Kathleen Oesterle v. Citibank, N.A.

NO. 12-24-00140-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KATHLEEN OESTERLE, § APPEAL FROM THE
APPELLANT

V. § COUNTY COURT AT LAW

CITIBANK, N.A.,
APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Kathleen Oesterle, acting pro se, appeals the trial court’s granting of summary judgment in
favor of Appellee, Citibank, N.A. in a credit card debt collection suit. We affirm.

BACKGROUND

On December 2, 2019, Citibank sued Oesterle to recover allegedly unpaid credit card debt.
In its petition, Citibank contended that the parties entered into an agreement for a credit account.
Citibank pleaded that Oesterle used the account to purchase “goods and/or services and/or to
receive cash advances.” Citibank alleged that although it billed Oesterle for the amount owed in
accordance with the agreement’s terms and conditions, Oesterle failed to pay the amount due and
owing ($11,864.53). Citibank asserted causes of action for breach of contract, account stated, and
common law debt. Oesterle generally denied Citibank’s allegations.
On December 2, 2020, Citibank filed a motion for traditional summary judgment.
Citibank’s summary judgment evidence consisted of (1) the affidavit of Citibank’s document
control officer, Michelle Jones, and (2) copies of monthly credit card statements Citibank sent to
Oesterle from July 2016 to July 2019. On December 22, Oesterle filed a response to the notice of
submission, in which she requested that Citibank produce the original credit account agreement
with her signature. The trial court conducted a proceeding on February 3, 2021, which the court
reporter titled a “bench trial.” Citibank’s counsel and Oesterle both appeared and made arguments
to the trial judge. During the hearing, Oesterle argued, “I deny owing this money. . . . I would like
to see the original document that I signed to see if it’s mine and the different monthly statements
from that time forward.” Oesterle also asserted that she has “no recollection” of opening the
account. At the conclusion of the proceeding, the trial judge stated, “before I make a ruling, I
really would like to take a better look at the billing statements and the exhibits. . . . [W]hat I’m
going to do is take this under advisement and issue a ruling within a few days. But I would like to
take a better look at the Court’s file.” The trial judge stated, “you both will be notified of the
Court’s ruling.”
The trial judge did not sign a judgment or order, and on March 5, 2024, Citibank requested
a hearing on its motion for summary judgment. The trial court scheduled a summary judgment
hearing on April 18, 2024, and a notice of submission signed by Citibank’s attorney states that a
copy was served on Oesterle at her last known address via regular and certified mail, return receipt
requested. Oesterle filed a response to the motion for summary judgment, in which she asserted
the affirmative defense of laches. Specifically, Oesterle contended in her response that (1)
Citibank unreasonably delayed in enforcing its rights; (2) the trial judge “issued” a summary
judgment in favor of Citibank for $11,864.53 on February 3, 2021, but did not sign an order; and
(3) the four-year statute of limitations on debt collection ran on November 14, 2022, four years
from the date of her last payment to Citibank. Oesterle attached as exhibits to her response (1) a
letter from Citibank’s attorney, dated August 26, 2019, attempting to collect the debt; (2) an email
to Oesterle from the trial court’s administrator, which stated that the trial judge had not “received
the judgment from the attorney’s office[;]” and (3) an email she sent to Citibank stating that she
made her last payment to Citibank on November 14, 2018.
Citibank filed a reply to Oesterle’s response, in which it argued that (1) laches is an
equitable defense rather than a legal defense, (2) laches “pertains to the equity of filing a suit, not
pursuing a judgment once suit has already been filed[,]” and (3) Citibank filed suit within the
applicable statute of limitations. Oesterle filed an additional response in support of her claimed
affirmative defense of laches.
The trial court conducted the April 18 hearing on the motion for summary judgment, and
Oesterle appeared at the hearing. The following day, the trial judge signed a final summary
judgment, in which it awarded $11,864.53 to Citibank. This appeal followed.

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SUMMARY JUDGMENT

Oesterle argues that the trial court’s summary judgment in favor of Citibank is void because
the trial court did not dispose of the case within the guidelines set forth in the Texas Rules of
Judicial Administration. Oesterle further asserts that her affirmative defenses of lack of
jurisdiction, laches, and lack of notice preclude summary judgment in favor of Citibank.
Standards of Review and Applicable Law

We review a traditional motion for summary judgment de novo, and we “examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable inference and
resolving any doubts against the motion.” City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.
2005); see Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.
2009). The movant for traditional summary judgment has the burden of demonstrating that there
is no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX. R.
CIV. P. 166a(c); Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). If the
movant establishes a right to summary judgment, the nonmovant has the burden to respond to the
motion and present any issues that would preclude summary judgment. Rhone-Poulenc, Inc. v.
Steel, 997 S.W.2d 217, 222-23 (Tex. 1999); City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678-79 (Tex. 1979). When, as here, the trial court does not specify the grounds on
which it granted summary judgment, we will affirm if any of the theories advanced are meritorious.
W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); Carr v. Brasher, 776 S.W.2d 567, 569
(Tex. 1989). In determining whether there is a disputed material fact issue precluding summary
judgment, evidence favorable to the nonmovant will be taken as true. Nixon v. Mr. Prop. Mgmt.
Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
Analysis

