Citibank (South Dakota) N.A. v. Lincoln E. Schlecht--Appeal from County Court at Law No 1 of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-05-00093-CV

Citibank (South Dakota), N.A.,

Appellant

v.

Lincoln  E. Schlecht,

Appellee

From the County Court at Law

McLennan County, Texas

Trial Court No. 2004-0769-CV1

MEMORANDUM Opinion

Citibank (South Dakota), N.A. filed suit against Lincoln Schlecht to recover the amount Schlecht owed on his credit card. Though Schlecht was served, he never answered the suit or Citibank s discovery.[1] The trial court rendered a take-nothing judgment in Schlecht s favor. Citibank contends in four issues that the court erred by: (1) denying Citibank s motion for default judgment; (2) denying Citibank s motion for summary judgment; (3) rendering a take-nothing judgment because the evidence at trial establishes Citibank s entitlement to judgment as a matter of law and because Citibank presented factually sufficient evidence to establish its entitlement to judgment; and (4) denying Citibank s motion for new trial. We will reverse and render.

Summary Judgment

Citibank contends in its second issue that the court erred by denying its summary judgment motion because it conclusively established its entitlement to judgment.

To prevail on a summary judgment motion, the movant must demonstrate that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Fletcher v. Edwards, 26 S.W.3d 66, 73 (Tex. App. Waco 2000, pet. denied). We take all evidence favoring the nonmovant as true. Sw. Elec. Power Co., 73 S.W.3d at 215; Fletcher, 26 S.W.3d at 73. We indulge every reasonable inference from the evidence in favor of the nonmovant and resolve any doubts in its favor. Id.

Dallas Sales Co. v. Carlisle Silver Co., 134 S.W.3d 928, 931 (Tex. App. Waco 2004, pet. denied).

In a breach of contract suit, the plaintiff must establish: (1) a valid contract with the defendant; (2) the plaintiff performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff suffered damages as a result of the breach. Critchfield v. Smith, 151 S.W.3d 225, 233 (Tex. App. Tyler 2004, pet. denied); Runge v. Raytheon E-Sys., Inc., 57 S.W.3d 562, 565 (Tex. App. Waco 2001, no pet.).

Citibank s original petition included requests for admissions which were deemed admitted because Schlecht never responded to them. See Farahmand v. Thang Do, 153 S.W.3d 601, 603 (Tex. App. Dallas 2004, pet. denied) (summary judgment may be granted on the basis of deemed admissions); Mackie v. Guthrie, 78 S.W.3d 462, 468 (Tex. App. Tyler 2001, pet. denied) (same). Among those deemed admissions were the following:

Schlecht requested that Citibank open a credit card account in his behalf;

based on this request, Citibank opened an account;

Citibank and Schlecht entered into an agreement to create a revolving charge agreement [sic] for credit ;

Schlecht has understood since the account was opened that use of his credit card results in Citibank making a loan on Schlecht s behalf for the amount charged or cash advance requested;

Schlecht has understood since the account was opened that he is required and obligated to repay all charges or cash advances incurred on the account; and

Schlecht presently owes Citibank $16,443.61.

Citibank also attached a summary judgment affidavit in which the affiant states that Schlecht:

use[d] or authorize[d] the use of the credit card account for the purpose of obtaining loans to purchase goods and services or cash advances; and

fail[ed] to make timely payments on the credit card account according to the terms of the card agreement and as requested on monthly statements of account.

Accordingly, Citibank conclusively established each element of its claim for breach of contract by the deemed admissions and the affidavit attached to its summary judgment motion. See Critchfield, 151 S.W.3d at 233; Runge, 57 S.W.3d at 565.

To recover attorney s fees in a suit on a contract, the plaintiff must prove that the attorney s fees sought are reasonable and necessary. See Tex. Civ. Prac. & Rem. Code Ann. 38.001(8) (Vernon 1997); Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 751 (Tex. App. Houston [14th Dist.] 2005, no pet.); Doncaster v. Hernaiz, 161 S.W.3d 594, 606 (Tex. App. San Antonio 2004, no pet.). In addition, (1) the claimant must be represented by counsel; (2) the claimant must present the claim to the opposing party; and (3) payment must not have been tendered within 30 days after presentment. Tex. Civ. Prac. & Rem. Code Ann. 38.002 (Vernon 1997).

The deemed admissions establish:

Schlecht received a letter from Citibank demanding payment before suit; and

[a]t least $3,782.03 should be awarded to [Citibank] as attorney s fees.

Citibank also provided an affidavit from its attorney, which states in pertinent part:

reasonable and necessary trial attorney s fees are $3,782.03;

reasonable and necessary appellate attorney s fees should be $1,500.00 in the event of appeal to the Texas Court of Appeals, and $2,500.00 in the even[t] a petition for review is filed with the Texas Supreme Court.

Schlecht has never paid or tendered payment in response to Citibank s demand letter.

Based on this summary judgment evidence, Citibank conclusively established its entitlement to trial and appellate attorney s fees under section 38.001. See Tex. Civ. Prac. & Rem. Code Ann. 38.001(8), 38.002; Doncaster , 161 S.W.3d at 606-07.

Accordingly, we sustain Citibank s second issue and do not reach the remainder of Citibank s issues.

We reverse the judgment of the trial court and render judgment that Citibank recover from Schlecht: (1) damages of $16,443.61; (2) trial attorney s fees of $3,782.03; (3) appellate attorney s fees of $1,500.00; and (4) if a petition for review is filed with the Supreme Court, an additional $2,500.00 in appellate attorney s fees.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Reyna, and

Judge Dietz (Sitting by Assignment)[2]

Reversed and rendered

Opinion delivered and filed November 30, 2005

[CV06]

[1] Nor has Schlecht filed an appellee s brief in this appeal.

[2] John K. Dietz, Judge of the 250th District Court of Travis County, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the Government Code. See Tex. Gov't Code Ann. 74.003(h) (Vernon 2005).