Ghia Sikander v. AMEX
(Tex.App.- Houston [14th Dist.] Oct. 11, 2007)(Seymore)
(summary judgment for American Express, original creditor in
credit card debt suit against cardholder affirmed)
American Express conclusively established existence of a contract and the damages
caused by appellant's breach.  Therefore, the trial court did not err by granting
summary judgment in favor of American Express.  Accordingly, we overrule appellant's
two issues and affirm the judgment.
AFFIRMED: Opinion by Justice Charles Seymore
Before Justices Brock Yates, Edelman and Seymore
14-06-00653-CV Sikander Ghia aka Ghia Sikander, Individually v. American Express Travel Related Services
Appeal from County Civil Court at Law No 3 of Harris County (
Hon. Lynn M. Bradshaw-Hull)

Notes: Original creditor attached to MSJ: BRA + cardmember agreement, some monthly statements, last
statement, demand letter.
Elements of breach of contract and amount, incl. finance charges, established.
Summary judgment for plaintiff affirmed. Court distinguished summary judgment proof of finance charges from
failure to do so in
Hay v. Citibank (South Dakota) N.A., No. 14-04-01131-CV, 2006 WL 2620089 (Tex.App.-
Houston [14th Dist.], Sept. 14, 2006, no pet.) (mem. op.).

M E M O R A N D U M  O P I N I O N

Appellee, American Express Travel Related Services, sued appellant, Sikander Ghia AKA Ghia Sikander, to
recover a credit card debt, alleging breach of contract and alternatively, quantum meruit.  The trial court
granted American Express's motion for summary judgment and entered a final judgment for $21,781.75, plus
pre-judgment and post-judgment interest, attorney's fees, and costs.  In two issues, appellant contends
American Express failed to conclusively establish appellant's liability and the damages awarded.  All dispositive
issues are settled in law.  Accordingly, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.

I.  Standard of Review

A plaintiff moving for summary-judgment must conclusively prove all essential elements of its claim.  Cullins v.
Foster, 171 S.W.3d 521, 530 (Tex.App.- Houston [14th Dist.] 2005, pet. denied) (citing MMP, Ltd. v. Jones,
710 S.W.2d 59, 60 (Tex. 1986)).  We review a summary judgment de novo.  Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005).  We take all evidence favorable to the nonmovant as true and indulge every
reasonable inference and resolve any doubts in favor of the nonmovant.  Id.

II.  Summary Judgment Evidence

To support its motion for summary judgment, American Express presented, inter alia, an affidavit from Ed
Garabedian, its custodian of records.  Garabedian authenticated as “business records” a “Platinum Card
Member Agreements” (“the agreement”) and some monthly statements for appellant's account, which were
attached to the motion for summary judgment.  The agreement contains various terms and conditions,
including the card member's obligation to pay all amounts charged to the account.  

The agreement includes a feature entitled, “Sign & Travel and/or Extended Payment Option Agreement.”  
Pursuant to this feature, the card member may defer payments for transactions of $200 or higher.  American
Express is authorized to assess finance charges on the deferred amounts.  The card member is required to
remit the minimum payment shown on each monthly account statement.  Further, the account may be
considered in default if the card member fails to make any payment due.  In the event of a default, American
Express may declare the entire balance due and payable.

According to the monthly statements, appellant made charges to her account, including transactions subject to
the “Sign & Travel” feature.  Appellant remitted some payments, but she failed to make all minimum payments
due.  Her last payment was made in September 2004.  The most recent statement (December 2004) shows a
balance of $21,781.75, including transactions and finance charges, which is the amount of the trial court's
judgment.  American Express also attached a demand letter to its motion for summary judgment, reflecting it
declared the balance due and payable in December 2004.

