March 20, 2012


LUTHER H. HAYS, Appellant,
No. 05-11-00187-CV.
Court of Appeals of Texas, Fifth District, Dallas.

Opinion Filed March 16, 2012.

Before Justices Lang, Murphy and Myers.
Opinion By Justice Murphy.


In this credit card debt case, Luther H. Hays challenges a traditional summary judgment rendered in favor of Citibank (South Dakota), N.A. Hays presents six issues, claiming (1) his affidavit created a fact issue on Citibank's breach of contract claim, (2) as to the account-stated claim, there is no evidence Hays agreed to a certain amount owed or that account statements were delivered to him, (3) Citibank's evidence created a fact issue on Citibank's breach of contract claim as to the applicable finance charge, (4) summary judgment on an implied contract was improper because Citibank claimed the existence of an "express contract" between the parties, (5) summary judgment on the breach of contract claim was error because of evidence Hays had not seen any account statements, and (6) he was entitled to rely on the terms of an express contract, and the trial court erred in finding he acknowledged any other terms or amounts due. We affirm the trial court's judgment and issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4.


Citibank sued Hays alleging breach of contract and account stated based on a credit card debt. After Hays answered the lawsuit, asserting general and specific denials and affirmative defenses, Citibank moved for summary judgment on both of its claims. Citibank's evidentiary support included a record custodian's affidavit that attached account records exceeding 250 pages. Hays's response included his affidavit, to which Citibank objected. The trial court sustained those objections, and the validity of that order has not been questioned. The trial court also sustained Hays's objection to late-filed evidence offered by Citibank in its reply to Hays's summary-judgment response. Accordingly, the only summary-judgment evidence before the trial court was the affidavit and related attachments appended to Citibank's motion. The trial court granted summary judgment in Citibank's favor without stating the basis for its decision, and Hays timely appealed.


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 exists precluding summary judgment, evidence favorable to respondent Hays will be taken as true. Id. Every reasonable inference must be indulged in favor of Hays 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).

In his first and fifth issues, Hays claims the trial court erred in granting summary judgment on Citibank's breach of contract claim because Hays's testimony created a fact issue about the terms of the contract, if any, and he presented evidence he had not seen any account statements. The evidence Hays relies on to create a fact issue is his affidavit. That affidavit was struck. Hays mistakenly urges on appeal that the trial court never ruled on Citibank's objections to his affidavit and that this testimony is uncontroverted. The trial court in its final summary judgment expressly sustained Citibank's objections. Hays did not object to that ruling at the trial court and has not challenged the ruling on appeal. Accordingly, Hays has preserved nothing for our review as to the portion of the judgment sustaining Citibank's objections, and his affidavit is not part of the summary-judgment record for purposes of our analysis. See TEX. R. APP. P. 33.1 (preservation); see also TEX. R. APP. P. 38.1 (nothing presented for review when issue not briefed). We overrule Hays's first and fifth issues.

Hays's remaining four issues may be resolved based on an analysis of Citibank's claim for account stated, and we address those issues together. To prove it was entitled to relief under its account-stated claim, Citibank was required to show (1) transactions between it and Hays gave rise to the indebtedness, (2) an agreement, express or implied, between the parties that fixed the amount due, and (3) Hays 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.). Hays argues in his second issue that the trial court erred in granting summary judgment on the account-stated claim because there is no evidence he agreed to a certain amount owed or that account statements were delivered to him.

As a preliminary matter, Citibank was not required to produce a written agreement if it produced 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. Citibank's summary-judgment evidence consisted of the record custodian's affidavit, which included billing statements for each month beginning March 2002 and ending September 2008. Each statement was addressed to Hays at the same address in Lancaster, Texas and showed the same account number. The statements evidenced charges and payments made during the six-year account period. Hays has not contested that he made the charges or payments. The statements also showed credit available and finance charges and rates for each period. Additionally, late fees and returned check fees were listed. There is no evidence Hays ever objected to or disputed the fees. For the period January through March 2008, the record contains personal checks (1) with a Lancaster, Texas address, (2) signed by Hays in payment of the amounts shown due, and (3) bearing Hays's notation on each check of the last four digits of the account. The checks are also connected to a payment stub showing the handwritten amount of payment reflected on the accompanying check.

Summary judgment based on Citibank's account-stated claim was proper if the evidence shows account statements were sent to Hays, charges and payments were made on the account, fees and interest were charged on the account, and there is no evidence Hays ever disputed the fees or charges reflected on the statements. See McFarland v. Citibank (S.D.), N.A., 293 S.W.3d 759, 763 (Tex. App.-Waco 2009, no pet.); Dulong, 261 S.W.3d at 894. Based on the series of transactions reflected on the account statements, checks, and payment stubs in this record, the undisputed evidence shows an implied promise to pay the indebtedness, and summary judgment was appropriate. See Dulong, 261 S.W.3d at 894. Hays's assertion in his second issue that there is no evidence he agreed to any certain amount owed or that statements were delivered is overruled.

