AFFIRM; and Opinion Filed July 1, 2016.




                                          Court of Appeals
                                                           S     In The


                                   Fifth District of Texas at Dallas
                                                      No. 05-15-00066-CV

                                            VOLNEY BRAND, Appellant
                                                      V.
                                          CHASE BANK USA, N.A., Appellee

                                 On Appeal from the County Court at Law No. 3
                                             Dallas County, Texas
                                     Trial Court Cause No. CC-14-02091-C

                                         MEMORANDUM OPINION
                                 Before Justices Bridges, Lang-Miers, and Schenck
                                          Opinion by Justice Lang-Miers
          This is an appeal from summary judgment. Volney Brand sued Chase Bank USA, N.A. 1

in justice court alleging several claims, some of which arose out of charges to Brand’s credit card

account that he claimed he did not authorize. After a bench trial, the justice court found in favor

of Chase and awarded Chase $5,000 in attorney’s fees. Brand appealed to the county court. In

the county court, both parties moved for summary judgment. The county court denied Brand’s

motion and granted Chase’s motion. Brand appeals, arguing that the county court erred by

denying his motion for summary judgment on his claims. Because all dispositive issues are




     1
        Brand sued “JPMorgan Chase & Co. and JPMorgan Chase NA.” The justice court’s judgments changed the defendant’s name and styled
the case “to reflect the proper entity CHASE BANK USA, N.A.” Brand continued to use the incorrect entity names on appeal to the county
court, however, and the county court’s judgment states that those entities were “more properly identified as Chase Bank USA, N.A.” We use the
proper entity name as reflected in the courts’ judgments.
settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm the

court’s judgment.

                                         BACKGROUND

       Brand applied for and received a Chase credit card in 2006. In 2007, Chase began

charging Brand for identity theft protection services. In April 2013, Brand contacted Chase

about the charges, which he claimed he did not authorize, and which he said caused him to be

unable to pay the minimum charge resulting in penalties, interest, and late fees. While Brand

was still discussing the charges with Chase in September 2013, he heard a report that Chase had

“unfairly billed customers for services relating to identity theft protection products” and “was

ordered to refund $309 million to more than 2.1 million customers.” Brand “suspected he was

affected by Chase’s fraudulent behavior” and asked Chase for an accounting. Brand said a

Chase representative “apologized and admitted [Brand] had suffered nearly $800.00 in damages

related to bogus fraud protection charges excluding interest dating back to 2007.” Brand said he

learned “through management” that the “penalty interest amounted to approximately $4,000.00.”

       Brand sued Chase in justice court alleging claims for breach of contract, breach of the

duty of good faith and fair dealing, conversion, violation of the Texas Deceptive Trade Practices

Act, fraud, and negligent misrepresentation. He alleged that Chase told him in 2006, before he

applied for the credit card, that his APR would be capped at 16%, and he would have a

significantly higher credit limit and no fees “commonly found associated with other

competitors.” He alleged that Chase failed to honor those terms and charged him “with hidden

fees that included penalty APR approaching 30% dating back to 2006” in violation of their

agreement. He also alleged that Chase “boosted minimum monthly payments” from 2% to 5%

of account balances “in order to cause more late payments and trigger more fees . . . .” He

alleged that around this same time Chase lowered his credit limit “despite his stellar credit

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rating,” and enrolled him in the identity fraud protection products in order “to generate bogus

hidden fees[.]” He alleged that “Chase management admitted to [him] that they did not have the

authorization to remedy their own wrongdoing” and that he, as a result, “sought damages for ID

protection services never received and/or requested, illegal excess penalty ‘interest,’ improperly

lowering his credit limit, and arbitrarily raising the minimum payment limit percentage to induce

late fees in breach of Chase’s Original Agreement with [him].” Brand sought damages in the

amount of $10,000 plus attorney’s fees. The parties waived a jury and tried the case to the

justice court. The justice court rendered a take-nothing judgment against Brand and awarded

Chase $5,000 in attorney’s fees. Brand appealed the justice court’s judgment to the county court.

       On appeal to the county court, Chase moved for traditional summary judgment on each of

Brand’s claims. Chase claimed, among other things, that Brand was in breach of the credit card

agreement because he defaulted on his obligations “no less than 27 occasions” and could not sue

for breach; there was no special relationship between Chase and Brand and, as a result, Chase did

not owe Brand a common law duty of good faith and fair dealing; Brand is not a consumer and

“the lending of money” is not a good or a service for purposes of his DTPA claim; and Brand’s

claims for negligent misrepresentation, conversion, and fraud are barred by the economic loss

doctrine.

