## In the Court of Appeals Second Appella te District of Texas

at Fort Worth

___________________________ No. 02

- 20

- 00128

- CV

___________________________

On Appeal from County Court at Law No. 2

Denton County, Texas Trial Court No. CV

- 2019

- 04030
Before Sudderth, C.J.; Kerr and Womack, JJ. Memoran d u m Opinion by Justi ce Womack 

### A IMEE 

### T. G OINS 

### , Appellant

V


### . D ISCOVER 

### B ANK 

### , Appellee2 MEMORANDUM OPINION
I. I NTRODUCTION Appellan t Aimee T. Goins raises two issues complai ning of the trial court ’ s granting of Appellee Discover Bank ’ s traditional motion for summary judgment

. First , Goins argues that Di scover B a nk ’ s summ ary judgment evidence was insufficient

to su pport the trial cou r t ’ s judgment . Second, Goins argues that the trial court abused
it s discretion by overruling her objections to Di scover Bank ’ s summary judgment evidence. We affirm

. II. B ACKGROUND Discover B ank ’s u nderlyin g action in this cas e was for breach of contract arising from an alleged unpaid balance due on Goins ’s Discover Bank credit

- card

account. After Goins filed her “ original answer and general denial , ” Discover Bank filed its motion for traditi onal summary judgment a nd attached a busine ss
- records affidavit by its li ti gation

- support coordinator , Abigail Hewett. 1 Attached to Hewett ’ s affidavit were three exh i bits:
1. A “ Cardmember Agreemen t ” ; 2. A billing statement ending on March 25, 2019 ; and
3. A S ervicemembers Ci

v il Relief Act (SCRA) Statu s Report

.

1 The cont e nt of Hew e t t ’ s affidavit is described in detail b elow.3

In her response to Discove r Bank’s motion , Goins did not attach any controverting affidavits or evidence, but she did argue that Discover Bank’s evidence

was insufficien t to support its motion. Specifi cally, Go i ns argued that Discov er Bank had not prove d the formation of a c o ntract between her and the bank and that , even assuming there was a contract, Discover Bank had provided insufficient evidenc e to show a breach. Additionally, Goins argued that He w ett’s affidavit was i nadmissibl e hea rsay an d did not meet self

- a u thentication requirements and that the Cardmember Agreement and the Status Report were irrelevant. On February 19, 2020, the trial court gran ted Discover Bank’s motion. The court found th a t there w as “n o genuin e issue of material f act” and that Discover Bank was “entitled to judgment as a matter of law.” The tr i a l court’s judgment awarded Discover Bank $20,160.88 2 in damages, $3 32.90 in court costs, and 5.00%
p os t judgment per annum in teres t. This appe al f ollowed.
III. D ISCU S SION A
. Admission of Evidence
Because Goin s ’ s second issue addresses her objections to Discover Bank ’ s summary judgment evidence, we will address it fir st. Goins argues that the trial cou rt abuse d its disc reti on by o verr uling her ob j ectio ns to Hewett ’s busine ss
- records

2 The billi ng statement introduced by Discover Bank show s an ou ts tanding balance of $20,160.8 8.4

affidavit and accompanying documents

. 3 Discover Bank counters that Hewett ’ s affidavi t testimony is adequately based on personal knowledge and sufficient to

aut he n ticate ea ch of the do cuments at t ached t o the affidavit . We agree with Discover
Ba nk

. 1
. Standard of Review on the Admissibility of Evidence We revie w the trial court ’ s admission or exclusion of evidence for an abuse of discretion. State v. Brist

ol H ot e l Asset Co. , 65 S.W.3 d 638, 647 (Tex. 2 001). This standard appli es whether the ev idence is summary judgment evidence or evidence

3 While not raised by either party, i t is a rguable that Goins has failed to preserve this issue for our review. Even th ough t he trial court ’ s or der granting Disc ov er Bank ’ s motion states that the trial court considered “ the pleadings, the other summ ar y judgment evidence, and the arguments of the p a r ties, ” the order does not mention a ruling regardi n g Goins ’ s objections , an d we g enerally may not im ply such a ruling from the granting of summary judgment

. See Seim v. Allstate T ex . Lloyds , 551 S.W.3d 161, 166 (Tex. 2018). The on ly indication that th e trial court ruled on the o bjections is foun d on the trial court ’ s do cket sheet, which states, “ P ’ s MSJ by sub

- d filed response (no contra aff) w/ obj

- denied obj ’ s
- gra nte d MSJ

. ” A do cket

- sheet entry , ho wever, ordinarily forms no part of the record t hat may be consider ed on appeal ; rat h er, it is a memorandum m ade for the trial court a nd clerk ’ s conven ience

. In re Bill Heard Chevrolet, Ltd. , 209 S.W.3d 311, 315 (Te x. App.

