COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00030-CV

AMERICAN EXPRESS BANK, FSB APPELLANT

V.

ROY BEARDEN APPELLEE

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FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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I. Introduction and Background

Appellant American Express Bank, FSB appeals the trial court’s noevidence summary judgment in favor of Appellee Roy Bearden. American 

Express filed suit against Bearden alleging that the parties had entered into a 

Card Member Agreement and that Bearden had an unpaid balance of 

$13,706.50. In his answer, Bearden expressly denied entering into a Card 

 

1See Tex. R. App. P. 47.4.
2

Member Agreement, making purchases, receiving cash advances, or receiving 

any invoices or notice of charges. Bearden subsequently 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 evidence 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 summary 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, 168 
3

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

reasonable 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 than 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

American 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 presented 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) the existence of a valid contract, (2) performance or tendered performance by 
4

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 contract 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 that 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. Citibank (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 

judgment 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 this appeal is the person who requested 

this credit card account with American Express or took any action consistent with 
5

having requested the credit card account.2 This failure of proof was the central

theme of Bearden’s motion for no-evidence summary judgment.

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,3that 

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 this 

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. 

American 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 affidavits. 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.
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by the cardholder constitutes agreement to the terms of the Card Member 

Agreement and that the 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 anyone else to open 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 creation 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 

relying on circumstantial evidence that is equally consistent with the 

nonexistence of the fact the party seeks 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) (holding 

“meager circumstantial evidence” that could give rise to any number of 

inferences, none more probable than another, is no evidence of an ultimate fact 

issue). Thus, American Express failed to present more than a scintilla 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 for 
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no-evidence summary judgment, and we overrule American Express’s sole 

issue.

IV. Conclusion

Having overruled American Express’s sole issue, we affirm the trial court’s 

judgment.

ANNE GARDNER

JUSTICE

PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.

DELIVERED: March 22, 2012