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COURT
OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-06-465-CV

KENNETH J. MAGNUSON

APPELLANT

V.

CITIBANK (SOUTH
DAKOTA) N.A.
APPELLEE

------------

FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY

------------

MEMORANDUM
OPINION[1]

------------

Appellant
Kenneth J. Magnuson appeals from a summary judgment awarding Appellee
Citibank (South Dakota), N.A. damages of $18,815.02, plus $4,327.45 in
attorney=s
fees, $1,500 in additional attorney=s
fees in the event of an unsuccessful appeal by Magnuson to the court of
appeals, and $2,500 in additional attorney=s
fees in the event of an unsuccessful appeal by Magnuson to the Texas
Supreme Court.  Because we
hold that the trial court did not err by granting summary judgment for
Citibank, we affirm.

I.  Facts and Procedural
History

On
June 18, 2004, Citibank sued Magnuson on claims of account stated, breach
of contract, and quantum meruit for the unpaid balance on
Magnuson=s
credit card account after he stopped paying on the account.  Magnuson filed an answer pro
se.  On September 20, 2004,
Citibank filed a motion for summary judgment.  Magnuson filed a response.  Citibank asked for a hearing by
submission, but Magnuson appeared in person on the hearing date.  The trial court denied
Citibank=s
motion without prejudice and without considering the merits because
Citibank did not appear.

On
November 7, 2005, Citibank filed a second traditional motion for summary
judgment and submitted in support of its motion the affidavit of Crystal
Britt, its representative, stating among other things that demand had been
made on Magnuson more than thirty days prior to suit.  Citibank also attached copies of
the card agreement, Magnuson=s
account application, and billing records.  Magnuson filed a verified response
but did not attach any evidence in support.  In his response, he argued that
the application included with Citibank=s
evidence is illegible and therefore no contract exists and that because
the cardholder agreement does not contain his signature, the conditions
therein are not a part of any alleged agreement between the parties. He
also asserted that no contract was signed by
Citibank.

Magnuson
also filed a motion to show authority under Rule 12 of the Texas Rules of
Civil Procedure.[2]  Citibank filed a response,
attaching an affidavit of a vice president for Citicorp Credit Services,
Inc., in which the vice president avers that Citicorp is the servicer for
Citibank, that her duties include supervising attorneys retained to
collect debts on Citibank=s
behalf, and that Citicorp retained the acting counsel for the proceedings
against Magnuson.

Both
motions were set for a hearing on February 3, 2006.  Citibank had requested a hearing
by submission on its summary judgment motion, and Citibank=s
attorney did not appear in person on that date.  The trial court stated that it
intended to hold a hearing on the Rule 12 motion and asked Magnuson to
offer evidence that Citibank was served with notice of the hearing.  Magnuson did not have such
evidence with him at the hearing.
The trial court then offered to waive the in-person hearing and
base its ruling on the pleadings then on file.  Magnuson declined the offer and
suggested that the trial court swear him in and allow him to testify that
he served Citibank with notice.
The trial court instead allowed Magnuson the opportunity to
supplement the file with the confirmation and told Magnuson that, once the
evidence was submitted, he would consider it.  Magnuson did not supplement with
proof of notice.

The
trial court subsequently set a hearing date of June 14, 2006, for the
hearing on the motion for summary judgment and on Magnuson=s
Rule 12 motion.  Magnuson did
not appear, and the trial court orally dismissed the Rule 12 motion for
failure to prosecute.  The
trial court also granted Citibank=s
summary judgment motion in a written order without stating the
grounds.  On November 22,
2006, the trial court entered a written order denying Magnuson=s
Rule 12 motion.  Magnuson
filed a motion for new trial, including a motion for reconsideration on
his Rule 12 motion, in which he alleged that by filing an answer to his
Rule 12 motion, Citibank made a judicial admission that it had notice of
the February 2006 hearing on the motion.  He further argued that the trial
court had violated Magnuson=s
due process rights by failing to sign orders Magnuson had presented to it
after the court granted summary judgment.  Magnuson also alleged that the
June 2006 hearing was essentially a rehearing on the Rule 12 motion, that
the rehearing was granted without proper motion, and that by granting the
rehearing the trial court violated the Texas Code of Judicial Conduct,
held Magnuson to a higher standard than opposing counsel, and violated
Magnuson=s
due process and equal protection rights.  The trial court denied the motion
on December 20, 2006.

