                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-07-00277-CV

ALVIN S. MCFARLAND,
                                                           Appellant
v.

CITIBANK (SOUTH DAKOTA), N.A.,
                                                           Appellee



                      From the County Court at Law No. 1
                            Johnson County, Texas
                          Trial Court No. C200500055


                                     OPINION


      Alvin S. McFarland challenges the trial court’s rulings on cross-motions for

summary judgment in this credit card debt collection suit. We will affirm.

                                     Background

      Citibank (South Dakota), N.A. (Citibank) sued McFarland to recover unpaid

credit card debt. In its petition, Citibank alleged that both parties entered into an

agreement for a credit account and that pursuant to the express terms of the agreement,

McFarland was responsible for all charges placed on the account by persons permitted
or who had access to the credit card or account number.            Citibank alleged that

McFarland used the account to make purchases of goods and/or services and/or to

receive cash advances. Citibank alleged that in accordance with the agreement, it billed

McFarland for payment of the charges on the account, but McFarland defaulted in

making the payments required by the agreement. Citibank asserted four alternative

causes of action: (1) “breach of contract/written or implied-in-fact,” (2) “breach of oral

contract,” (3) “account stated” and (4) “restitution, common law debt, assumpsit,

money had [sic] and to remedy defendant’s unjust enrichment.” McFarland generally

denied the allegations.

       The parties filed cross-motions for summary judgment. Citibank filed what we

have determined to be a traditional motion for summary judgment on its account stated

cause of action. Citibank’s summary judgment evidence consisted of an Affidavit in

Support of Attorney Fees and the Affidavit of Ramona Chavez, a Litigation Analyst

with Citicorp Credit Services, Inc. USA, a service provider for Citibank. Additionally,

sixty pages of McFarland’s credit card statements were attached to Chavez’s affidavit.

McFarland filed a no-evidence motion for summary judgment, claiming Citibank lacked

evidence to succeed on any of its claims. The trial court granted Citibank’s summary

judgment motion and denied McFarland’s summary judgment motion.

                                      Standard of Review

       The standards for reviewing summary judgment are well established. When

both parties move for summary judgment and the district court grants one motion and

denies the other, the unsuccessful party may appeal both the prevailing party’s motion


McFarland v. Citibank (South Dakota), N.A.                                          Page 2
and the denial of its own. See Holmes v. Morales, 924 S.W.2d 920, 922 (Tex. 1996). We

will review the summary judgment evidence presented by both sides, determine all

questions presented, and render such judgment as the trial court should have rendered.

Comm’rs Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex. 1997).

                                             Analysis

       In two issues, McFarland contends generally that the trial court erred (1) in

granting Citibank’s motion for summary judgment on its account stated claim and (2) in

denying his motion for summary judgment. McFarland also attacks the summary

judgment rulings in several sub-issues. We will address each argument accordingly.

    Affidavit of Ramona Chavez

       We begin by addressing McFarland’s contention that Ramona Chavez’s affidavit

is defective and not competent summary judgment evidence. McFarland specifically

complains that the affidavit lacks foundation, is based on hearsay and speculation, and

falls below the standards required for proof of computer records. He also argues that

Chavez lacks personal knowledge and is an interested witness.           However, in the

summary judgment context, a nonmovant must obtain a ruling on an objection to the

form of a motion or supporting evidence to preserve the issue for appellate review. See

TEX. R. APP. P. 33.1(a)(2); Allen v. Albin, 97 S.W.3d 655, 662-63 (Tex. App.—Waco 2002,

no pet.); see also Estate of Loveless, 64 S.W.3d 564, 573 (Tex. App.—Texarkana 2001, no

pet.); Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 316 (Tex. App.—San Antonio 2000, no

pet.); Dolcefino v. Randolph, 19 S.W.3d 906, 925-27 (Tex. App.—Houston [14th Dist.] 2000,




McFarland v. Citibank (South Dakota), N.A.                                           Page 3
pet. denied). But see Blum v. Julian, 977 S.W.2d 819, 823-24 (Tex. App.—Fort Worth 1998,

no pet.).

