                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo
                             ________________________

                                  No. 07-13-00244-CV
                             ________________________

                            PATTY A. AKINS, APPELLANT

                                            V.

                         FIA CARD SERVICES, N.A., APPELLEE



                         On Appeal from County Court at Law No. 1
                                    Potter County, Texas
            Trial Court No. 099946-1; Honorable W.F. “Corky” Roberts, Presiding


                                    February 23, 2015

                            MEMORANDUM OPINION
                   Before CAMPBELL and HANCOCK and PIRTLE, JJ.



      Appellant, Patty A. Akins, was sued by Appellee, FIA Card Services, N.A., to

collect a credit card debt. Akins answered the suit and raised several counterclaims. FIA

moved for a traditional summary judgment as to its claims against Akins and a no-

evidence summary judgment as to Akins’s counterclaims against FIA. The trial court

granted both motions, awarding FIA recovery of the balance due on the credit card

account and entering a take-nothing judgment as to Akins’s counterclaims. By two
issues, Akins presents a global challenge to the trial court’s summary judgment and also

contends the trial court abused its discretion in denying her motion for new trial. We affirm

in part and reverse and remand in part.


                                             BACKGROUND


        Akins entered into a credit card agreement with FIA Card Services, formerly known

as MBNA America Bank, N.A.1 After issuance of the July 2010 statement, Akins ceased

making monthly payments on a balance of over $11,000.                           According to account

statements in the record, by February 24, 2011, the balance had increased to $12,673.37

with accrued late fees and interest charges.


        In September 2011, FIA filed suit against Akins on an “Open & Stated Account,”

(not a “suit on account” or a “suit on sworn account”).2 A suit on a stated account is proper

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 Dulong v. Citibank (S.D.), N.A., 261 S.W.3d 890, 893 n.3 (Tex. App.—Dallas 2008,

no pet.). In addition to its suit on account, FIA also alleged other claims sounding in

contract and quantum meruit. Akins responded with an unsworn general denial. Akins

        1 A specific date that the account was opened does not appear in the record; however, the record
establishes the bank changed its name effective June 10, 2006.

        2 A common law claim on a “stated account” is different from a “suit on account” (sometimes called
a “suit on sworn account”) which requires personal property or services be provided by the creditor to the
debtor. See TEX. R. CIV. P. 185. A suit on sworn account is merely a procedural device whereby a claimant
can establish a prima facie right of recovery on its sworn petition if the defendant does not file a sworn
denial. Generally, a suit on sworn account is not a proper tool for credit card debt collection. See Dulong
v. Citibank (S.D.), N.A., 261 S.W.3d 890, 893 n.3 (Tex. App.—Dallas 2008, no pet.) (citing Tully v. Citibank
(South Dakota), N.A., 173 S.W.3d 212, 216 (Tex. App.—Texarkana 2005, no pet.)). FIA’s claim in this
proceeding is not a suit on sworn account pursuant to Rule 185.

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also sought an offset by reason on her counterclaims against FIA for breach of contract,

negligence and negligent hiring, supervision and/or management.


         FIA filed a traditional motion for summary judgment on its claim for credit card debt

and a no-evidence motion for summary judgment as to Akins’s counterclaims. To support

its motion, FIA attached an affidavit from its custodian of records. The affiant averred that

Akins owed $12,673.37 in credit card debt. Paragraph 6 of the affidavit provides, “[a] true

and correct copy of the Account statements from February 2007 through March 2011,

as identified as Exhibit 2, are attached hereto.” (Emphasis in the original.) Exhibit 2

does not, however, contain a copy of the account statements for the years 2007, 2008 or

2009.3 Instead, it reflects only copies of account statements from January 2010, showing

a “Previous Balance” of $8,984.15, through February 2011, showing a “New Balance

Total” of $12,673.37. FIA’s motion was also supported by a copy of Akins’s credit card

agreement.


         Based on the missing copies of statements from 2007, 2008 and 2009, Akins

asserted by her amended response to FIA’s summary judgment motion that the affidavit

from the records custodian was false because it was not a “true and correct copy” of the

account statements reflecting the balance FIA sought to collect. In addition to responding

to FIA’s summary judgment motions, Akins included her own motion for summary

judgment as to her counterclaims.4




         3   We further note that no statement from March 2011 appears in the record as referenced by the
affidavit.
         4   The trial court did not expressly rule on Akins’s motion for summary judgment.
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       Upon submission, the trial court granted summary judgment in favor of FIA in the

amount of $12,673.37 and ordered that Akins “take nothing by her Counterclaim.” Akins

filed a motion for new trial alleging again, among other claims, that the affidavit from FIA’s

records custodian was false and therefore not credible evidence to support summary

judgment. The motion was denied by written order, and Akins pursued this appeal

asserting the trial court erred in granting FIA’s motion for summary judgment and in

denying her motion for new trial.