III.  Discussion

In two interrelated issues, appellant contends American Express failed to conclusively establish her liability and
the damages awarded.[1]  American Express moved for summary judgment on its breach of contract claim.  
The elements of a breach of contract action are  (1) existence of a valid contract, (2) performance or tendered
performance by the plaintiff,  (3) breach of the contract by the defendant, and (4) damages sustained by the
plaintiff as a result of the breach.  Roof Sys., Inc. v. Johns Manville Corp., 130 S.W.3d 430, 442 (Tex. App.-
Houston [14th Dist.] 2004, no pet.).[2]

Preliminarily, we note appellant presents several general complaints regarding Garabedian's affidavit:
American Express did not provide sworn or certified copies of the documents referenced therein; the affiant did
not state the foundation for his opinions; the affidavit contains legal conclusions unsupported by any facts; and
the affiant failed to show how he became familiar with the facts.  

However, Garabedian properly authenticated the referenced documents as “business records” pursuant to
Texas Rule of Evidence 902(10).  See Tex. R. Evid. 902(10).  Further, the affidavit did not contain any
opinions or legal conclusions, but merely statements of fact.  Finally, Garabedian averred the statements were
based on his personal knowledge, and as custodian of records, he testified regarding pertinent information
based on the account agreement and monthly statements authenticated as business records and described
the regular business practices of American Express relative to the account agreement and monthly statements.
Therefore, we reject appellant's general challenges to the affidavit.

More specifically, appellant claims American Express did not present sufficient evidence to prove existence of a
contract or its right to recover the damages awarded.

A.        Existence of a Contract

The elements of a valid contract are (1) an offer, (2) an acceptance in strict compliance with the terms of the
offer, (3) a meeting of the minds, (4) a communication that each party consented to the terms of the contract,
(5) execution and delivery of the contract with an intent it become mutual and binding on both parties, and (6)
consideration.  Angelou v. African Overseas Union, 33 S.W.3d 269, 278 (Tex. App.-Houston [14th Dist.] 2000,
no pet.).  For several reasons, appellant contends American Express failed to prove existence of a valid
contract.  

Appellant suggests American Express did not establish the written agreement applied to her account and that
American Express owns the account.  Although appellant is not specifically identified as a party on the form
agreement, at the outset, it includes the following language, “Agreement Between Platinum Card Member and
American Express Travel Related Services Company, Inc.”  The evidence demonstrates appellant is a
“Platinum Card” holder.  Moreover, Garabedian testified the agreement applies to appellant's account.  
Therefore, we reject appellant's contention.

Appellant also argues American Express did not prove she accepted the terms of the agreement.  However,
the agreement provides, “Please read this Agreement thoroughly, because when you keep, use or sign the
enclosed Platinum Card (or any renewal or replacement Card issued to you) you agree to the terms of the
Agreement. . . .”  Because appellant retained and used her card, she accepted the terms of the agreement.  
See Winchek v. Am. Express Travel Related Servs. Co., Inc., 01-06-00392-CV, ___ S.W.3d ___ , 2007 WL
1440987, at *6 (Tex. App.- Houston [1st Dist.] May 17, 2007, no pet.) (concluding account holder's use of
credit card established her acceptance of account agreement where it provided that use constituted
acceptance of terms).

Similarly, appellant contends American Express did not prove delivery of the agreement.  To the contrary,
Garabedian averred that it is the regular business practice of American Express “to send a copy of the
applicable terms and conditions to the Cardmember at the address to which the card and statements of
account are sent . . . .”  In response to the motion for summary judgment, appellant did not present evidence
negating receipt of the agreement.  Moreover, when parties manifest an intent through their actions and words
that a contract become effective, manual delivery is immaterial to contract validity.  Awad Tex. Enters., Inc. v.
Homart Dev. Co., 589 S.W.2d 817, 819-20 (Tex. Civ. App.- Dallas 1979, no writ).  Because appellant used her
card and made some payments due, she manifested intent that the agreement become effective, irrespective
of whether she received manual delivery.  See Winchek, 2007 WL 1440987, at * 5 (holding account holder's
conduct in using credit card and making payments on account manifested intent the contract become effective,
irrespective of whether she received manual delivery of the agreement).