Hays's third issue is stated in terms of his breach of contract claim, and he asserts Citibank's evidence created a fact issue on the applicable finance charge. Based on our resolution of Citibank's accounts-stated claim, we need not reach this issue. See TEX. R. APP. P. 47.1. Regardless, the evidence cited shows the applicable finance charge for each statement, and Hays fails to point to any evidence he ever challenged those fees.

In his fourth and sixth issues, Hays claims summary judgment on an implied contract is inappropriate because Citibank claims an express contract concerning the same transaction and that he is entitled to rely upon the terms of that express contract. Hays cites Woodward v. Southwest States, Inc., 384 S.W.2d 674 (Tex. 1964), and Morales v. Dalworth Oil Co., 698 S.W.2d 772 (Tex. App.-Fort Worth 1985, writ ref'd n.r.e.), for his proposition. He adds that Truly v. Austin, 744 S.W.2d 934 (Tex. 1988), stands for the Principal that a party cannot recover more under an implied-contract theory than would be recoverable by express contract. Those cases involved quantum meruit claims and the general rule that a party cannot recover under quantum meruit or implied contract for the reasonable value of services rendered or materials supplied where an express contract exists. See Truly, 744 S.W.2d at 936; see also Woodward, 384 S.W.2d at 675; Morales, 698 S.W.2d at 775. Those cases also involved the admission of an express contract between the parties. Here, Hays maintains by way of argument that Citibank has failed to prove an express contract and that no evidence exists in the summary-judgment record establishing the essential terms of a contract. He disputes the existence of an express contract. At the same time, Hays also fails to show a disputed fact question as to the parties' acts and conduct establishing an agreement by implication. See, e.g., Damron v. Citibank (S.D.) N.A., No. 03-09-00438-CV, 2010 WL 3377777, at  5-6 (Tex. App.-Austin Aug. 25, 2010, pet. denied) (concluding no merit in cardholder's argument express contract claim precluded judgment on account stated claim; Citibank could rely on evidence of parties' acts and conduct to establish agreement by implication); cf. Effel v. McGarry, 339 S.W.3d 789, 793 (Tex. App.-Dallas 2011, pet. denied) (account stated has different elements from breach of contract; concluding failure to plead account stated claim required creditor to prove material terms of original contract). As stated above, Citibank pleaded and the summary-judgment evidence establishes an account-stated claim as a matter of law. Accordingly, we find against Hays on his third, fourth, and sixth issues.

Having resolved all of Hays's issues against him, we affirm the trial court's summary judgment.

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), N.A. recover its costs of this appeal from appellant Luther H. Hays.


The above statements do not represent those of Weston Legal or Michael Weston and they have not been reviewed for accuracy. The statements have been published by a third party and are being linked to by our website only because they contain information relating to debt. Nothing in this article should be construed as legal advice given by Weston Legal or Michael Weston. To view the source of the article, please following the link to the website that published the article. Articles written by Michael W. Weston can be viewed here: To report any problem with this article please email



5001 Bissonnet,
Suite 200
Bellaire, Texas 77401

Phone 713.623.4242
Fax 866-579-6411
Principal Office
9901 I.H. 10 West
Suite 800
San Antonio, Texas 78230

Phone 210.787.3539
Fax 866-579-6411
by appointment only
106 E. Sixth Street
Suite 900
Austin, Texas 78701

Phone 512.782.4377
Fax 866-579-6411
by appointment only
320 Decker Drive ,
Suite 100
Dallas, Texas 75062

Phone 214.329.9837
Fax 866-579-6411
by appointment only


May 20, 2014

FTC Permanently Shuts Down Debt Collection Business






2202 N West Shore Blvd,
Ste 200
Tampa, FL 33607

Phone 813.227.4965
Fax 866-579-6411
by appointment only
841 Prudential Drive,
12th Floor
Jacksonville, FL 32207

Phone 904.380.6922
Fax 866-579-6411
by appointment only
618 East South Street
Ste 500
Orlando, FL 32801

Phone 407.241.2380
by appointment only
1111 Brickell Avenue
Miami, FL

Phone 305.913.3725
Fax 866-579-6411
by appointment only




2375 East Camelback Road
Suite 600
Phoenix, Arizona 85016

Phone 602.308.0300
Fax 866-579-6411
by appointment only