Compton v. Citibank (South Dakota), N.A.Compton v. Citibank (South Dakota), N.A.
OPINION
Amo Compton, Jr. appeals the trial court’s judgment in favor of Citibank (South Dakota), N.A. on its claims for breach of contract and account stated. On appeal, Compton presents six issues asserting the trial court erred in granting Citibank’s motion for summary judgment. Compton contends the trial court erred in granting summary judgment on Citibank’s breach of contract cause of action because (a) Compton’s affidavit raised a genuine issue of material fact on Citibank’s breach of contract claim; (b) Citibank’s evidence created a fact issue concerning the applicable finance charge; and (c) Compton was entitled to rely on the terms of the express
BACKGROUND
Citibank sued Compton alleging breach of contract and account stated based on credit card debt. After Compton answered the lawsuit, asserting general and specific denials and affirmative defenses, Citibank moved for summary judgment on both of its claims. Citibank’s summary judgment consisted of a records custodian’s affidavit that attached account records exceeding 170 pages. Compton’s response included his affidavit, to which Citibank objected. The trial court sustained most of those objections, and Compton does not assert on appeal that the trial court erred in sustaining those objections. The trial court also sustained Compton’s objection to late-filed evidence offered by Citibank in its reply to Compton’s summary judgment response. Accordingly, the only summary judgment evidence before the trial court was the affidavit of Citibank’s records custodian, Kathy Rizor, and the attachments to Rizor’s affidavit. The trial court granted Citibank’s motion for summary judgment without stating the basis for its decision.
STANDARD OF REVIEW
We review summary judgments under well-established standards.
See
TexR. Civ. P. 166a;
Nixon v. Mr. Prop. Mgmt. Co.,
When a trial court’s order granting summary judgment does not specify the grounds relied upon, the reviewing court must affirm the summary judgment if any of the summary judgment grounds are meritorious.
FM Props. Operating Co. v. City of Austin,
ACCOUNT STATED
In his second, fourth, fifth, and sixth issues, Compton contends the trial court erred in granting summary judgment on Citibank’s account stated claim. To recover under its account stated claim, Citibank had to prove (1) transactions be
In his second issue, Compton contends the trial court erred in granting summary judgment on the account stated claim because there is no evidence he agreed to a certain amount owed or that account statements were delivered to him. Citibank was not required to produce a written agreement if it produced evidence of an agreement between the parties because an account stated claim is based on an express or implied agreement. Id. at 894. Citibank’s summary judgment evidence consisted of the records custodian’s affidavit, which included billing statements for each month beginning February 2002 and ending June 2009. Each statement was addressed to Compton at the same address in Mesquite, Texas and showed the same account number. The statements evidenced charges and payments made during the more than seven-year account period. Compton has not contested that he made the charges or payments. The statements also showed the credit available and the finance charges and rates for each period. Additionally, some statements listed late fees and over-credit-limit fees. There is no evidence Compton ever objected to or disputed the fees. For the period March through May 2007, the record contains personal checks in payment of the amounts shown due. The checks are also connected to a payment stub showing the handwritten amount of payment reflected on the accompanying check.
Summary judgment based on Citibank’s account stated claim was proper if the evidence showed account statements were sent to Compton, charges and payments were made on the account, fees and interest were charged on the account, and there was no evidence Compton ever disputed the fees or charges reflected on the statements.
See Dulong,
In his fourth and sixth issues, Compton asserts summary judgment on an implied contract is inappropriate because Citibank alleged the existence of an express contract concerning the same transaction and that he is entitled to rely upon the terms of that express contract. Compton cites
Fortune Production Co. v. Conoco, Inc.,
Appellant’s fifth issue asserts the trial court erred in granting summary judgment on Citibank’s account stated claim because there is a fact question on whether Compton agreed to the amount owing and other terms.
1
Appellant relies on
Morrison v. Citibank (South Dakota) N.A.,
02-07-00130-CV,
Considering all of the evidence — Morrison’s payment history involving a pattern of minimum monthly payments; the fact that the unpaid statements were mailed to her but, the trial court found, it was unknown whether she received them or not; and . her failure to dispute any of the statements — we conclude that the evidence is fatally weak on the second element of account stated (“an agreement, express or implied, between the parties fix[ing] an amount due”). The statements show that, when she was making payments, Morrison regularly paid only , a fraction of the full balance claimed to be due. Further, Morrison’s failure to dispute the final statements, combined with the trial court’s finding that Citibank did not know whether Morrison received the statements, is very weak evidence on the question of whether she “agreed” to pay the amount claimed in the final statements. We conclude that the evidence is so weak that the trial court’s conclusion that Morrison agreed to the amount due is clearly wrong and manifestly unjust.
Id. at *3 (footnote omitted). Compton argues that if the evidence in Morrison was factually insufficient to support judgment for Citibank, then the similar evidence in this case should be insufficient to meet Citibank’s summary judgment burden.
Citibank submitted billing statements from January 1999 to November 2006. The statements are issued to Dulong at the same billing address. There is no evidence to suggest the statements were not received. The statements reflect that when credit was available, new charges were made on the account almost every month. Payments were also made. The [litigation analyst’s] Affidavit states that the initial interest rate on the account is set forth on the first billing statement, and the subsequent financial terms in effect each time the card was issued are set out on each monthly statement. The credit card statements support this fact. The credit card statements also show that late fees and “over the limit” fees were periodically assessed. There is no evidence Dulong ever objected to or disputed these fees. Based on the series of transactions reflected on the account statements, it is reasonable to infer that Dulong agreed to the full amount shown on the statements and impliedly promised to pay the indebtedness.
Dulong,
Appellant also asserts he presented evidence showing he had not seen any account statements. As discussed above, appellant’s affidavit was struck, so the record does not support this argument. Furthermore, although appellant stated in his affidavit that “the statements were not delivered to me or my home,” appellant did not state that he had not seen the account statements. We overrule appellant’s fifth issue.
CONCLUSION
We conclude appellant has not shown the trial court erred in granting Citibank’s motion for summary judgment on its account stated cause of action. Accordingly, we need not address appellant’s issues concerning Citibank’s breach of contract cause of action. We affirm the trial court’s judgment.
Notes
. The issue is worded in terms of Citibank’s breach of contract claim, but the argument under the issue concerns Citibank's account stated claim.
. The Austin and Waco Courts of Appeals have concluded that facts similar to those in this case and
Dulong
supported summary judgment on an account stated claim.
See Singh v. Citibank (S.D.), N.A.,
03-10-00408-CV,