Opinion filed February 27, 2015




                                              In The


            Eleventh Court of Appeals
                                           __________

                                    No. 11-13-00040-CV
                                        __________

                                 ROSE CORE, Appellant
                                                  V.
                CITIBANK (SOUTH DAKOTA), N.A.
            NOW MERGED INTO CITIBANK, N.A., Appellee

                        On Appeal from the 362nd District Court
                                     Denton County, Texas
                          Trial Court Cause No. 2011-40013-362


                         MEMORANDUM OPINION
        Rose Core appeals the summary judgment entered in favor of Citibank
(South Dakota), N.A. now merged into Citibank, N.A. 1 Citibank sued Core to
collect on a delinquent credit card debt. In one issue, Core challenges the granting

        1
          On July 1, 2011, Citibank (South Dakota), N.A. merged into Citibank, N.A. Citibank, N.A. is
the resulting and surviving national banking association.
of Citibank’s motion for summary judgment, arguing among other things that the
trial court should have sustained her evidentiary objections, that Citibank did not
conclusively establish its breach of contract claim, and that Citibank did not
establish its claim for account stated as a matter of law. We affirm.
                                 Background Facts
      Citibank sued Core alleging causes of action for breach of contract, “account
stated,” and common law debt. Citibank eventually filed a traditional motion for
summary judgment on its claims for breach of contract and account stated.
Citibank supported its motion for summary judgment with the affidavit of Leola
Phenix, its records custodian. Phenix’s affidavit included account records from
January 2005 to February 2010 and Citibank’s credit card agreement.             Core
objected to Phenix’s affidavit and argued that it was factually and legally
conclusory, that Phenix lacked personal knowledge, and that Phenix failed to
attach the proper documents to her affidavit. Core also objected to the relevance of
the attached monthly statements and credit card agreement. Core asserted that
Citibank had failed to establish as a matter of law its claims for breach of contract
and account stated. Core attached to her response Citibank’s answers to requests
for production and responses to interrogatories. Citibank filed a reply to Core’s
response in which it argued that Core’s evidentiary objections should be overruled
and that Citibank had conclusively established its breach of contract and account
stated claims.   The trial court overruled all of Core’s objections and granted
Citibank’s motion for summary judgment.
                                      Analysis
      In her sole issue on appeal, Core contends that the trial court erred when it
granted Citibank’s motion for summary judgment. She argues that the trial court
erred in overruling her evidentiary objections and granting Citibank’s claims for
breach of contract and account stated. We review a summary judgment de novo.
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009). We consider the evidence presented in the light most favorable to the
nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors
could and disregarding evidence contrary to the nonmovant unless reasonable
jurors could not. Id. We indulge every reasonable inference and resolve any
doubts in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399
(Tex. 2008).
      A plaintiff is entitled to summary judgment on a cause of action if the
plaintiff conclusively proves all essential elements of the claim. See TEX. R.
CIV. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). “When
the trial court does not specify the basis for its summary judgment, the appealing
party must show it is error to base it on any ground asserted in the motion.” Star-
Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).
                     Objections to the Summary Judgment Evidence
      Core directs the bulk of her appellate arguments toward the trial court’s
rulings on her evidentiary objections to Phenix’s affidavit. In this regard, Core
states in her brief that “[t]his appeal is mostly about the admissibility of evidence.
It is a little bit about whether the elements of two straightforward causes of action
were satisfied.”
      We review a trial court’s ruling on the admissibility of summary judgment
evidence for an abuse of discretion. Paciwest, Inc. v. Warner Alan Props., LLC,
266 S.W.3d 559, 567 (Tex. App.—Fort Worth 2008, pet. denied). An abuse of
discretion exists only when the court’s decision is made without reference to any
guiding rules and principles or is arbitrary or unreasonable.             Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
      Core groups her evidentiary objections into two broad headings:
(1) objections to the untrustworthiness of Phenix’s statements and (2) objections to
the relevance and probative value of the monthly statements and form of contract.
Core argues that Phenix’s affidavit contains factually conclusory statements:
specifically, the assertion of personal knowledge. Additionally, she contends that
Phenix’s affidavit is based on hearsay and does not satisfy the best evidence rule or
Rule 166a(f) of the Texas Rules of Civil Procedure. See TEX. R. EVID. 1002, 1003;
TEX. R. CIV. P. 166a(f). Finally, Core alleges that several statements in Phenix’s
affidavit are inadmissible because they are legally conclusory.
      Phenix’s affidavit provides in relevant part as follows:

             AFFIDAVIT SUPPORTING SUMMARY JUDGMENT

      STATE OF MISSOURI )
                                ) ss.
      COUNTY OF PLATTE )
            Before me, the undersigned authority, personally appeared the
      person identified below, who being by me duly sworn, deposed as
      follows:
            1. My name is               Leola Phenix          . I am of sound
      mind, lawful age and capable of making this Affidavit. The
      statements set forth in this affidavit are true and correct based on my
      personal knowledge and review of the business records described
      herein. I am authorized to make this affidavit on behalf of plaintiff
      Citibank, N.A. (referred to herein as “Citibank”). Citibank is a
      National Bank located in Sioux Falls, South Dakota.
             2. I am employed by Citibank or an affiliate. My job title is
      Document Control Officer. My employment duties include being a
      custodian of records with respect to accounts owned by Citibank. As
      a custodian of records, I have knowledge of, and access to, account
      information and records concerning the defendant’s Citibank account
      number currently ending in 5889, which is the subject of this lawsuit
      (the “Account”). As a result, I am competent to testify to the matters
      stated herein.
       3. Citibank’s records regarding the Account contain the name
and billing address of the defendant, the Account number (and
predecessor account numbers, if any), the Account’s history, which
may include charges made, interest and/or fees assessed, payments
and/or credits received, and the minimum payment due and the total
outstanding balance due on the Account, all of which are collectively
referred to as the “Account Information”. Exhibit A attached hereto
and incorporated herein are copies of the Account statement
transaction detail for the period from 1/24/2005 to 2/22/2010 that was
sent to the defendant (the “Account Statement”).
      4. The Account Information reflects that charges were made on
the Account to purchase goods and services and/or obtain cash
advances. Defendant was provided periodic billing statements for the
Account when there was Account activity, which described the
charges on the Account, along with interest, fees, payments, credits
and the amount due on the Account.
      The Account is subject to written terms and conditions, as
amended from time to time, which terms and conditions were agreed
to by the defendant’s use of Account, a true and correct copy of the
most recent version is attached hereto as Exhibit B.
      5. Exhibit(s) A and B are business records reflecting
information created and maintained by Citibank or its affiliates, in the
course of regularly conducted business activity, and are part of the
regular practice of Citibank to create and maintain such information,
and also were made at the time of the act, transaction, occurrence or
event or within a reasonable time thereafter.
      6. As reflected in the Account Information, defendant did
eventually fail to make required payments on the Account.
      7. As a result of defendant’s failure to make proper payments
on the Account, defendant is presently in default on the Account.
       8. The Account Information shows that the Account Statement
reciting the amount of the debt was sent to the defendant either by
regular mail or by electronic mail. The attached Account Statement
does not reflect any outstanding disputes on the Account.
      9. As reflected on the attached Account Statement, the balance
on the Account is $13,421.79. After the attached Account Statement
      was sent to the defendant, an additional payment or credit/debit was
      received on the Account in the amount of $0.00. As of the date of this
      affidavit, the Account balance of $13,421.79 is due and owing.
            10. Citibank’s records reflect that defendant opened and/or used
      the Account and, therefore, to the best of my knowledge, defendant is
      neither an incompetent, nor an infant.
             11. The debt reflected herein is delinquent, past due and
      remains due and owing. Citibank is the owner of the Account and the
      party and entity to whom the delinquent debt is owed.
            I solemnly affirm under the penalties of perjury and upon
      personal knowledge that the contents of the foregoing paper are true.
      The San Antonio Court of Appeals recently addressed many of the same
evidentiary issues presented in this appeal in dealing with an affidavit similar to the
affidavit in this case. Rodriguez v. Citibank, N.A., No. 04-12-00777-CV, 2013 WL
4682194 (Tex. App.—San Antonio Aug. 30, 2013, no pet.) (mem. op.).                  In
Rodriguez, the court analyzed an affidavit executed by a document control officer
for Citibank to determine whether the affidavit was based on personal knowledge
