AFFIRM; Opinion issued April 5, 2013




                                        S  In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas

                                     No. 05-11-00451-CV

                             JULIAN AYMETT, Appellant
                                       v.
                       CITIBANK SOUTH DAKOTA N.A., Appellee

                     On Appeal from the 162nd Judicial District Court
                                  Dallas County, Texas
                          Trial Court Cause No. DC-10-04983-I

                                         OPINION
                        Before Justices Bridges, FitzGerald, and Myers
                                Opinion by Justice FitzGerald
       In a suit to recover a credit card debt, appellee Citibank (South Dakota), N.A.

(“Citibank”) obtained a final summary judgment awarding it $5,051.12 against the debtor, Julian

Aymett. Aymett appeals, arguing the trial court (1) erred in granting summary judgment on the

breach of contract claim because his testimony created a fact issue; (2) erred in granting

summary judgment on the account stated claim because there is no evidence he agreed to a

certain amount owed or that the statements were delivered to him; (3) erred in granting summary

judgment on the breach of contract claim because Citibank’s own evidence created a fact issue

on the applicable finance charge; (4) erred in granting summary judgment on an implied contract

when Citibank claimed there was an express contract for the same transaction; (5) erred in

granting summary judgment on the breach of contract claim because there is a fact question as to

whether he impliedly acknowledged the amount due or any other terms; and (6) erred in granting
summary judgment because Citibank never proved the content of the required federal

disclosures. Concluding Aymett’s arguments are without merit, we affirm the trial court’s

judgment.

                                        BACKGROUND

       Citibank sued Aymett alleging breach of contract and account stated based on a credit

card debt. After Aymett answered, Citibank moved for summary judgment on both of its claims.

Citibank’s summary judgment motion was supported by the affidavit of Lisa Blumer, a Citibank

representative and custodian of records, Aymett’s deposition testimony, and copies of affidavits

filed by Aymett’s counsel in similar cases filed by Citibank against its debtors. Aymett’s

response included his affidavit and a hearsay objection to the Blumer affidavit. Citibank replied

that Aymett’s response is insufficient to raise a fact issue to defeat summary judgment, and also

argued that Aymett’s affidavit lacks credibility. According to Citibank, the affidavit is not

credible because it is identical to affidavits previously filed by Aymett’s counsel in other cases

and “[d]isparate individuals have all presented the same allegations in their affidavits.” Neither

party obtained a ruling on the admissibility of the summary judgment evidence, and the trial

court granted summary judgment for Citibank without specifying the basis for its ruling. Aymett

timely appealed.

                                   STANDARD OF REVIEW

       We review summary judgments under well-established standards. See TEX. R. CIV. P.

166a; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985) (traditional motions

under rule 166a(c)). Citibank, as the movant, has the burden of showing that no genuine issue of

material fact exists and that it is entitled to judgment as a matter of law. Sysco Food Servs., Inc.

v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994). In deciding whether a disputed material fact issue




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exists precluding summary judgment, evidence favorable to respondent Aymett will be taken as

true. Id. Every reasonable inference must be indulged in favor of Aymett and any doubts

resolved in his favor. Id. We review the trial court’s summary judgment de novo to determine

whether Citibank’s right to prevail is established as a matter of law. Dickey v. Club Corp. of Am.,

12 S.W.3d 172, 175 (Tex. App.—Dallas 2000, pet. denied). If, as here, the trial court’s judgment

does not specify the grounds relied upon for its ruling, the summary judgment must be affirmed

if any of the theories presented to the trial court and preserved for appellate review are

meritorious. Browning v. Prostock, 165 S.W.3d 336, 344 (Tex. 2005).

                                                          ACCOUNT STATED

          In his second and fifth issues, Aymett complains there is no evidence he agreed that a

certain amount owed or to the terms of any agreement. 1 He further insists there is no evidence

that account statements were delivered to him. Both of these issues concern the account stated

claim, so we consider them in tandem.

          To prove it was entitled to relief under its account stated claim, Citibank was required to

show (1) transactions between it and Aymett gave rise to the indebtedness, (2) an agreement,

express or implied, between the parties that fixed the amount due, and (3) Aymett made an

express or implied promise to pay the indebtedness. See Dulong v. Citibank (S.D.), N.A., 261

S.W.3d 890, 893 (Tex. App.—Dallas 2008, no pet.). Citibank was not required to produce a

written agreement if it produced other evidence of an agreement between the parties — that is

because an account stated claim is based on an express or implied agreement. Id. at 894;

Compton v. Citibank (S.D.), N.A., 364 S.W.3d 415, 418 (Tex. App.—Dallas 2012, no pet.).