       Brand also moved for summary judgment. He claimed he was entitled to summary

judgment on his DTPA claim because Chase “wholly failed to meet [its] burden in their motion

for summary judgment to establish that Plaintiff failed to establish his status as a consumer

pursuant to the DTPA.” He argued that he had “clearly offer[ed] competent summary judgment

evidence” to support his claim and that Chase “failed to dispute” certain of his arguments and

evidence. Brand made similar arguments with respect to his other claims. Although Brand




                                               –3–
relied on portions of Chase’s summary judgment evidence to support his own motion for

summary judgment, Brand’s sole evidence attached to his motion was his affidavit.

       The county court held a hearing on the respective motions for summary judgment during

which it determined that Brand had not suffered damages. The county court granted Chase’s

motion for summary judgment on all of Brand’s claims and denied Brand’s motion on all of his

claims without stating a basis for the rulings. Brand appealed to this Court.

                                     STANDARD OF REVIEW

       The standards for reviewing summary judgment under rule 166a(c) are well established.

See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). We review a trial court’s

summary judgment de novo. State v. Ninety Thousand Two Hundred Thirty-Five Dollars and No

Cents in U.S. Currency, 390 S.W.3d 289, 292 (Tex. 2013). When the trial court does not state

the ground upon which summary judgment is based, we will affirm if any ground is meritorious.

Id.

       When both parties move for summary judgment, each party bears the burden of

establishing that it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning

News, 22 S.W.3d 351, 356 (Tex. 2000). To prevail on summary judgment, a plaintiff must

conclusively establish each essential element of each of his claims. MMP, Ltd. v. Jones, 710

S.W.2d 59, 60 (Tex. 1986). He must “show that there are no genuine issues of material fact” and

he is “entitled to judgment as a matter of law.” Id.; see also TEX. R. CIV. P. 166a(c). A matter is

conclusively established if ordinary minds could not differ as to the conclusion to be drawn from

the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

       Once a party establishes its right to summary judgment as a matter of law, the burden

shifts to the nonmovant to present evidence raising a genuine issue of material fact, thereby

precluding summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,

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678 (Tex. 1979). The nonmovant does not have a burden to respond or present evidence until

the movant has satisfied its burden to conclusively establish the claim. State, 390 S.W.3d at 292.



                                          DISCUSSION

       Brand states his issues on appeal as follows:

       (1) Was summary judgment at [sic] to each of Brand’s claims for Appellees correct?

       (2) Was the denial of each of Brand’s affirmative summary judgment motions correct?

       In his brief on appeal, Brand argues that the trial court erred by denying his motion for

summary judgment on all of his claims, except the claim for breach of the duty of good faith and

fair dealing, because he showed he was entitled to summary judgment. Brand concedes that he

was not entitled to summary judgment on the claim for breach of the duty of good faith and fair

dealing, but he also argues that Chase was not entitled to summary judgment on that claim.

Although Brand’s issue one generally challenges whether Chase’s motion should have been

granted, he does not address the specific grounds raised in Chase’s motion (except with respect

to the claim for breach of the duty of good faith and fair dealing) or otherwise contend that the

granting of summary judgment in favor of Chase on his other claims was improper. We address

Brand’s arguments in the way that he addressed them in his briefing to this Court.

   A. Brand’s motion for summary judgment on his DTPA claim

       Brand argues that he was entitled to summary judgment on his DTPA claim “because

Chase failed to present any dispute involving a genuine issue of material fact.” He argues that

Chase’s failure to disclose that a “‘new vendor’ was responsible for ID protection” was a

deceptive, misleading practice in violation of the DTPA and Chase “failed to dispute that it did

not reimburse [him] for all the amounts associated with the Chase ID fraud protection

products[.]” He contends that he is entitled to summary judgment on his DTPA claim because

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Chase failed “to meet [its] burden in their motion for summary judgment to establish that [he]

failed to establish his status as a consumer pursuant to the DTPA.”