A party is entitled to recover under the common law cause of action for account stated
when (1) transactions between the parties give rise to indebtedness of one to the other; (2) an
express or implied agreement between the parties fixes an amount due; and (3) the party to be
charged expressly or impliedly promises to pay the indebtedness. Dulong v. Citibank (S.D.), N.A.,
261 S.W.3d 890, 893 (Tex. App.—Dallas 2008, no pet.); Neil v. Agris, 693 S.W.2d 604, 605 (Tex.
App.—Houston [14th Dist.] 1985, no writ). Because an agreement on which an account stated
claim is based may be express or implied, Citibank was not required to produce a written contract

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if it could meet its burden of proof by producing other evidence of the parties’ agreement. See
Dulong, 261 S.W.3d at 894. Citibank’s summary judgment evidence included its billing
statements to Oesterle from July 2016 to July 2019, which were authenticated by Jones’s affidavit.
In addition, the billing statements reflect that new charges were often made to the account, many
of which were incurred in Tyler, Texas, where Oesterle resides. The billing statements reflect that
payments were sometimes made on the account. In addition, the July 2019 billing statement
reflects that Oesterle owed $11,864.53. According to Jones’s affidavit, Oesterle failed to make
required payments on the account; the account is in default; notice of the debt was sent to Oesterle
“either by regular mail or by electronic mail[]”; and the $11,864.53 balance on the account remains
due. No evidence was adduced to indicate that Oesterle did not receive the billing statements. All
of the statements set forth the financial terms, including the applicable interest rates for advances
and standard purchases, and show any late fees assessed.
Based upon the transactions and financial terms reflected on the billing statements, we
conclude that Citibank established as a matter of law that (1) transactions gave rise to Oesterle’s
indebtedness to Citibank, (2) Citibank and Oesterle had an implied agreement that fixed the
amount due, and (3) Oesterle impliedly promised to pay Citibank the amount due. See id. at 893;
Neil, 693 S.W.2d at 605; see also TEX. R. CIV. PROC.166a(c). Therefore, we now turn to Oesterle’s
claimed defenses, which allege (1) lack of jurisdiction because the case was not disposed of within
the deadlines set forth by the Texas Supreme Court in the Texas Rules of Judicial Administration,
(2) lack of notice, and (3) laches. A party seeking to avoid summary judgment by asserting an
affirmative defense bears the burden of raising a material issue of fact on each element of that
defense. Weinberg v. Baharav, 553 S.W.3d 131, 134 (Tex. App.—Houston [14th Dist.] 2018, no
pet.) (citing Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984)).
We first address Oesterle’s contention that the summary judgment order is void because
the trial court’s failure to dispose of the case within the deadlines set forth in the Texas Rules of
Judicial Administration deprived the trial court of jurisdiction. The Texas Rules of Judicial
Administration “are promulgated pursuant to Section 74.024 of the Texas Government Code.”
TEX. R. JUD. ADMIN. 1, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. F app. (West 2023).
Section 74.024 of the Texas Government Code gives the Texas Supreme Court the authority to
adopt “rules of administration setting policies and guidelines necessary or desirable for the
operation and management of the court system and for the efficient administration of justice.”

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TEX. GOV’T CODE ANN. § 74.024(a) (West 2023). Under Section 74.024, the Texas Supreme Court
may adopt rules relating to “nonbinding time standards for . . dispositions[]” and “nonbinding
dismissal of inactive cases from dockets, if the dismissal is warranted[.]” Id. § 74.024(c)(1), (2).
Rule 6.1(a)(2) provides that district and statutory county court judges “should, so far as
reasonably possible, ensure that all cases are brought to trial or final disposition in conformity with
the following time standards: . . . (2) Civil Nonjury Cases[:] Within 12 months from appearance
date.” TEX. R. JUD. ADMIN. 6.1(a)(2), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. F app.
(West Supp. 2023). Additionally, Rule 7(a)(2) provides that district and statutory county court at
law judges “shall . . . rule on a case within three months after the case is taken under advisement[.]”
Id. R. 7(a)(2) (West 2023). A trial court’s authority to dismiss a case for want of prosecution stems
from two sources: (1) Texas Rule of Civil Procedure 165a, and (2) the court’s inherent power.
Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); see also TEX. R.
CIV. P. 165a(2) (providing that “[a]ny case not disposed of within time standards promulgated by
the Supreme Court under its Administrative Rules may be placed on a dismissal docket.”).
Nothing in Rule 6.1, 7(a)(2), or elsewhere in the Texas Rules of Judicial Administration indicates
that the trial court’s failure to dispose of a case within the deadlines causes the trial court to lose
jurisdiction.
We turn now to Oesterle’s asserted defense of lack of notice. In her brief, Appellant
contends that she was not served with “Notice of Submission Hearing on Plaintiff’s Motion and
Brief in Support” on December 2, 2020, she did not receive a “green card” by certified mail, and
the trial court did not require Citibank to provide proof of service. Appellant’s brief states that she
instead received her copy of the documents from the trial court administrator. Texas Rule of Civil
Procedure 21a provides that documents not filed electronically may be served by mail, and service
“shall be complete upon deposit of the document, postpaid and properly addressed, in the mail[.]”
TEX. R. CIV. P. 21a(a)(2), (b)(1). A certificate by an attorney of record showing service of a notice
“shall be prima facie evidence of the fact of service,” but a party may offer proof that the document
was not received. Id. R. 21a(e); see also Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987)
(explaining Rule 21a’s presumption that notice placed in mail was duly received by addressee).
The clerk’s record indicates that the trial court coordinator sent notice of the February 2021
proceeding to both Citibank’s counsel and Oesterle. The record also indicates that Citibank’s
counsel certified that he served both the motion for summary judgment and brief in support and

