* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50266

SHERYL SANDLIN,

Plaintiff-Appellant,

v.

DOBSON CELLULAR SYSTEMS, INC., 

d/b/a CELLULAR ONE,

Defendant-Appellee.

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 6:06-CV-88

Before REAVLEY, STEWART, and OWEN, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Sheryl Sandlin (“Sandlin”) initiated suit against

Dobson Cellular Systems, d/b/a/ Cellular One (“Dobson”), alleging the company

breached the service contract by assessing roaming charges improperly. The

district court granted summary judgment to Dobson and denied Sandlin's

motions for partial summary judgment and class certification. Sandlin appeals.

For the foregoing reasons, we AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

February 6, 2008

Charles R. Fulbruge III

Clerk
No. 07-50266

1 The district court relied on the following provisionofthe Customer Service Agreement:

LATE PAYMENTS/DISPUTES. Time is of the essence for

payment. Therefore, you agree to pay us a monthly late fee for

amounts unpaid 20 days after the date of the invoice in the

amount of 1.5% of your unpaid balance. Acceptance of late or

partial payments (even if marked “Paid in Full”) shall not waive

any of our rights to collect the full amount due under this

Agreement. We will assess an additional fee of up to the

maximum allowed by law, for any check returned for

nonpayment. All amounts due,including disputed amounts, must

be paid by the due date regardless of the status of any objection.

All communications concerning disputed amounts owed, including

any instrumenttendered as full satisfaction ofthe amounts owed,

must be (i) in writing, (ii) marked “Billing Dispute” on the outside

of the envelope, (iii) sent to our address on the front of the

Agreement, and (iv) received by us within 30 days after receipt of

the invoice. If any of these requirements are not met you will

2

Sandlin entered into a contractfor cellular phone service with Dobson and

maintained this contract from approximately August 1998 until October 2004.

On December 14, 2002, Sandlin signed up for the “USA 1100” rate plan.

Thereafter, Sandlin switched to another rate plan known as the “Clear Across

America” plan. The Clear Across America plan was based on older, analog

technology, which Dobson no longer offers. The parties do not dispute that the

terms of the Clear Across America plan as contained in the Customer Service

Agreement (“CSA”) and the Rate Plan Description govern the disposition of this

case. 

Before the district court, Sandlin argued that Dobson had improperly

charged its cellular customers by assessing roaming fees on calls that were

exempt from these fees under the Clear Across America calling plan. The

district court granted summary judgment in favor of Dobson, relying solely on

Dobson’s affirmative defense that Sandlin waived her right to challenge the

roaming charges when she failed to comply with the CSA’s requirement that

Sandlin provide Dobson with notice of disputed charges within thirty days of

receipt of the bill containing the alleged discrepancies.1 After determining that
No. 07-50266

waive any objection.

2

In particular, Sandlin contends thatthe district court could not rely on documents filed

in connection with other motions previously before the court. 

3

Sandlin waived the right to object to the charges, the district court denied her

motions for partial summary judgment and class certification.

This Court reviews the district court’s grant of summary judgment de

novo, applying the same standards as the district court. Keenan v. Tejeda, 290

F.3d 252, 262 (5th Cir. 2002). Summary judgment is proper when the

“pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of

law.” FED. R. CIV. P. 56(c). 

On appeal, Sandlin argues that the district court improperly referenced

documents not referred to or attached to either party’s summary judgment

motion.2 This argument is without merit. The district court is not limited to

evidence presented in support of summary judgment, rather the court may

consider the entire record before it in rendering a decision on a summary

judgment motion. See FED. R. CIV. P. 56(c). 

Sandlin also contends that the district court’s finding that she waived her

objections to the roaming charges was based on an incorrect reading of the

service contract and is unsupported by summary judgment evidence. Dobson

responds that Sandlin waived any argument regarding enforcement of the

waiver provision in the CSA because she failed to make these arguments before

the district court. 

Under the well-settled law of this circuit, appellate review of a summary

judgment order is limited to those matters presented to the district court.

Keelan v. Majesco Software, Inc.; 407 F.3d 332, 339 (5th Cir. 2005) (citing

Keenan, 290 F.3d at 262 and Frank C. Bailey Enters., Inc. v. Cargill, Inc., 582
No. 07-50266

4

F.2d 333, 334 (5th Cir.1978)). Thus, “[i]f a party fails to assert a legal reason

why summary judgment should not be granted, that ground is waived and

cannot be considered or raised on appeal.” Id. (citation omitted). “If a party

wishes to preserve an argumentfor appeal,the party ‘must press and not merely

intimate the argument during the proceedings before the district court.’” Id.

(citation omitted).

Dobson contends that Sandlin did not challenge its affirmative defense of

waiver before the district court. Dobson argues that its motion for summary

judgment put Sandlin on notice that Dobson was seeking summary judgement

based on, among other reasons, its affirmative defense that Sandlin failed to

comply with the 30-day notice requirement contained in the CSA. Sandlin

argues that she responded to Dobson’s waiver argumentin her motion for partial

summary judgment as well as in her response to Dobson’s motion for summary

judgment. However, after careful review of the record, including Sandlin’s

motion for partial summary judgment and her response to Dobson’s motion for

summary judgment, we agree with Dobson that Sandlin did not respond to this

argument. Because Sandlin did not object to Dobson’s waiver argument below,

the district court did not have the opportunity to consider her arguments. Thus,

we may not address this issue on appeal. 

At bottom, Sandlin’s suit is based on her argument that Dobson

improperly assessed roaming fees on calls that were exempt from these fees

under the CAA. Accordingly, Sandlin’s failure to object to Dobson’s affirmative

defense of waiver is sufficient by itself to uphold the district court’s grant of

summary judgmentto Dobson. Because we may affirm for any reason supported

by the record, Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1146 (5th

Cir.1993), we find that the district court was correct to grant Dobson’s motion

for summary judgment. 
No. 07-50266

5

For the reasons set forth above, we AFFIRM the district court’s grant of

summary judgment to Dobson. Also, Sandlin’s motions for partial summary

judgment and class certification cannot succeed in light of the fact that Sandlin

waived her right to dispute the alleged improper roaming fees. 

AFFIRMED.