— Houston [1st Dist.] 2006 , orig. p roceeding). Docket

- sheet entries are i nherent l y unreliable becau se they lack the f o rmality of orders and ju dgments. Id

. Be cause of this unreliabili ty, a docket

- sheet entry is generally considered insufficient to constitute a judgment or decree of the co urt. Id

. M o reover, w here the record d oes not reflect that the t rial court ruled o r refused to rule on obje ctions to summary j udgme nt evidence, we ma y not infer a ruling based solely on the trial court ’ s summar y ju dgment decision. See Seim , 551 S.W.3d at 166

. By failing to obtain a ruling on h er o bjections to the s u mmary j udgment evidence, Goins p otentially wai ved the objections f

or appellate review

. See T ex . R. A pp . P. 33.1(a); Well Solut ions , Inc. v. Stafford

, 3 2 S.W.3d 313, 317

– 18 (Tex. App.

— San Antonio 2000, no pet.). We wi l l assume without deciding that Goins has preserve d her eviden tiary complain t s fo r o ur review , and we wi ll address her second issue

.5

introduced at trial. United Blood Serv s. v. Longoria , 938 S.W.2d 29, 30 (Tex. 1997). A trial court abuses its discr et ion if the court act s withou t re ference to any guiding rules
or pr inci ples

— that is, if th e act is arbitrary or unreasonable. Low v. Henry , 221 S.W.3d
60 9, 614 (Tex. 2007); Cire v. Cummings , 134 S.W.3d 835 , 838

– 39 (Tex. 2004). An appellate court cannot co nclu de that a trial c ourt ab used its discretio n merely because
the a pp ellate court would have ruled differently in the same circumstances. E.I. du
Pont de Nemours & Co. v . Robinson , 923 S.W.2d 549, 558 (T ex. 1995); see also Low , 221 S.W.3d at 620.
2
. S ummary J u dgment B usines s - Recor d Affidavit s In o rder to be competent sum mary ju dgment evide nce, an affidavit “shall be made on personal knowledge, s hall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affi ant is com pe t ent to t estify to the

matters stat ed th erein.” Tex. R. Civ. P. 166(f); Kerlin v. Airas , 274 S.W.3d 666, 668 (Tex. 2008) ; see Rodriguez v. C itibank, N.A. , No. 04

- 12

- 00777

- CV, 2013 WL 4682194, at *2 (Tex. App.

— San Antonio Aug. 30, 2013, no pet.) (me m. op .) ( “[T]he r equire ment of personal knowled ge is satisfied when an a ffiant identifies the position he holds and describes his job responsibiliti es so that one can reasonably assume he would be particularly situated to have personal knowledge of the fac ts wi th i n his af f idavit .”)

. T he rules of evide nce do not require that t he predicate witn e ss for the admission of business r ecords be their creator or have personal knowledge of the contents of the records; the witnes s is required only to have personal knowle d g e o f how the records6

are kept. See Tex. R . Evid. 803 ( 6), 902 (10); In re E. A.K. , 192 S.W.3d 133, 142 (Tex. App.

— Houston [14th Dist.] 2006, pet. denied); see also Kyle v. Countrywide Home Loans,
Inc. , 232 S.W.3d 355, 359 (Tex. App.

— Dal las 2007, pet. denie d ) ( h o l ding affiant ’ s testi mony that she was foreclosure specia list and custo dian of re cords for mortgagee with respect to mortgagor ’ s loan was sufficient to satisfy personal

- knowledge requirement of Rule 166a(f)). And a person ’ s posit ion or job responsib i l it

i e s can peculiarly qual ify her to have p ersonal know ledge o f facts and e stablish ho w s he learned of the facts. Boswell v. Farm & Home Sav. Ass ’ n , 894 S.W.2d 761, 768 (Tex. App.

