's] Motion for Summary Judgment. I never saw that supposed contract prior to being sued in this case, and I never have or would have agreed to it because it is based upon South Dakota law and the interest rates are excessive. That purported agreement defines "account" as "the relationship established between you and use by this card agreement." Since I never had the so-called card agreement with [Citibank], I had no account pursuant to that purported agreement. I would not agree to be governed by South Dakota law and had never heard of [Citibank] prior to being sued in this case.
I do not owe the $3,110.09 in this case. The alleged statements in Exhibit A- 1 are erroneous. Furthermore, the statements were not delivered to me or my home. I certainly never had a credit card with the name [Citibank] written on it. Prior to this lawsuit, I had never heard of [Citibank]. Just because [Citibank] has the word "bank" in its name does not mean that it has good records.
In reply to Castilla's response, Citibank contended in part that Castilla's objections to Motley's affidavit should be overruled and that Castilla's "non-specific, vague, and conclusory affidavit lacks credibility and thus fails to raise a genuine fact issue."
On December 10, 2010, the trial judge signed a "Final Summary Judgment" granting Citibank's summary judgment motion and awarding Citibank $3,110.09 plus interest and court costs. Further, the trial court's judgment ordered that Castilla "takes nothing by any of [her] claims." This appeal timely followed. II. SUMMARY JUDGMENT
A. Standard of Review
We review a trial court's granting of a traditional summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A traditional summary judgment is properly granted only when a movant establishes that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); see also Provident Life & Accident Ins. Co., 128 S.W.3d at 215-16. A plaintiff moving for summary judgment must prove that it is entitled to summary judgment as a matter of law on each element of its cause of action. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999); Dulong v. Citibank (S.D.), N.A., 261 S.W.3d 890, 892 (Tex. App.-Dallas 2008, no pet.). Only if the movant conclusively establishes its cause of action does the burden shift to the nonmovant to respond with evidence raising a genuine issue of material fact that would preclude summary judgment. Rhone-Poulenc, Inc., 997 S.W.2d at 222-23; Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 201 (Tex. App.-Houston [1st Dist.] 2007, no pet.). In deciding whether there is a disputed material fact precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Provident Life & Accident Ins. Co., 128 S.W.3d at 215. Further, every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Id. When, as here, the trial court's order does not specify the basis for its summary judgment, we affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Id.; McMahon Contracting, L.P. v. City of Carrollton, 277 S.W.3d 458, 468 (Tex. App.-Dallas 2009, pet. denied).
B. Analysis
In her first and third issues, Castilla contends the trial court erred by granting summary judgment on Citibank's breach of contract claim. Specifically, Castilla claims in her first issue her testimony created a fact issue about the terms that were agreed to, if any. In her third issue, she contends Citibank's own evidence created a fact issue on the applicable finance charge.
The elements of a breach of contract claim include (1) the existence of a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the contract by the defendant, and (4) damages sustained by the plaintiff as a result of the breach. See, e.g., Petras v. Criswell, 248 S.W.3d 471, 477 (Tex. App.-Dallas 2008, no pet.); Winchek, 232 S.W.3d at 202; Heinen v. Citibank (S.D.), N.A., No. 05-10-00003-CV, 2012 WL 12749, at *2 (Tex. App.-Dallas Jan. 4, 2012, no pet.) (mem. op.). The following elements are required for the formation of a valid contract: (1) an offer, (2) acceptance in strict compliance with the terms of the offer, (3) a meeting of the minds, (4) each party's consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. Cessna Aircraft Co. v. Aircraft Network, L.L.C., 213 S .W.3d 455, 465 (Tex. App.-Dallas 2006, pet. denied); Winchek, 232 S.W.3d at 202.
In her argument pertaining to her first issue, Castilla contends a fact issue exists respecting "the terms that were agreed to, if any" because (1) her own testimony in her affidavit raises such a fact issue and (2) there is no evidence of the terms of the contract Citibank "supposedly originally offered to [Castilla]." Further, Castilla asserts Citibank "proffered evidence that Home Depot Financial Services offered a credit card to [Castilla] in 2005 without tying that offer to the current Citibank Dakota credit card claimed to be at issue in this case." According to Castilla, while Citibank is identified on one of the statements in Exhibit A-1 as the "issuer" of the account, "[t]here is no evidence that the card issuer owned the account." Castilla contends that "[i]f there was a connection between Home Depot Credit Services and Citibank Dakota, then an assignment should have been provided."