In addition, appellant asserts the agreement did not have language indicating it covered the relevant “time
frame that relief is sought."  However, the agreement is not a contract to be performed within a certain time
frame.  Rather, appellant was required to pay all charges on her account regardless of when they were
incurred.

Finally, appellant generally claims the agreement is not definite.  See Fort Worth Indep. Sch. Dist. v. City of
Fort Worth, 22 S.W.3d 831, 846 (Tex. 2000) (holding that generally a contract is legally binding only if its terms
are sufficiently definite to enable a court to understand the parties' obligations).  But, appellant does not
explain how the agreement is allegedly indefinite.  Nonetheless, the agreement contains nine pages and is
quite specific regarding the parties' respective obligations.  Accordingly, American Express proved that the
agreement constituted a contract between American Express and appellant.

B.        Damages

Appellant offers numerous reasons that American Express allegedly failed to establish its right to recover the
damages awarded.

1.         Amount Due

First, appellant generally asserts that American Express failed to establish “an amount that is owed and due."  
It is unclear whether appellant refers to the entire balance or some particular component. Regardless, the most
recent account statement shows a balance of $21,781.75 - the amount of the judgment.  Thus, we reject this
general contention.[3]

Appellant also suggests that proof of the amount due required expert testimony.

We disagree that proving a balance as reflected on an account statement requires expert testimony.  Appellant
then suggests the account statements are hearsay.  However, the account statements are admissible as
hearsay exceptions because Garabedian properly authenticated them as business records.  See Tex. R. Evid.
803(6) (providing that business records proved by affidavit complying with Rule of Evidence 902(10) are
admissible as exceptions to hearsay rule, unless source of information or method or circumstances of
preparation indicate lack of trustworthiness).  Although appellant generally asserts the account statements lack
“trustworthiness,” she presents no supporting argument.

Further, appellant argues American Express failed to establish that all just and lawful offsets have been
allowed.  As appellant notes, Garabedian averred that the “payment history attached to this motion as Exhibit
'E' show [sic] that [appellant] made the last payment on __________ . . . .”  This blank is not completed, and
Exhibit “E” is an affidavit supporting attorney's fees - not a payment history.  However, the payment history is
not necessary to support the judgment.  The statements reflect that the last payment was made on September
3, 2004.  Further, the statements and American Express's demand letter set forth the balance, and
Garabedian averred that “all lawful offsets, payments, and credits have been allowed.”  In response to the
motion for summary judgment, appellant did not present evidence of any payments that were not credited to
her account.  Consequently, American Express proved the balance after all payments were credited, despite
the absence of the referenced “payment history.”

2.         Finance Charges

Next, appellant challenges the award of finance charges comprising the balance.  Appellant suggests American
Express did not prove its right to assess any finance charges.[4] Specifically, appellant notes Garabedian
averred that Exhibit “C” attached to the motion for summary judgment applied to appellant's account.  
According to appellant, there were two separate agreements attached as exhibit “C”: the “Platinum Card
Member Agreements” and a “Sign & Travel” agreement.  Therefore, according to appellant, Garabedian did
not establish the “Sign & Travel” agreement, which authorizes finance charges, applies to her account.  We  
disagree.  It is clear that Exhibit “C” referenced in the affidavit includes the “Sign & Travel” option because the
terms of that feature begin in the middle of the third page of the “Platinum Card Member Agreements.”

Appellant further notes that the “Sign & Travel” agreement provides that it is “not available until the cardholder
receives notification from us.”  According to appellant, there is no proof she received the requisite notice.  
Again, we disagree.  As we have explained, Garabedian testified American Express typically sends the terms
and conditions comprising the applicable agreement to the card member, and appellant presented no
evidence negating receipt of the agreement.  Moreover, the “Sign & Travel” agreement provides that the card
member agrees to the terms applicable to this feature by electing to use it.  Accordingly, appellant agreed to
pay finance charges on the amounts subject to this feature by using the option.