II.  Analysis

Magnuson
presents nine issues on appeal.
We begin with Magnuson=s
second and third issues, which relate to his Rule 12 motion.  In his second issue, he asks,
AIf
a hearing is scheduled and the [m]ovant appears and the nonmovant fails to
appear but files a written answer which is insufficient as a matter of
law, has the movant [sic] waived all objections to said
hearing?@  In his third issue, he questions
whether the trial court has a duty to provide relief for the party that
appeared.

In
the arguments section of Magnuson=s
brief, he states,

Notice was given
and received by the opposing counsel.  Trial judge abused discretion in
not signing order after CITIBANK failed to appear.  All elements of the requirements
of the rule were pleaded.
CITIBANK answered with an affidavit of their representation.  However, the rule requires a
hearing in order to allow cross‑examination of witnesses as to the
authentication and source of the documents.  Without the hearing[,]
self‑serving affidavits would replace evidentiary standards.  It was not within the trial
court[=]s discretion not
to hear a motion that invoked a rule that protected the rights of
litigants against barratry or frivolous pleadings.  It is the contention of the
Appellant that the attorneys acting to represent CITIBANK are actually
third party debt [collectors] which would equate to fraud upon the
court.

This
paragraph constitutes the extent of his argument for these issues in the
AArguments@
section of his brief.

We
consider together Magnuson=s
contentions that he was entitled to have his motion granted because
Citibank did not appear in person on February 3, 2006, and that by failing
to appear, Citibank waived its objections to the hearing.  The motion was first set for
hearing on February 3, 2006.
On that date, Magnuson was unable to show that Citibank had notice
of the hearing.  As the trial
court attempted to explain to Magnuson, notice that a motion has been
filed is not notice of the setting of a hearing on the motion.  Citibank clearly did know that
Magnuson had filed a Rule 12 motion because, as Magnuson correctly points
out, Citibank filed a response.
But that does not signify that Citibank had any notice of when the
hearing on the motion would be held.

Rule
21 of the Texas Rules of Civil Procedure provides that

[a]n application to
the court for an order and notice of any hearing thereon, not
presented during a hearing or trial, shall be served upon all other
parties not less than three days before the time specified for the hearing
unless otherwise provided by these rules or shortened by the court.[3]

The
local rules of the trial court provide that A[u]pon
receiving the date and time of hearing [as scheduled by the court
coordinator], the moving party shall immediately notify all other parties
in writing as to the date, time, and subject matter of the
hearing.@[4]

A
trial court=s
final dismissal of a plaintiff's cause of action without proper notice is
an abuse of discretion.[5]  Thus, the trial court did not
abuse its discretion by requiring that Magnuson show proof of service on
Citibank before granting his motion and striking Citibank=s
pleadings.  It is irrelevant
for purposes of Magnuson=s
issue whether Magnuson later established that he had served
Citibank with notice of the hearing date because on the date of the
hearing, the time at which Magnuson alleges the trial court erred,
Magnuson offered no evidence that Citibank had notice of the hearing.  Without proof of service on
Citibank, Magnuson was not entitled to any sort of default ruling on his
motion, and Citibank did not waive objections to the hearing.[6]

Magnuson
makes a related argument in the AConclusion@
section of his brief.  There
he contends that the trial court created a heightened pleading standard
for him, a nonattorney, when the trial court failed to grant his Rule 12
motion on February 3, 2006, after Citibank did not appear at the
hearing.  He argues that this
heightened standard violates due process and equal protection.

Magnuson
cites no authority for this argument.[7]  Further, as we discussed above
(and as the trial court attempted to explain to him on that date), there
is a difference between having notice that a motion has been filed with
the trial court and having notice of the date of a hearing on that
motion.  The trial court did
not create a heightened pleadings standard by requiring Magnuson to offer
such evidence; rather, the trial court applied the Texas Rules of Civil
Procedure.[8]

We
note that the trial court set a hearing date for June 14, 2006, and that
Magnuson did not appear.  It
was Magnuson=s
responsibility to diligently pursue his motion, and by failing to show up
at the hearing, he faced dismissal of his motion.[9]  Accordingly, the trial court
dismissed the motion for want of prosecution, rather than ruling on the
merits either with or without an oral hearing, and Magnuson does not
challenge the propriety of that dismissal on appeal.  Thus, the question of whether Rule
12 requires an oral hearing before a ruling on the merits may be issued is
irrelevant to this appeal, and we do not consider it.[10]  Accordingly, we overrule issues
two and three.