As to her first argument, Castilla does not specify the portions of her affidavit testimony she contends created a fact issue as to the agreed terms, if any. Additionally, Castilla asserts Citibank objected to her testimony, but did not obtain a ruling on its objection. So, she asserts, her "testimony was admitted into evidence. And it was uncontroverted." As to her second argument, Castilla contends "[Motley's] statement that the Exhibit A-2 is a true and correct copy of the terms and conditions which applied to [Castilla's] account at the relevant time can only be true if those documents were delivered or otherwise offered to [Castilla]." (citation to record omitted). Castilla argues Citibank offers no evidence that it "delivered any of the exhibits to [Castilla] or that it offered them to her in some other manner." Castilla states
Presumably, [Citibank] maintains some sort of record of which of its various form agreements were offered to which of its customers. For Ms. Motley, testifying as a custodian of records rather than as a person with personal knowledge of the account transactions, to know whether her testimony was truthful, she would have had to consult such a record-but no such record is in the summary judgment record.
According to Castilla, without some evidence to support the statement that Exhibit A-2 "applied to the Defendant's account at the relevant time," that phrase is "merely conclusory."
Citibank responds that "Castilla's affidavit was wholly self-serving and conclusory and therefore did not constitute appropriate summary judgment evidence and could not be relied upon to raise a genuine issue of material fact as to Citibank's summary judgment." Additionally, Citibank asserts it "was not required to object to or receive a court ruling on the conclusory statements in Castilla's affidavit in order to preserve its complaint upon appeal" because such statements are defects in substance. Finally, Citibank contends its evidence established the material terms and conditions of the contract between the parties and was not conclusory.
The record shows Motley stated in relevant part in her affidavit that (1) she is a "Recovery Operations Support Representative" for Citicorp Credit Services, Inc., which services credit card accounts owned by Citibank, including "maintaining and recording information in Citibank's records as they relate to credit card accounts owned by Citibank"; (2) her duties include "being an authorized 'agent' and custodian of records" for Citibank; (3) she has personal knowledge regarding how account records are made and kept by Citibank; and (4) she has "access to and knowledge regarding the account records of [Castilla] made the subject matter of this lawsuit." Further, Motley stated in part in her affidavit
At all relevant times, [Castilla] was the holder of the credit card account assigned account number: XXXXXXXXXXXX4526. . . .
. . . .
Attached hereto as Exhibit A-1 are true and correct reproductions of the computer records relating to account number XXXXXXXXXXXX4526. . . .
. . . .
[Castilla] was provided, at the time the account was opened, a credit card along with the terms and conditions that apply to the use of the account. The terms and conditions, as they may be amended from time to time, govern [Castilla's] account. By accepting and using the credit card account, [Castilla] agreed to all of the terms and conditions, as well as any and all amendments to the terms and conditions. Exhibit A-2 to this affidavit is a true and correct copy of the terms and conditions which applied to [Castilla's] account at the relevant time. In addition, Exhibit A-3 to this Affidavit is a true and correct copy of the application made by [Castilla] for the Account. . . .
. . . .
The initial financial terms, including the rate of interest, were stated on the first billing statement provided to [Castilla]. Any subsequent change to the original financial terms in effect has been disclosed to [Castilla] on the statements provided to [Castilla].
. . . .
As shown by Exhibit A-1, [Castilla] did use the credit card or account number to obtain extensions of credit from [Citibank] to acquire goods, services, or cash advances, and [Castilla] made payments on the Account, all of which are reflected in Exhibit A-1.
. . . .
The time did come in the ordinary course of the use of the Account that [Castilla] did fail or refuse to repay the amount shown on the account statements. . . .
. . . .
At the time the final account statement was sent to [Castilla], the amount shown on the statement for account number XXXXXXXXXXXX4526 was $3,110.09.
Even assuming, without deciding, that Castilla's affidavit testimony is admissible, we cannot conclude Castilla's affidavit testimony raised a fact issue that precluded summary judgment. Castilla asserted in the second paragraph of her affidavit that she did not see or agree to "the alleged credit card agreement, attached as Exhibit A-2 to [Citibank's] Motion for Summary Judgment," and that her lack of agreement "to that supposed contract" precluded the establishment of a credit card account. Additionally, in support of her statement in her affidavit, Castilla argues each of the pages of Exhibit A-2 "bears on the lower right corner the date of January 2009, which means it could not have been the initial contract mailed to [Castilla], as even [Citibank's] own evidence establishes that the account was opened at least two years earlier, at least by January 2006."