                   FIA’S TRADITIONAL MOTION FOR SUMMARY JUDGMENT


       By her first issue, Akins contends the trial court erroneously awarded FIA summary

judgment for $12,673.37 based on a defective affidavit which was not supported by

competent summary judgment evidence.              FIA asserts that Akins’s challenge to the

affidavit is a defect in form that required an objection to preserve the issue for appeal.


       While FIA is correct that defects in the form of an affidavit or its attachments must

be preserved by an objection and ruling in the trial court, TEX. R. CIV. P. 166a(f); Grand

Prairie Indep. Sch. Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990), defects in the

substance of an affidavit or its attachments can be raised for the first time on appeal.

Willis v. Nucor Corp., 282 S.W.3d 536, 547 (Tex. 1980). A conclusion in an affidavit

unsupported by evidence is a defect in substance and an objection in the trial court is not

required to preserve the complaint for appellate review. See id. at 548. See also Bastida

v. Aznaran, 444 S.W.3d 98, 105 (Tex. App.—Dallas 2014, no pet.).


       In reviewing a summary judgment, this Court must apply well-established

standards. We review the granting of a motion for summary judgment de novo. Neely v.

                                              4
Wilson, 418 S.W.3d 52, 59 (Tex. 2013) (citing Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005)). Furthermore, “[i]n reviewing a summary judgment, we

consider all grounds presented to the trial court and preserved on appeal in the interest

of judicial economy.” Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex.

2005). That said, issues not expressly presented to the trial court by written motion,

answer or other response are not considered on appeal as grounds for reversal. TEX. R.

CIV. P. 166a(c). When the trial court does not specify the grounds for its ruling, a summary

judgment will be affirmed if any of the grounds presented in the motion are meritorious.

Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013).


       The party moving for a traditional summary judgment bears the burden of proving

its entitlement thereto as a matter of law. Roskey v. Texas Health Facilities Com., 639

S.W.2d 302, 303 (Tex. 1982). Summary judgment is appropriate when there is no

genuine issue as to any material fact and judgment should be granted in favor of the

movant as a matter of law. Diversicare Gen. Partner, Inc., 185 S.W.3d at 846. A fact

issue exists if it is supported by more than a scintilla of probative evidence. TEX. R. CIV.

P. 166a(c), (i). More than a scintilla of evidence exists when the evidence Arises to a level

that would enable reasonable and fair-minded people to differ in their conclusions.” See

City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Merrell Dow Pharmaceuticals

v. Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119, 118 S. Ct.

1799, 140 L. Ed. 2d 939 (1998). In conducting our review, we are required to review the

summary judgment record in the light most favorable to the non-movant, indulging every

reasonable inference in favor of the non-movant, and resolving all doubts against the




                                             5
movant. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (citing City of Keller, 168

S.W.3d at 823).


       To establish its entitlement to summary judgment, FIA was required to prove as a

matter of law that no genuine issue of fact existed and that Akins was indebted to it in the

amount of $12,673.37. To do so, it was required to establish (1) a valid, enforceable

contract; (2) privity between FIA and Akins, (3) performance or excuse from performance

by FIA, (4) breach by Akins, and (5) injury to FIA caused by Akins’s breach. See Domingo

v. Mitchell, 257 S.W.3d 34, 39 (Tex. App.—Amarillo 2008, pet. denied); Valero Mktg. &

Sup. Co. v. Kalama Int’l., 51 S.W.3d 345, 351 (Tex. App.—Houston [1st Dist.] 2001, no

pet.); Cannon v. ICO Tubular Servs., 905 S.W.2d 380, 393 (Tex. App.—Houston [1st

Dist.] 1995, no writ). Here, Akins contends there is a genuine issue of material fact as to

the amount owed pursuant to the credit card agreement (i.e., the injury to FIA caused by

Akins’s breach).


       By the affidavit filed in support of FIA’s summary judgment motion, the custodian

of records represented that Exhibit 2 was a “true and correct copy” of Akins’s credit card

statements for five years, when in fact the exhibit only contained copies of statements

from 2010 and the first two months of 2011. As such, the affidavit is both factually

incorrect and legally insufficient because it contains conclusions as to the present balance

due and owing. Bastida, 444 S.W.3d at 105. Akins’s challenge to the affidavit and its

attachments are directed to the substance of the summary judgment evidence—a

substantive defect rather than a defect as to form only. Because no individual credit card

statement produced established a zero balance, based on the application of the

appropriate summary judgment standard of review, FIA’s claim is based, in part, upon the

                                             6
“previous balance” stated in the earliest statement provided.5 Because that previous

balance is merely a conclusion unsupported by competent summary judgment evidence,

we find FIA failed to present competent summary judgment evidence that Akins was

indebted to it in the amount of $12,673.37. Accordingly, the trial court erred in granting

summary judgment in favor of FIA without sufficient evidence to support that award. Issue

one is sustained in part.