       Generally, to prevail on a DTPA claim, a plaintiff must establish that he is a consumer;

that the defendant engaged in false, misleading, deceptive, or unconscionable acts upon which

the plaintiff relied to his detriment; and that those acts were a producing cause of the plaintiff’s

damages. See TEX. BUS. & COM. CODE ANN. § 17.50(a)(1) (West 2011). To prevail on summary

judgment, Brand was required to conclusively establish each of these essential elements. MMP,

Ltd., 710 S.W.2d at 60.

       In his briefing to this Court, Brand does not identify the elements he was required to

establish or show how he conclusively established each of those elements. Instead, Brand

focuses his argument on his contention that he is a consumer for purposes of the DTPA claim

relating to the identity fraud protection charges. Even accepting his argument as correct, Brand

was also required to conclusively establish the remaining essential elements of his claim to be

entitled to summary judgment. Brand stated in his affidavit attached to his motion that he

“estimated economic damages for this conduct exceed[ed] $4,559.72 for these fraudulent

products including interest, fees, and costs of the same.”         He also “allege[d] additional

compensatory damages including attorney’s fees and costs, lost profits associated with investing

100 hours of time due to these disputes, and additional damages allowed under the DTPA.” But

Brand did not attach any supporting evidence conclusively establishing that he was damaged in

the amount of $4,559.72 or any other amount. See State, 390 S.W.3d at 293 (citing civil

procedure rule 166a(c) for requirements for basing summary judgment on uncontroverted

testimonial evidence of interested witness).

       Additionally, Brand alleged violations of the DTPA against Chase for raising his APR,

lowering his credit limit, and increasing the minimum payment obligation. But he does not

                                                –6–
address how he conclusively established he was a consumer for DTPA purposes with respect to

those allegations. See Riverside Nat’l Bank v. Lewis, 603 S.W.2d 169, 174–75 (Tex. 1980)

(extension of credit or attempt to acquire money or the use of money is not a good or service for

purposes of DTPA).

       Chase’s summary judgment evidence, on the other hand, showed that the charges for the

identity fraud protection services were noted each month on Brand’s monthly statements since

2007 and Brand never disputed those charges until 2013, and then not in writing as required by

the agreement; that the cardmember agreement authorized Chase to change the APR and other

terms of the agreement upon notice to Brand; that Chase provided the requisite notice to Brand;

and that Chase reimbursed Brand for 13 months of charges for the identity fraud protection

services.

       We conclude that Brand did not conclusively establish each essential element of his

DTPA claim, and, consequently, the trial court did not err by denying his motion for summary

judgment on his DTPA claim.

   B. Brand’s motion for summary judgment on his breach of contract claims

       Brand contends on appeal that he was “clearly entitled to summary judgment on his

breach of contract claims.” He alleged below that he had four contracts with Chase: (1) a verbal

contract in January 2006 before he applied for a credit card stating he would receive a Chase

credit card with a capped 16% interest APR, a set due date, and a set spending limit; (2) a verbal

contract in May 2007 in which “a Chase representative verbally misrepresented that [he] gave

Chase authority to bill him for Chase monitored ID fraud protection products”; (3) a verbal

contract in which Chase offered “courtesy credits” “in order to maintain [his] relationship”; and

(4) a written cardmember agreement issued in January 2006 and an amendment issued in 2010.




                                               –7–
          Brand contends that Chase breached those agreements by (1) sending him a credit card

“that potentially” allowed Chase to unilaterally modify the spending limit and APR; (2) “Chase

never monitored these [identity fraud protection] products and the services were never rendered

consistent with the representations made by [Chase]”; (3) the “courtesy credits” were for the

identity fraud protection fees only and did not include reimbursements for the “penalty APR

interest”; and (4) Chase raised the “penalty APR,” did not provide him notice required under the

agreement, and “failed to fulfill its obligations to display the finance charges and penalty fees

during the application process prior to the implementation of the CARD Act.”

          To prevail on a breach of contract claim, Brand was required to conclusively establish

that a valid contract existed, he performed under the contract, Chase breached the contract, and

Brand was damaged as a result of Chase’s breach. See, e.g., Barnett v. Coppell N. Tex. Court,

Ltd., 123 S.W.3d 804, 815 (Tex. App.—Dallas 2003, pet. denied).