— Fort Worth 1994, writ denied)

. 3 . Goins ’ s Challenges
Goin s ’ s argument in t h is i s sue has multiple sub parts , and w e wil l a ddress th em in turn. In orde r to do so, the language of Hewett ’ s affidavit i s relevant. In pertinent part, Hewett ’ s affidavit states: I am a Litigation Support Specialist for DISCOVER PR ODUCTS , INC.

. . . . D I S CO V E R PRODUCTS, INC. is r esponsible for , amon g other t hin gs, maintaining a ccount r e co rds pertaining to Discover Card accounts and interacting with Discover Card account holders with regard to payment owed on these accounts. This af fidavi t is made on t h e b a s i s of my personal kno wledge and in suppor t of the Pla intiff’s suit on account a ga inst the Cardmember (s). In my capacity as Litigation Support Coordinator, I have knowledge regarding, and access to, records regarding the Discover Card Account of the ab o v e referenced Cardmembe r(s). DISCOVER PROD UCTS INC. ma intains these rec ords in t h e ordinary course of its business, and the records are updated with information on events (such as charges and payments on the account) by individuals with personal knowl e dg e o f7

those events or by automated proce sses that trac k s uch events at or near the t im e that the events occur. The same systems that record this information also generate periodic statements that are sent to Discover Cardmember(s), a nd sto re copies of t h es e p e riodic statements. In addition, th ese s ame recor d

- k eeping systems co ntain inf o rm ation about which version of Discover Bank’s terms and conditions has been communicated to an account holder and accepted by an account holder throu gh the use of his or he r D i scover Card after re ceipt of the te rms a nd condit ion s. I have person ally insp e ct ed the records pertaining to the account of the Cardmember(s), including the last periodic statement sent to the Cardmember(s) by DISCOVER PRODUCTS INC., to ascertain t h e a p p l icable terms and con ditions, the ba lance due on s aid account and whet her the C a rd member(s) have made payments on that balance. According to the records maintained by DISCOVER PRODUCTS INC., during the period of time that account state ments were gen e ra t e d , such statements wer e either provid ed to the Card mem ber (s) electroni cally or m a il ed to the Cardmember(s) at the address maintained on file during that time period. According to the records maintained by DISCOVER PRODUCTS INC., the la st known addre s s a s s o ciated with the Card member(s) is/are :

. . . . The account is in default be c au se the Cardmember(s) have not paid the amounts due and owing to Discover Bank on the account. The business records maintained by DISCOVER PRODUCTS INC. and described a bo v e s how that the Cardme mber(s)’ account with Dis cover Bank is governed by terms an d c onditions referred to as “terms level 26K.” A true and correct copy of these terms and conditions have been provided to DISCOVER PRODUCTS INC.’s co unsel in this case a n d i s a ttached hereto as E xhibit A.
Exhi bit B is a tru e and accurate cop y of the la s t periodic statement sent by DISCOVER PRODUCTS INC. to the Cardmember(s), retrieved from the record

- keeping system described above, and shows the amou nt tha t is now due a n d o w

in g Discover Bank on the Account.8 a . Alleged Extr aneous S tatements In pa rt of her second issue, Goins argues that Hewett ’ s affidavit and accompanying records contain “ extraneous statements which exceeded the simp le authe ntication re q uire m e nts of a business rec ords affi davit and mu st be ex cluded. ” Specifically, Goins takes exc ep tio n to two statements in Hewett ’ s af fidavit : (1) that “the account is in default be cause th e Card member ( s) h a v e not paid the amount s due and owing to Di scover Bank on the accou nt , ” and (2 ) that “the business record s maintained by D ISCOVER PRODUCTS INC. an d d escribed above show that the Cardmember(s )’ account with Discover Bank is governe d by ter ms and condi t ions

r eferred to as ‘ terms level 26k

. ’ ” 4 Goins argues that these statem ents are not truly based on Hewett ’ s p ersonal knowledge because they are base d on her review of
Discover B a nk ’ s own records , which Goins arg ues are “ out of court s tatement s and docume n ts. ” We disag ree. Under the busin ess
- records exception to the hearsay rule, the proponent of records must sh ow (1) the records were made and kept i n the course of a regularly conducted business activity, (2) it was the r egular p ractice of t h e bu s i ness activity to make the records, (3) the records were made at or near the time of the event that they

