Winchek v. American Exp. Travel Related Servs. Co., 232 S.W.3d 197 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

Winchek v. Amex (Tex.App. - Houston [1st Dist.] May 17, 2007)(Higley)
(debt collection, credit card debt suit, summary judgment for creditor based on breach of contract affirmed)

Amex met its burden to prove the first element of its claim, that a valid contract exists. The
second and third elements, that of breach by Winchek and performance by Amex, are
established because it is undisputed that Winchek failed to pay the amounts due as stated
in the billing statements and that Amex fully performed its obligations with regard to
servicing Winchek's account under the Agreement. Finally, we have concluded that Amex
proved the fourth element of its claim, the damages sustained. We hold that Amex met its
burden to prove that it is entitled to summary judgment as a matter of law on each element
of its cause of action.

AFFIRM TC JUDGMENT: Opinion by Justice Higley
Before Justices Nuchia, Keyes and Higley
01-06-00392-CV Mary Winchek v. American Travel Related Services
Appeal from County Civil Court at Law No 3 of Harris County (
Judge Lynn Bradshaw-Hull)

OPINION ON REHEARING

On April 19, 2007, we issued an opinion affirming the trial court's judgment. Appellee, American Express
Travel Related Services Company, Inc. ("Amex"), moved for rehearing. We deny the motion, but withdraw
the opinion dated April 19, 2007, and issue this opinion in its stead. Our judgment of the same date
remains unchanged.

Amex sued appellant, Mary Winchek, for breach of contract for failing to pay a credit card debt. Winchek
appealed the summary judgment rendered in favor of Amex.

In what we construed as four issues, Winchek contends that the trial court erred by granting Amex's
motion for summary judgment on its breach of contract claim (1) because (1) Amex's summary judgment
proof was insufficient to establish the existence of a contract and the damages sustained; (2) genuine
issues of material fact preclude summary judgment; (3) Winchek's supplemental response was
improperly stricken as untimely; and (4) Winchek's motion for continuance to depose Amex's summary
judgment affiant was improperly denied.

We affirm.

Summary of Facts and Procedural History

Winchek was the holder of a credit card, an "American Express Green Card" ("the Card"), issued by
Amex. Winchek used the Card to purchase goods and services on account. The terms of the account
were governed by an "Agreement Between Cardmember and American Express Travel Related
Services Company, Inc." ("the Agreement"). The Agreement, which Amex contends it sent to Winchek at
the time the Card was issued, stated that by keeping, signing, or using "the enclosed American Express
Card," the cardholder agreed to the terms stated in the Agreement. It is undisputed that Winchek kept
and used the Card.

The Agreement provided that payment for all charges was due immediately upon receipt of each billing
statement and that unpaid balances were subject to certain late fees. Certain purchases, however, could
be made under a deferred billing feature, a "Sign and Travel and/or Special Purchase Account" ("Sign
and Travel"), (2) which permitted the cardholder to make a certain minimum payment each period toward
the total balance. The Sign and Travel balance was subject to certain finance charges.

Each month, Amex sent billing statements to Winchek, and it is undisputed that Winchek did not
challenge the accuracy of the statements. Winchek made monthly payments to her account through June,
2003, but failed to make payments in July and August, 2003. Subsequently, Amex cancelled the Card.

On October 4, 2004, Amex sued Winchek, alleging
breach of contract and "a cause of action for
account stated.
" Winchek answered with 25 defenses, including release; accord and satisfaction;
compromise and settlement; waiver; estoppel; excuse; usury; fraud; failure of conditions precedent; failure
to mitigate; lack of consideration, capacity, and notice; and that the claims were barred by the statute of
frauds and statute of limitations.

On June 1, 2005, Amex moved for summary judgment on its claims on the grounds that Winchek had, by
accepting and using the Card, agreed to pay Amex for all amounts charged to her account, that Amex
performed all terms and conditions as provided in the Agreement, that Winchek breached the Agreement
by failing to pay the charges as agreed, and that damages for the unpaid charges and fees totaled
$36,675.17 plus attorney's fees and costs. As evidentiary support, Amex attached the Agreement, a
series of Winchek's account statements, and the affidavits of Ira Axelrod, Manager of Credit Operations
and custodian of records for Amex, and Jamie Silver, in support of attorney's fees.

