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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ARIZONA COURT OF APPEALS

DIVISION ONE

AMERICAN EXPRESS CENTURION BANK, Plaintiff/Appellee,

v.

ROBERT L. EARLE, Defendant/Appellant.

No. 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/Appellee

Robert L. Earle, Sedona

Appellant
AMERICAN 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 American 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 contract 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 make 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. He 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 nonresponsive. The trial court granted the motion and entered judgment in 

favor of American Express for $15,026.79 plus costs. Earle timely appealed. 

We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 

12-120.21(A)(1) (2016) and -2101(A)(1) (2016). 

DISCUSSION

¶4 Summary judgment is appropriate when there 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

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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 matters stated.” Ariz. R. Civ. P. 56(c)(5). “When 

a summary judgment motion is 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 issue 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). In support of its motion for summary 

judgment regarding the account ending in 1005, American Express 

provided the affidavit of Linda Salas, assistant custodian of records for 

American Express. Salas’s affidavit stated that she reviewed American 

Express’s records 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, they were transmitted to 

Earle. The affidavit further stated that Earle used the account, and after he 

failed to make payments on the account, American Express closed it. At 

that time Earle 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 its 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 ending in 

February 2000, that consistent with American Express’s standard business 
AMERICAN EXPRESS v. EARLE

Decision of the Court

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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, they 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’ 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.

¶7 Earle argues that the trial court erred by granting summary 

judgment to American Express because 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 an original contract. The Salas 

affidavits and attachments, which were admissible under the businessrecords exception contained in Arizona Rule of Evidence 803(6), adequately 

supported the motion for summary judgment. They showed that Earle 

formed contracts with American Express which he breached by failing to 

make payments and American Express incurred damages in the total 

amount of $15,026.79 exclusive of costs and attorneys’ fees. Earle failed to 

present controverting evidence establishing a genuine issue for trial. 

Accordingly, we find 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 request for fees and costs.
AMERICAN EXPRESS v. EARLE

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CONCLUSION

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

court.