4 Hew e tt ’ s affidavit states that Go in s ’ s account is gove rned by the terms an d conditions referred to as “ terms leve l 26k

. ” She also s aid that the Cardmember A g r eement attached to her affidavit was a true a nd corre ct copy of t hese terms and conditions. The Cardmember Agreement also displays the tit le “ C M. TL26K.LIN.0218 ” in the up per right

- hand corne r of the do cument.9

rec ord, and ( 4) the records were made by a person wi th kn owledge who was acting in the regular course of business. See Tex. R. Evid. 803( 6); E.A.K

. , 1 9 2 S .W.3d at 141

. Fur t hermore, a n affiant ’ s acknowledgement of the sources from which she gathered her knowledge does not violate the personal

- knowledge req ui rem ent. See In re E.I. DuPont de Nemours & Co. , 136 S.W.3d 218, 224 (Tex. 2004) (rejecting the c onten tio n that an affidavit was n ot ba s ed on perso nal knowledge when affiant stated his determinations were based on h is review of the company ’ s human

- resour ce s d atabase for the legal department); Asshauer v. Glimcher Realty Tr

. , 228 S.W.3d 922, 926 (Tex. App.

— Dalla s 2007, no pet.) (co n cludin g affiant di d not lack personal knowledge based on her review of her clients ’ bus iness records and documents executed as p art of transaction at issue). Here, Hewett averred that in her capacity as Discover B a nk ’ s l itig a tion

- s uppo rt

c oor d in ator , she p ossess e d “ knowledge regarding , and access t o , records ” r egarding
Goins ’ s account. She also stated that D iscover B a nk maintain ed th ese account records in the ordinary course of business, that it was the practice of Discover B a nk to mak e and m a in tain the r e cords , that they were updated with informat ion based on

events “ at or near the time the events occur [ ed ], ” that the records we re ma de and updated by individuals with personal knowledge of the events recorded in the records,

a nd that sh e had p e rs ona lly ins p ected t he records pertaining to Goins ’ s acc ount. Thus, the personal

- knowledge requirem ent of the statements that Goins compla in s o f was satisfied , and the statements were proper inclusions in Hewett ’ s affidavit

. See10

Kaldis v. U

.S. B ank Nat ’

l Ass ’ n , No. 14

- 11

- 0 0607

- CV, 2012 WL 3229135, a t *3 (Tex. App.

— Houston [14th Dist.] Aug. 9, 2012, pet . dism ’ d w.o.j.) (mem. op.) (concluding

t hat statements in business

- records affidavit that were obtain ed from sources created by other i n divid uals did not violate pers o nal

- kn o wl edge requirement of a business

records affidavit). Citing Ortega v. Cach, LLC , 396 S.W.3d 622 (Tex. App.

— Housto n [14th Di st.] 2013, no p et.) , Goins asserts that when “ a business records affidavit contai ns evi d ence beyon d the s i mpl e authent i cation re quirements of TEX. R. EVID [. ] 902, the extraneous portions of the affidavit constitu te inadmissible hearsay. ” Goins ’ s r eliance

on Ortega is misplace d. In Ortega , the court held that three different af f idavits were inadmi ss ible

. Id

. at 630

– 3 1

. T he first affidavit the Ortega court held inadmissible was because it contained statements th at were “ neither created nor relie d upon in the course of [the d ebt

- collector ’ s] regular deb t

- collection activi ti es ” a n d that had b een

cre a ted so lely i n anti ci pation of litigation. Id . at 631

. The Ortega court rejected the second affidavit because i t con tained a date that made the affida vi t either inc orrect or reference d a n account other than Ortega ’ s . Id

. And the Orte

g a court rej ected th e t hird

a ffida vit bec ause it was clear that the records discussed were made a year after the

eve nts they recorded and th us could not have been made “ ‘ at o r near the time of the

event ’ that it purports to record. ” Id

. In t he case of H e wett ’ s a ffi davit, n othing sh o ws that Dis cover Bank did not

create or rely upon the records she reviewed as the bases of her statements
. Further,11

the affidavit contains no th ing ind icating that it was addressing an y account other than
Goins ’ s or th at the r e cords Hewett review ed were not made at o r near the time of the events the documents purport to record. To the contrary, Hewett referred to each of
the account statements , a nd Goin s did not o ffer any evide nce to c ounter Hewett ’ s

sworn statements. We ho ld that th e affidavit statemen ts that Goins complain s about

w ere admis sible ; thus , we overrule this portion of Go ins ’ s second issue

. See K aldis , 2012 WL 3229135, a t * 3

.

