397 S.W.3d 876
Tex. App.2013Background
- Citibank sued Aymett for credit card debt; trial court granted final summary judgment in Citibank’s favor for $5,051.12.
- Aymett appeals, challenging summary judgment on breach of contract, account stated, implied/express contract, and federal disclosures.
- Citibank’s evidence included Lisa Blumer’s affidavit, Aymett’s deposition, and counsel affidavits; Aymett countered with his own affidavit and hearsay objection.
- No ruling on admissibility of summary judgment evidence was made; the trial court’s basis for ruling was unspecified.
- Court reviews summary judgments de novo; if grounds are not specified, affirm if any preserved theory is meritorious.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of contract: whether summary judgment was proper given a fact issue | Aymett argues testimony creates a fact issue precluding judgment | Citibank contends no fact issue exists and evidence supports judgment | Not addressed; remaining breach issues unreviewed |
| Account stated: whether there was an implied agreement fixing the amount due | Aymett says no evidence of agreement or delivery of statements | Citibank shows statements mailed, charges/payments, and Aymett’s payments | Account stated established; summary judgment proper |
| Express vs. implied contract: whether implied contract can be found where an express contract is claimed | Aymett argues no basis for implied contract when express contract exists | Citibank maintains no exclusive reliance on express contract; implied recovery permissible | Overruled; court accepts account stated recovery and declines need to resolve implied contract conflict |
| Federal disclosures: whether Citibank proved needed federal disclosures | Aymett contests content of required disclosures | Citibank contends disclosures were not central after account stated | Not reached; analysis limited by focus on account stated |
Key Cases Cited
- Compton v. Citibank (South Dakota), N.A., 364 S.W.3d 415 (Tex. App.—Dallas 2012) (account stated can be proved without a written contract)
- Dulong v. Citibank (S.D.), 261 S.W.3d 890 (Tex. App.— Dallas 2008) (account stated requires a fixed amount due by agreement)
- Hays v. CitiBank (S.D.), No. 05–11–00187–CV, 2012 WL 929673 (Tex. App.—Dallas 2012) (recognizes account statements as evidence of implied agreement)
- Woodard v. Southwest States, Inc., 384 S.W.2d 674 (Tex. 1964) (quantum meruit/implicit contracts when express contract exists)
- Morales v. Dalworth Oil Co., Inc., 698 S.W.2d 772 (Tex. App.—Fort Worth 1985) (limitations on implied/quasi-contract theories)
- Browning v. Prostock, 165 S.W.3d 336 (Tex. 2005) (summary judgment grounds and preserved theories)
- Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (traditional 166a(c) summary judgment standard)