                      FIA’S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT


        By her counterclaims, Akins alleged FIA was negligent in its record keeping and in

the hiring of its employees. She further alleged that FIA’s conduct resulted in breach of

contract. FIA filed a no-evidence summary judgment in response to these counterclaims.


        A no-evidence motion for summary judgment is essentially a motion for a pretrial

directed verdict, and we apply the same legal sufficiency standard as we apply in

reviewing a directed verdict. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750

(Tex. 2003). In a no-evidence summary judgment motion, the movant contends there is

no evidence of one or more essential elements of the claims for which the non-movant

would bear the burden of proof at trial. TEX. R. CIV. P. 166a(i). Hamilton v. Wilson, 249

S.W.3d 425, 426 (Tex. 2008). Once the motion is filed, the burden shifts to the non-

movant to present evidence raising an issue of material fact as to the elements of its

cause of action. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The



         5 Cf. Wakefield v. Wells Fargo Bank, N.A., No. 07-14-12-00686-CV, 2013 Tex. App. LEXIS 14018,

at *7-9 (Tex. App.—Houston [14th Dist.]. Nov. 14, 2013, no pet.) (mem. op.) (trial court requested additional
copies of credit card statements and because December 2002 statement showed previous balance of zero,
prior statements were not relevant to the current debt). In this case, FIA’s January 2010 statement showed
a previous balance of $8,984.15 that was not justified through competent summary judgment evidence so
additional statements would have been relevant).
                                                     7
trial court must grant the motion unless the non-movant produces more than a scintilla of

evidence raising a genuine issue of material fact on the challenged elements. See

Hamilton, 249 S.W.3d at 426. The nonmoving party is not required to marshal its proof;

its response need only point out evidence that raises a fact issue on the challenged

elements. TEX. R. CIV. P. 166a(i), Notes and Comments (1997); Hamilton, 249 S.W.3d at

426.


        We review a no-evidence summary judgment for evidence that would enable

reasonable and fair-minded jurors to differ in their conclusions. See City of Keller v.

Wilson, 168 S.W.3d 802, 827 (Tex. 2005). A no-evidence challenge will be sustained

when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by

rules of law or of evidence from giving weight to the only evidence offered to prove a vital

fact, (c) the evidence offered to prove a vital fact is no more than a scintilla, or (d) the

evidence conclusively establishes the opposite of the vital fact. King Ranch, 118 S.W.3d

at 751.


        In her amended response to FIA’s no-evidence motion, Akins directed the trial

court to FIA’s evidence—the records custodian’s affidavit and the incomplete credit card

statements. She also offered her own affidavit6 and “herself as a live witness to testify at

the hearing on [FIA’s] and [Akins’s] Motions for Summary Judgment.” Her response also

recites that she submits her pleadings for all purposes.




        6 The crux of Akins’s affidavit recites that the records custodian’s affidavit “makes one or more false
statements and [FIA’s] Exhibit 2 is not a complete, true, and accurate copy of statements related to the
account.”
                                                      8
       In a summary judgment hearing, the trial court’s decision is based on written

pleadings and written evidence and not on live testimony. Castleberry v. N.H. Ins. Co.,

367 S.W.3d 505, 507 (Tex. App.—Texarkana 2012, pet. denied). Additionally, pleadings

do not constitute summary judgment proof. Houston v. Clear Creek Basin Authority, 589

S.W.2d 671, 678 (Tex. 1979). Accordingly, the evidence presented by Akins does not

raise an issue of material fact as to her counterclaims of breach of contract, negligence

or negligent hiring and/or supervision. As such, the trial court correctly ordered that Akins

take-nothing by her counterclaims. Issue one is overruled in part. Our disposition of

Akins’s first issue pretermits consideration of issue two by which she challenged the trial

court’s denial of her motion for new trial. TEX. R. APP. P. 47.1.


                                        CONCLUSION


       That portion of the trial court’s final summary judgment awarding judgment in favor

of FIA Card Services, N.A. is reversed and the cause is remanded to the trial court for

further proceedings. The remaining portion of the final summary judgment ordering that

Akins take nothing by her counterclaims is affirmed.




                                                  Patrick A. Pirtle
                                                     Justice




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