Affirmed and Memorandum Opinion filed August 20, 2020.




                                       In The

                       Fourteenth Court of Appeals

                               NO. 14-19-00383-CV

                   GEOFFREY A. GROFF, M.D., Appellant
                                         V.

                     BANK OF AMERICA, N.A., Appellee

             On Appeal from the County Civil Court at Law No. 4
                           Harris County, Texas
                      Trial Court Cause No. 1097239

                  MEMORANDUM OPINION

      Appellant Geoffrey A. Groff, M.D. appeals a summary judgment awarding
relief to appellee Bank of America, N.A. on the bank’s claim for account stated
arising out of Groff’s credit card debt. On appeal, Groff argues that the summary
judgment is error because the bank failed to prove the elements of its cause of
action as a matter of law. After reviewing the record and the parties’ arguments,
we conclude that the trial court did not err and affirm the judgment.
                                       Background

      Groff allegedly applied for and received a credit account with Bank of
America but failed to make required periodic payments on the account. Bank of
America sued Groff for account stated, seeking to recover the account balance of
$38,001.49.

      Groff answered by filing a copy of Bank of America’s petition containing
his handwritten notations, the majority of which simply stated “False” next to
certain allegations.   Groff later filed an amended answer, again denying the
majority of Bank of America’s allegations and asserting a number of affirmative
defenses including “identity theft.”

      Bank of America filed a traditional motion for summary judgment on its
claim, asserting that: Groff applied for and received a credit account owned and
administered by Bank of America; Groff used the account for the acquisition of
goods, services, balance transfers, or cash advances; and Bank of America was
entitled to recover the amount due on Groff’s account. Bank of America attached a
business records affidavit, along with several billing statements from Groff’s
account.

      Groff filed an untimely response, arguing that Bank of America failed to
conclusively prove the existence of Groff’s customer agreement, use of the
account, or the account balance. In his response, Groff also objected to Bank of
America’s business records affidavit, contending that: it was prepared for the
purpose of litigation; it was hearsay; it lacked foundation; and it was conclusory.

      The trial court granted Bank of America’s motion and ordered that the bank
recover $38,001.49 and court costs from Groff. The court did not rule on Groff’s
objections. Groff appeals.


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                               Standard of Review

       We review summary judgments de novo. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). The movant must
show that no genuine issue of material fact exists and that the movant is entitled to
judgment as a matter of law. Tex. R. Civ. P. 166a(c). When a plaintiff moves for
summary judgment on the plaintiff’s cause of action, the plaintiff must present
evidence proving each element of the claim. See Katy Venture, Ltd. v. Cremona
Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015) (per curiam). If the plaintiff
conclusively establishes his or her cause of action, then the burden shifts to the
nonmovant, who then must disprove or raise a fact issue on at least one element of
the plaintiff’s cause of action. See Amedisys, Inc. v. Kingwood Home Health Care,
LLC, 437 S.W.3d 507, 511 (Tex. 2014). We review the grant of a summary
judgment by viewing the evidence in the light most favorable to the nonmovant,
indulging every reasonable inference in the nonmovant’s favor and resolving any
doubts against the motion. See City of Keller v. Wilson, 168 S.W.3d 802, 824
(Tex. 2005).

       If the nonmovant fails to raise any issue in response to the motion, such as
by failing to file a timely response, then on appeal the nonmovant is limited to
challenging only the legal sufficiency of the grounds raised by the movant. See
Tex. R. Civ. P. 166a(c); Amedisys, 437 S.W.3d at 512; see also City of Houston v.
Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1971). The nonmovant has
no burden to respond to a summary judgment motion unless the movant
conclusively establishes its cause of action or defense. Amedisys, 437 S.W.3d at
512.




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                                     Analysis

      A party is entitled to relief under a claim 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; and
(3) the one to be charged makes a promise, express or implied, to pay the
indebtedness. See Busch v. Hudson & Keyse, L.L.C., 312 S.W.3d 294, 299 (Tex.
App.—Houston [14th Dist.] 2010, no pet.). Account stated is a proper cause of
action for a credit card collection suit because no title to personal property or
services pass from the bank to the holder of the credit account. See, e.g., Butler v.
Hudson & Keyse, L.L.C., No. 14-07-00534-CV, 2009 WL 402329, at *2 (Tex.
App.—Houston [14th Dist.] Feb. 19, 2009, no pet.) (mem. op.); Jaramillo v.
Portfolio Acquisitions, LLC, No. 14-08-00939-CV, 2010 WL 1197669, at *7 (Tex.
App.—Houston [14th Dist.] Mar. 30, 2010, no pet.) (mem. op.).