The record indeed reflects that each page of Exhibit A-2 bears the typed notation "HS/EX Jan09" in the lower right corner. However, the markings on the pages in Exhibit A-2 and Castilla's conclusion that she did not see or agree to the document attached as Exhibit A-2 do not create any fact issues as to the terms of the credit card agreement. The record does not show that Citibank contended the particular document in Exhibit A-2 that described "the terms and conditions" was specifically agreed to by Castilla. Rather, Motley stated in her affidavit that "[Castilla] was provided, at the time the account was opened, a credit card along with the terms and conditions that apply to the use of the account. . . . Exhibit A-2 to this affidavit is a true and correct copy of the terms and conditions which applied to [Castilla's] account at the relevant time." (emphasis added). So, Castilla's conclusions in her affidavit do not create any conflict with Motley's statements. Further, Castilla contends these statements in Motley's affidavit as to Exhibit A-2 are "conclusory." However, we conclude Motley's background and personal knowledge as the custodian of records, which included "access to and knowledge regarding the account records of [Castilla] made the subject matter of this lawsuit," provided adequate factual support for her statements. See Ghia v. Am. Express Travel Related Servs., No. 14-06-00653-CV, 2007 WL 2990295, at *2 (Tex. App.-Houston [14th Dist.] Oct. 11, 2007, no pet.) (mem. op.); see also Hinojosa v. Citibank (S.D.), N.A., No. 05-07-00059-CV, 2008 WL 570601, at *1-*2 (Tex. App.-Dallas Mar. 4, 2008, pet. denied) (mem. op.); cf. Bridges v. Citibank (S.D.) N.A., No. 2-06-081-CV, 2006 WL 3751404, at *2 (Tex. App.-Fort Worth Dec. 21, 2006, no pet.) (mem. op.). Therefore, Castilla's statements in the second paragraph of her affidavit referenced above do not create a fact issue as to the contract terms pertaining to the account.
Additionally, Castilla argues in her brief on appeal that (1) Exhibit A-3, which is titled "Pre- Approved Credit Card Response Certificate" and was attached to Motley's affidavit, "is undated, has an expiration date of December 15, 2005, but has no numeric or other connection to any other evidence in the case"; (2) "the Cesar Castillo listed on Plaintiff's Exhibit A-3 may have been issued a Home Depot Credit Card"; and (3) "Exhibit A-3 carries no terms and conditions of an offer." However, Motley's affidavit offers Exhibit A-3 as Citibank's business record and as a "true and correct copy of the application made by the Defendant for the Account." Further, on the face of the record, Exhibit A-3 bears a signature of a person named "Brenda E. Castilla" and the signed document states that she is offered a $2,500 credit line and that "Credit Offer Expires: December 18, 2008." Castilla's affidavit testimony does not deny she signed the original of Exhibit A-3 and does not otherwise address Exhibit A-3.
In addition to the analysis set out above, we note that, in its motion for summary judgment and on appeal, Citibank argued there is a contract between the parties under Texas, South Dakota, and federal law. It is not clear which law the trial court applied. However, the law of each of those jurisdictions requires the same proof. Because Motley's affidavit and the attached exhibits show Castilla accepted the card at issue under the terms then provided to her and used that card, we cannot agree with Castilla that Citibank "failed to prove the terms of any kind of contract actually offered to [Castilla]." See Winchek, 232 S.W.3d at 204 (use of credit card and payments demonstrated defendant understood her obligations and contract was formed, even without proof of manual delivery of agreement to defendant); see also Heinen, 2012 WL 12749, at *3; Hinojosa, 2008 WL 570601, at *2-*3; Duran v. Citibank (S.D.), N.A., No. 01-06-00636-CV, 2008 WL 746532, at *4 (Tex. App.-Houston [1st Dist.] Mar. 20, 2008, no pet.) (mem. op.); cf. Effel v. McGarry, 339 S.W.3d 789, 793 (Tex. App.-Dallas 2011, pet. denied) (assent to contract terms can be implied by conduct in breach of contract case).