On July 5, 2005, Winchek responded that Amex had failed to prove the existence of a valid contract and
its terms, had failed to negate Winchek's affirmative defenses, and had failed to proffer competent
summary judgment evidence. Winchek appended the affidavit of her
attorney, John Mastriani.

On July 13, 2005, the trial court granted a final summary judgment in favor of Amex, without stating its
basis. Subsequently, Winchek moved for a new trial, complaining that summary judgment had been
granted "exclusively on the sworn account" claim and that recovery under such theory was not available to
a credit card issuer. Winchek also argued that Amex had improperly attempted to recover under a
quantum meruit theory. In addition, Winchek alleged that Axelrod's affidavit was insufficient because it
had not been formally sworn to as true and correct. Amex responded that summary judgment had been
properly granted on its breach of contract claim and that it had not alleged a suit on a sworn account or
stated a quantum meruit claim. On September 14, 2005, the trial court granted Winchek's motion for new
trial without stating its basis.

On October 5, 2005, Amex again moved for summary judgment on the grounds that Winchek had, by
accepting and using the Card, agreed to pay Amex for all amounts charged to her account, that Amex
had performed all terms and conditions as provided in the Agreement, that Winchek had breached the
Agreement by failing to pay the charges as agreed, and that damages to Amex for the unpaid charges
and fees totaled $36,675.17 at the time of suit, plus attorney's fees. Once again, Amex attached the
Agreement, a series of Winchek's account statements, the affidavit of Axelrod, and the affidavit of
Rhonda M. Ryemon in support of attorney's fees.

A hearing on the motion was set for December 30, 2005. On the night of December 27, 2005, Winchek
filed a response to the motion for summary judgment, to which she appended her own affidavit as
evidentiary support. On January 23, 2006, the trial court struck Winchek's response as untimely and
rendered a final summary judgment in favor of Amex. The trial court found that there was no genuine issue
of material fact and that Amex was entitled to judgment for the sum of $36,675.17 and attorney's fees of
$5,501.28.

On February 28, 2006, Winchek again moved for a new trial, which the trial court denied. This appeal
ensued.

Analysis

In what we construe as four issues, Winchek contends that the trial court erred by granting Amex's motion
for summary judgment on its breach of contract claim because (1) Amex's summary judgment proof was
insufficient to establish the existence of a contract and the damages sustained; (2) genuine issues of
material fact preclude summary judgment; (3) Winchek's supplemental response was improperly stricken
as untimely; and (4) Winchek's motion for continuance to depose Amex's summary judgment affiant was
improperly denied.A. Standard of Review

We review a trial court's granting of a traditional summary judgment de novo. Provident Life & Accident
Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A summary judgment under Rule of Civil Procedure
166a(c) is properly granted only when a movant establishes that there are no genuine issues of material
fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Knott, 128 S.W.3d at
215-16. A plaintiff moving for summary judgment must prove that it is entitled to summary judgment as a
matter of law on each element of its cause of action. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-
23 (Tex. 1999); Rizkallah v. Conner, 952 S.W.2d 580, 582 (Tex. App.--Houston [1st Dist.] 1997, no writ).

Only if the movant conclusively establishes its cause of action does the burden shift to the nonmovant to
respond with evidence raising a genuine issue of material fact that would preclude summary judgment.
Steel, 997 S.W.2d at 222-23; see Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989). In deciding
whether there is a disputed material fact precluding summary judgment, evidence favorable to the
nonmovant will be taken as true, every reasonable inference must be indulged in favor of the nonmovant,
and any doubts resolved in its favor. Knott, 128 S.W.3d at 215.

Here, because Winchek's burden to respond with evidence raising a genuine issue of material fact that
would preclude summary judgment did not arise unless and until Amex met its burden to conclusively
establish that it is entitled to summary judgment as a matter of law on each element of its cause of action,
we first consider those of Winchek's issues that relate to whether Amex met its burden. See Steel, 997 S.
W.2d at 222-23. Only if we determine that Amex met its burden do we consider Winchek's issues that
relate to whether she met her burden to respond with evidence raising a genuine issue of material fact
that would preclude summary judgment. See id.