and whether it contained improper legal and factual conclusions. Id. at *2–3. The
court noted that blanket recitations of personal knowledge would not satisfy the
requirement of personal knowledge for affiants. Id. at *2 (citing Laidlaw Waste
Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 661 (Tex. 1995);
Valenzuela v. State & Cnty. Mut. Fire Ins. Co., 317 S.W.3d 550, 553 (Tex. App.—
Houston [14th Dist.] 2010, no pet.)). Instead, the affiant must explain the basis for
his personal knowledge in order to establish the basis for his attested personal
knowledge in the affidavit. Id.
      In Rodriguez, the court determined that an affiant may establish personal
knowledge when he outlines his job responsibilities “so that one can reasonably
assume he would be particularly situated to have personal knowledge of the facts
within his affidavit.” Id. We agree with this holding. With respect to Phenix’s
affidavit, she specifically outlined her duties as document control officer. As set
forth above, her duties include “being a custodian of records with respect to
accounts owned by Citibank.”         As the custodian of records, Phenix has
“knowledge of, and access to, account information and records concerning
[Core’s] Citibank account.” As was the case in Rodriguez, this statement in the
affidavit is sufficient to establish that Phenix had personal knowledge of Core’s
relationship with Citibank and the events relating thereto as acquired through her
position as document control officer. Accordingly, the trial court did not abuse its
discretion by overruling Core’s personal-knowledge objection.
      Core next argues that Phenix’s affidavit is based on hearsay “because it does
not positively state that even one single statement is based on her personal
knowledge.” See TEX. R. CIV. P. 166a(f) (summary judgment affidavits “shall be
made on personal knowledge”). Core contends that the business records exception
to the hearsay rule does not remove the requirement for personal knowledge or
trustworthiness. However, as stated above, the personal knowledge of a corporate
employee/records custodian may be obtained through his position or job, as long as
the affiant acknowledges the source of his knowledge.        Rodriguez, 2013 WL
4682194, at *2; see also In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218,
224 (Tex. 2004).
      Core does not object to the portion of Phenix’s affidavit addressing the
elements of the business-records exception regarding the documents attached to the
affidavit. Phenix’s affidavit substantially complies with the language of Rule
902(10)(b), which sets out the form affidavit to be used when introducing business
records under Rule 803(6). TEX. R. EVID. 803(6), 902(10)(b). An affidavit that
substantially complies with the affidavit set out in the rule will suffice. TEX. R.
EVID. 902(10)(b); Fullick v. City of Baytown, 820 S.W.2d 943, 944 (Tex. App.—
Houston [1st Dist.] 1991, no writ).      Phenix’s affidavit is based on personal
knowledge with respect to her status as a custodian of business records.
Furthermore, it is not hearsay under the business records exception. Thus, the trial
court did not err when it overruled Core’s objections to the affidavit based on
hearsay.
      Core also contends that Phenix’s affidavit is inadmissible because it does not
satisfy the best evidence rule. TEX. R. EVID. 1002, 1003. Specifically Core asserts
that “many of the statements in the Phenix Affidavit are not in fact supported by
documentary evidence, are not demonstrably trustworthy, and are therefore not
admissible.” We disagree. Phenix’s affidavit primarily served to offer duplicate
account statements into summary judgment evidence under the business records
exception. Under Rule 1003, a duplicate is admissible to the same extent as an
original. TEX. R. EVID. 1003. A review of the account documents presented by
Citibank supports the statements made by Phenix in her affidavit. The account
statements were sent to Core at the same address over a five-year period. The
account statements show payments made by Core over that same time period. The
attached documents also show that Core stopped making payments on her account
in September 2009.      The account statements reflected that, at the time Core
stopped making payments, her balance was $13,421.79. The attached credit card
agreement outlined the account terms, including that Core was required to pay at
least the minimum payment due by the payment due date. We conclude that
Phenix’s affidavit is not inadmissible under the best evidence rule and that the trial
court did not err when it overruled Core’s objection under Rules 1002 and 1003.
      Finally, Core argues that the statements in Phenix’s affidavit are
inadmissible because they are legally conclusory. Core specifically complains in
her brief about the following statements:

           • The Account is subject to written terms and conditions, as amended
             from time to time, which terms and conditions were agreed to by the
               defendant’s use of the Account, a true and correct copy of the most
               recent version is attached hereto as Exhibit B.

            • . . . defendant did eventually fail to make required payments on the
              Account.

            • . . . defendant is presently in default on the Account.

            • . . . the balance on the Account is $13,421.79. . . . As of the date of
              this affidavit, the Account balance of $13,421.79 is due and owing.

            • The debt reflected herein is delinquent, past due and remains due and
              owing. Citibank is the owner of the Account and the party and entity
              to whom the delinquent debt is owed.
      Affidavits containing conclusory statements that fail to provide the
underlying facts to support the conclusion are not proper summary judgment
evidence. Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App.—Houston [14th
Dist.] 2000, pet. denied). However, Phenix’s affidavit is not conclusory. It is
based on her personal knowledge derived from her work as a document control
officer, whose duties include being one of the custodians of the records of
Citibank.
      The court noted in Rodriguez that logical conclusions based on stated
underlying facts within the affidavit or attachments are not improper conclusions.
2013 WL 4682194, at *3. Our review of the statements in Phenix’s affidavit and
its supporting documentation lead us to the same conclusion. The statements are
logical conclusions based on facts stated within Phenix’s affidavit regarding Core’s
account, as well as information contained within the account documents attached
to Phenix’s affidavit. Phenix states in her affidavit that the account documents
contain Core’s name and billing address; her account number; and the history of
the account, which includes charges made, interest and fees assessed, minimum
payments due, and the total outstanding balance due.          The documents, when
considered together, provide a factual basis for each statement challenged by Core.
      As noted previously, Phenix’s affidavit substantially complies with the
language of Texas Rule of Evidence 902(10)(b). Phenix avers that “Exhibit(s) A
and B are business records reflecting information created and maintained by
Citibank or its affiliates, in the course of regularly conducted business activity, and
are part of the regular practice of Citibank to create and maintain such information,
and also were made at the time of the act, transaction, occurrence or event or
within a reasonable time thereafter.” See TEX. R. EVID. 902(10)(b); McFarland v.
Citibank (S.D.), N.A., 293 S.W.3d 759, 762 (Tex. App.—Waco 2009, no pet.).
Affidavits that substantially comply with the language of Rule 902(10)(b) are not
conclusory in nature. McFarland, 293 S.W.3d at 762. We conclude that Phenix’s
affidavit is not conclusory and that the trial court did not err when it overruled
Core’s objection to conclusory statements.
      Core’s next two objections to Phenix’s affidavit concern the relevance and
probative value of the monthly statements and form of contract. Core asserts that
the card agreement was not relevant in this case and was contradicted by
Citibank’s own discovery answers. To be relevant, evidence must tend to make the
existence of a material fact either more or less likely. TEX. R. EVID. 401. Evidence
that fails this test is not admissible. TEX. R. EVID. 402. However, Phenix stated in
her affidavit that the most recent version of the account terms and conditions was
attached as an exhibit. The card agreement is clearly relevant evidence as it makes
the existence of an agreement between Core and Citibank more or less likely.
Whether there was an agreement between Core and Citibank is a material fact for
an account stated. Dulong v. Citibank (S.D.), N.A., 261 S.W.3d 890, 893 (Tex.
App.—Dallas 2008, no pet.). The card agreement is relevant evidence, and the
trial court did not err when it overruled Core’s objections to its relevance.
      Core also objected on the basis that the card agreement attached to Phenix’s
affidavit was inconsistent with Citibank’s own discovery responses. As noted
above, Phenix stated in her affidavit that the most recent version of the account
