NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

AMERICAN EXPRESS CENTURION BANK

, Plaintiff/Appellee

,

v.

ROBERT L. EARLE

, Defendant/Appell ant

.

N o . 1 CA

- CV 16

- 0059

Appeal from the Superior Court in Yavapai County

No. V1300CV201580010 The Honorable Jeffrey G. Paupore

, Judge Pro Tem

AFFIRMED

COUNSEL

Zwicker & Associates, P.C.

, Tempe By Sarah L. Jones, Douglas Christensen Counsel for Plaintiff/Appell ee

Robert L. Earle, Sedona AppellantAMERICAN EXPRESS v. EARLE
Decision of the Court

2 MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Paul J. McMurdie joined.

T H O M P S O N

, Judge:

¶1 Robert Earle (Earle) appeals from the trial court’s grant of summary judgment to Americ an Express Centurion Bank (American Express). For the following reasons, we affirm the decision of the trial court.

FACTUAL AND PROCEDURAL HISTORY

¶2 In January 2015, American Express filed a complaint in superior court alleging that Earle breached a contrac t and owed a debt to it in the amount of $12,015.56 after Earle opened and used an American Express credit card ending in 1005 and failed to mak e payments on the card. American Express filed a second lawsuit against Earle in Verde Valley Justice Court in February 2015 alleging another credit card debt of $ 3,011.23 (account ending in 2008 ). Earle filed a motion to consolidate the two cases and the superior court granted the motion.

¶3 In August 2015, American Express filed a motion for summary judgment. Earle opposed the motion . H e did not provide an affidavit in response to American Express’s sworn statement and the arguments he made against the motion for summary judgment were non

responsive. The trial court granted the motion and entered judgment in favor of American Expr ess for $15,026.79 plus costs. Earle timely appealed.
W e have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section s 12

- 120.21(A)(1) (2016) and

- 2101(A)(1) (2016)

.

DISCUSSION

¶4 Summary judgment is appropriate when th ere is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56( a ) (Rule 56( a ) )

. 1 We review the grant of summary judgment de novo to determine whether any genuine issue of
material fact exists, and we view the evidence and all reasonable inferences

1 We cite the current version of the applicable rule unless revisions
material to this decision have occurred since the events in question.AMERICAN EXPRESS v. EARLE
Decision of the Court

3 in favor of the non

- moving party. Chalpin v. Snyder , 220 Ariz. 413, 418, ¶ 17, 207 P.3d 666, 671 (App. 2008) (citation omitted). “A plaintiff’s motion must stand on its own and demonstrate by admissible evidence that the plaintiff has met its burden of proof and that it is entitled to judgment as a matter of law.” Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 211, ¶ 1, 292 P.3d 195, 197 (App. 2012). “An affidavit used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matter s stated.” Ariz. R. Civ. P. 56( c)(5 ). “When a summary judgment motion i s made and supported as provided in [Rule 56], an opposing party may not rely merely on allegations or denials of its own pleading . The opposing party must, by affidavits or as otherwise provided in this rule , set forth specific facts showing a genuine is sue for trial. If the opposing party does not so respond, summary judgment, if appropriate, shall be entered against that party.” Ariz. R. Civ. P. 56(e). See also Nat ’l Bank of Ariz. v. Thruston, 218 Ariz. 112, 119, ¶ 26, 180 P.3d 977, 984 (App. 2008) (“The non

- moving party may not rest on its pleadings; it must go beyond simply cataloging its defenses.”).

¶5 In an action based on breach of contract, the plaintiff has the burden of proving the existence of a contract, breach of the contract, and damages. Chartone, Inc. v. Bernini , 207 Ariz. 162, 170, ¶ 30, 83 P.3d 1103, 1111 (App. 2004) (citations omitted). I n support of its motion for summary judgment regarding the account ending in 1005, American Express provided the affidavit of Linda Salas, assistant custodian of r ecords for American Express. Salas’s affidavit stated that she reviewed American Express’s r ecords pertaining to account 1005, that Earle opened the credit card account on March 29, 1984, that consistent with American Express’s standard business practices

, American Express mailed the credit card to Earle with a copy of its card member agreement, and as card member agreements were periodically revised or updated, th ey were transmitted to
Earle. The affidavit further stated that Earle used the account , and a fter he
failed to make payments on the account, American Express closed it. At that time Ea rle owed $12,015.56 on the account, exclusive of court costs and attorneys’ fees. Along with the affidavit, American Express submitted a
card member agreement dated December 2010 and account records detailing Earle’s use of the account.

¶6 In support of i t s motion for summary judgment regarding the account ending in 2008, American Express provided a second affidavit from
Salas. This affidavit stated that Salas had reviewed American Express’s
records pertaining to account 2008, that Earle opened the account e nding in February 2000, that consistent with American Express’s standard businessAMERICAN EXPRESS v. EARLE
Decision of the Court

4 practices American Express mailed the credit card to Earle with a copy of its card member agreement, and as card member agreements were periodically revised or updated, th ey were transmitted to Earle. The
affidavit further stated that Earle used the account and American Express closed it after he failed to make payments on the account. At that time Earle owed $3011.23 on the account, exclusive of court costs and attorneys’ f ees. Along with the affidavit, American Express submitted a card member agreement dated December 2010 and account records detailing Earle’s use
of the account.

¶7 Earle argues that the trial court erred by granting summary judgment to American Express becaus e he disputed the assertions contained in Salas’s affidavits, including the assertion that he received

account statements. He further complains , without citing any authority, that American Express did not produce a n original contract. The Salas
affidavit s and attachments, which were admissible under the business

records exception contained in Arizona Rule of Evidence 803(6), adequately supported the motion for summary judgment . The y sh owed that Earle
formed contract s with American Express which he b reached by failing to make payments and A merican Express incurred damages in the total amount of $15,026.79 exclusive of costs and attorneys’ fees. E arle failed to

prese nt controverting evidence establishing a genuine issue for trial. Accordingly, we fin d no error in the trial court’s decision granting summary judgment to American Express.

¶8 Earle requests an award of costs and legal document preparers’ fees pursuant to A.R.S. §§ 12

- 341 and

- 341.02. Because he is not the prevailing party, we deny the reque st for fees and costs.AMERICAN EXPRESS v. EARLE
Decision of the Court

5 CONCLUSION

¶9 For the foregoing reasons, we affirm the decision of the trial

court.