DAVID L. BRIDGES

AFFIRM; Opinion issued January 4, 2012

On Appeal from the 192 Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-08-00164-K

MEMORANDUM OPINION

Before Justices Moseley, Bridges and O'Neill

Opinion By Justice Bridges

Appellant Robert R. Heinen appeals from a summary judgment granted against him based on allegations he breached his credit card agreement with appellee Citibank (South Dakota), N.A. In six issues, Heinen argues Citibank should not have received summary judgment because: (1) Citibank created a fact issue when the interest rates specified in its account agreements contradicted the interest rates actually charged on his account statements; (2) Citibank failed to offer evidence that the alleged agreements in the summary judgment evidence were actually offered to Heinen; (3) Citibank's credit card account with Heinen does not fall within the common law scope of a suit on an account; (4) Citibank's judgment based on an implied contractual relationship was precluded when it alleged an express contractual relationship between the parties; (5) Heinen's actions did not constitute an implied acknowledgment of the correctness of the amount claimed due; and (6) Heinen, as a party to an express contract, was entitled to rely upon the terms of the contract as to the interest and fees he contracted to pay, rather than those provided on the account statements. We affirm.

Background

Citibank issued a credit card to Heinen and mailed monthly statements to him relating to the account. After several years of making monthly payments on the account, Heinen stopped. Citibank filed suit against Heinen to collect the balance due on the account, totaling $29,515.72 at the time suit was filed.

During the course of his deposition, Heinen conceded the following relevant facts: (1) the Citibank account was his; (2) the account was issued around 1980; (3) he used the account; (4) his wife handled the billing and made payments on the account with his knowledge and permission; (5) his mailing address matches the address on the account statements mailed to him; (6) monthly payments were made on the account; (7) he was aware of the account; (8) he never disputed any of the charges on the account; (9) he did not deny the card agreements were enclosed with the billing statements mailed to him over the life of the account; (10) his wife's payments on the account for a number of years established the statements were being received; (11) the copies of checks sent in payment on the account are from a joint checking account that belong to Heinen and his wife; (12) payments on the account stopped due to lack of funds; and (13) he understood he had an obligation to make payments to Citibank. Specifically, with regard to the charges, Heinen made the following admissions during his deposition:

Q. You have already stated you are not disputing the charges. Is there anything on these statements that you have an issue with?
A. No, sir.
Q. Do you understand that you had an obligation with respect to this account to Citibank to make payments to Citibank?
A. Yes, sir.
Q. If you had the money, would you pay Citibank?
A. Yes, if I had it.

On October 5, 2009, Citibank filed its second motion for summary judgment, supported by affidavit, based upon its breach of contract and account stated causes of action. The trial court granted summary judgment in favor of Citibank, and this appeal ensued.

Standard of Review

The standards for reviewing a traditional summary judgment are well established. The party moving for summary judgment has the burden of showing no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In deciding whether a disputed material fact issue exists, precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon, 690 S.W.2d at 548-49. Further, every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Id. A motion for summary judgment must expressly present the grounds upon which it is made and must stand or fall on those grounds alone. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); Espalin v. Children's Med. Ctr. of Dallas, 27 S.W.3d 675, 688 (Tex. App.-Dallas 2000, no pet.).

To prevail on its breach of contract cause of action, Citibank had to prove the following essential elements: (1) the existence of a valid contract, (2) performance or tendered performance by Citibank, (3) breach of the contract by Heinen, and (4) damages sustained as a result of the breach. See Winchek v. American Express Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (op. on reh'g). A party is entitled to relief under the common law cause of action for account stated where (1) transactions between the parties give rise to indebtedness of one to the other; (2) an agreement, express or implied, between the parties fixes an amount due; and (3) the one to be charged makes a promise, express or implied, to pay the indebtedness. See Dulong v. Citibank (South Dakota), N.A., 261 S.W.3d 890, 893 (Tex. App.-Dallas 2008, no pet.).

Analysis

Heinen's issues may be divided into two broad categories. The first and second issues challenge whether summary judgment was properly granted under Citibank's breach of contract claim. The remaining issues challenge whether summary judgment was properly granted under Citibank's account stated claim. Since Citibank's breach of contract issues are dispositive, we address those first.