b
. T he Rele vanc e o f the Car dmember Agreement
In the next par t of G o i ns ’ s se cond issue , she complains that the Cardmember Agreement attached to Hewett ’ s affidavit is irrelevant and should not have been considered by the tria l court. See Tex. R. Evid. 40 2 . B ut Goins ’ s comp lain t that the Cardmember Agreemen t i s irrel evant is p r e dicated on her posi tion that Hewett ’ s affidavit contained inadmissible out

- of

- court stateme nts, a position we have already rejected. We over rule this portion of Go ins ’ s se cond issue

.

c . The Pr ej udic ial Effect of the Cardmem ber A gree men t In th e final po r t

ion of her second i ssue, Goins argues that , even assuming the Cardmember Agreement is relevant, “ the risk of confusion and unfair prejudice of present ing a finder o f fact w

ith specific ac count t er ms that may or may not hold any releva nce to the Account s u b s tantially outweigh s whatever minimal probative weight
th e document may hold. ” See Tex. R. Evid. 40 3

. But like he r relevanc e argument , Goins ’ s posit

i on is pr edicated on her argument t ha t Hewet t ’ s affidavit does not12

esta bli sh pers onal knowl e d ge of the Cardmembe r Ag reement
. Having already rejected this argument, we overrule this portion of her second issue

. We conclude that Goins ’ s objections to Hewe tt ’ s affidavit and its attachments

we re not well founded

. Thus, we overrule Goins ’ s second i ssue in it s entiret y. B. Propriety of Summar y Judgme nt In her first issue, Goins argues that Discover B ank did not conclusively establish its breach

- of

- contract claim. S pec ificall y , Goins a rgues t hat the r e is no conclus ive proof rega r ding the formation of a contract b etween her and Discov er B ank , but that even if there is conclusive evidenc e of a contract, Dis cover Bank did

no t conclusively e stablish its damages

. Discover Bank a rgues that Hewett ’s busine ss
records af

f idavit, the Cardme mber Agreement, and the mo nthly billi ng statement showi ng the balance due and o w ed on Goins’s credit

- card account are s uff icient to conclusively establish its claim and support the trial c ourt’s summary judgment

. W e agree w ith Discove r Bank

. 1. Standard of Review for Summar y Judgment We review a summ ary judgment de novo. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (T ex. 2010) . We co n sider th e evid ence presented in the li g ht most favorable to the nonmovant , c red i t i ng e vi den ce fav o rable to the nonmovant if reasonable jurors cou l d and disre gar ding evidence cont rary to the nonmovant if reasonable j urors could not. Mann Frankfort St e in & Lipp Adv i

sors, Inc. v. Fielding

, 289 S .W.3d 844, 848 (Tex. 2009). We ind ul ge e v e r y re as ona ble in f erence and resolve13

any doub ts in the nonmovant ’ s favor. 20801 , Inc. v. Parker , 249 S.W. 3d 392, 399 (T ex. 2008). A plaintiff is enti tled to summary judgment on a cau se of actio n if it conclusive l y proves all essential elements of a clai m a nd , there by, est ablishes its right to judgme nt as a m atter of law

. S ee T ex. R. Civ. P. 166a (a), (c); MM P, Lt d. v. Jones , 710 S. W .2d 59, 60 (Tex. 1986).
2. Breach
- of

- Contract Law A plaintiff asserting a breach

- o f

- contract claim must prove (1) the e xist e n c e of

a v alid con tract; (2) the plaintiff performed or tendered per formanc e as the contract required; (3) the defendant breached the contract by failing to perform or tender performance as the contract required; a nd (4) the plaintiff sustain ed dama ge s as a

resu lt o f the br each. U

SAA Tex. Lloyds Co. v. Mencha c a , 545 S.W.3d 479, 5 0 1 n.21 (Tex. 2018) ; s ee

, e.g., Ifiesimama v. Haile , 522 S.W.3d 675, 685 (Tex. App.