When, as here, the trial court does not state the basis for its decision in its summary judgment order, we
must uphold the order if any of the theories advanced is meritorious. Knott, 128 S.W.3d at 216.

B. Applicable Law

To be entitled to summary judgment on its breach of contract claim, Amex was required to prove, as a
matter of law, the essential elements of a breach of contract claim: (1) the existence of a valid contract; (2)
performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; (4)
damages sustained as a result of the breach. Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631,
636 (Tex. App.--Houston [1st Dist.] 2002, pet. denied).

C. Amex's Summary Judgment Proof

In her first issue, Winchek contends that Amex's summary judgment proof was insufficient to establish the
existence of a contract and the damages sustained, the first and fourth elements of its cause of action.

1. Existence of a Valid Contract

Winchek contends that Amex failed to prove that a contract existed because it failed to prove that Amex
delivered the Agreement to Winchek, that the Agreement contained definite terms, and that Winchek
accepted those terms.

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. See id.
To be enforceable, a contract must be sufficiently certain to enable a court to determine the rights and
responsibilities of the parties. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.
1992).

As evidentiary support for its motion for summary judgment, Amex appended the affidavit of
Axelrod, its
Manager of Credit Operations and custodian of records
. Axelrod attested that, "[a]t all relevant
times, Winchek was the holder of an American Express Personal Card ("The Personal Card") that
enabled her to charge items to an American Express Card Account (Number 3731 . . . --the "Personal
Account") and that "[b]y accepting and using the Personal Card, Winchek agreed to all of the terms and
conditions set forth in the Personal Card Member Agreement with American Express."

The Agreement, which Amex also appended to its motion, stated that "when you keep, sign or use the
enclosed American Express Card (including any renewal or replacement Cards issued to you) you agree
to the terms of this Agreement." Pursuant to the Agreement, the holder of the Card was responsible for
payment of amounts charged to the account. The Agreement provided that a billing statement would be
mailed at the end of each billing period, that full payment was due immediately upon receipt of the billing
statement, and that late fees may be charged if timely payment was not received. The amount of the late
fees depended upon the length of time that an account remained unpaid and the address to which the bill
was sent. The Agreement provided that Texas cardholders would be assessed a fee of 1.5% on amounts
unpaid for two or more billing periods. In addition, late fees could be added as long as the account
remained unpaid.

The Agreement also provided that for purchases made under the Sign and Travel, or deferred billing,
feature, a minimum payment was due at the end of each billing cycle, as reflected in the billing
statements. The minimum amount due would be the greater of $20 or 1/50th of the new balance shown on
each statement, plus any previously unpaid minimum payments. The Agreement provided for finance
charges, as follows:

The daily periodic rate ("DPR") for Account charges depends on [the] adherence to the terms of this
Agreement each month up to the 12-month period preceding each billing period (each such period being
referred to as a "Review Period"). . . . The DPR for Account charges is based on an [annual percentage
rate ("APR")] which may be adjusted monthly. The APR for all billing periods ending during any month is
calculated by adding 9.9% to the "Prime Rate." . . . Notwithstanding the foregoing, the APR will be a fixed
rate of 23.46% with a DPR of .0643% in any review period (a) any portion of any Minimum Payment on
[the] account was included within any unpaid previous balance on billing statements on three or more
occasions, (b) any portion of any Minimum Payment on [the] Account was included within an unpaid
previous balance on two consecutive billing statements, (c) [there is a] breach of the terms of any other
American Express account, or (d) [the] Account is considered in default for any reason and/or is
cancelled. . . . For purposes of this Agreement, the "Prime Rate" for billing periods ending in any month is
the Prime Rate listed in The Wall Street Journal on the 15th day . . . of the prior month.

The Agreement provided that the average daily method for calculating finance charges would be applied
and explains the methodology.

