Preview
Electronically Filed
9/30/2022 11:23 AM
Laura Richard
County Clerk
Fort Bend County, Texas
NO. 21-CCV-070284
DISCOVER BANK, IN THE COUNTY COURT
Plaintiff
AT LAW NO 4
Vv.
FORT BEND COUNTY, TEXAS
PAULA HERNANDEZ,
Defendant(s)
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
Discover Bank, Plaintiff moves for Summary Judgment against Defendant(s), Paula
Hernandez, respectfully showing the Court as follows:
1 This Motion is based upon the pleadings on file and the affidavits attached hereto, which
are fully incorporated herein. Attached hereto as Exhibit “A” and fully incorporated
herein is the affidavit of a duly authorized agent of Plaintiff. The client affidavit includes
as an attachment a true and correct copy of the applicable supporting account documents
for accou
Summary judgment procedure is governed by Rule 166a of the Texas Rules of Civil
Procedure, which states that the judgment sought shall be rendered forthwith if the
summary judgment evidence shows that there is no genuine issue if material fact and the
moving party is entitled to judgment as a matter of law. TRCP Rule 166a (c); State v.
Carrillo, 885 S.W.2d 212, 214 (Tex App. — San Antonio 1994, no writ).
BREACH OF CONTRACT ANALYSIS: CREDIT CARD ACTIONS
In Winchek v. American Express, 232 $.W.3d 197 (Tex. App. - Houston [1%] 2007, no
pet.), the court held that a valid contract was formed by evaluating the terms of the
cardmember agreement. The language in the agreement here and in Winchek is nearly
identical in parts relevant to the Court’s decision.
4. Parties form a binding contract when the following elements are present: (1) offer, (2)
acceptance, (3) meeting of the minds, (4) mutual consent, and (5) execution and delivery
of the agreement. Wal-Mart Stores, Inc. v. Lopez, 93 8.W.3d 548, 555-56 (Tex. App. -
Houston [14th Dist.] 2002, no pet.); see also Sikander Ghia v. American Express, No. 14-
06-00653, 2007 Tex. App. LEXIS 8194 (Tex. App. — Houston [14" Dist.] Oct. 11, 2007,
no pet.). The agreement in the Winchek case and the agreement in the instant case
contain similar language that “use of [the credit card] means you accept this Agreement.”
See cardmember agreement; Winchek 232 S.W.3d at 204.
Use of a credit card and payments to an account demonstrate the existence of a contract.
Hay vy. Citibank, No. 14-04-01131, 2006 Tex. App. LEXIS 8101, at *8 (Tex. App. -
Houston [14'"] Sept. 14, 2006, no pet.); see also Winchek, 232 S.W.3d at 197. The
Winchek court articulated the well-established elements for a claim of breach of contract:
(1) the existence of a valid contract; (2) performance or tendered performance by the
plaintiff, (3) breach of the contract by the defendant; (4) damages sustained as a result of
the breach. Jd. at 202 (citing Prime Products, Inc. v. S.SI. Plastics, Inc., 97 8.W.3d 631,
636 (Tex. App. 2002, pet. denied).
“Delivery may be proved by acts or words showing that the parties intended the contract
to become effective. When the parties manifest an intent through their actions and words
that the contract become effective, delivery is shown. Jn other words, when Parties
manifest an intent through their actions and words that a contract become effective,
manual delivery is immaterial to contract validity.” Duran v. Citibank (South Dakota),
N.A., No. 01-06-00636-CV, 2008 Tex. App. LEXIS 2060, at *10 (Tex. App. - Houston
[1S] Mar. 20, 2008) (citations omitted).
7. Regarding the final element of breach of contract claim (damages), the Winchek court
accordance significance to the facts that the card issuer sent monthly statements to the
defendant, that each set forth in detail all the debits and credits to the account, and that
each statement reflected the total amounts due and owing by the defendant. Thus, the
court concluded the card issuer “met its burden to show...damages sustained.” Winchek,
232 S.W.3d at 205.
In Sikander Ghia v. American Express Travel Related Services, Inc., 2007 Tex. App.
LEXIS 8194 (Tex. App. - Houston [14'"] Oct. 11 2007, no pet.), the appellate court
addressed the issue of proof necessary to show contract formation and breach of contract
damages in a credit card action. The Sikander court stated “American Express was not
required to outline each transaction comprising this balance,” when addressing the issue
of whether sufficient evidence existed regarding the balance owed. The court’s analysis
was as follows:
Appellant complains that [the creditor] did not present evidence
specifically outlining each transaction to prove it was properly
billed . .. We recognize [the creditor] did not present . . . evidence
[of] every monthly statement since inception of the account; rather,
it attached statements for 2004 only... However, we conclude [the
creditor] was not required to outline each transaction outlining this
balance.
Sikander Ghia, 2007 Tex. App. LEXIS at *13.
The cardmember agreement in the Sikander case had provisions similar to the
cardmember agreement in this case requiring the cardholder to object in writing within
sixty days after the statement is issued to indicate any erroneous charges. The Sikander
court determined this provision of the agreement combined with the fact that the
Defendant received monthly statements as a sufficient basis to determine she was bound
to pay the total amount due even though every statement detailing every charge was not
produced. Jd. at *14.