      Here, in support of its motion for summary judgment, Bank of America
submitted an affidavit from its custodian of records, Wendy Parnell.         Parnell
attested that Groff opened an account with Bank of America, that he authorized the
use of the account for the acquisition of goods, services, or cash advances, that
Groff failed to make periodic payments, and that Groff’s account was “charged
off” on January 30, 2016. Parnell attached billing statements from January 2015 to
January 2016. The billing statements reflect Groff’s name and address. There is
no evidence to suggest the statements were not received. The statements reflect
that several payments were made on the account. The statements also reflect that
interest was charged against the account and late fees were periodically assessed.
There is no evidence Groff ever objected to or disputed any charges or fees. The
January 2016 billing statement reflects a balance due of $38,001.49.



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      Without leave of court, Groff filed a response to Bank of America’s motion
three days after the court heard the motion on submission, making Groff’s response
untimely. See Tex. R. Civ. P. 166a(c) (except on leave of court, nonmovant must
file and serve written response or opposing affidavits no later than seven days prior
to the day of summary judgment hearing). Thus, we will not address any ground
raised in his response, but we will consider Groff’s appellate challenge to the legal
sufficiency of Bank of America’s evidence. See Amedisys, 437 S.W.3d at 512;
Clear Creek Basin Auth., 589 S.W.2d at 678.

      After review of the record, we conclude that Bank of America’s evidence
establishes that the parties engaged in transactions giving rise to Groff’s
indebtedness to Bank of America, the parties entered into an agreement that fixed
the amount due, and Groff promised to pay the indebtedness. Groff’s acceptance
and use of the credit account, as well as Groff’s occasional payments against the
balance owed, show that he understood and accepted the obligation and impliedly
promised to pay the indebtedness. See Butler, 2009 WL 402329, at *3. The
evidence also shows that Groff impliedly agreed to pay a fixed amount equal to the
purchases made, plus interest and/or fees.      Id.   Groff has not presented any
evidence suggesting a different amount is owed. Thus, the evidence presented by
Bank of America establishes that Groff agreed to pay the fixed amount of
indebtedness arising out of his transactions on the credit account. Id. In sum,
Bank of America conclusively proved its entitled to judgment as a matter of law on
its claim for account stated.

      Groff argues that Bank of America’s evidence is insufficient, because: the
bank did not produce a written agreement; the billing statements do not show any
purchases that Groff made on the account; and Parnell’s affidavit is not competent
summary judgment evidence. None of these contentions is persuasive.

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      We begin with Groff’s challenges to the bank’s affidavit. Groff argues that
Parnell lacked personal knowledge of the facts stated and that the affidavit is
conclusory. An affiant’s lack of personal knowledge is a defect of form, and a
party objecting on that basis must object timely and obtain a ruling to preserve
error on appeal. Washington DC Party Shuttle, LLC v. IGuide Tours, 406 S.W.3d
723, 736 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (en banc); see
McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n.7 (Tex. 1993).
Groff did not timely assert, or obtain a ruling on, an objection that the affiant
lacked personal knowledge of the facts stated in the affidavit. Therefore, any
objection on this ground is waived. Moreover, Parnell asserted in her affidavit that
she had personal knowledge of the facts stated therein, which is supported by other
facts contained in the affidavit, such as her position. See Valenzuela v. State &
Cty. Mut. Fire Ins. Co., 317 S.W.3d 550, 553 (Tex. App.—Houston [14th Dist.]
2010, no pet.) (“An affiant’s position or job responsibilities can qualify him to
have personal knowledge of facts and establish how he learned of the facts.”); see
also Requipco, Inc. v. Am-Tex Tank & Equip., Inc., 738 S.W.2d 299, 300 (Tex.
App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.).