Apparently, appellant next complains that American Express did not present evidence specifically outlining
each transaction to prove it was properly billed under the “Sign & Travel” feature and thus was subject to
finance charges.  We recognize American Express did not present as summary judgment evidence every
monthly statement since inception of the account; rather, it attached statements for 2004 only.  By January
2004, appellant had accrued a significant portion of the “Sign & Travel” balance.  However, we conclude
American Express was not required to outline each transaction comprising this balance.

Garabedian testified that it is the regular business practice of American Express to send monthly statements to
the card member.  The agreement requires the card member to contact American Express regarding any
errors on a statement within sixty days after the statement is issued.  The card member is not obligated to pay
a disputed amount during American Express's investigation of the alleged error.  However, the card member is
obligated to pay the parts of the bill that are not questioned.  

American Express established the total balance on the "Sign & Travel" feature. In response to the motion for
summary judgment, appellant did not present evidence negating that she received any monthly statements.  
Further, appellant presented no evidence showing she timely disputed any transactions comprising the "Sign &
Travel" balance, or in particular, notified American Express a transaction was improperly billed under this
feature.  Accordingly, by demonstrating the balance attributable to the "Sign & Travel" feature, American
Express sufficiently proved its right to recover the balance, including finance charges, despite the absence of
all statements itemizing the transactions.

Appellant also contends American Express presented insufficient evidence to support the amount of finance
charges included in the balance.   In essence, the agreement prescribes the following method for calculating
finance charges: a daily periodic rate (“DPR") is applied to the “Average Daily Balance"; the DPR is based on
the annual percentage rate ("APR") and may vary monthly; and the APR is determined by adding 9.99% to the
Prime Rate.[5]

Appellant contends American Express offered no evidence regarding the applicable prime rate used to
determine the APR.  Appellant cites an unpublished opinion,
Hay v. Citibank (South Dakota) N.A., in which we
held that the plaintiff bank did not present sufficient summary judgment evidence to support the finance
charges awarded on a credit card debt.  No. 14-04-01131-CV, 2006 WL 2620089, at *3 (Tex. App.- Houston
[14th Dist.] Sept. 14, 2006, no pet.) (mem. op.).  Notably, the agreement authorized a default rate of up to
19.99% plus the applicable prime rate.  Id.  But, the bank did not present any evidence of the applicable prime
rate for the relevant time periods covered by the statements.  Id.  The bank argued the default rate reflected
on some statements minus the 19.99% factor indicated the applicable prime rate.  Id.  We held that this default
rate reflected the prime rate used, but the bank did not establish “what the applicable prime rate for any date
or time period actually was, such as by reference to a source of that information.”  Id.

In contrast, here, the agreement specifically refers to a source by providing that the Prime Rate is to be
determined from The Wall Street Journal.  Moreover, the 2004 account statements include a detailed
description regarding American Express's calculation of finance charges and indicate it indeed used the prime
rate published in The Wall Street Journal.[6]

Again, the record does not include statements prior to 2004 and thus does not show how American Express
calculated finance charges for previous years.  However, as we have explained, in response to the summary
judgment, appellant offered no evidence showing that she timely disputed the calculation of any finances
charges on her monthly statements.  Accordingly, by demonstrating the balance attributable to the "Sign &
Travel" feature, American Express sufficiently proved its right to recover the portion constituting finance
charges.

Finally, appellant argues that American Express assessed a “default" APR in excess of the rate authorized by
the agreement.  On the November and December 2004 statements, American Express applied “default" rates
of 26.74% and 26.99% respectively.  As appellant asserts, the agreement prescribes a fixed APR of  23.46% in
the event of a default.  However, the agreement also provides that American Express may change the terms,
including finance charge rates, at any time and will notify the card member of the changes.  Through a notice
attached to the March 2004 account statement, American Express modified the agreement to prescribe a
variable “default" APR equal to the Prime Rate plus 21.99%.  The November and December 2004 statements
indicate American Express used the Prime Rate published in The Wall Street Journal to calculate the “default"
APR.  Consequently, American Express applied a default APR authorized by the agreement.