       All of these objections are objections to the form of the affidavit. Dulong v.

Citibank (South Dakota), N.A., 261 S.W.3d 890, 893 (Tex. App.—Dallas 2008, no pet.) (lack

of personal knowledge and failure to comply with business records exception to

hearsay rule); Pico v. Capriccio Italian Rest., Inc., 209 S.W.3d 902, 909 (Tex. App.—

Houston [14th Dist.] 2006, no pet.) (hearsay and speculation); Choctaw Props., L.L.C. v.

Aledo I.S.D., 127 S.W.3d 235, 241 (Tex. App.—Waco 2003, no pet.) (affidavit of interested

witness, hearsay, lack of personal knowledge). Because McFarland does not cite, nor

have we found, a ruling from the trial court on these objections, McFarland failed to

preserve these objections for appellate review. See TEX. R. APP. P. 33.1(a)(2).

       McFarland also argues that the affidavit is conclusory because it fails to establish

the basis for Chavez’s personal knowledge of the facts to which she testifies. An

objection regarding the conclusory nature of an affidavit is an objection to the substance

of the affidavit that can be raised for the first time on appeal. Willis v. Nucor Corp., __

S.W.3d __, __, 2008 WL 5473046, at *6 (Tex. App.—Waco Dec. 31, 2008, no pet.); Skelton

v. Comm’n for Lawyer Discipline, 56 S.W.3d 687, 692 (Tex. App.—Houston [14th Dist.]

2001, no pet.). Thus, we will address this argument.

       Affidavits containing conclusory statements that fail to provide the underlying

facts to support the conclusion are not proper summary judgment evidence. Dolcefino,

19 S.W.3d at 930. However, Chavez’s affidavit is not conclusory. It is based on her

personal knowledge derived from her work as a Litigation Analyst, whose duties


McFarland v. Citibank (South Dakota), N.A.                                           Page 4
include being one of the custodians of the records for Citibank. Furthermore, the

affidavit substantially complies with the language of Texas Rule of Evidence 902(10)(b);

therefore, it properly authenticates the business records at issue. See TEX. R. EVID. 902

(10)(b); McElroy v. Unifund CCR Partners, No. 14-07-00661-CV, 2008 WL 4355276, at *3

(Tex. App.—Houston [14th Dist.] Aug. 26, 2008, no pet.) (mem. op.) (affidavit not

conclusory because it substantially complied with language of Rule 902(10)(b)); Jones v.

N. Woodland Hills Vill. Cmty. Ass’n, No. B14-93-00545-CV, 1994 WL 388298, at *5 (Tex.

App.—Houston [14th Dist.] July 28, 1994, writ denied) (affidavit containing only factual

statements and substantially complying with Rule 902(10)(b) model affidavit was not

conclusory); see also Gellatly v. Unifund CCR Partners, No. 01-07-00552-CV, 2008 WL

2611894, at *5 (Tex. App.—Houston [1st Dist.] July 3, 2008, no pet.) (mem. op.). For

these reasons, we conclude Chavez’s affidavit is not conclusory and the trial court did

not err in considering it.

    Existence of Agreement

       McFarland contends that Citibank failed to establish its claim as a matter of law

because there is no proof of an agreement between the parties. McFarland points to the

fact that Citibank failed to include a complete copy of the cardholder agreement in its

summary judgment evidence. However, Citibank did not have to produce a written

contract.

       A party is entitled to relief under the common law cause of action for account

stated when (1) transactions between the parties give rise to indebtedness of one to the

other; (2) an agreement, express or implied, between the parties fixes an amount due;


McFarland v. Citibank (South Dakota), N.A.                                         Page 5
and (3) the one to be charged makes a promise, express or implied, to pay the

indebtedness. Dulong, 261 S.W.3d at 893; Neil v. Agris, 693 S.W.2d 604, 605 (Tex. App.—

Houston [14th Dist.] 1985, no writ); Arnold D. Kamen & Co. v. Young, 466 S.W.2d 381, 388

(Tex. Civ. App.—Dallas 1971, writ ref’d n.r.e.). Because an agreement on which an

account stated claim is based can be express or implied, Citibank did not have to

produce a written contract as long as it could produce other evidence of the agreement

between the parties to meet its burden of proof. Dulong, 261 S.W.3d at 894; see also

Butler v. Hudson & Keyse, L.L.C., No. 14-07-00534-CV, 2009 WL 402329, at *3 (Tex. App.—

Houston [14th Dist.] Feb. 19, 2009, no pet.) (mem. op.).

