The Fifth Court affirmed summary judgment for the plaintiff, in a suit to recover an unpaid credit card balance, based on a record with two exhibits

• “The first exhibit attached to the Bank’s motion for summary judgment consisted of three types of documents: (1) twelve consecutive monthly statements for the period of June 11, 2015, to June 10, 2016, with a final balance of $17,445.84, each listing Alqawariq as the account holder, showing he made charges and payments, and demonstrating the Bank assessed transaction fees and charged interest; (2) Alqawariq’s credit card agreement; and (3) an applicant details record concerning [personal identifying] information about Alqariq . . . .”
• “The second exhibit contained a business records affidavit attaching the final account statement for the period of May 11, 2016, to June 10, 2016, which showed a balance of $17,445.84. In the business records affidavit, the custodian of records stated that: ‘[Alqawariq] opened an account with [the Bank], or a predecessor in interest, for the purpose of obtaining an extension of credit [] and did thereafter use or authorize the use of the [a]ccount for the acquisition of goods, services, or cash advances in accordance with the customer agreement [] governing use of the [a]ccount. Further, [Alqawariq] has failed to make periodic payments as required by the [a]greement.”

Alqaqwariq v. Bank of America, No. 05-18-00392-CV (Feb. 4, 2019) (mem. op.)

Dentist, Stephen Chu, ordered dental supplies form the plaintiff, accepted the shipment, but refused to pay the balance.  The plaintiff sued Dr. Chu individually and his dental practice, Stephen Chu, DDS, MSD, PA d/b/a Smile Again Orthodontics” for breach of contract and account stated.  Dr. Chu, however, declared bankruptcy and was subsequently nonsuited.  The Court found that a series of invoices addressed to “Stephen Chu DDS” could not establish, on summary judgment, that ” Stephen Chu, DDS, MSD, PA d/b/a Smile Again Orthodontics” was a party to the contract.

Chu v. Schein

The Court of Appeals has affirmed in part and reversed in part a summary judgment in favor of a law firm in a suit to recover attorney fees from its former clients. The opinion is quite lengthy and covers a number of topics. The first issue is evidentiary, as the Court decided that the trial court did not abuse its discretion in striking the affidavit of one of the defendants, in which he averred that the defendants did not owe the fees because they were not “reasonable and necessary” to the engagement. The engagement letter provided that the law firm was to perform “[r]easonable and necessary legal services . . . which [the firm] and [the clients] decide are reasonable and necessary to perform the Engagement.” Nevertheless, the affiant was not an attorney and was therefore not qualified to offer an opinion on the reasonableness or necessity of the fees. The Court also affirmed the summary judgment ruling in favor of the law firm’s cause of action for sworn account, as the defendants had failed to answer it with a verified affidavit that disputes the specific facts on which such a claim is based. The Court further affirmed that the defendants had not produced any evidence of recoverable damages on their counterclaims, since the only harm they had shown was having to incur attorney fees to defend themselves in this lawsuit. However, the Court reversed that portion of the judgment that held the president of one defendant jointly and severally liable for payment of the debt owed by one of the corporate defendants, and remanded the case to the trial court for further consideration of the attorney fees that had been assessed against that individual.

Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., No 05-11-01718-CV

Citibank sued Albert Evans to collect approximately $10,000 in credit card debt. Evans appealed from the trial court’s grant of summary judgment for the bank, and the court of appeals affirmed. Among other things, Evans argued that he had never agreed to, or even seen, Citibank’s credit card agreement, that Citibank’s credit card statements were erroneous, and that the account statements were never delivered to him. However, the trial court struck those portions of Evans’ summary judgment affidavit as conclusory. The court of appeals held that the trial court had not abused its discretion in that evidentiary ruling, noting that Evans’ denials of the documents were not accompanied by any underlying facts or documentation that supported his denial. Without that affidavit testimony, Evans had no other evidence showing that he had not agreed to the amounts owed as shown by Citibank’s credit card statements, making summary judgment appropriate on the bank’s account stated claim.

Evans v. Citibank (S.D.), N.A., No. 05-11-01107

The court affirmed a summary judgment in favor of Citibank in a suit to recover a credit card debt. Citibank sued Aymett, alleging breach of contract and account stated, and moved for summary judgment. Citibank supported its motion with account statements and excerpts from Aymett’s deposition, in which Aymett admitted using the credit card and making payments for some time and agreed that he has no dispute as to the amount claimed to be due and owing on the account. The trial court granted summary judgment and Aymett appealed.

On appeal, Aymett complained that Citibank did not present a copy of a written contract and that there was no evidence he actually received any of the account statements mailed to him. The court held that a claim for account stated does not require a written contract, but only an agreement to pay an amount owed. Additionally, the summary judgment evidence demonstrated that Citibank mailed, to the same address for Aymett each time, monthly statements and that Aymett responded to the statements by making regular monthly payments until he finally stopped paying. Finally, the trial court did not err in granting summary judgment on an implied contract just because Citibank claimed an express contract based upon the same transaction, as there was no determination that Citibank was entitled to recover on both an express and an implied contract.

Aymett v. Citibank, No. 05-11-00451-CV