458 S.W.3d 689
Tex. App.2015Background
- Citibank sued Scott Walker to collect balances on two credit cards (Home Depot and ExxonMobil) issued to him.
- Citibank moved for traditional summary judgment solely on an account stated theory, supporting the motion with two custodial affidavits and account statements covering 2009–2011.
- Statements showed purchases, payments, credits, finance charges, and outstanding balances; Citibank’s custodians attested statements were mailed to Walker.
- Walker filed a responsive affidavit but did not deny the addresses, receipt of statements, or specifically dispute charges; he provided no competent evidence creating a fact issue.
- The trial court granted summary judgment for Citibank; Walker appealed challenging (1) existence of an express or implied agreement fixing the amount due and (2) whether account stated applies to credit card debt.
Issues
| Issue | Plaintiff's Argument (Walker) | Defendant's Argument (Citibank) | Held |
|---|---|---|---|
| Whether account stated is a proper cause of action for credit-card debt | Account stated should not apply to credit-card debt | Account stated is available; statements and transactions establish the claim | Account stated is a proper cause of action for credit-card collection suits |
| Whether there was an express or implied agreement fixing the amount due | No evidence Walker agreed to or received statements; Morrison controls and shows insufficiency | Series of transactions, payments, lack of disputes, and mailed statements establish implied agreement to amounts | Sufficient evidence of an implied agreement and promise to pay; summary judgment affirmed |
Key Cases Cited
- Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (summary-judgment standards)
- City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979) (nonmovant burden after movant establishes entitlement)
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (de novo review of summary judgment legal questions)
- Dulong v. Citibank (S.D.), N.A., 261 S.W.3d 890 (Tex. App.—Dallas 2008) (series of transactions and statements can support implied agreement on account stated)
- Busch v. Hudson & Keyse, L.L.C., 312 S.W.3d 294 (Tex. App.—Houston [14th Dist.] 2010) (elements of account stated and applicability to creditor collection suits)
- McFarland v. Citibank (S.D.), N.A., 293 S.W.3d 759 (Tex. App.—Waco 2009) (implied agreement may be shown by conduct and account statements)