                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-11-00030-CV


AMERICAN EXPRESS BANK, FSB                                        APPELLANT

                                      V.

ROY BEARDEN                                                        APPELLEE


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          FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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                       I. Introduction and Background

      Appellant American Express Bank, FSB appeals the trial court’s no-

evidence summary judgment in favor of Appellee Roy Bearden.          American

Express filed suit against Bearden alleging that the parties had entered into a

Card Member Agreement and that Bearden had an unpaid balance of

$13,706.50.    In his answer, Bearden expressly denied entering into a Card

      1
      See Tex. R. App. P. 47.4.
Member Agreement, making purchases, receiving cash advances, or receiving

any invoices or notice of charges. Bearden subsequently filed a no-evidence

summary judgment raising these arguments, and the trial court granted the

motion after sustaining certain objections to American Express’s summary

judgment evidence. In its sole issue, American Express argues that the trial

court erred by granting the no-evidence summary judgment. We affirm.

                            II. Standard of Review

      After an adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground

that there is no evidence to support an essential element of the nonmovant’s

claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the

elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286

S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the

nonmovant produces summary judgment evidence that raises a genuine issue of

material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d

425, 426 (Tex. 2008).

      When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199

S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for

evidence that would enable reasonable and fair-minded jurors to differ in their

conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168


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S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if

reasonable jurors could, and we disregard evidence contrary to the nonmovant

unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)).              If the

nonmovant brings forward more than a scintilla of probative evidence that raises

a genuine issue of material fact, then a no-evidence summary judgment is not

proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc.

v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030

(2004). Less than a scintilla of evidence exists when the evidence is so weak

that it does nothing more than create a mere surmise or suspicion of a fact.

Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

                                III. Discussion

      American Express contends that the no-evidence summary judgment

should not have been granted because there is more than a scintilla of evidence

that the parties formed and that Bearden breached the credit agreement.

Bearden responds that American Express presented no evidence of Bearden’s

application for credit, of American Express’s agreement to offer credit, of

Bearden’s use of the credit card or receipt of invoices, or of Bearden’s payments

toward the balance.

A. Applicable Law

      The essential elements of American Express’s breach of contract claim are

(1) the existence of a valid contract, (2) performance or tendered performance by


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the plaintiff, (3) breach of the contract by the defendant, and (4) damages

sustained as a result of the breach. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97

S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied); see

Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex.

App.—Houston [1st Dist.] 2007, no pet.). Parties form a binding contract when

the following elements are present:     (1) an offer, (2) an acceptance in strict

compliance with the terms of the offer, (3) meeting of the minds, (4) each party’s

consent to the terms, and (5) execution and delivery of the contract with the

intent that it be mutual and binding. Winchek, 232 S.W.3d at 202; Prime Prods.,

97 S.W.3d at 636. “An express contract arises when its terms are stated by the

parties whereas an implied contract can arise from the acts and conduct of the

parties.” Dulong v. Citibank (S.D.), N.A., 261 S.W.3d 890, 894 (Tex. App.—

Dallas 2008, no pet.) (citing Harrison v. Williams Dental Group, P.C., 140 S.W.3d

912, 916 (Tex. App.—Dallas 2004, no pet.)).

B. Analysis

      Outside of conclusory assertions in American Express’s summary

judgment affidavits to the effect that Bearden entered into the Card Member

Agreement with American Express and that American Express made cash

advances to Bearden, there is no evidence that the Roy Bearden who was the

defendant below and is the appellee in this appeal is the person who requested

this credit card account with American Express or took any action consistent with




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having requested the credit card account.2 This failure of proof was the central

theme of Bearden’s motion for no-evidence summary judgment.

      In its summary judgment filings, American Express clearly presented

evidence that persons named John Adame and Adam Patrey incurred charges

on a credit card account and that the invoices on that account were addressed to

“Roy D Bearden, Texas 8 Ball, 218 W Oak St., Denton TX 76201-4112.” But

there is no evidence that Bearden had any association with that business entity

or that address, that he received any of the invoices mailed to that address, 3 that

he personally incurred any charges on the credit card account or authorized

others to do so, or that he personally made any payments on the account.

Missing from American Express’s summary judgment evidence is any conduct by

Bearden that circumstantially suggests that he is the person that requested this

credit card account or authorized others to use it. American Express points to

the language in the Card Member Agreement providing that use of the credit card

      2
       “Conclusory statements are not proper summary judgment proof.” See
generally Lindley v. McKnight, 349 S.W.3d 113, 126 (Tex. App.—Fort Worth
2011, no pet.). The trial court sustained several of Bearden’s objections to the
conclusory assertions in American Express’s summary judgment affidavits.
American Express challenges some of the trial court’s evidentiary rulings on
appeal but does not challenge the trial court’s rulings concerning the conclusory
statements in the affidavits. We therefore do not consider the conclusory
statements in the affidavits. Also, we do not reach the merits of the trial court’s
other evidentiary rulings because, even considering the excluded evidence, it
does not raise a fact issue sufficient to defeat Bearden’s motion for no-evidence
summary judgment. See Tex. R. App. P. 47.1, 47.4.
      3
      Indeed, American Express’s original and first amended petitions listed
Bearden’s address as being in Arlington, not Denton.


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by the cardholder constitutes agreement to the terms of the Card Member

Agreement and that the primary cardholder is liable for the charges incurred by

other authorized users on the account. But American Express has not presented

competent summary judgment evidence that Bearden requested the opening of

this credit card account or authorized anyone else to open the account on his

behalf.

      American Express’s summary judgment evidence is consistent with at

least three occurrences: (1) the creation and use of this credit card account by a

person without Bearden’s knowledge or authorization; (2) the creation of this

credit card account by a different Roy Bearden; and (3) the creation of this credit

card account by Bearden along with his authorization for additional cardholders

to make charges to the account. A party cannot avoid summary judgment by

relying on circumstantial evidence that is equally consistent with the

nonexistence of the fact the party seeks to prove.      Soodeen v. Rychel, 802

S.W.2d 361, 363 (Tex. App.—Houston [1st Dist.] 1990, writ denied); see also

Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997) (holding

“meager circumstantial evidence” that could give rise to any number of

inferences, none more probable than another, is no evidence of an ultimate fact

issue).   Thus, American Express failed to present more than a scintilla of

summary judgment evidence of a contract between itself and Bearden. On this

record, we hold that the trial court did not err by granting Bearden’s motion for




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no-evidence summary judgment, and we overrule American Express’s sole

issue.

                                   IV. Conclusion

         Having overruled American Express’s sole issue, we affirm the trial court’s

judgment.




                                                    ANNE GARDNER
                                                    JUSTICE

PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.

DELIVERED: March 22, 2012




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