— Houston [1st Dist.] 2017, pet. denied). To prove the fi rst element (the exis tence of a va l i d con tra c t), the plainti ff generally must establish th at (1) an off er was made; (2) the other party accepted in strict compliance with the terms of the offer; (3) the parties had a meeting of the minds on the essential t erms of the contract (mutual a ssen t ) ; (4) ea c h party consent ed to those terms; and (5) the parties exec uted an d delivered the contract with the intent that it be mutual and binding. See, e.g., E

– Learning LLC v. AT & T Corp. , 517 S.W.3d 849, 858 (Tex. App.

— San Antonio 2017, no pet. ). In a c redit

- ca rd case, these

e lements are satisfied when the re is an issu ance of a credit ca rd by one party and the14

use of the credit card by the other party. Jones v. Citibank (S .D. ), N.A. , 235 S.W.3d 333, 338 (Tex . App.

— For t Worth 2007, no pet.) (hold in g t h a t a contr act was f ormed under federal, Texas, and South Dako ta law, even if the cardmember never signed the card agreement because cardmember obtained and used credit card ).
3
. Contract Formation In part of her first iss ue, Goins arg ues that Discov er B a n k did not conclusiv ely

esta blish th e existence of a cont ract betwe en her an d Discover Bank

. We disagree. Goins’s first contention regarding this issue is that the Cardmember Agreement is insufficient to support that she and D iscover Bank had a contra ct. Sp eci fi ca lly, Goins claims that th e A greem ent contains no information identi f yi ng her, no account numbers, and “ no specific details sufficient to determine that the specific Cardmember Agreement provided was actually rela ted to the account in question .”
G oins goes o n to claim that there is “ no evidence of ho w or wh en the Cardmember Agreement was communicated to” her. But it is not the Car dmember Agreemen t alone that establishes that Goins and Disc over Bank had a v a lid co ntract. Wha t links the Cardme mbe r Agreement to G oins are Hewett ’ s sworn stat ements that the record

keeping systems , of which she had personal knowledge , contained informatio n “ about which version of Discover Bank ’ s terms an d conditions has been com m uni cat ed to an

acc o unt h older and ac cepte d by an a ccoun t holder through the use of . . . her Discover Card after receipt of the terms and conditions. ” Hewett also s tated that she had personally inspected the records pertaining to Goins ’ s account to deter m ine th e15

“ applicabl e term s and condit ions ” a nd that the records showed that Goins ’ s acc ount

wa s “ g overned by terms and conditions referred to as ‘ terms level 26K. ’ ” Hewett averred that the Cardmember Agreement attached to her affi davit was a “ true and

cor r ect ” c opy of these t erms and conditi ons. M oreover , t he Cardmember Agreement states th at a n a ccount holder accepts the agreement if the cardmember uses the

account
. And the billing statemen t attached to Hewett ’ s affidavi t show s that there has be e n i nterest char ged on “ p urchase s ” made on G oi ns ’ s accou nt , indicating that she has use d the a ccount in the past

. This is con clusive proof that Goins and Discover Bank had a contract regard ing Goins ’ s account. See Jones , 235 S.W.3d at 338 (“The
i ssuance of a cred it card constit utes a credit offer, a nd th e use of the car d const itutes acceptance of the offer.”).
Fur ther, despite Goins ’ s claim to the cont rary, there is evidence tha t the Card member Agreement was delivered or communicated to her . I n her aff idavi t, Hewett s tated th at Discover Bank ’ s rec ord

- k eeping sy stems c ontaine d i nformation about the Cardmember A greement being communic ated to and accepted by Goins. This, coupled wi th both Di scover Bank ’ s actions of offering the acc ount an d Goins ’ s making purchases o n the account , shows th at the pa rties had a co ntrac t. See Duran v. Citibank (S. D

. ), N.A. , No. 01

- 06

- 00636

- CV, 2008 WL 74 6532, at *4 (Tex. App.

— Houston [1st Dist .] Mar. 20, 2008, no pet.) (me m. o p. ) (“[W]hen parti es manifest a n intent throu gh their actions and wor ds that a contra ct become effe ct ive, ma nual delivery is immaterial to contract validity.”).16

Goins also argues that because the billing statement shows that Goins had been

a car dmember since 2003 and becaus e the Card m ember Agreement b ears a 2018

c opyright stamp, the Card m ember A g reeme nt could not app ly to any account she might have opened in 2003. This argument fails as well. In addition to the statements
that Hewett made in her affidavit ab out how she h a d personal knowle dge th at the Cardmember Agre ement con t ained t he applica ble term s and conditio ns, the
A greement states that Discover Bank has the right to add or de l ete any term to the agreement
. See Hinojosa v. Citibank (S. D

. ), N.A. , No. 05

- 0 7

- 00059

- CV, 2008 WL 570601, a t * 4 (Tex. App.