Under federal law, the issuance of a credit card constitutes a credit offer, and the use of the card constitutes acceptance. See Jones v. Citibank (S.D.), N.A., 235 S.W.3d 333, 339 (Tex. App.-Fort Worth 2007, no pet.). Under Texas law, if one party signs a contract, the other may accept by his acts, conduct, or acquiescence to the terms of the contract, making it binding on both parties. Id.; see also Benser v. Citibank (S.D.), N.A., No. 08-99-00242-CV, 2000 WL 1231386, at *5 (Tex. App.-El Paso Aug. 31, 2000, no pet.) (not designated for publication) (concluding appellant's use of credit card and payments to account showed he understood obligation to bank and contract had been formed). Finally, under South Dakota law "the use of an accepted credit card or the issuance of a credit card agreement and the expiration of thirty days from the date of issuance without written notice from a card holder to cancel" creates a binding contract. See S.D. Codified Laws § 54-11-9 (West 2010).
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Finally, the evidence shows the November 2006 account statement in Exhibit A-1 contains the following statement: "Effective October 1, 2006, Citibank (South Dakota), N.A. became the issuer of your account. From that date, the words 'we, us, and our' as used in your Card Agreement refer to Citibank (South Dakota), N.A. This change will have no impact on the servicing of your account." Exhibit A-2 states, in part, "You must pay us for all amounts due on your account." Castilla does not direct us to any controverting evidence respecting Citibank's ownership of the right to collect the debt at issue. See Dulong, 261 S.W.3d at 894. Further, the evidence shows Castilla continued to make charges and payments on the credit card following the November 2006 notice. See id. Therefore,we cannot agree with Castilla's assertion that summary judgment was precluded by a lack of evidence that Citibank "owned the account." We decide against Castilla on her first issue. Next, we address Castilla's third issue, in which she argues "[Citibank's] own evidence created a fact issue on the applicable finance charge." Castilla asserts "the finance charges applied to [the account] in numerous months failed to comply with the rates prescribed by any contract and modification notices-or at least the contract and notices [Citibank] introduced into evidence." According to Castilla, the earliest statement Citibank introduced into evidence is from January 2006 and "provided for a fixed rate of interest of 15.48%." Castilla contends that "[u]nder [Citibank's] own evidence, . . . the rate of 15.48% should have applied to all statements." However, Castilla asserts, Citibank charged rates of up to 29.99% without any evidence of modification notices supporting the changes. Castilla contends the trial court erred by granting summary judgment in the face of those "inconsistencies." Additionally, Castilla argues the account statements in Exhibit A-1 did not provide the "fifteen days notice" of changes to the APR required by the contract.
Citibank responds saying its summary judgment evidence is not contradictory and creates no fact issue. According to Citibank, it "has produced terms and conditions applicable to Castilla's account which discuss the applicable interest rate and account statements which disclose applicable financial terms." Specifically, Citibank argues
The Card Agreement [in Exhibit A-2] states that each billing statement shows the total balance, any finance charges, fees, the minimum payment due, and the payment due date and a rate summary. Each of the account statements presented by Citibank in Exhibit A-1 includes a "rate summary" which identifies the nominal annual percentage rate (APR) and the corresponding periodic rate for each billing period for each classification of purchases or charges. . . . The rate on the statement reflects the rate disclosed in the pertinent and governing Card Agreement over the account at that time.
This documentary evidence of the applicable financial terms is supported by the testimony of [Motley] that "[t]he initial financial terms, including the rate of interest, were stated on the first billing statement provided to [Castilla]. Any subsequent change to the original financial terms in effect has been disclosed to [Castilla] on the statements provided to [Castilla]. ". . . This testimony and information including in the Card Agreement and on the account statements is sufficient evidence to determine the terms of the contract between the parties.
