Houle v. Capital One Bank (Usa), N.A.
| Decision Date | 28 September 2018 |
| Docket Number | No. 08-16-00234-CV,08-16-00234-CV |
| Parties | ROBERT G. HOULE, Appellant, v. CAPITAL ONE BANK (USA), N.A., Appellee. |
| Court | Texas Court of Appeals |
ROBERT G. HOULE, Appellant,
v.
CAPITAL ONE BANK (USA), N.A., Appellee.
No. 08-16-00234-CV
COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
September 28, 2018
Appeal from County Court at Law No. 5 of El Paso County, Texas
(TC # 2015-CCV01442)
OPINION
This is a traditional summary judgment case arising from alleged non-payment of a credit card account. Appellant Robert G. Houle appeals the trial court's grant of summary judgment in favor of Appellee, Capital One Bank (USA), N.A. ("Capital One"). We affirm the trial court's judgment.
Houle entered into a credit card account agreement with Capital One in 1998. In 2014, Capital One filed its original petition in Justice Court, Precinct 3, Place 1 of El Paso County, and therein asserted causes of action against Houle for breach of contract and account stated. Capital One sought to recover $4007.72 from Houle on his account, which Capital One identified in its petition as "XXXXXXXXXXXXXXXX." Capital One also noted in its petition that Houle's account number had been redacted pursuant to Rule 21c(a)(2) and 508.2(a)(1)(B) of the Texas
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Rules of Civil Procedure. TEX.R.CIV.P. 21c(a)(2)(Privacy Protection for Filed Documents), 508.2(a)(1)(B)(Debt Claim Cases, Petition, Contents, Credit Accounts). On July 31, 2015, the Justice Court entered final judgment in favor of Capital One and awarded it the principal sum of $4,007.72, without interest, and costs of court.
Houle appealed the Justice Court's judgment to County Court at Law Number 5 (the trial court), and Capital One filed a motion for summary judgment accompanied by a supporting brief. In support of its motion for summary judgment, Capital One presented evidence in the form of an affidavit executed by Diane Trittipoe, who averred that she is an employee of Capital One Services, LLC, an agent and affiliate of Plaintiff Capital One Bank that provides services to Capital One in relation to its credit card and banking practices. Trittipoe's responsibilities as a Litigation Support Representative provide her access to relevant Capital One systems and documents necessary for validation of the information and statements made in her affidavit. In her affidavit, Trittipoe states she has personal knowledge of the manner and method by which Capital One creates and maintains certain business books and records, including computer records of customer accounts.
Trittipoe attached 183 pages of records to her affidavit as evidence of the applicable terms, conditions, and activity related to the credit card account "ending in XXXXXXXXXXXXXXXX issued to [Robert G. Houle] by [Capital One.]" Trittipoe does not represent that all records on the account are attached to her affidavit nor represents that the records she has produced include all records for a particular period of time. Although the account number on the statements has been redacted, Trittipoe states that the records are originals or are exact duplicates of the originals.
The records include some, but not all, credit card account statements due in and between the months of February 2008 and June 2013. The records show that the annual percentage rate
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assessed on the account balance varied each month from a low of 13.43% to a high of 25.15%. The rate often changed from month to month, and rarely remained constant for more than two or more consecutive months. After Houle's account became delinquent, the annual percentage rate of 29.40% was applied to the account balance. The last account statement for the period of May 11, 2013 to June 10, 2013, shows a previous balance of $3,832.72, payment and credits of $0.00, fees and interest charged in the sum of $175.00, and a new balance of $4,007.72, the sum which Capital One sought to recover in its suit. That statement also includes contact information for Capital One, a statement that Houle's account has been "charged off," which is described as a status change from "past due," as well as a notification that although Houle would remain responsible for paying the balance on the account, Capital One would no longer charge Houle past due, over limit, or membership fees.
In response, Houle asserted that Capital One's motion for summary judgment should be denied because a genuine issue of material fact exists regarding "the amount claimed by [Capital One]," in part because the records attached to Trittipoe's affidavit did not contain a statement for the month of July 2010, and the interest rate on the account in June 2010 was shown to be 13.47% but had increased to 29.40% in August 2010. Houle also complained of Trittipoe's alleged lack of personal knowledge to support the affidavit as well as the state of the records attached to the affidavit.