In
his first issue, Magnuson asks, AMay
a litigant file a second Motion for Summary Judgment without any change in
their pleadings?@
In issue four, Magnuson asks, does Athe
opposing party have the authority to reset a hearing or in effect have a
rehearing of a motion filed by opposing counsel without filing a motion to
rehear?@  Issue five relates to the trial
court=s
grant of Citibank=s
second motion for summary judgment and asks, ADoes
any court have the ability to rule in favor of a summary judgment motion
that had been previously denied?@  Issue six questions whether a
trial court has discretion to grant a summary judgment motion if the
nonmoving party fails to appear on the date set for the summary judgment
hearing.  Magnuson makes no
argument in support of these issues; therefore, they present nothing for
this court to review.[11]  Accordingly, we overrule issues
one, four, five, and six as inadequately briefed.[12]

Issues
seven through nine relate to Magnuson=s
access to reporter=s
records under Rule 145 of the Texas Rules of Civil Procedure and Rule 20.1
of the Texas Rules of Appellate Procedure for the purpose of proving a
motion for new trial.[13]  He states in his brief that he
filed a motion for new trial, and Citibank=s
counsel argued in response that there was no hearing on the Rule 12 motion
Aand
that no transcript has been provided to demonstrate that a hearing had in
fact occurred.@  Magnuson then notes that he is
indigent and that he filed Athe
necessary documents@
under Rule 145 and Rule 20.1 to prove his indigency, and that he had made
a request for Athe
transcript to provide evidence of the hearing and the opposing
parties[>]
absences from that hearing,@
which the trial court denied.
With that preface, Magnuson asks,

Seven:  Does the lack of access to an
indigent to hearing transcripts in rehearings or in a New Trial Motion
deny the indigent the right to due process and equal protection under the
U.S. Constitution?

Eight:  If it does not in Question 7
above, how can a person place evidence of errors or omissions before the
trial court without having to appeal it first in order to be provided the
transcripts under the Texas Rules of Appellant Procedure
20.1?

Nine:  In considering the situation in
the above scenario and questions create; explain how an indigent person
can persuade a trial court of mistakes made in previous hearings if they
are denied transcripts and cannot afford them, when the same court bars
tape records as a standing rule?
Is this not a de facto denial of access to the courts with an equal
footing as the opposing party?

In support
of these issues, Magnuson argues that Rule 145 does not allow for
reporter=s records
to be provided to indigent parties for purposes of filing motions for
rehearing or motions for new trial, and the denial of access to the
reporter=s record
of the hearings in this case denied him due process, violated his equal
protection rights, and denied him access to the courts.

While
Magnuson phrases his issues in terms of indigent defendants in general, we
consider only whether the denial of access to the reporter=s record
for purposes of filing a motion for new trial or motion for rehearing
violated Magnuson=s rights,
not the rights of other indigent defendants.[14]  We conclude that we need not
determine whether Magnuson has been denied due process, equal protection,
or access to the courts because Magnuson has not shown any harm.[15]

A party
has several avenues for obtaining a remedy for trial court error.  A party can try to persuade the
trial court to remedy the error by filing a motion for new trial or a
motion for rehearing.[16]  In addition, the party can file an
appeal and try to persuade a court of appeals to remedy the alleged
error.[17]

In this
case, Magnuson claims that he could not persuade the trial court of
mistakes made or show the trial court evidence of errors or omissions
without having access to the reporter=s
record.  But Magnuson did have
access to the reporter=s record
in making his appeal.  This
court has the authority to remedy error and grant a new trial in the
appropriate circumstances.[18]  Thus, if Magnuson wished the trial
court to cure error by granting a new trial, this court could have cured
the error with the same remedy if such remedy was appropriate.  And although Magnuson appears to
assert that there should be some procedure, other than filing an appeal,
for gaining access to the reporter=s record
in order to raise a point of error in the trial court, in this case,
Magnuson has not demonstrated how he was harmed by the absence of such a
procedure.  Despite the fact
that Magnuson has now been given access to the reporter=s record,
he has not told this court what arguments he would have made to the trial
court or what evidence of errors or omissions he would have noted in his
motion for new trial or motion for rehearing if he had been able to
examine the reporter=s record
before drafting the motions.
Thus, Magnuson has not shown any error of law that probably caused
the rendition of an improper verdict.[19]

Magnuson
could have also demonstrated harm by showing that the trial court made an
error of law that probably prevented him from properly presenting his case
to this court on appeal.[20]  Under Rule 324(b) of the Texas
Rules of Civil Procedure, in some instances, a complaint must be made as a
point in a motion for new trial as a prerequisite to making the complaint
on appeal.[21]  For example, a party complaining
about the factual sufficiency of the evidence supporting a jury finding
must raise the complaint in a motion for new trial.[22]
Magnuson has not argued, much less demonstrated, that denial
of access to the reporter=s record
prevented him raising a Rule 324(b) point in a motion for new trial (and
thus prevented him from raising it on appeal) or that it in any other way
prevented him from properly presenting his case to this court.[23]  We overrule issues seven, eight,
and nine.