terms and conditions was attached to her affidavit. The card agreement attached
was printed in 2007. There is no card agreement introduced into evidence that was
printed after this date. Core attached to her response to Citibank’s summary
judgment a card agreement from 2006 that Citibank earlier produced in discovery.
However, this agreement predates the agreement attached to Phenix’s affidavit.
Thus, the card agreement produced in discovery does not contradict Phenix’s
statement that the latest version of the contract was attached to her summary
judgment affidavit.    The trial court did not err in overruling Core’s inconsistency
objection.
      Core’s last objection to Citibank’s summary judgment evidence is that the
monthly statements were not relevant to damages for breach of contract. Core
acknowledges in her brief that “she used the card to incur charges and that she
made payments on the Account.” This acceptance and use manifests an intent by
Core that the contract between herself and Citibank is in effect. Winchek v. Am.
Express Travel Related Servs. Co., 232 S.W.3d 197, 204 (Tex. App.—Houston [1st
Dist.] 2007, no pet.). The monthly statements reflect the total balance, finance
charges, any fees incurred, the minimum amount due, and the due date for
payment. Each statement reflects key terms, including due date and payment
amount, between the parties at that particular point in time. Therefore, the monthly
statements are relevant to Citibank’s proof of damages in regard to its breach of
contract claim.
                      Summary Judgment on Breach of Contract Claim
      As a movant seeking summary judgment on its causes of action, Citibank
had the initial burden of establishing its entitlement to judgment as a matter of law
by conclusively establishing each element of those causes of action. See M.D.
Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). Core
argues that Citibank has not established as a matter of law its claim for breach of
contract. Core admits that there is a contract between the parties. However, Core
asserts that Citibank failed to establish the agreed upon essential terms of the
contract. Core also argues that there was no evidence presented of offer and
acceptance. Finally, Core contends that Citibank failed to establish the amount of
its damages.
      The essential elements of Citibank’s breach of contract claim are (1) the
existence of a valid contract, (2) performance or tendered performance by 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, 232 S.W.3d
at 202. 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, 261 S.W.3d at 894 (citing
Harrison v. Williams Dental Grp., P.C., 140 S.W.3d 912, 916 (Tex. App.—Dallas
2004, no pet.)). To be enforceable, a contract must be sufficiently certain to enable
a court to determine the rights and responsibilities of the parties. T.O. Stanley Boot
Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992).
      Phenix’s affidavit, along with its supporting account statements, addresses
each of the elements of Citibank’s breach of contract claim against Core. The card
agreement indicates that it “is your contract with [Citibank] and governs the use of
your card and account.”
      We have reviewed the five years’ worth of account statements produced by
Citibank. The first of those statements is dated February 16, 2005, and it shows a
balance on the account of $14,001.37. Other than a “credit protector fee” of
approximately $100 a month assessed to Core’s account, Core did not make any
purchases on the account until December 2006/January 2007 as reflected on the
statement dated February 16, 2007. These purchases reflected on the February
2007 statement were the only purchases that Core made on the account during the
five-year period reflected in the account statements.      In the two-year period
between the February 2005 statement and the February 2007 statement, Core either
made the minimum payment due each month as required by the statements or
slightly more than the minimum payment due. As a result of her payments during
this period, the account statements reflect that she reduced the amount due on her
account from $14,001.37 to $12,532.83.
      The February 2007 statement reflects that Core made purchases totaling
$2,419.79 in the preceding month. These purchases raised the balance due on the
