## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 1 1 - 000 30 - C V

AMERICAN EXPRESS BAN K, FSB APPELLANT V. ROY BEARDEN APPELLEE

---------- FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

---------- 

### MEMORANDUM OPINION 1

---------- I. Introduction and Background Appellant American Express Bank, FSB appeals the trial court’s no

evidence summary judgment in favor of Appellee Roy Bearden. American Express filed suit against Bearden alleging that the parties had entered into a Card Mem ber Agreement and that Bearden had an unpaid balance of $13,706.50. In his answer, Bearden expressly denied entering into a Card

1 See Tex. R. App. P. 47.4.2

Member Agreement, making purchases, receiving cash advances, or receiving any invoices or notice of charges. Bearden subseque ntly filed a no

- evidence summary judgment raising these arguments, and the trial court granted the motion after sustaining certain objections to American Express’s summary judgment evidence. In its sole issue, American Express argues that the trial
court erred by granting the no

- evidence summary judgment. We affirm. II. Standard of Review After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no e vidence to support an essential element of the nonmovant’s claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id. ; Timpte Indus., Inc. v. Gish , 286 S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson , 249 S.W.3d 425, 426 (Tex. 2008). When reviewing a no

- evidence summary judgment, we examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. Sudan v. Sudan , 199 S.W.3d 291, 292 (Tex. 2006). We review a no

- evidence summar y judgment for evidence that would enable reasonable and fair

- minded jurors to differ in their conclusions. Hamilton , 249 S.W.3d at 426 (citing City of Keller v. Wilson , 1683

S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if

r easonable jurors could, and we disregard evidence contrary to the nonmovant unless reasonable jurors could not. Timpte Indus. , 286 S.W.3d at 310 (quoting Mack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 582 (Tex. 2006)). If the nonmovant brings forward more t han a scintilla of probative evidence that raises a genuine issue of material fact, then a no

- evidence summary judgment is not
proper. Smith v. O’Donnell , 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003), cert. denied , 541 U.S. 1030 (2004). Less than a scintilla of evidence exists when the evidence is so weak that it does nothing more than create a mere surmise or suspicion of a fact. Kindred v. Con/Chem, Inc. , 650 S.W.2d 61, 63 (Tex. 1983). III. Discussion A merican Express contends that the no

- evidence summary judgment should not have been granted because there is more than a scintilla of evidence that the parties formed and that Bearden breached the credit agreement. Bearden responds that American Express p resented no evidence of Bearden’s application for credit, of American Express’s agreement to offer credit, of Bearden’s use of the credit card or receipt of invoices, or of Bearden’s payments toward the balance. A. Applicable Law The essential elements of American Express’s breach of contract claim are (1) th e existence of a valid contract, (2) performance or tendered performance by4

the plaintiff , (3) breach of the contract by the defendant , and (4) damages sustained as a result of the breach. Prime Prods

. , Inc. v. S.S.I. Plastics, Inc. , 97 S.W.3d 631, 636 (Tex. App.

— Houston [1st Dist.] 2002, pet. denied) ; see Winchek v. Am. Express Travel Related Servs. Co. , 232 S.W.3d 197, 202 (Tex. App.

— Houston [1st Dist.] 2007, no pet.)

. Parties form a binding contrac t when the following elements are present: (1) an offer, (2) an acceptance in strict compliance with the terms of the offer, (3) meeting of the minds, (4) each party ’ s consent to the terms, and (5) execution and delivery of the contract with the intent th at it be mutual and binding. Winchek , 232 S.W.3d at 202; Prime Prods. , 97 S.W.3d at 636. “ An express contract arises when its terms are stated by the parties whereas an implied contract can arise from the acts and conduct of the parties. ” Dulong v. Citi bank (S

. D

. ), N.A. , 261 S.W.3d 890, 894 (Tex. App.

— Dallas 2008, no pet.) (citing Harrison v. Williams Dental Group, P.C. , 140 S.W.3d 912, 916 (Tex. App.

— Dallas 2004, no pet. ) ). B. Analysis Outside of conclusory assertions in American Express’s summary judg ment affidavits to the effect that Bearden entered into the Card Member Agreement with American Express and that American Express made cash advances to Bearden, there is no evidence that the Roy Bearden who was the defendant below and is the appellee in th is appeal is the person who requested this credit card account with American Express or took any action consistent with5

having requested the credit card account. 2 This failure of proof was the central theme of Bearden’s motion fo r no - evidence summary judg ment. In its summary judgment filings, American Express clearly presented evidence that persons named John Adame and Adam Patrey incurred charges on a credit card account and that the invoices on that account were addressed to “Roy D Bearden, Texas 8 Ball, 218 W Oak St., Denton TX 76201

- 4112.” But there is no evidence that Bearden had any association with that business entity or that address, that he received any of the invoices mailed to that address, 3 that he personally incurred any charges on the credit card account or authorized others to do so , or that he personally made any payments on the account. Missing from American Express’s summary judgment evidence is any conduct by Bearden that circumstantially suggests that he is the person that requested th is credit card account or authorized others to use it. American Express points to the language in the Card Member Agreement providing that use of the credit card

2 “ Conclusory statements are not proper summary judgment proof. ” See generally Lindley v. McKnight , 349 S.W.3d 113, 126 (Tex. App.

— Fort Worth 2011, no pet.). The trial court sustained several of Bearden’s objections to the conclusory assertions in American Express’s summary judgment affidavits. Amer ican Express challenges some of the trial court’s evidentiary rulings on appeal but does not challenge the trial court’s rulings concerning the conclusory statements in the affidavits. We therefore do not consider the conclusory statements in the affidavi ts. Also, we do not reach the merits of the trial court’s other evidentiary rulings because, even considering the excluded evidence, it does not raise a fact issue sufficient to defeat Bearden’s motion for no

- evidence summary judgment. See Tex. R. App. P . 47.1, 47.4.

3 Indeed, American Express’s original and first amended petitions listed Bearden’s address as being in Arlington, not Denton.6

by the cardholder constitutes agreement to the terms of the Card Member Agreement and that th e primary cardholder is liable for the charges incurred by other authorized users on the account. But American Express has not presented competent summary judgment evidence that Bearden requested the opening of this credit card account or authorized anyon e else to o pen the account on his behalf. American Express’s summary judgment evidence is consistent with at least three occurrences: (1) the creation and use of this credit card account by a person without Bearden’s knowledge or authorization; (2) the cr eation of this credit card account by a different Roy Bearden; and (3) the creation of this credit card account by Bearden along with his authorization for additional cardholders to make charges to the account. A party cannot avoid summary judgment by rel ying on circumstantial evidence that i s equally consistent with the nonexistence of the fact the party see ks to prove. Soodeen v. Rychel , 802 S.W.2d 361, 363 ( Tex. App.

— Houston [1st Dist.] 1990, writ denied); see also Hammerly Oaks, Inc. v. Edwards , 958 S .W.2d 387, 392 (Tex. 1997) (h olding “meager circumstantial evidence” that could give rise to any n umber of inferences, none more probable than another, is no evidence of an ultimate fact issue). Thus, American Express failed to present more than a scintil la of summary judgment evidence of a contract between itself and Bearden. On this record, we hold that the trial court did not err by granting Bearden’s motion for7

no - evidence summary judgment, and we overrule American Express’s sole issue. I V. Conclusio n Having overruled American Express’s sole issue, we affirm the trial court’s judgment.

ANNE GARDNER JUSTICE PANEL: DAUPHINOT, GARDNER, and M CCOY , JJ. DELIVERED: March 22, 2012