— Dallas M ar. 4, 20 08, pet. denied) (mem . op.) ( “ As
pr eviously discussed, the 1999 agreement is not a different agreement, but rather the same agreement as it may be amended from time to time

. ” ). Even though a c o pyright

sta m p might not be co nsidered a term of the a greement, the agree ment does state that
it c a n be mo d ified. See i

d

. And Goins has pointed to no authority for the proposition that a cre dit

- card agreement may not be updat ed to reflect a legal c opyright date, eve n if it i s aff ixed to an agreement th at previously held a dif ferent date or no c o pyrig h t stamp a t all. We overrule the portion of Goins ’ s first iss ue where she argues that there is no evidence of a contract between Discover Bank and he r. See Taylor v.
Di s cover Bank , No. 0 3

- 17

- 00677

- CV, 2018 WL 4016611, a t *1 (Tex. App.

— Austin Aug. 23 , 201 8 , no pe t .) (mem. o p. )

.17

4. Breach of Contract Goins next argu es that Discover Bank failed to conclus ively p r o v e that s he had breach ed her c on tract with Discover Bank

. Speci fically, Goins argues that Discover
B ank faile d to d emonstrate that she was i n def ault on h er acco unt. G oins contends that because the billing statement provided as evidence s hows that she was not charged a late fe e in accordance with th e Cardmember Agree ment and because Discover Bank did no t p ro vide p roof of a “ charge off, ” Di scove r Ban k failed to prov e defau lt.
Di scover Bank , however, provided direct evidence that Goins was in default on
her account. T he Cardmember Agree me n t spe cifically st ates that a cardmember is in default if any numb er of con ditions are met , one of which i s if Di sco ver Ba n k has “ a reasonable b e lief that [the cardme mber is] unable or unwil ling to repay [the cardmem ber ’ s] o bligation ” to Discover Bank

. The Cardmem ber A greement also

sta tes that if the cardmember is in default, it “ may d eclare the ent ire balance of [t he] Accou nt immediately due and payable without notice. ” The billing statement shows
th at Goins ’ s account ow ed a previous balanc e of $19,915.13, that there had been no payments or credits made during the billing cycle , and tha t Goins was being charge d
int erest on past purchases. Monroe v. Unifund CCR Partners , No. 01

- 09

- 00101

- CV, 2010 WL 19 48332, at *7 (Tex. Ap p.

— Houston [1st Dist .] May 13, 2010, no pet.) (mem. op.)

. Moreover, in her affidavit, Hewett averr ed that Go ins ’ s “ account is in default beca u se t he Cardme mber(s) have not paid the amounts due and owing to Discover18

Bank on the account. ” See i d

. (“Similarly, Lutz ’s statement that a balance was owed on the account, plus the admission of a Citibank Agreement showi ng that the cardholder was obliga ted t o pay as charged, was evidence supporting the trial court’s [breach of

contr act] findings.”) This evidence e sta blishe d that Goins breached her agreeme nt with Discover Bank. See Taylor , 2018 WL 4016611, at * 4.
Goins ar gues that the billing statement d oes n ot re flec t that Discover Bank charged her any late fees i n accordan ce with t he Cardmember A greement , thus,

a ccording to Goin s, t his is direct evidence that she was not in default. But the billing

statement states that if Discover Bank did not receive Goin s ’ s minim um payment by
the payment due date, Goins “ may have to pa y a late fee of up to $37.00. ” As th e billing statement provid e s , Discover Bank had the ability to charge Goins for the lack of payment, but it was dis cretionary on the bank ’ s part. C ontra ry to Goi ns ’ s position, the lack of a charged la te fee do es not demon s trat e that she wa s not in de fault , and the lack of evidence of a late charge does not overcome the direct evidenc e of default that Discover Bank pro vided

. Moreov er, Goins did not p rovid e controv erting evidence that might cast doubt on the v eracity of the b illing statement , such as an affidavit as serting that info rmation in the statement was incorrect

. See id. ( “ The Bank establish ed as a matter of la w that Taylor breached the contract by failing to pay the amount due on the c r edit card