account to $14,928.36.     In the eleven months following the February 2007
statement, Core continued to make the minimum monthly payments or payments
of slightly more than the monthly minimum. These payments reduced the balance
due on the account to $13,924.36. Core then stopped making payments on the
account as reflected on the February 2008 statement. She did not make any
payments on the account for the following three months as well. As a result, the
balance of the account increased to $15,821.60 as reflected on the May 2008
statement. Starting with the June 2008 statement, Core began paying the sum of
$344 every month on the account. These payments of $344 a month continued for
approximately eighteen months. As a result of these payments, Core reduced the
balance due on the account to $12,036.01.
       Beginning with the December 2009 statement, Core stopped making
payments on the account. As a result of her nonpayment, the balance due on the
account increased to $13,421.79 as reflected on the March 2010 statement.
Citibank sought and obtained a judgment against Core for $13,421.79, the amount
reflected on the last account statement produced by Citibank.
       The monthly statements show that all purchases were charged to one account
number. They further show the minimum payment due, the payment due date, and
the payments made by Core. We conclude that Citibank’s evidence shows that the
contract terms were sufficiently definite to enable a court to determine the rights
and responsibilities of each party. Furthermore, Core’s conduct in using the card
and making payments on the account for the purchases and charges reflected on
her monthly billing statements shows her acceptance of the terms of the card
agreement. Core additionally argues that Citibank’s summary judgment evidence
is insufficient to establish damages. The card agreement and monthly statements
attached to Citibank’s summary judgment provided detailed explanations of the
cost of credit to Core and the methodology employed by Citibank. As to the
specific charges to Core, the billing statements show previous balances, any
purchases and advances, any payments and credits, and any finance charges
incurred during that billing cycle. The statements also showed the applicable
interest rates.    The total balance owed, as reflected on the March 20, 2010
statement, was $13,421.79. This is the same amount of the damages awarded by
the trial court.
       We conclude that Citibank established its breach of contract claim as a
matter of law. After Citibank established that it was entitled to judgment as a
matter of law, the burden shifted to Core to come forward with summary judgment
evidence sufficient to raise a fact issue. City of Houston v. Clear Creek Basin
Auth., 589 S.W.2d 671, 678 (Tex. 1979). Appellant’s only summary judgment
evidence was Citibank’s own discovery responses. Core did not provide summary
judgment evidence showing a different amount owed on the account. Accordingly,
the trial court did not err in granting summary judgment on Citibank’s breach of
contract claim.
                   Summary Judgment on Account Stated Claim
      We conclude that Citibank was also entitled to summary judgment on its
account stated claim. A party is entitled to relief under the common law cause of
action of account stated where (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; and (3) the one to be charged makes a promise,
express or implied, to pay the indebtedness. Dulong, 261 S.W.3d at 893. Core
admits that Citibank established the first element as a matter of law. Furthermore,
Core does not dispute the third element of an account stated.
      With regard to the second element pertaining to an agreement between the
parties fixing the amount due, Core argues that Morrison v. Citibank (South
Dakota) N.A., No. 2-07-130-CV, 2008 WL 553284, at *3 (Tex. App.—Fort Worth
Feb. 28, 2008, no pet.) (mem. op.), is controlling and that Citibank never
established that Core ever agreed to the correctness of the amount due. The fact
that Morrison is an opinion from the Second Court of Appeals is significant
because this case was transferred to us from the Second Court of Appeals in Fort
Worth pursuant to an order of the Texas Supreme Court under the authority of
Section 73.001 of the Texas Government Code. TEX. GOV’T CODE ANN. § 73.001
(West 2013). In accordance with Rule 41.3 of the Texas Rules of Appellate