Finally,
we consider one additional argument raised by Magnuson.  In the arguments section of his
brief, he argues that no written contract signed by the parties exists and
that without a formal written contract, the amount of damages, if any,
cannot be calculated.  This
argument does not clearly relate to any of the issues he raised in the
AIssues
Presented@
section of his brief, but we will consider it.[24]

In
addition to its breach of contract claim, Citibank filed for summary
judgment on its claim on account stated.  The trial court did not specify
whether it granted summary judgment on the breach of contract claim or on
the account stated claim, and on appeal, Magnuson challenges only the
propriety of the summary judgment as to the breach of contract claim.  We therefore must affirm the
summary judgment on the account stated ground.[25]

Having
affirmed the summary judgment on procedural grounds, we need not address
the merits of Magnuson=s
argument.  Nevertheless, in
the interest of justice, we note that the agreement on which an account
stated claim is based can be express or implied, and therefore a plaintiff
bringing a claim on an account stated does not have to produce a written
contract to recover on the claim.
Assuming arguendo that a past due balance on a credit card
can give rise to damages on an account stated claim, Citibank did not have
to produce a written contract to recover on its claim against Magnuson, as
long as it could produce other evidence of the agreement between the
parties sufficient to meet its burden of proof.[26]

Further,
we disagree that Citibank did not provide evidence of a contract and that
the amount of damages cannot be calculated.  AThe
elements of a valid contract are (1) an offer, (2) an acceptance, (3) a
meeting of the minds, (4) each party=s
consent to the terms, and (5) execution and delivery of the contract with
the intent that it be mutual and binding.@[27]
ADelivery
may be proved by acts or words showing that the parties intended the
contract to become effective.@[28]  A[W]hen
the parties manifest an intent through their actions and words that the
contract become effective, delivery is shown.@[29]

To
its summary judgment motion, Citibank attached evidence in the form of
copies of billing statements from January 20, 1998, to July 26, 2005.  The statements reflect charges
made on the account; they also reflect payments made.  Citibank also attached the
cardmember agreement (the AAgreement@)
for the account.  The
Agreement states that the cardmember is responsible for all amounts owed
on the account and that the cardmember agrees to pay such amounts
according to the terms of the Agreement.  It further provides that it is
effective when the cardmember uses the card.  The Agreement sets out how the
monthly minimum payment is determined and how finance charges are
determined.

Citibank
also attached the application for the credit card account.  The application has the name
AKenneth
J. Magnuson@
and an address preprinted on it.
The address is the same address that Magnuson provided to this
court as his current address.
The application states that it is for a pre-approved credit line up
to $25,000, and it shows a signature and a date.

These
documents establish (1) an offer, (2) an acceptance by Magnuson, (3) a
meeting of the minds, (4) each party=s
consent to the terms, and (5) execution and delivery of the contract with
the intent that it be mutual and binding.  The terms of the contract are set
out in the Agreement, which, as the Agreement states, Magnuson accepted by
using the card.  The billing
statements show that he used the card.  Nothing in the record establishes
that Magnuson disputed any of the terms of the account while using the
card.  Delivery was
established by Magnuson=s
use of the card and by his making payments on the account for the charges
shown on his monthly billing statement.[30]  We overrule Magnuson=s
argument.

III.  Conclusion

Having
overruled Magnuson=s
issues, we affirm the judgment of the trial court.

LEE ANN
DAUPHINOT

JUSTICE

PANEL
B:   DAUPHINOT, HOLMAN and
WALKER, JJ.

DELIVERED:
February 14, 2008

[1]See Tex. R. App.
P. 47.4.

[2]Tex. R. Civ.
P. 12 (AA party in a suit
or proceeding pending in a court of this state may, by sworn written
motion stating that he believes the suit or proceeding is being prosecuted
or defended without authority, cause the attorney to be cited to appear
before the court and show his authority to act.A).

[3]Tex. R. Civ.
P. 21 (emphasis
added).

[4]Denton
County (Tex.) Dist. & Stat. County Cts. Loc. R.
1.11.3.

[5]Petitt v.
Laware, 715 S.W.2d 688,
691 (Tex. App.CHouston [1st Dist.]
1986, writ ref=d n.r.e.)
(AThe authorities are
clear that an action taken by the court that results in a final dismissal
of plaintiff=s cause of action
without proper notice involves more than a mere violation of the rules of
practice and procedure; such action will constitute abuse of
discretion.@).