. ” )

. We overr u l e this portion o f Goins ’ s first issue

.19

5
. Damages
In part of her first issue, Goins argues that Discover Bank failed to conclu sively prove damages. We disagree.
An authenticated account st atement s ubmitted by a bank showing t he balanc e owed p roves the amount of damages in a claim for breach of contra ct
. See Ghia v. Am. Express Travel Related Servs. , No. 14

- 06

- 00653

- CV, 2007 WL 2990295, at *3 (Tex. App

. — Houston [14th Dist.] Oct. 11, 2007, n o pet.) ( mem. op. ). In Ghia , Gh ia arg ued
that Americ a n Express failed to establish the amount “ owed and due

. ” I d

. The Ghia court reasoned that because Amer ican Express had provided the most r ecent account

statement show

ing a balance of $21,78 1.75 ( the a mo unt of the judg ment ) and because Ame ric an Express ’ s custodian of rec o rds had authenticated the account statemen t, the bank had conclusively proved its damages. Id

. Similarly, in this case, Discover Bank attached to its sum mary judgment moti on

a billin g stateme nt associated with Go ins ’ s account showing a n outstanding bala nce of $20,160.88 (the amount of the judgm ent in this case)

. Moreover, Hewett authent icated that the bill ing statement w as a true and accurate co py of the last periodic stat ement sent by Discov er Bank to Goins. Th is evidence conclusivel y proved Disco ver B ank ’ s damages and supported the trial cou rt ’ s aw ard of damages on summary judgment

. See id

. ; see also Matkin v. Am. Express Centuri on Bank , No. 05

- 17

- 01438

- CV, 2018 WL 5816 744, at *2 (Tex. App

. — Dallas Nov. 7, 2018, no pet.) (mem.
op .) ( “ The account state ment submitted by the bank showing the bal ance owed was20

sufficient evidence of the amount of the debt.”). W e overrule this portion o f Goins ’ s fir st issue. 6
. The Applicab le Annual P ercentage Rate Finally, citing Tully v. Citibank (S .D.) , N .A. , 1 73 S .W.3d 2 12 (Tex. A pp.

— Texarkana 2005, no pet.) and Hay v. Citibank (S .D. ) N.A. , No. 14

- 04

- 01131

- CV, 2006 WL 2620089 (Tex. App.

— Houston [14th Dist.] Se pt. 14, 2006, no pet. ) (op. on reh ’ g) , Goins arg ues in the remainder of her first issue that while Disco v er Bank did provi de evidence of what interest rate was use d by providing a billing statement that displays
the rate , it “failed to provide evidence sub stantiating the appropriaten ess of u sin g that
in terest rate.” We conclude that this case is more akin to t hose cases where cou rts have declined to f

ollow Tully , instead holding that because th e annual percenta ge rate

was listed on the respective billing s tate ments , the contracts were not mi ssi ng an

ess ential term. See Hinojosa , 2008 WL 57060 1 , at *3 (“Citiban k included i n its summary judgmen t evidenc e Hinojosa ’ s billing statements, which include the applicable interest rate. Therefore, the contract is no t missing an essential term.”); 5 see als o Wynne v. Citibank (S. D. ) N.A. , No. 07

- 06

- 0162

- CV, 20 0 8 WL 1848286 , at*3 (Tex

. App.

— Amarillo Apr. 25, 200 8, pet. denied ) (mem. op.) (“The court in Hinojosa

re jected a similar argument, and we reject it here for the same reason. ” ). Because Discover Bank p rovided summary judgment evidence that Goins would be charge d

5 The H i nojosa court also questione d whether the interest is sue addressed in Tully
w as properly before the Tully court. Hinojosa , 2008 WL 570601, at *3 n . 2

.21

an annual percen tag e rate pursuant to the Cardme mber Agreement and be cause the billing sta tement lists th e specific annual percentage rate applicable to G oins ’ s account, we hold that Discover Ba nk esta b lished as a matter of law the appl icable
interest ra t e. See Hinojosa , 2008 WL 570601, at *3

. We o verrule Go ins ’ s first issue in its entirety.
IV. C ONCLUSION Having overruled both of Goins ’ s issues on app eal , we affirm the trial court ’ s judgme nt. /s/ Dana Womack
D ana Woma ck Justice Delivered: February 25 , 2021