In addition, Amex appended to its motion Winchek's billing statements for August, 2002, through August,
2003. The statements show that a specific Card and account number were issued to Winchek and that
she used the Card to charge goods and services to her account under both the "due in full" and the "Sign
and Travel" features. The statements reflect that Winchek was charged a DPR of 0.0657% (or an APR of
23.99%) on her "Sign and Travel" purchases. The statements reflect that each month, from August, 2002
through May, 2003, Winchek paid the total "due in full" amount and the minimum payment due on her Sign
and Travel account. In June, 2003, Winchek paid less than the total amount due on her account; and, in
July and August, Winchek did not make payments.

First, Winchek contends that no contract exists because Amex failed to prove that it ever delivered the
Agreement to her, citing Awad Tex. Enters., Inc. v. Homart Dev. Co., 589 S.W.2d 817 (Tex. Civ. App.--
Dallas 1979, no writ). Generally, delivery is essential to the validity of a contract. Prime Products, 97 S.W.
3d at 636. However, as Homart points out, when the parties manifest an intent through their actions and
words that the contract become effective, delivery is shown. See Homart Dev. Co., 589 S.W.2d at 820
(holding that, because parties treated lease as effective upon execution and lessee moved in and paid
rent, question of delivery of lease was "immaterial" to contract validity).

Here, as in Homart, Winchek's conduct in using the card and making payments on the account for the
purchases and charges reflected on her monthly billing statements manifested her intent that the contract
become effective. As Amex contends, a contract was created when Winchek used the Card, not upon
manual delivery of the Agreement. See id. (stating that manual delivery is not essential to validity); see e.
g., Hay v. Citibank (South Dakota) N.A., No. 14-04-01131-CV, 2006 WL 2620089, at *3 (Tex. App.--
Houston [14th Dist.] Sept. 14, 2006, no pet.) (holding that use of credit card and payments to account
demonstrate existence of contract).

Second, Winchek contends that no contract was formed because the terms of the Agreement --
apparently the type of account Winchek held and the applicable fees and finance charges -- were fatally
indefinite. The statements clearly show that all purchases were charged to one account number. The
statements also clearly show which purchases were categorized as "due in full" and which were deemed
"Sign and Travel" and subject to finance charges. For the months reflected in the statements appended to
Amex's motion, Winchek consistently paid the total amount of the "due in full" account and paid the
minimum payment required by the deferred payment account. We conclude that Amex's evidence shows
that the Agreement was sufficiently definite to enable a court to determine the rights and responsibilities
of each party and that Winchek's conduct in using the card and making payments on the account for the
purchases and charges reflected on her monthly billing statements shows that she understood her
obligations to Amex and that a contract was formed. See T.O. Stanley Boot Co., 847 S.W.2d at 221; see
also Hay, 2006 WL 2620089, at *3 & n.5.

Finally, Winchek contends that Amex failed to show proof of her acceptance of the terms of the
Agreement. As the Agreement states, however, use of the Card constituted acceptance of the terms
governing the use of the Card, as stated in the Agreement. Winchek does not dispute that she used the
Card. In addition, Winchek made payments each month without ever disputing the accuracy of the
statements or the stated terms.

We conclude that Amex met its burden to show the first element of its claim, that a contract existed
between Amex and Winchek. See Prime Products, 97 S.W.3d at 636.

2. Damages

In addition, under her first issue, Winchek contends that Amex's summary judgment proof is insufficient to
establish the damages sustained, the fourth element of its cause of action. Specifically, Winchek
contends that Amex failed to establish the amount "that is owed and due," that all just and lawful offsets
had been allowed, and the applicable rate of interest.

As fully discussed above, the Agreement and Winchek's statements provided detailed explanations of the
cost of credit to Winchek and the methodology employed by Amex. As to the specific charges to
Winchek, Winchek's billing statements for August, 2002 through August, 2003 show that Winchek used
the Card to charge goods and services to her account under both the "due in full" and the "Sign and
Travel" features. Contrary to Winchek's contention, the statements in the record before us do not reflect
that interest was charged on the "due in full" transactions. The statements reflect that Winchek was
charged a DPR of 0.0657% (or an APR of 23.99%) on her "Sign and Travel" purchases, and each
statement contains a detailed explanation of the computation of the interest rate as applied to her account.