10. Based on the foregoing, and the exhibits attached to this motion, there is no genuine issue
of material fact and Plaintiff is entitled to summary judgment as a matter of law on all
issues, all claims, all theories of damages, and all parties.
WHEREFORE, Discover Bank, Plaintiff, respectfully requests that this matter be set for
hearing and that after hearing the Court rule that there is “no genuine issue of material fact and
that the Plaintiff is entitled to judgment as a matter of law” and that Plaintiff be granted summary
judgment against Defendant(s), Paula Hernandez, for the following:
1 The principal damages amount claimed for in Plaintiff's Complaint of
$2,997.17 minus any payments received after filing this litigation, and
Post-judgment interest on said sums from the date of Judgment until paid at
5% which is the legal rate per annum under §304.004, TEX. FINANCE
CODE.
3 Costs of this proceeding in the amount of $418.16
Respectfully submitted,
ZWICKER & ASSOCIATES, P.C.
A Law Firm Engaged in Debt Collection
Attorneys for Plaintiff
14090 Southwest Freeway, Ste. 408
Sugar Land, TX 77478
ZATE_Litigation@ZwickerPC.com
(281) 494-0300
(281) 494-0213 (fax)
BY: ana
“TWJOHNETTA LANG, ESQ.
State Bar Number 24036943
[ ] FREVON WATSON, ESQ
State Bar Number 24125451
CERTIFICATE OF SERVICE
I hereby certify that on the day of September, 2022, this office served a true and correct
copy of the foregoing in accordance with the Rule 21a of the Texas Rules of Civil Procedure
upon the below listed interested parties via
[ ] First-Class Mail
[X] E-Service
[ ] Certified Mail
James Heston
P.O. Box 6049
KATY, TX 77491
ATTORNEY @HESTONLA WFIRM.COM
shana
[ WJOHNETTA LANG, ESQ.
[ ] TREVON WATSON, ESQ.
NO. 21-CCV-070284
DISCOVER BANK, § IN THE COUNTY COURT
Plaintiff §
AT LAW NO 4
Vv.
FORT BEND COUNTY, TEXAS
PAULA HERNANDEZ,
Defendant(s)
EXHIBIT LIST FOR
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Exhibit “A” Affidavit of Duly Authorized Agent of Plaintiff
Includes True and Correct Copy of Applicable Supporting Account Documents
Exhibit “B” Non-Military Status Verification
Attachments Include:
Official Printout from the United States Department of Defense-Manpower Data Center that
Defendant is Not an Active Member of the Armed Forces Currently on Duty
«PLTNM» V. «
Preview
Electronically Filed 9/30/2022 11:23 AM Laura Richard County Clerk Fort Bend County, Texas NO. 21-CCV-070284 DISCOVER BANK, IN THE COUNTY COURT Plaintiff AT LAW NO 4 Vv. FORT BEND COUNTY, TEXAS PAULA HERNANDEZ, Defendant(s) PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: Discover Bank, Plaintiff moves for Summary Judgment against Defendant(s), Paula Hernandez, respectfully showing the Court as follows: 1 This Motion is based upon the pleadings on file and the affidavits attached hereto, which are fully incorporated herein. Attached hereto as Exhibit “A” and fully incorporated herein is the affidavit of a duly authorized agent of Plaintiff. The client affidavit includes as an attachment a true and correct copy of the applicable supporting account documents for accou Summary judgment procedure is governed by Rule 166a of the Texas Rules of Civil Procedure, which states that the judgment sought shall be rendered forthwith if the summary judgment evidence shows that there is no genuine issue if material fact and the moving party is entitled to judgment as a matter of law. TRCP Rule 166a (c); State v. Carrillo, 885 S.W.2d 212, 214 (Tex App. — San Antonio 1994, no writ). BREACH OF CONTRACT ANALYSIS: CREDIT CARD ACTIONS In Winchek v. American Express, 232 $.W.3d 197 (Tex. App. - Houston [1%] 2007, no pet.), the court held that a valid contract was formed by evaluating the terms of the cardmember agreement. The language in the agreement here and in Winchek is nearly identical in parts relevant to the Court’s decision. 4. Parties form a binding contract when the following elements are present: (1) offer, (2) acceptance, (3) meeting of the minds, (4) mutual consent, and (5) execution and delivery of the agreement. Wal-Mart Stores, Inc. v. Lopez, 93 8.W.3d 548, 555-56 (Tex. App. - Houston [14th Dist.] 2002, no pet.); see also Sikander Ghia v. American Express, No. 14- 06-00653, 2007 Tex. App. LEXIS 8194 (Tex. App. — Houston [14" Dist.] Oct. 11, 2007, no pet.). The agreement in the Winchek case and the agreement in the instant case contain similar language that “use of [the credit card] means you accept this Agreement.” See cardmember agreement; Winchek 232 S.W.3d at 204. Use of a credit card and payments to an account demonstrate the existence of a contract. Hay vy. Citibank, No. 14-04-01131, 2006 Tex. App. LEXIS 8101, at *8 (Tex. App. - Houston [14'"] Sept. 14, 2006, no pet.); see also Winchek, 232 S.W.3d at 197. The Winchek court articulated the well-established elements for a claim of breach of contract: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff, (3) breach of the contract by the defendant; (4) damages sustained as a result of the breach. Jd. at 202 (citing Prime Products, Inc. v. S.SI. Plastics, Inc., 97 8.W.3d 631, 636 (Tex. App. 2002, pet. denied). “Delivery may be proved by acts or words showing that the parties intended the contract to become effective. When the parties manifest an intent through their actions and words that the contract become effective, delivery is shown. Jn other words, when Parties manifest an intent through their actions and words that a contract become effective, manual delivery is immaterial to contract validity.” Duran v. Citibank (South Dakota), N.A., No. 01-06-00636-CV, 2008 Tex. App. LEXIS 2060, at *10 (Tex. App. - Houston [1S] Mar. 20, 2008) (citations omitted). 