The trial court granted final summary judgment in favor of Capital One. Houle appeals the trial court's judgment.
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In his sole issue on appeal, Houle contends the trial court erred in granting Appellee's motion for summary judgment. This contention is based on Houle's assertions that Capital One failed to properly authenticate its business records through Trittipoe, that the records were incomplete and contained conflicting inconsistencies, and that genuine issues of material fact exist in relation to the interest rate assessed and changes thereto as well as the amount owed on his Capital One account.
We review a summary judgment de novo. Valence Operating Company v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Roth v. JPMorgan Chase Bank, N.A., 439 S.W.3d 508, 511-12 (Tex.App.--El Paso 2014, no pet.). To prevail on a summary judgment motion, the movant must demonstrate that there no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c); Provident Life and Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003); Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548 (Tex. 1985).
A movant for summary judgment must conclusively prove all elements of its cause of action as a matter of law. TEX.R.CIV.P. 166a(c); see Rockwall Commons Associates, Ltd. v. MRC Mortg. Grantor Trust I, 331 S.W.3d 500, 505-06 (Tex.App.--El Paso 2010, no pet.). If ordinary minds could not differ as to the conclusion to be drawn from the evidence, a matter is conclusively proven. Id. at 505. If the movant conclusively proves its right to summary judgment as a matter of law, the burden then shifts to the non-movant to present evidence that raises a genuine issue of material fact, precluding the summary judgment. Id.
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When determining whether a disputed issue of material fact exists that would preclude summary judgment, we regard all evidence in the summary judgment record in the light most favorable to the non-movant, and indulge every reasonable inference and resolve any doubts in favor of the non-movant. Walters v. Cleveland Regional Medical Center, 307 S.W.3d 292, 296 (Tex. 2010); Provident, 128 S.W.3d at 215-16. When a trial court's summary judgment order does not state the specific grounds for its ruling, we must affirm the judgment if any of the theories advanced by Appellee's motion are meritorious. Western Investments, Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
The standards for determining the admissibility of evidence is the same in a summary judgment proceeding as at trial. See Seim v. Allstate Texas Lloyds, 551 S.W.3d 161, 163-64 (Tex. 2018)(per curiam), citing United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997)(per curiam); Rockwall Commons Associates, Ltd., 331 S.W.3d at 505-06. The admission or exclusion of evidence rests in the sound discretion of the trial court. See Interstate Northborough Partnership v. State, 66 S.W.3d 213, 220 (Tex. 2001), citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). Evidence presented in support of a summary judgment must be in a form that would render the evidence admissible in a conventional trial. TEX.R.CIV.P. 166a(f); see United Blood Services v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997).
We apply an abuse of discretion standard when reviewing a trial court's decision to admit or exclude summary judgment evidence. Harris v. Showcase Chevrolet, 231 S.W.3d 559, 561 (Tex.App.--Dallas 2007, no pet.). The test for abuse of discretion is not whether, in our opinion, the facts present an appropriate case for the trial court's actions. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Rather, it is a question of whether the trial
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court acted without reference to any guiding rules and principles. Id. In other words, we must determine whether the court's rulings were arbitrary or unreasonable. Id. at 242. The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Id.
We first address Capital One's assertion that Houle has failed to preserve this issue for our review. The rules of error preservation applicable during trial also apply in summary-judgment proceedings. TEX.R.APP.P. 33.1(a); see Seim, 551 S.W.3d at 164, citing Mansions in the Forest, L.P. v. Montgomery Cty., 365 S.W.3d 314, 317-18 (Tex. 2012)(per curiam). Consequently, to preserve a complaint for appellate review: (1) a party must complain to the trial court by way of a timely request, objection, or motion; and (2) the trial court must rule or refuse to rule on the request, objection, or motion. TEX.R.APP.P. 33.1(a); Mansions in the Forest, L.P., 365 S.W.3d. at 317. The party asserting objections should obtain a written ruling at, before, or very near the time the trial court rules on the motion for summary judgment or risk waiver. See TEX.R.APP.P. 33.1(a); Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex.App.--Houston [14th Dist.] 2000, pet. denied).
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