The statements reflect that each month, from August, 2002 through May, 2003, Winchek paid the total
"due in full" amount and the minimum payment amount reflected on her Sign and Travel account. In June,
2003, Winchek paid less than the total amount due on her account; and, in July and August, no payments
are reflected. The total outstanding balance owed, as reflected on the August 12, 2003 statement, was
$33,995.96.

The record shows that Amex's affiant, Axelrod, attested that Amex duly sent monthly statements of
account to Winchek, that each statement set forth in detail all the debits and credits to Winchek's account,
and that each statement "reflected the total amounts due and owing by Winchek to [Amex]." Axelrod
testified that Winchek breached "the Personal Card Agreement requiring payment in full of the balances
due on the Personal Account" and that Winchek "has not made said payments to [Amex] with respect to
the Personal Monthly Statements." Axelrod attested that the "total outstanding, overdue and unpaid
balance owed by Winchek to [Amex] on the Personal Account [was] $36,675.17 as of May 31, 2005."
Finally, Axelrod attested that this sum was after all payments and offsets had been made to Winchek's
account by Amex.

Amex also appended the affidavit of
Rhonda M. Ryemon, who attested that "a reasonable sum for
attorney's fees in this case is 15% of the unpaid balance, which is the sum of $5,501.28, which is allowed
under the Agreement." The Agreement states that if an unpaid account is referred to an attorney the
cardholder agrees to pay "all court costs plus attorney's fees of 15% of the then unpaid balance."

We conclude that Amex met its burden to show the fourth element of its claim, the damages sustained by
Winchek's breach. See Prime Products, 97 S.W.3d at 636.

3. Competence of Axelrod Affidavit

In a sub-issue, Winchek contends that Amex's summary judgment proof, the business records affidavit of
Axelrod, was not competent to support summary judgment. Specifically, Winchek contends that the
affidavit is conclusory and that Axelrod failed to show that the affidavit was made on personal knowledge,
failed to set forth facts that would be admissible in evidence, and failed to show affirmatively that he was
competent to testify to the matters stated.

Rule of Civil Procedure 166a(f) requires that "affidavits shall be made on personal knowledge, shall set
forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein." Tex. R. Civ. P. 166a(f).

Here, the record shows that Axelrod attested in his affidavit that the facts he sets out are based on his
personal knowledge and that he derives his knowledge from 26 years of employment with Amex in the
legal and collections units, his position as Manager of Credit Operations for Amex, and his personal
familiarity with the policies and procedures Amex uses in creating and keeping records--which Axelrod
discusses in great detail in his affidavit. Axelrod attested that he is personally responsible for the archived
documents regarding accounts in active litigation, "especially high balance account holders such as . . .
Winchek."

Axelrod has satisfied the requirement that "affidavits shall be made on personal knowledge" because he
has made an affirmative showing of how he became personally familiar with the facts. Waite v.
BancTexas-Houston, N.A., 792 S.W.2d 538, 540 (Tex. App.--Houston [1st Dist.] 1990, no writ). Axelrod's
job responsibilities qualify him to have personal knowledge of the facts stated in the affidavit. See id.

Winchek also contends that Axelrod's affidavit is conclusory and fails to state any objective facts.
Conclusory statements in affidavits are not competent evidence to support a summary judgment.
Rizkallah, 952 S.W.2d at 587. A conclusory statement is one that does not provide the underlying facts to
support the conclusion. Id. at 587. Winchek has not pointed to any specific language in Axelrod's affidavit
to support her contention. The record shows that Axelrod attested that he is the custodian of records for
Amex, that he bears the responsibility for archived documents regarding accounts in active litigation, and
that he is required to have knowledge of the facts regarding high-balance account holders involved in
litigation, such as Winchek. As stated in detail above, Axelrod attested to the facts regarding Winchek's
account. We conclude that Axelrod's affidavit was not conclusory. See Choctaw Properties, L.L.C. v.
Aledo I.S.D., 127 S.W.3d 235, 242-43 (Tex. App.--Waco 2003, no pet.). We further conclude that
Axelrod's affidavit constituted competent summary judgment proof.

