Thomas v. American Express Bank, FSB

139 So. 3d 809, 2013 WL 3967673, 2013 Ala. Civ. App. LEXIS 174
CourtCourt of Civil Appeals of Alabama
DecidedAugust 2, 2013
Docket2120117
StatusPublished

This text of 139 So. 3d 809 (Thomas v. American Express Bank, FSB) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas v. American Express Bank, FSB, 139 So. 3d 809, 2013 WL 3967673, 2013 Ala. Civ. App. LEXIS 174 (Ala. Ct. App. 2013).

Opinions

MOORE, Judge.

Lynn E. Thomas d/b/a Anchor Comms (“Thomas”) appeals from a judgment of the Jefferson Circuit Court (“the trial [810]*810court”) in favor of American Express Bank, FSB (“American Express”). We reverse.

Background

American Express sued Thomas on October 6, 2011, asserting three counts of breach of a written contract; each count related to a separate credit account Thomas had held with American Express. American Express claimed that Thomas owed American Express a total of $25,778.86 on the three accounts, including unpaid principal, accrued interest, and attorney fees. Thomas, acting pro se, denied that he owed American Express any money.

On April 11, 2012, American Express moved for a summary judgment as to all three counts. Thomas, who by that time was represented by legal counsel, requested additional time to conduct discovery; the trial court granted Thomas’s motion. On August 10, 2012, after the parties had completed discovery, American Express supplemented its previously filed summary-judgment motion. Thomas opposed American Express’s summary-judgment motion and sought a summary judgment in his favor.

On August 27, 2012, the trial court entered a summary judgment in favor of American Express on its breach-of-contract claims; the trial court awarded American Express the amount it had requested in its complaint, i.e., $25,778.86. The trial court also expressly denied Thomas’s summary-judgment motion. Thomas timely filed a postjudgment motion, pursuant to Rule 59, Ala. R. Civ. P., which the trial court denied on September 23, 2012. Thomas timely filed his notice of appeal.

Analysis

In support of its summary-judgment motion, American Express relied on the affidavit of Walter Gibbs, who attested that he was the assistant custodian of records for American Express and that he had personal knowledge of Thomas’s accounts by virtue of his employment with American Express. Gibbs attested that Thomas’s accounts were past due in the principal amount of $19,753.76, that interest of $2,662.65 had accrued on the unpaid principal, and that Thomas owed attorney fees in the amount of $3,362.45. American Express also submitted the following documents in support of its summary-judgment motion: a copy of a monthly account statement dated June 8, 2009, for a “Blue Cash for Business Credit Card” bearing Thomas’s name and reflecting an outstanding balance of $1,174.34; a form copy of a “Blue Cash for Business Credit Card Agreement”; a copy of a monthly account statement dated June 11, 2009, for a “Platinum Delta SkyMiles Card” bearing Thomas’s name and reflecting an outstanding balance of $3,741.10; a form copy of an “Agreement Between Delta SkyMiles Credit Cardmember and American Express Bank, FSB”; a copy of a monthly account statement dated June 9, 2009, for a “American Express OPEN Line of Credit” bearing Thomas’s name and reflecting an outstanding balance of $14,838.32; and a form copy of a “Line of Credit for Business Agreement.” (We refer to the three form agreements collectively as “the card-member agreements.”)

Thomas responded by submitting his own affidavit attesting that he had requested a copy of any executed contract he was alleged to have breached but that American Express had failed to produce anything in response to that request; Thomas also attested that he had never signed a written contract with American Express. Thomas also attested that he had last used or made a payment on the Blue Cash for Business Credit Card in May 2007, that he had last used or made a payment on the American Express OPEN Line of Credit in July 2007, and that he [811]*811had last-used or made a payment on the Platinum Delta SkyMiles Card in July 2007. Thomas characterized his accounts with American Express as “open accounts” and asserted that any attempts to collect on those accounts were time-barred, pursuant to the three-year statute of limitations found in Ala.Code 1975, § 6-2-37.

American Express admitted that it had no signed applications that Thomas may have submitted for the accounts at issue,1 American Express asserted, however, that, during discovery, Thomas had admitted requesting that the accounts be opened and that he had used the accounts. American Express further asserted that use of the accounts was governed by the card-member agreements it had submitted to the trial court, the terms of which allow American Express to recover attorney fees in the event legal action is required to collect unpaid balances. Thus, American Express asserted, by virtue of his use of the credit accounts, Thomas was liable for the unpaid principal balances, accrued interest, and attorney fees. In its responses to Thomas’s interrogatories, however, American Express admitted that Thomas’s “indebtedness on each of the three individual accounts is not based on an express agreement” and that it did “not contend that a written contract was entered into by the parties.”2 Based on the above evidence, the trial court entered a summary judgment in favor of American Express.

Standard of Review

“ ‘ “We review the trial court’s grant or denial of a summary judgment motion de novo.” Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala.2006) (citing Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala.2006)). A summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. If the movant meets this initial burden, the burden then shifts to the nonmovant to present “substantial evidence” of a genuine issue of material fact. Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999). Substantial evidence is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see also § 12-21-12(d), Ala.Code 1975. In determining whether a genuine issue of material fact exists, this Court views the evidence in the light most favorable to the nonmov-ant and resolves all reasonable doubts in favor of the nonmovant. Jones v. BP Oil Co., 632 So.2d 435, 436 (Ala.1993).’ ”

Harris v. Health Care Auth. of Huntsville, 6 So.3d 468, 472 (Ala.2008) (quoting McCutchen Co. v. Media Gen., Inc., 988 So.2d 998, 1001 (Ala.2008)).

On appeal, Thomas asserts that the trial court erred in entering a summary judgment in favor of American Express on its breach-of-contract claims. He asserts, and American Express apparently admits, that Thomas never signed a written contract or agreement with American Express and that no executed contracts exist to govern [812]*812the dealings between the parties. Thomas also asserts that American Express has failed to establish that he ever specifically agreed to the terms and conditions of the cardmember agreements that were presented to the trial court. Thomas asserts that, without evidence that the parties mutually agreed to all of the necessary elements of a contract, American Express was not entitled to a judgment as a matter of law on its only theory of recovery, i.e., breach of contract.

American Express asserts that it sufficiently supported its summary-judgment motion.

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Related

Jones v. BP Oil Co., Inc.
632 So. 2d 435 (Supreme Court of Alabama, 1993)
Bockman v. WCH, LLC
943 So. 2d 789 (Supreme Court of Alabama, 2006)
Strength v. Alabama Dept. of Finance
622 So. 2d 1283 (Supreme Court of Alabama, 1993)
Harris v. Health Care Authority of Huntsville
6 So. 3d 468 (Supreme Court of Alabama, 2008)
Reynolds Metals Company v. Hill
825 So. 2d 100 (Supreme Court of Alabama, 2002)
Ex Parte Grant
711 So. 2d 464 (Supreme Court of Alabama, 1998)
Smith v. State Farm Mut. Auto. Ins. Co.
952 So. 2d 342 (Supreme Court of Alabama, 2006)
Ex Parte Alfa Mut. General Ins. Co.
742 So. 2d 182 (Supreme Court of Alabama, 1999)
McCutchen Co., Inc. v. Media General, Inc.
988 So. 2d 998 (Supreme Court of Alabama, 2008)
West v. Founders Life Assur. Co. of Florida
547 So. 2d 870 (Supreme Court of Alabama, 1989)

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Bluebook (online)
139 So. 3d 809, 2013 WL 3967673, 2013 Ala. Civ. App. LEXIS 174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-american-express-bank-fsb-alacivapp-2013.