      Groff’s contention that the affidavit is conclusory, however, raises a
potentially substantive defect, which may be raised on appeal regardless of
preservation in the trial court. See Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655,
670 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). A conclusory statement
is one that does not provide the underlying facts to support the conclusion.
Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 n.32
(Tex. 2008). According to Groff, Parnell’s assertion that periodic statements had
been provided to Groff is conclusory. We disagree. Parnell’s testimony regarding
periodic statements is a factual assertion supported by attached copies of the


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statements containing Groff’s name and address. The assertion is not conclusory.
E.g., Ortega v. Cach, LLC, 396 S.W.3d 622, 627 (Tex. App.—Houston [14th Dist.]
2013, no pet.) (testimony that sale and assignment occurred was factual assertion,
not conclusion requiring supporting documentation). Moreover, the statements
also show occasional payments on the account, indicating receipt of the statements
by the account holder identified on them.        The challenged statement is not
conclusory because the affiant attached factual evidence supporting the statement.
See Arkoma Basin Expl. Co., 249 S.W.3d at 389 & n.32.

      Groff’s next argument—that Bank of America did not produce any written
agreement with Groff—is immaterial. Because an agreement on which an account
stated claim is based can be express or implied, a creditor need not produce a
written contract to establish the agreement between the parties; an implied
agreement can arise from the acts and conduct of the parties. See, e.g., Busch, 312
S.W.3d at 299 (citing McFarland v. Citibank (S. Dakota), N.A., 293 S.W.3d 759,
763 (Tex. App.—Waco 2009, no pet.)).           The bank’s affidavit and attached
evidence of credit card statements satisfies the required element of proof.

      Next, Groff challenges the affidavit because the billing statements do not
show any purchases. To be sure, the billing statements do not specifically detail
any purchases made on the account between January 2015 and January 2016. But
each billing statement reflects interest “charged on purchases,” indicating that
Groff used the account at some point (prior to January 2015) to make purchases,
although the nature of those purchases is not shown in our record. Moreover,
Groff and Bank of America engaged in transactions when the bank charged fees
and interest to the account and when Groff made certain payments over the phone
to reduce the balance owed. This evidence is sufficient to show that the parties
engaged in transactions giving rise to Groff’s indebtedness to Bank of America.

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Accord, e.g., Walker v. Citibank, N.A., 458 S.W.3d 689, 693 (Tex. App.—Eastland
2015, no pet.) (considering, among other evidence, account statements reflecting
payments made, credits received, finance charges, and fees, as evidence of
transactions between account holder and bank).

       Finally, Groff argues that he raised a genuine issue of material fact on
several issues because he denied various allegations by writing “False” on a copy
of the bank’s original petition and requests for admission and filing that document.
Groff asserts that his handwritten denials are significant, considering he pleaded an
affirmative defense of identity theft.        But even assuming the document Groff
describes would qualify as competent summary judgment evidence,1 Groff did not
assert this argument in a timely response to Bank of America’s motion for
summary judgment, so the issue was not presented to the trial court. We may not
reverse a summary judgment on a ground not properly raised below. See Tex. R.
Civ. P. 166a(c); Davis v. Wells Fargo Bank, N.A., No. 03-13-00166-CV, 2015 WL
5232018, at *1 n.4 (Tex. App.—Austin Aug. 31, 2015, no pet.) (mem. op.).




       1
         Contra Hidalgo v. Surety Sav. & Loan Ass’n, 462 S.W.2d 540, 545 (Tex. 1971); Nguyen
v. Citibank N.A., 403 S.W.3d 927, 932 (Tex. App.—Houston [14th Dist.] 2013, pet. denied)
(pleadings are not summary judgment evidence); Dalehite v. Nauta, 79 S.W.3d 243, 245 (Tex.
App.—Houston [14th Dist.] 2002, pet. denied) (party generally cannot rely on its own answer to
an interrogatory as summary judgment evidence) (citing Morgan v. Anthony, 27 S.W.3d 928, 929
(Tex. 2000)).

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                                    Conclusion

      The trial court did not err in granting Bank of America’s motion for
summary judgment on its account stated claim, and we overrule Groff’s issue on
appeal. We affirm the trial court’s judgment.




                                      /s/       Kevin Jewell
                                                Justice


Panel consists of Justices Christopher, Jewell, and Hassan.




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