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the notice of submission pertaining to the April 2024 hearing to Oesterle by mail. 1 Oesterle
presented no evidence that she did not receive notice, and the record shows that she attended both
of the trial court proceedings regarding Citibank’s motion for summary judgment. For these
reasons, we conclude that Oesterle failed to raise a genuine issue of material fact as to notice. See
TEX. R. CIV. P. 21a(a)(2), (e), 166a(c); see also Cliff, 724 S.W.2d at 780.
We now address Oesterle’s asserted defense of laches. Laches is an equitable remedy that
prevents a plaintiff from asserting a claim because a lapse of time caused the claim to become
stale. Bluebonnet Sav. Bank, F.S.B. v. Briar Capital, L.P. 907 S.W.2d 904, 912 (Tex. App.—
Houston [14th Dist.] 1995, writ denied). To prevail, a party asserting laches must show that (1)
the other party unreasonably delayed in asserting its legal or equitable rights and (2) the party
asserting laches made a good faith change in position to her detriment because of the delay. Rogers
v. Ricane Enters., Inc, 772 S.W.2d 76, 80 (Tex. 1989). “Although a court applying the doctrine
of laches is not bound by any statute of limitations, the statute of limitations is one measure of
whether a claim has become stale.” Bluebonnet Sav. Bank, 907 S.W.2d at 912. Laches does not
bar a plaintiff’s suit before the statute of limitations has run unless estoppel or extraordinary
circumstances are present to exist. Id.
The statute of limitations for a cause of action for account stated provides that a plaintiff
must file suit “not later than four years after the day that the cause of action accrues.” TEX. CIV.
PRAC. & REM. CODE ANN. § 16.004(c) (West 2002). “[T]he cause of action accrues on the day
that the dealings in which the parties were interested together cease.” Id. Citibank’s summary
judgment evidence indicates that its last billing statement to Oesterle was in July 2019. The record
demonstrates that Citibank’s lawsuit against Oesterle was filed on December 2, 2019, before the
statute of limitations expired. See id. We conclude that Oesterle failed to provide any evidence
raising a genuine issue of material fact as to the existence of estoppel or other extraordinary
circumstances. See Rogers, 772 S.W.2d at 80. Additionally, Oesterle failed to provide any
evidence raising a genuine issue of material fact as to the second element of her asserted defense
of laches; that is, she provided no evidence that the delay caused her to make a good faith change
of position to her detriment. See id.; see also Rhone-Poulenc 997 S.W.2d at 222-23; Clear Creek
Basin Auth., 589 S.W.2d at 678-79; Weinberg, 553 S.W.3d at 134.

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Citibank filed its motion for summary judgment and brief in support as a single pleading.

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We conclude that Citibank established its right to judgment as a matter of law, and Oesterle
failed to establish that a genuine issue of material fact precluded summary judgment. See TEX. R.
CIV. P. 166a(c); Rhone-Poulenc, 997 S.W.2d at 222-23; Clear Creek Basin Auth., 589 S.W.2d at
678-79; Weinberg, 553 S.W.3d at 134. Accordingly, we overrule each of Oesterle’s issues.

DISPOSITION

Having overruled each of Oesterle’s issues, we affirm the trial court’s judgment.

BRIAN HOYLE
Justice

Opinion delivered July 31, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 31, 2024

NO. 12-24-00140-CV

KATHLEEN OESTERLE,
Appellant
V.
CITIBANK, N.A.,
Appellee

Appeal from the County Court at Law
of Smith County, Texas (Tr.Ct.No. 71348)

THIS CAUSE came to be heard on the appellate record and briefs filed herein,
and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED, and DECREED that the judgment of
the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the Appellant, Kathleen Oesterle, for which execution may issue, and that this decision be
certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.