7. Regarding the final element of breach of contract claim (damages), the Winchek court accordance significance to the facts that the card issuer sent monthly statements to the defendant, that each set forth in detail all the debits and credits to the account, and that each statement reflected the total amounts due and owing by the defendant. Thus, the court concluded the card issuer “met its burden to show...damages sustained.” Winchek, 232 S.W.3d at 205. In Sikander Ghia v. American Express Travel Related Services, Inc., 2007 Tex. App. LEXIS 8194 (Tex. App. - Houston [14'"] Oct. 11 2007, no pet.), the appellate court addressed the issue of proof necessary to show contract formation and breach of contract damages in a credit card action. The Sikander court stated “American Express was not required to outline each transaction comprising this balance,” when addressing the issue of whether sufficient evidence existed regarding the balance owed. The court’s analysis was as follows: Appellant complains that [the creditor] did not present evidence specifically outlining each transaction to prove it was properly billed . .. We recognize [the creditor] did not present . . . evidence [of] every monthly statement since inception of the account; rather, it attached statements for 2004 only... However, we conclude [the creditor] was not required to outline each transaction outlining this balance. Sikander Ghia, 2007 Tex. App. LEXIS at *13. The cardmember agreement in the Sikander case had provisions similar to the cardmember agreement in this case requiring the cardholder to object in writing within sixty days after the statement is issued to indicate any erroneous charges. The Sikander court determined this provision of the agreement combined with the fact that the Defendant received monthly statements as a sufficient basis to determine she was bound to pay the total amount due even though every statement detailing every charge was not produced. Jd. at *14. 10. Based on the foregoing, and the exhibits attached to this motion, there is no genuine issue of material fact and Plaintiff is entitled to summary judgment as a matter of law on all issues, all claims, all theories of damages, and all parties. WHEREFORE, Discover Bank, Plaintiff, respectfully requests that this matter be set for hearing and that after hearing the Court rule that there is “no genuine issue of material fact and that the Plaintiff is entitled to judgment as a matter of law” and that Plaintiff be granted summary judgment against Defendant(s), Paula Hernandez, for the following: 1 The principal damages amount claimed for in Plaintiff's Complaint of $2,997.17 minus any payments received after filing this litigation, and Post-judgment interest on said sums from the date of Judgment until paid at 5% which is the legal rate per annum under §304.004, TEX. FINANCE CODE. 3 Costs of this proceeding in the amount of $418.16 Respectfully submitted, ZWICKER & ASSOCIATES, P.C. A Law Firm Engaged in Debt Collection Attorneys for Plaintiff 14090 Southwest Freeway, Ste. 408 Sugar Land, TX 77478 ZATE_Litigation@ZwickerPC.com (281) 494-0300 (281) 494-0213 (fax) BY: ana “TWJOHNETTA LANG, ESQ. State Bar Number 24036943 [ ] FREVON WATSON, ESQ State Bar Number 24125451 CERTIFICATE OF SERVICE I hereby certify that on the day of September, 2022, this office served a true and correct copy of the foregoing in accordance with the Rule 21a of the Texas Rules of Civil Procedure upon the below listed interested parties via [ ] First-Class Mail [X] E-Service [ ] Certified Mail James Heston P.O. Box 6049 KATY, TX 77491 ATTORNEY @HESTONLA WFIRM.COM shana [ WJOHNETTA LANG, ESQ. [ ] TREVON WATSON, ESQ. NO. 21-CCV-070284 DISCOVER BANK, § IN THE COUNTY COURT Plaintiff § AT LAW NO 4 Vv. FORT BEND COUNTY, TEXAS PAULA HERNANDEZ, Defendant(s) EXHIBIT LIST FOR PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Exhibit “A” Affidavit of Duly Authorized Agent of Plaintiff Includes True and Correct Copy of Applicable Supporting Account Documents Exhibit “B” Non-Military Status Verification Attachments Include: Official Printout from the United States Department of Defense-Manpower Data Center that Defendant is Not an Active Member of the Armed Forces Currently on Duty «PLTNM» V. «