Procedure, we are required to follow the precedent of the Fort Worth Court of
Appeals “unless it appears that the transferor court itself would not be bound by
that precedent.” TEX. R. APP. P. 41.3.
      Morrison involved a suit to collect on ten different credit card accounts.
Morrison, 2008 WL 553284, at *1. The trial court held a bench trial and ruled in
favor of Citibank. The Fort Worth Court of Appeals found the evidence legally
sufficient to establish the three elements of account stated. Id. at *2. However, the
custodian of records for the creditor testified that he “could not be sure that the
statements were actually mailed or received.”         Id.    The court of appeals
determined, under a factual sufficiency review of the evidence, that the evidence of
an agreement between the parties fixing an amount due was “so weak that the trial
court’s conclusion that Morrison agreed to the amount due is clearly wrong and
manifestly unjust.” Id. at *3. The court based its determination on the fact that it
was unknown whether or not Morrison received unpaid statements and on her
failure to dispute any of the statements. Id. In reliance upon Morrison, Core
argues that Citibank did not conclusively establish its claim for account stated
because there was no evidence that the last monthly statement was ever sent to,
received by, or agreed to by Core.
      We conclude that Morrison is distinguishable and that the Fort Worth Court
of Appeals would not be bound to follow it as precedent. Morrison only involved
a claim for account stated. Our determination that Citibank was also entitled to
summary judgment on its breach of contract claim renders Morrison
noncontrolling. Furthermore, this is an appeal from a summary judgment while
Morrison was an appeal from a bench trial. From a factual perspective, this appeal
only involves a single credit card account. The account statements offered as
summary judgment evidence show that each of them was sent to Core at the same
address over the entire five-year period. As detailed above, the account statements
reflect a pattern of activity wherein Core paid the minimum monthly payments
specified by the monthly statements on many occasions, indicating that she
actually received the monthly statements.    Additionally, Core’s final eighteen
payments were all made in the same amount of $344, further indicating her receipt
of the statements and her agreement as to the amount owed.
      Moreover, we note that the Dallas Court of Appeals has expressly disagreed
with the holding in Morrison based upon similar facts regarding credit card
statements mailed to a debtor. Compton v. Citibank (S.D.), N.A., 364 S.W.3d 415,
419–20 (Tex. App.—Dallas 2012, no pet.) (citing Dulong, 261 S.W.3d at 894).
Other courts have followed the position adopted by the Dallas Court of Appeals.
See Rodriguez, 2013 WL 4682194 (San Antonio); Singh v. Citibank (S.D.), N.A.,
No. 03-10-00408-CV, 2011 WL 1103788 (Tex. App.—Austin Mar. 24, 2011, no
pet.) (mem. op.); Busch v. Hudson & Keyse, LLC, 312 S.W.3d 294, 299 (Tex.
App.—Houston [14th Dist.] 2010, no pet.); Eaves v. Unifund CCR Partners, 301
S.W.3d 402 (Tex. App.—El Paso 2009, no pet.); McFarland, 293 S.W.3d at 763
(Waco).
      Citibank established all of the elements of a claim for account stated as a
matter of law. The burden then shifted to Core to come forward with summary
judgment evidence sufficient to raise a fact issue to preclude summary judgment.
Clear Creek, 589 S.W.2d at 678. Core did not provide any summary judgment
evidence to raise a fact issue. Accordingly, summary judgment on Citibank’s
claim for account stated was also proper.
                                    Conclusion
      Based on the foregoing reasons, we hold that the trial court did not err in
(1) overruling Core’s objections to Citibank’s summary judgment evidence and
(2) granting Citibank’s motion for summary judgment. Core’s sole appellate issue
is overruled.
                                        This Court’s Ruling
        We affirm the judgment of the trial court.




                                                                 JOHN M. BAILEY
                                                                 JUSTICE


February 27, 2015
Panel consists of: Wright, C.J.,
Bailey, J., and McCall. 2
Willson, J., not participating.




        2
        Terry McCall, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by
assignment.