          In his briefing to this Court, Brand cites the elements of a breach of contract claim, but he

does not address how he conclusively established each of those elements so as to entitle him to

summary judgment. 2 For example, he contends that the “undisputed evidence reveals that Chase

never monitored these [identity fraud protection] products and the services were never rendered

consistent with the representations made by [Chase].” But the evidence Brand cites to support

this contention is his own motion for summary judgment and affidavit. He appears to contend

that Chase breached the contract by hiring a third-party vendor to provide the identity theft

protection services instead of providing those services in-house.                                            But he does not cite the

provision in the contract that required Chase to provide those services in-house as opposed to

hiring someone to provide those services on Chase’s behalf. Consequently, Brand did not

   2
       In his reply brief, Brand states that he “waives his arguments to the breach of the first and third verbal contract.”




                                                                        –8–
conclusively establish that Chase breached the contract with respect to the identity fraud

protection charges.

           With respect to Brand’s allegations that Chase breached the contract by raising the APR,

lowering his credit limit, and increasing the minimum payment obligations, Brand did not cite

any provision in the contract that prevented Chase from making those changes.              His only

evidence of the existence of such a contract was his affidavit stating a Chase representative made

those representations to him verbally. In the affidavit, however, he also stated “that Chase ended

up providing a card that allowed for modification of the credit card limit, variable and penalty

APR rates, rolling payment deadlines . . . .” To the extent this argument relates to his allegation

of breach of the first verbal contract, Brand waived that argument in his reply brief. 3

           Having reviewed the record and Brand’s arguments on appeal, we cannot conclude that

he conclusively established the essential elements of his claim for breach of contract.

Consequently, the trial court did not err by denying his motion for summary judgment on this

claim.

   C. Summary judgment on the breach of the duty of good faith and fair dealing claim

           Brand does not contend that he was entitled to summary judgment on his claim for breach

of the duty of good faith and fair dealing, but he contends that “summary judgment was improper

as to this claim.” We construe this argument to contend that the trial court erred by granting

Chase’s motion for summary judgment on this claim because Brand raised a genuine issue of

material fact.

           Chase moved for summary judgment on this claim arguing that it did not owe Brand a

duty of good faith and fair dealing because they did not have a special relationship giving rise to

the duty. Chase cited authority stating that a separate tort for breach of the duty of good faith

   3
       See id.



                                                 –9–
and fair dealing does not exist in the creditor–borrower context. See Cockrell v. Republic Mortg.

Ins. Co., 817 S.W.2d 106, 116 (Tex. App.—Dallas 1995, no writ) (no duty in the lender–

borrower relationship).

       In response to Chase’s motion, Brand asserted that “the language upon which Chase

relies to defend its excess interest and fees charges is buried in several pages of densely worded

minutia.”   Brand claimed that “Chase had an existing program at the time it issued its

[cardmember agreement] to [him], and knew it was likely to raise the APRS on [his] account . . .

. Therefore, a reasonable jury could certainly conclude that Chase’s conduct was a classic ‘bait

and switch.’” Brand also

       acknowledges Texas law would not be so kind to allow reimbursement as to the
       issues strictly limited to a lender and borrower relationship. . . . . But with respect
       to the buyer-seller relationship involving fraud Id [sic] services, Chase did have a
       duty to represent in good faith the legitimacy of its products. . . .

       We construe this to argue that Brand and Chase had a buyer–seller relationship that gave

rise to an independent duty owed by Chase to Brand to act in good faith with regard to the credit

card agreement.

       The Supreme Court of Texas has not recognized an implied covenant of good faith and

fair dealing, giving rise to a separate duty in tort, in every contract. Arnold v. Nat’l Cty Mut. Fire

Ins. Co., 725 S.W.2d 165, 167 (Tex. 1987). While a duty may arise “as a result of a special

relationship between the parties governed or created by a contract,” such as insurer–insured,

principal–agent, joint venturers, and partners, Brand does not cite authority for his contention

that the buyer–seller relationship gives rise to an independent duty to act in good faith. See id.;

see also Cole v. Hall, 864 S.W.2d 563, 568 (Tex. App.—Dallas 1993, writ dism’d w.o.j.);

Central Savs. & Loan Ass’n v. Stemmons Nw. Bank, N.A., 848 S.W.2d 232, 239 (Tex. App.—

Dallas 1992, no writ). And he does not address how he raised a genuine issue of material fact



                                                –10–
about his status as a buyer, as opposed to a borrower, with regard to these allegations about APR,

credit limit, and minimum payment obligations.

