IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 6, 2008
No. 07-50266 Charles R. Fulbruge III
Clerk
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.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-50266
Sandlin entered into a contract for 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
1
The district court relied on the following provision of the 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 instrument tendered as full satisfaction of the 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
No. 07-50266
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
waive any objection.
2
In particular, Sandlin contends that the district court could not rely on documents filed
in connection with other motions previously before the court.
3
No. 07-50266
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 argument for 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 argument in 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 judgment to 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.
4
No. 07-50266
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.
5