In his first issue, Heinen complains Citibank created a fact issue when the interest rates specified in its account agreements contradicted the interest rates actually charged on his account statements. Specifically, Heinen contends the contradictions in the interest rate create the following fact issues: (1) whether the contracts setting forth the agreed upon interest rates were the contracts that applied to his account and (2) whether the interest rates reflected on the statements were calculated based upon the interest rates agreed upon by the parties. In his second issue, Heinen argues Citibank failed to offer evidence that the alleged agreements in the summary judgment evidence were actually offered to Heinen. Both arguments are without merit.

Citibank attached the affidavit of Mark Molinaro, employed by Citicorp Credit Services, Inc. and a custodian of records, to its summary judgment motion. The affidavit provides that Citibank mailed to Heinen "a credit card along with the terms and conditions that apply to the use of the account." Molinaro's affidavit further establishes the account agreement may be amended from time to time and that "[a]ny subsequent change to the original financial terms in effect has been disclosed to [Heinen] on the statements provided to [Heinen]." The Citibank Classic Card Agreement states: "Your monthly statement will show your new balance [and] any finance charges . . . ." (emphasis added). Our review of the statements provided in the record before us show the applicable rate of interest to the account at the time the statements were issued by Citibank.

Under Texas law, if one party signs a contract, the other party may accept by his acts, conduct, or acquiescence to the terms of the contract, making it binding on both parties. See Hinojosa v. Citibank (South Dakota), N.A., No. 05-07-00059-CV, 2008 WL 570601, *3 (Tex. App.-Dallas Mar. 4, 2008, pet. denied) (citing FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000)). As already noted, Heinen conceded at his deposition that: (1) the account was his; (2) he used the card, (3) the address on the statements matched his address, (4) his wife made payments on the account with his knowledge and permission; (5) he never disputed any of the charges on the account; (6) he stopped making payments on the account; (7) he knew he had an obligation to make payments to Citibank; and (8) if he had the money, he would pay Citibank. The summary judgment evidence also demonstrates a balance due on the account, totaling $29,515.72. Further, Heinen failed to provide evidence contradicting the validity of the card agreement and that such agreement controlled his account. See Hinojosa, 2008 WL 57061 at *3; Duran v. Citibank (South Dakota), N.A., No. 01-06-00636-CV, 2008 WL 746532, *4 (Tex. App.-Houston [1

As already noted, our review of the statements provided in the record before us show the applicable rate of interest to the account at the time the statements were issued by Citibank. Because Heinen never disputed the charges on the account, failed to dispute the validity of the card agreement, and admitted he had an obligation to make payments to Citibank, but failed to do so, we conclude there was no fact issue as to the interest rates charged by Citibank. We overrule Heinen's first issue.

In his second issue, appellant complains Citibank failed to offer evidence that the agreements in the summary judgment evidence were offered to Heinen. We disagree. Molinaro's affidavit established Citibank mailed to Heinen "a credit card along with the terms and conditions that apply to the use of the account." Molinaro's affidavit further established the account agreement may be amended from time to time and that "[a]ny subsequent change to the original financial terms in effect has been disclosed to [Heinen] on the statements provided to [Heinen]." In addition, Heinen admitted to using the card, that he received the statements, he failed to dispute the charges on the account, failed to dispute the validity of the card agreement, and admitted he had an obligation to make payments to Citibank, but failed to do so. We, therefore, conclude that Citibank offered evidence that the agreements were offered to Heinen and overrule Heinen's second issue.

Having overruled Heinen's first two issues, we conclude Citibank's summary judgment evidence established: (1) the existence of a valid contract, (2) performance or tendered performance by Citibank, (3) breach of the contract by Heinen, and (4) damages sustained as a result of the breach. See Winchek, 232 S.W.3d at 202. Thus, the trial court properly granted summary judgment on Citibank's breach of contract claim. Tex. R. Civ. P. 166(c). As such, we need not address whether summary judgment was appropriate under Citibank's account stated claim (as raised by Heinen's remaining issues). See Winchek, 232 S.W.3d at 202.

We affirm the judgment of the trial court.

DAVID L. BRIDGES

JUSTICE

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