          Brand argues that the trial court granted summary judgment in favor of Chase on this

claim “on the sole basis that no special relationship existed between the parties[.]” But the

court’s judgment does not state the basis for granting summary judgment in favor of Chase on

this claim. As a result, Brand’s burden on appeal was to show that his summary judgment

evidence raised a genuine issue of material fact on each essential element of this claim. See

Clear Creek Basin Auth., 589 S.W.2d at 678. Because he does not address each essential

element on appeal, we have no basis to conclude that the trial court erred by granting summary

judgment in favor of Chase on this claim.

     D. Brand’s motion for summary                                   judgment           on      his     fraud        and      negligent
        misrepresentation claims 4

          Brand argues that Chase knowingly billed him for services without his authorization

“with the intent to deceive for pecuniary gain . . . .” He argues that Chase billed him “for at least

two months for services never requested and later charged [him] for several years due to the

intentional misrepresentations made by [Chase] as to the legitimacy and/or origin of said

product/services.” He contends that the evidence was undisputed with regard to Chase’s false

representations and intention that he rely on those false statements. Brand cites his own affidavit

and pleadings to support his contentions and argues that “the issue of liability is again clear –

Chase not only violated the DTPA, but they fraudulently deceived [him].” He contends that he

had actual damages in the amount of $10,000.

          To prevail on summary judgment for his common law fraud claim, Brand was required to

conclusively establish that Chase made a material representation, the representation was false,

     4
       Brand does not challenge the trial court’s summary judgment in favor of Chase on his conversion claim and, consequently, that claim is
not before us.



                                                                  –11–
Chase knew the representation was false when Chase made it or Chase made it recklessly

without any knowledge of the truth, Chase intended Brand to rely and act upon the

representation, Brand acted on the representation, and Brand suffered injury as a result. See

Henning v. OneWest Bank FSB, 405 S.W.3d 950, 963 (Tex. App.—Dallas 2013, no pet.).

       To prevail on summary judgment for negligent misrepresentation, Brand was required to

conclusively establish that Chase made a false representation in the course of its business, Chase

did not exercise reasonable care or competence in communicating the information, and Brand

suffered pecuniary loss by justifiably relying on the representation. See id. at 965.

       In his briefing to this Court, Brand does not identify the elements of his claims for fraud

and negligent misrepresentation that he was required to prove as a matter of law. He refers to

“undisputed evidence,” and cites his affidavit, but he does not cite summary judgment evidence

conclusively establishing the essential elements of these claims. See MMP, Ltd., 710 S.W.2d at

60. Because Brand did not satisfy his burden to prove these claims as a matter of law, we cannot

conclude that the trial court erred by denying Brand’s motion for summary judgment on his

claims for fraud and negligent misrepresentation.

   E. Brand’s motion for summary judgment for attorney’s fees and costs

       Brand also argues that he was entitled to summary judgment for attorney’s fees and costs

for his DTPA claim and that “[t]he record is silent as to why the trial court decided against

awarding attorney’s fees.” However, when a party does not prevail on his DTPA claim, he is not

entitled to attorney’s fees and costs. See TEX. BUS. & COM. CODE ANN. § 17.50(d) (“Each

consumer who prevails shall be awarded court costs and reasonable and necessary attorneys’

fees.”); see also Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 567 (Tex. 2002) (“Without an

actual-damages recovery, a party is not entitled to an attorney’s fees recovery.”). Because Brand




                                               –12–
did not prevail on his DTPA claim, the trial court did not err by denying Brand’s request for

attorney’s fees and costs.

                                         CONCLUSION

       We resolve Brand’s issues against him and affirm the trial court’s judgment.




                                                  /Elizabeth Lang-Miers/
                                                  ELIZABETH LANG-MIERS
                                                  JUSTICE


150066F.P05




                                             –13–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

VOLNEY BRAND, Appellant                               On Appeal from the County Court at Law
                                                      No. 3, Dallas County, Texas
No. 05-15-00066-CV         V.                         Trial Court Cause No. CC-14-02091-C.
                                                      Opinion delivered by Justice Lang-Miers.
CHASE BANK USA, N.A., Appellee                        Justices Bridges and Schenck participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee Chase Bank USA, N.A. recover its costs of this appeal
from appellant Volney Brand.


Judgment entered this 1st day of July, 2016.




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