[6]See id.

[7]See Tex. R. App.
P. 38.1(h) (requiring a brief to
contain appropriate citations to authority).

[8]See Tex. R. Civ. P.
21.

[9]See
Denton
County (Tex.) Dist. & Stat. County Cts. Loc. R. 2.12
(AFailure of a party
seeking affirmative relief to appear at any scheduled trial or hearing
shall result in dismissal of the case or waiver of the matters presented
in the motion scheduled for hearing.@).

[10]See Tex. R. App. P. 47.1.

[11]See Strange v.
Cont=l Cas.
Co., 126 S.W.3d 676,
678 (Tex. App.CDallas 2004, pet.
denied), cert. denied, 543 U.S. 1076 (2005) (AAn issue on appeal
unsupported by argument or citation to any legal authority presents
nothing for the court to review.@).

[12]See Tex. R. App.
P.
38.1(h).

[13]See Tex.
R. Civ. P. 145; Tex. R.
App. P. 20.1.

[14]See Tex. Ass'n of
Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,
444 (Tex. 1993) (holding that Texas courts have no jurisdiction to render
an advisory opinion, that is, an opinion that decides an abstract question
of law without binding the parties); see also Advantage Physical
Therapy, Inc. v. Cruse, 165 S.W.3d 21, 26 (Tex. App.CHouston [14th
Dist.] 2005, no pet.) (holding that an issue asking whether a letter of
protection can ever be a contract sought an advisory opinion and noting
that courts may not issue advisory opinions).

[15]See Tex.
R. App. P.
44.1.

[16]See D/FW Commercial Roofing
Co. v. Mehra, 854 S.W.2d 182, 189 (Tex.
AppCDallas 1993, no writ)
(AThe purpose of a motion for
new trial is to provide an opportunity for the trial court to cure any
errors by granting a new trial.@);  OAIC Commercial Assets, L.L.C.
v. Stonegate Vill., L.P., 234 S.W.3d 726, 747 (Tex. App.CDallas 2007, pet. filed)
(AThe sole purpose of a motion
for rehearing is to provide the court an opportunity to correct any errors
on issues already presented.@)

[17]See Tex.
R. App. P.
25.1.

[18]See Tex.
R. App. P.
43.2(d).

[19]See Tex.
R. App. P.
44.1(a).

[20]See Tex.
R. App. P.
44.1(a)(2).

[21]Tex.
R. Civ. P. 324(b).

[22]Id. 324(b)(2).

[23]See
Tex. R. App. P.
44.1.

[24]See Tex. R. App.
P. 38.9.

[25]See Malooly Bros., Inc.
v. Napier, 461 S.W.2d 119,
121 (Tex. 1970) (AThe judgment must
stand, since it may have been based on a ground not specifically
challenged by the plaintiff and since there was no general assignment that
the trial court erred in granting summary judgment.@).

[26]See Arnold D. Kamen
& Co. v. Young, 466 S.W.2d 381,
388 (Tex. Civ. App.CDallas 1971, writ
ref=d n.r.e.)
(AThe essential
elements of an >account
stated= are transactions
between the parties [that] give rise to an indebtedness of one to the
other; an agreement, express or implied, between the parties fixing the
amount due; and a promise, express or implied, by the one to be charged,
to pay such indebtedness.@); Cent.
Nat=l Bank of San
Angelo v. Cox, 96 S.W.2d 746,
748 (Tex. Civ. App.CAustin 1936, writ
dism=d) (determining
whether the amounts shown by a company=s books as due to
an employee=s wife after his
death constituted a stated account between employer and employee where the
books showed no agreement by the employer as to the correctness of the
amount due, and holding that employer=s payment of
various sums to the employee=s wife over a
two-year period Awas clearly
sufficient to constitute an implied assent to the correctness of said
account@ and was conclusive
of the amount still due to the employee=s wife).

[27]Prime Prods., Inc.
v. S.S.I. Plastics, Inc., 97 S.W.3d 631,
636 (Tex. App.CHouston [1st Dist.]
2002, pet. denied).

[28]Awad Tex. Enters.,
Inc. v. Homart Dev. Co., 589 S.W.2d 817,
820 (Tex. Civ. App.CDallas 1979, no
writ).

[29]Winchek v. Am.
Express Travel Related Servs. Co., 232 S.W.3d 197,
204 (Tex. App.CHouston [1st Dist.]
2007, no pet.) (op. on reh=g).

[30]See
id.