     1
       Although Aymett initially describes his fifth issue as pertaining to the breach of contract claim, the body of argument addresses the
account stated claim.




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       An agreement to the amount owed can be implied from proof that account statements

were sent to the defendant, the defendant made charges and payments on the account, fees and

interest were assessed on the account, and the defendant retained credit card statements reflecting

the fees and charges on the account without disputing them. See Compton, 364 S.W.3d at 418;

Hays v. CitiBank (S.D.), N.A., No. 05–11–00187–CV, 2012 WL 929673, at *3 (Tex. App.—

Dallas Mar. 16, 2012, no pet.) (mem. op.). Citibank’s summary judgment evidence consisted of

excerpts from Aymett’s deposition in which he admitted using the credit card and making

payments until he became ill and stopped making payments. Aymett testified he had never

disputed any of the charges on the account, and agreed that he has no dispute as to the amount

claimed to be due and owing on the account.

        Aymett did not controvert any of these facts. Instead, he complains that Citibank did not

present a copy of a written contract between it and him. But Citibank was not required to adduce

evidence of a written contract to establish its account stated claim. See Compton, 364 S.W.3d at

418. And while Aymett complains there is no evidence he actually received the account

statements, the summary judgment evidence demonstrates that Citibank mailed, to the same

address for Aymett each time, monthly statements showing extensions of credit, the applicable

interest rate or rates, interest charges and any fees imposed, and the amount of any payments.

The evidence also shows that Aymett responded to the statements by making regular monthly

payments from May 2008 to April 2009. This evidence, coupled with Aymett’s deposition

testimony, establishes Aymett received the statements Citibank sent.

       Based on the series of transactions reflected on the account statements, checks, and

payment stubs in this record, as well as Aymett’s testimony, the undisputed evidence shows a

series of transactions between Aymett and Citibank, as well as acts and conduct establishing




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Aymett and Citibank had an implied agreement fixing an amount due equal to the purchases he

made, less payments and credits to his account, plus interest and fees, and that Aymett impliedly

promised to pay Citibank the amount due. Therefore, the trial court did not err in granting

summary judgment on Citibank’s account stated claim. See Dulong, 261 S.W.3d at 894.

Aymett’s second and fifth issues are overruled.

                           EXPRESS AND IMPLIED CONTRACT

       In his fourth issue, Aymett contends the trial court erred in granting summary judgment

on an implied contract when Citibank claimed an express contract based upon the same

transaction. This Court has previously rejected this argument on similar facts, and for the same

reasons, we reject it now. See Hays, 2012 WL 929673 at *3.

        In support of his argument, Aymett relies on Woodard v. Southwest States, Inc., 384

S.W.2d 674, 675 (Tex. 1964), and Morales v. Dalworth Oil Co., Inc., 698 S.W.2d 772, 774 (Tex.

App.—Fort Worth 1985, writ ref’d n.r.e.). Aymett’s reliance is misplaced. Unlike the present

case, these cases involve quantum meruit claims and the general rule that a party cannot recover

under quantum meruit or an implied contract where there is an express contract. See Hays, 2012

WL 929673, at *3. Moreover, these cases involved the admission of an express contract between

the parties. Id. In the present case, Aymett disputes the existence of an express contract and

argues there is no summary judgment evidence to establish such a contract exists. There was no

determination that Citibank was entitled to recover on both an express and an implied contract,

and we have concluded the summary judgment evidence establishes Citibank’s right to recover

on the account stated claim. Aymett’s fourth issue is overruled.

                                        CONCLUSION




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       We conclude Aymett has not demonstrated the trial court erred in granting Citibank’s

motion for summary judgment on the account stated cause of action. Based on our resolution of

Citibank’s account stated claim, we need not reach Aymett’s remaining breach of contract issues.

See TEX. R. APP. P. 47.1; Browning, 165 S.W.3d at 344. The trial court’s judgment is affirmed.




                                                    /Kerry P. FitzGerald/
                                                    KERRY P. FITZGERALD
                                                    JUSTICE



110451F.P05




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                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

JULIAN AYMETT, Appellant                             On Appeal from the 162nd Judicial District
                                                     Court, Dallas County, Texas
No. 05-11-00451-CV          V.                       Trial Court Cause No. DC-10-04983-I.
                                                     Opinion delivered by Justice FitzGerald.
CITIBANK SOUTH DAKOTA NA,                            Justices Bridges and Myers participating.
Appellee

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
        It is ORDERED that appellee CITIBANK SOUTH DAKOTA NA recover its costs of
this appeal from appellant JULIAN AYMETT.


Judgment entered April 5, 2013.




                                                     /Kerry P. FitzGerald/
                                                     KERRY P. FITZGERALD
                                                     JUSTICE




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