Thomas Young v. American Express Co.--Appeal from County Court at Law of Gregg County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-01-00035-CV
______________________________
THOMAS YOUNG, Appellant
V.
AMERICAN EXPRESS CO., Appellee
On Appeal from the County Civil Court at Law
Gregg County, Texas
Trial Court No. 2000-1933CC
Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Justice Grant
O P I N I O N

Thomas Young appeals the trial court's entry of summary judgment in favor of American Express Company. He contends the trial court erred in allowing American Express to maintain an action on a sworn account in relation to a credit card debt.

American Express filed suit against Young for failing to pay his credit card debt pursuant to a credit card agreement. American Express titled its claim "SWORN ACCOUNT," which stated that the claim was verified under Rule 185, tracked the language of Rule 185, and attached both an affidavit in support of the sworn account and a copy of Young's account to its petition. In that claim, American Express alleged facts amounting to a breach of a credit contract and stated its claim as a liquidated money demand. American Express alternatively made an unjust enrichment argument. In response, Young generally denied the allegations, but did not file a sworn denial.

American Express submitted a Motion for Summary Judgment stating the claim as a "liquidated money demand, duly verified as required under Rule 185 . . .," asserting that Young's answer was insufficient to raise a defense to the cause of action and that the pleadings, affidavits, and exhibits filed show there is no genuine issue as to any material fact. Affidavits and a copy of a credit account report were attached to the motion. Young responded by asserting that a credit card debt was not a sworn account to which Tex. R. Civ. P. 185 would apply. The court granted summary judgment in favor of American Express.

Texas Rule of Civil Procedure 185 makes a verified account prima facie evidence in the absence of a written denial under oath. Rule 185 is limited in application to such liquidated money demands as are founded on a claim for goods, wares, merchandise, personal service rendered, labor done, or labor or materials furnished. Tex. R. Civ. P. 185. The El Paso Court of Appeals found that Rule 185 does not apply to credit card debt, at least in cases involving the advance of money by a financial institution that is neither a merchant nor supplier of services, because no title to personal property exchanges hands. Rather, the card evidences a line of credit extended which the cardholder may use to purchase goods and services from a third party or to obtain a loan through a cash advance. Bird v. First Deposit Nat'l Bank, 994 S.W.2d 280 (Tex. App.-El Paso 1999, pet. denied); see also Boysen v. Sec. Lumber Co., 531 S.W.2d 454 (Tex. App-Houston [14th Dist.] 1975, no writ) (Rule 185 does not apply to transactions between third parties or parties who were strangers to the transaction). We agree.

Summary judgment can only be granted on grounds provided in the motion for summary judgment. Great-Ness Prof'l Servs., Inc. v. First Nat'l Bank, 704 S.W.2d 916 (Tex. App.-Houston [14th Dist.] 1986, no writ). The petition filed by American Express presented a claim for breach of a credit card agreement, characterized as a sworn account, and a claim for unjust enrichment. The language used in the Motion for Summary Judgment, "liquidated money demand," encompasses all of the claims presented. However, the phrase that the demand was "verified as required under Rule 185" qualifies the demand and limits the Motion for Summary Judgment to that demand made on a sworn account pursuant to Rule 185. Furthermore, the summary judgment affidavits do not address the other causes of action. American Express was not entitled to summary judgment on a sworn account pursuant to Rule 185, and the Motion for Summary Judgment was limited to those grounds.

 

We reverse the summary judgment and remand the cause to the trial court for further proceedings.

 

Ben Z. Grant

Justice

 

Date Submitted: October 25, 2001

Date Decided: October 26, 2001

 

Do Not Publish