(citations to record omitted) (emphasis original). The record reflects Exhibit A-2 to Motley's affidavit provides in part (1) Citibank may offer "promotional terms" that apply for a limited period of time to "all or a part of any balances"; (2) the annual percentage rate ("APR") used to calculate finance charges on the account "may automatically increase to the default APR" upon the occurrence of one of several events, including failure to "make the minimum payment when due"; and (3) each billing statement will show the total amount owed, transactions, minimum payment due, payment due date, credit line, periodic finance charges based on APRs, and fees. Exhibit A-1 contains monthly statements from January 2006 to October 2009 showing purchases, payments, fees, finance charges, and "corresponding" APRs used to calculate finance charges on specified portions of each balance. Contrary to Castilla's contention, the term "fixed rate of interest" does not appear on the January 2006 statement. Rather, that statement reads "ANNUAL PERCENTAGE RATE on the account: 21.00%" (emphasis original) and, in addition, shows a balance listed under the heading "Special Promotions" that was subject to an APR of "15.48%." Those same two rates are applied to specified portions of the balance on the account statements until July 2008. In July 2008, the APR shown on the statements was increased to 22.99%, consistent with a "Notice of Change in Terms and Right to Opt Out" that is labeled as pages four through seven of the May 2008 billing statement. Pursuant to another "Notice of Change in Terms and Right to Opt Out" labeled as pages two through five of the February 2009 billing statement, the APR on the statements increased in April 2009 to 26.99%, with a default APR of 29.99%. These two "Notices" gave far more than the "fifteen days' notice" Castilla contends is required by the contract. The statements show a purported failure by the cardholder to make the minimum payment required in May 2009, and the APR of 29.99% is applied on the remaining statements through October 2009.
In support of its argument, Citibank cites Hinojosa. See 2008 WL 570601, at *3 (existence of contract not precluded where interest rate terms were omitted from contract, but appeared on account statements). Castilla contends the matter before us "differs fundamentally" from Hinojosa because that case involved a claim that finance charge terms were omitted from the contract, whereas in this case such terms were "provided and later violated by various account statements." However, we cannot agree Hinojosa is distinguishable on the basis Castilla claims because the record in this case does not show the rates "provided" were later "violated."
As additional support of her argument, Castilla cites Hay v. Citibank (South Dakota) N.A., No. 14-04-01131-CV, 2006 WL 2620089 (Tex. App.-Houston [14th Dist.] Sept. 14, 2006, no pet.), in which the court concluded that where the contract document provided for a rate tied to the "prime rate," but the account statements reflected assessment of rates without demonstrating their basis in the "prime rate," summary judgment was improper because Citibank failed to prove the customer owed the amount due for finance charges. Castilla argues the case before us provides "even more justification for reversal than the court had in Hay" because "[h]ere, the rates assessed appear on the face of the appellate record to contradict the rates imposed by the governing contract." We cannot agree Hay is persuasive. The court in Hay found Citibank's summary judgment evidence insufficient because (1) neither the account statements nor the other summary judgment evidence showed how the finance charges in the statements were calculated and (2) while the agreement in Hay provided Citibank could increase the APR to a default rate of up to 19.99% plus the "applicable prime rate," there was no evidence of the actual applicable prime rate for any date or time period. See Hay, 2006 WL 2620089, at *3. Neither of those circumstances is present here.
On this record, we cannot conclude Citibank's evidence respecting finance charges shows "inconsistencies" or creates a fact issue on the applicable finance charge that would preclude summary judgment on Citibank's breach of contract claim. See Winchek, 232 S.W.3d at 204-05; Hinojosa, 2008 WL 570601, at *3. We decide against Castilla on her third issue.
In light of our analysis above, we conclude the trial court did not err by granting summary judgment in favor of Citibank on its breach of contract claim. See Tex. R. Civ. P. 166a(c). Accordingly, we need not reach Castilla's second, fourth, fifth, and sixth issues, in which she asserts error by the trial court in granting summary judgment on Citibank's account stated claim. See Provident Life & Accident Ins. Co., 128 S.W.3d at 216; McMahon Contracting, L.P., 277 S.W.3d at 468; see also Winchek, 232 S.W.3d at 202; Heinen, 2012 WL 12749, at *4; Hinojosa, 2008 WL 570601, at *3. III. CONCLUSION
We decide Castilla's first and third issues against her. We need not reach Castilla's remaining issues.
The trial court's judgment is affirmed.
DOUGLAS S. LANG
JUSTICE
110013F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
BRENDA E. CASTILLA, Appellant
V.
CITIBANK (SOUTH DAKOTA), N.A., Appellee
No. 05-11-00013-CV
Appeal from the 101st Judicial District Court of Dallas County, Texas. (Tr.Ct.No. DC-10- 04107).
Opinion delivered by Justice Lang, Justices Murphy and Myers participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee Citibank (South Dakota), N.A. recover its costs of this appeal from appellant Brenda E. Castilla.
Judgment entered March 9, 2012.
DOUGLAS S. LANG
JUSTICE