       An implied agreement can arise from the acts and conduct of the parties. Dulong,

261 S.W.3d at 894; Harrison v. Williams Dental Group, P.C., 140 S.W.3d 912, 916 (Tex.

App.—Dallas 2004, no pet.). Citibank submitted billing statements from January 2000

to April 2004. 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. Payments were also made. Chavez’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 McFarland ever objected to or disputed any charges or fees.

McFarland argues that Citibank is attempting to wrongfully use the Federal Truth in

Lending Act as a weapon to shift the burden of proof to him to prove that the amount


McFarland v. Citibank (South Dakota), N.A.                                        Page 6
on the credit card statements is incorrect. But McFarland misses the point. Chavez

attested in her affidavit that McFarland owes a balance of $10,602.07, plus interest, on

the credit card account, and based on McFarland’s usage of the credit card, we may

reasonably infer that he impliedly agreed to pay a fixed amount equal to the purchases

and cash advances he made, plus interest. See Dulong, 261 S.W.3d at 894; see also Butler,

2009 WL 402329, at *3. Thus, the evidence presented by Citibank establishes its right to

summary judgment as a matter of law. McFarland raises no fact issues that would

preclude summary judgment. Tex. Workers’ Comp. Ins. Fund v. Simon, 980 S.W.2d 730,

733 (Tex. App.—San Antonio 1998, no pet.) (citing City of Houston v. Clear Creek Basin

Auth., 589 S.W.2d 671, 678 (Tex. 1979)). McFarland has not presented any evidence

suggesting a different amount is owed.

       Based on the series of transactions reflected on the account statements, we

conclude Citibank established that McFarland agreed to the full amount shown on the

statements and impliedly promised to pay the indebtedness. See Dulong, 261 S.W.3d at

894 (holding under almost identical facts that it was reasonable to infer that credit card

holder agreed to full amount shown on statements and impliedly promised to pay

indebtedness).

    Application of Account Stated Cause of Action to Credit Card Collection Suit

       Finally, McFarland argues that an account stated cause of action does not apply

to the collection of credit card accounts. We disagree. A claim for account stated differs

from a suit on a sworn account, which requires that personal property or services be

provided by the creditor to the debtor. See TEX. R. CIV. P. 185; Tully v. Citibank (South


McFarland v. Citibank (South Dakota), N.A.                                          Page 7
Dakota), N.A., 173 S.W.3d 212, 216 (Tex. App.—Texarkana 2005, no pet.). Thus, we join

our sister courts in holding that account stated, and not a suit on a sworn account, is a

proper cause of action for a credit card collection suit because no title to personal

property or services passes from the bank to the credit card holder. See Dulong, 261

S.W.3d at 893 n.3; see also Butler, 2009 WL 402329, at *2.

                                             Conclusion

       On this record, we conclude that Citibank established that it is entitled to

judgment as a matter of law on its account stated cause of action and that McFarland

has not raised a material fact issue. Thus, we overrule McFarland’s first issue and his

second issue to the extent it challenges the trial court’s denial of his no-evidence

summary judgment on Citibank’s account stated cause of action. Furthermore, having

concluded that the trial court properly granted Citibank’s motion for summary

judgment, we need not address McFarland’s second issue to the extent he challenges

the trial court’s denial of his no-evidence motion for summary judgment on Citibank’s

other causes of action. TEX. R. APP. P. 47.1.

       We affirm the trial court’s judgment.



                                                    REX D. DAVIS
                                                    Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed June 17, 2009
[CV06]


McFarland v. Citibank (South Dakota), N.A.                                         Page 8