In sum, we have concluded that Amex met its burden to prove the first element of its claim, that a valid
contract exists. The second and third elements, that of breach by Winchek and performance by Amex, are
established because it is undisputed that Winchek failed to pay the amounts due as stated in the billing
statements and that Amex fully performed its obligations with regard to servicing Winchek's account
under the Agreement. Finally, we have concluded that Amex proved the fourth element of its claim, the
damages sustained. We hold that Amex met its burden to prove that it is entitled to summary judgment as
a matter of law on each element of its cause of action. See Prime Products, 97 S.W.3d at 636.

Accordingly, we overrule Winchek's first issue.

D. Issue of Material Fact

Because Amex met its summary judgment burden, the burden shifted to Winchek to respond with
evidence of a genuine issue of material fact that would preclude summary judgment. See Steel, 997 S.W.
2d at 222-23.

1. Untimely Response

In her second issue, Winchek contends that the trial court erroneously struck her supplemental response
as untimely.

Except on leave of court, the nonmovant for summary judgment must file any response or opposing
affidavits "not later than seven days prior to the day of the [summary judgment] hearing." Tex. R. Civ. P.
166a(c). Here, the record shows that Amex filed its motion for summary judgment on October 5, 2005,
and a hearing was set for December 30, 2005. Winchek's response was due by December 23, 2005.
See id. Winchek did not file her response until 9:56 p.m. on December 27, 2005. Amex moved to strike
the response as untimely, additionally contending that it had not received the response until the day of the
hearing and that it had been unfairly surprised.

Winchek contended in the trial court that her response was timely filed on December 27, 2005 because it
was her first opportunity to file. Winchek contended that "December 23, 2005 was a holiday [and]
December 24 and 25 was a weekend." Winchek did not, however, contend in her response to Amex's
motion to strike that December 26, 2005 was unavailable for filing, as she contends on appeal. Issues not
presented to the trial court cannot be considered on appeal. City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671, 678 (Tex. 1979); Gulf Coast v. Clarke, 902 S.W.2d 156, 158 (Tex. App.--Houston [1st
Dist.] 1995, writ denied).

We conclude that Winchek failed to show that her motion, filed on December 27, 2005, less than three
days prior to the hearing, was timely. See Tex. R. Civ. P. 166a(c).

Accordingly, Winchek's second issue is overruled.

2. Issue of Material Fact

In her third issue, Winchek contends that she raised genuine issues of material fact that preclude
summary judgment. Specifically, Winchek contends that she filed an affidavit in which she "controvert[ed]
the testimony of Axelrod and establishe[d] genuine issues of material fact." In her affidavit, Winchek
attested that she did not receive the Agreement, that "she was charged an incorrect late fee," and that
she was charged insurance premiums that she never agreed to pay.

Winchek's affidavit, however, was solely appended to and filed with her supplemental response, which the
trial court struck as untimely. Having concluded that the trial court did not abuse its discretion in striking
Winchek's supplemental response as untimely, we do not consider her affidavit in this appeal. See Tex.
R. Civ. P. 166a(c); City of Houston, 589 S.W.2d at 678.

Accordingly, Winchek's third issue is overruled.

3. Motion for Continuance

In her fourth issue, Winchek contends that the trial court improperly denied her motion for a continuance to
allow her to depose Amex's summary judgment affiant, Axelrod.

Winchek's motion for continuance was contained in her supplemental response, which we have already
concluded was properly struck as untimely. However, even if we were to consider her issue, we note that
Winchek's presentation of her contention is comprised of two sentences that do not contain any citations
to the record or to authority. We will not decide an issue on appeal without proper argument and authority
showing why the actions of the trial court were erroneous. See Tex. R. App. P. 38.1(h).

Accordingly, Winchek's fourth issue is overruled.

CONCLUSION

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Nuchia, Keyes, and Higley.