3.         Service Charges, Late Fees, and “Other Charges"

In her second stated issue, appellant asserts that American Express failed to establish the right to recover
“service charges," late fees, and “other charges."  Appellant has waived this contention by failing to present
any argument and specify the charges to which she refers.  See Tex. R. App. P. 38.1(h) (providing that
appellant's brief must contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and the record); Blanks v. Liberty Mut. Fire Ins. Co., 196 S.W.3d 451, 452 (Tex. App.-
Dallas 2006, pet. denied) (recognizing bare assertions of error, without argument or authority, waive error).  
Nevertheless, under the agreement, American Express is specifically authorized to assess late fees for unpaid
charges.

C.        Attorney's Fees

Finally, in her second stated issue, appellant asserts American Express failed to establish its right to recover
attorney's fees.  However, in her argument, appellant challenges recovery of attorney's fees only with respect
to American Express's alternative quantum meruit claim.  American Express may recover attorney's fees
because it prevailed on its breach of contract claim and recovered damages.  See Tex. Civ. Prac. & Rem.
Code Ann. § 38.001(8) (Vernon 1997); see Gentry v. Squires Const., Inc., 188 S.W.3d 396, 406 (Tex. App.-
Dallas 2006, no pet.).

In sum, American Express conclusively established existence of a contract and the damages caused by
appellant's breach.  Therefore, the trial court did not err by granting summary judgment in favor of American
Express.  Accordingly, we overrule appellant's two issues and affirm the judgment.

/s/        
Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed October 11, 2007.

Panel consists of Justices Yates, Seymore, and Edelman.*

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[1]  Appellant's complaints are not exactly clear.  In her first stated issue, she generally asserts American
Express did not proffer competent evidence to support a judgment for breach of contract or quantum meruit.  
In her second stated issue, for various reasons, she challenges the damages awarded.  In the “Facts" section
of her brief, she lists challenges to the summary judgment that are not exactly consistent with her stated
issues.  Then, throughout her argument, she scatters various challenges to the summary judgment.  We have
attempted to glean, and address, the complaints on which she presented some argument.

[2]  Because we conclude American Express established its breach-of-contract claim, we need not address
appellant's challenge to summary judgment on American Express's alternative quantum meruit theory.  See
Vortt Exploration  Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990) (recognizing that generally
party may recover in quantum meruit only when there is no express contract covering the services or materials
furnished).

[3]  As appellant notes, in his affidavit, Garabedian incorrectly averred that the account statements show a
balance of $21,811.27, when they actually reflect a balance of $21,781.75.  However, American Express also
presented a document indicating several “Debit Adjustment[s]" were added in 2005, bringing the balance to
$21,811.27.  Nonetheless, the trial court entered judgment for $21,781.75, as shown on the account
statements.  Therefore, Garabedian's mistake as to the source of the slightly higher balance  referenced in his
affidavit is immaterial.

[4]  Although appellant refers to “interest," it is apparent she challenges the finance charges included in the
balance, as opposed to the award of pre-judgment and post-judgment interest.

[5]  We note that the agreement prescribes this method for calculating the DPR and APR “[e]xcept as provided
in Section B below."  Curiously, there is no provision entitled, “Section B," although, as we will explain, there is
an exception for determining the APR in the event of a “default."  In fact, relying on this omission, appellant
asserts the formula prescribed in the agreement is incomplete.  However, because there is no “Section B," the
agreement effectively contains no exception to the cited formula, other than the default provision.  Therefore,
we conclude that the above-cited formula is applicable.

[6]  Beneath the APR shown on the account statements is the following language: “Certain of the periodic rates
and APRs above may be variable.  Those rates may vary based upon the prime rate identified in the Wall
Street Journal, as described in your Cardmember Agreement as currently in effect."

Senior Justice Richard H. Edelman sitting by assignment.