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REVERSE and RENDER and Opinion Filed December 22, 2022




                                              S   In The
                                   Court of Appeals
                            Fifth District of Texas at Dallas
                                         No. 05-22-00024-CV

                       CHRISTINA THOMAS, Appellant
                                   V.
                 AMERICAN EXPRESS NATIONAL BANK, Appellee

                      On Appeal from the County Court at Law No. 2
                                  Collin County, Texas
                          Trial Court Cause No. 002-01809-2021

                            MEMORANDUM OPINION
              Before Chief Justice Burns, Justice Carlyle, and Justice Garcia
                                Opinion by Justice Garcia
         Christina Thomas appeals the final judgment in favor of American Express

National Bank on its account stated claim.1 In a single issue, Thomas argues the

evidence is legally insufficient to support the judgment. Because we conclude there

is no evidence that American Express National Bank owned the debt or had an

agreement with Thomas, we reverse the trial court’s judgment and render judgment

that American Express National Bank take nothing on its claim.




   1
       American Express did not file a brief in this appeal.
                                 I.     Background

      In 2017, American Express Centurion Bank (“Amex Centurion”) issued

Thomas an American Express credit card ending in 11006 (the “Credit Card”). In

2021, American Express National Bank (“Amex National”) initiated this suit to

recover outstanding indebtedness from Thomas on a theory of account stated.

      The case was tried to the court. A business records affidavit from Sean

Hamilton, custodian of records for Amex National was admitted into evidence. The

attached business records included a cardmember agreement between Thomas and

Amex Centurion and two years of monthly statements sent by “American Express”

from March 2019-March 2021. Thomas admitted that she made purchases and

payments on the Credit Card.

      When the trial concluded, the court entered judgment for $22,245.80 plus

costs in favor of Amex National. This appeal followed.

                                      II.   Analysis

      In a single issue, Thomas argues the evidence is legally insufficient to support

the judgment. We agree.

      When a party attacks the legal sufficiency of the evidence to support an

adverse finding on which it did not have the burden of proof at trial, it must

demonstrate there is no evidence to support the adverse finding. Exxon Corp. v.

Emerald Oil & Gas Co., L.C.,
348 S.W.3d 194, 215
 (Tex. 2011). In determining

whether the evidence is legally sufficient to support a finding, we consider the

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evidence in the light most favorable to the judgment and indulge every reasonable

inference that would support it. City of Keller v. Wilson,
168 S.W.3d 802, 822
 (Tex.

2005). We must credit favorable evidence if a reasonable factfinder could and

disregard contrary evidence unless a reasonable factfinder could not.
Id. at 827
. “The

final test for legal sufficiency must always be whether the evidence at trial would

enable reasonable and fair-minded people to reach the verdict under review.”
Id.

      A complaint that the evidence is legally insufficient will be sustained when

(1) there is a complete absence of evidence of a vital fact, (2) the court is barred by

rules of law or evidence from giving weight to the only evidence offered to prove a

vital fact, (3) the evidence offered to prove a vital fact is no more than a mere

scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact.
Id. at 810
. “Anything more than a scintilla of evidence is legally sufficient to support

the finding.” Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc.,
960 S.W.2d 41, 48
 (Tex. 1998). There is more than a scintilla of evidence “when the

evidence as a whole rises to a level enabling reasonable and fair-minded people to

have different conclusions.” Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill,

Inc.,
434 S.W.3d 142, 156
 (Tex. 2014). When a legal sufficiency point is sustained,

the appellate court’s duty is to reverse and render. Heritage Resources, Inc. v. Hill,
104 S.W.3d 612, 619
 (Tex. App.—El Paso 2003, no pet.).

       To prove it was entitled to judgment under the account stated claim, Amex

National was required to show the following: (1) transactions between it and Thomas

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gave rise to the indebtedness; (2) an agreement, express or implied, between Thomas

and Amex National that fixed the amount due; and (3) Thomas made an express or

implied promise to pay the indebtedness. See Aymett v. Citibank S.D. N.A.,
397 S.W.3d 876
 (Tex. App.—Dallas 2013, no pet.); Dulong v. Citibank (S.D.), N.A.,
261 S.W.3d 890, 893
 (Tex. App.—Dallas 2008, no pet.).

         Here, there is nothing in the record to explain the relationship, if any, between

Amex National, the party seeking recovery, and Amex Centurion, the party with

whom Thomas had an agreement. There is no explanation or connection in the

petition or the business records affidavit. See Saum v. American Express Nat’l Bank,

No. 02-19-00415-CV,
2021 WL 1034146
, at *1–2 (Tex. App.—Fort Worth March

18, 2021, pet. denied) (mem. op.) (custodian of records explained discrepancy

between entity name on cardmember agreement and entity seeking recovery and a

footnote in petition explained relationship); Rizvi v. American Express Nat’l Bank,

No. 02019-00197-CV,
2020 WL 3969585
, at *4 (Tex. App.—Fort Worth June 18,

2020) (testimony regrading merger explained entity name discrepancy). Likewise,

the monthly statements do not explain the discrepancy. See Dulong,
261 S.W.3d at 894
 (notice of merger in monthly statements sufficient to establish ownership of

debt).

         The cardmember agreement attached to the affidavit reflects an agreement

between Amex Centurion and Thomas. But there is no evidence establishing a



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connection between Amex Centurion and Amex National. Accordingly, Amex

National failed to prove that it is entitled to recover on the Amex Centurion debt.

      We reverse the trial court’s judgment and render judgment that Amex

National take nothing on its claim.




                                           /Dennise Garcia/
                                           DENNISE GARCIA
                                           JUSTICE


220024F.P05




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                                    S
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                   JUDGMENT

CHRISTINA THOMAS, Appellant                    On Appeal from the County Court at
                                               Law No. 2, Collin County, Texas
No. 05-22-00024-CV           V.                Trial Court Cause No. 002-01809-
                                               2021.
AMERICAN EXPRESS                               Opinion delivered by Justice Garcia.
NATIONAL BANK, Appellee                        Chief Justice Burns and Justice
                                               Carlyle participating.

       In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED and judgment is RENDERED that:
       AMERICAN EXPRESS NATIONAL BANK take nothing on its
       claims.

       It is ORDERED that appellant CHRISTINA THOMAS recover her costs of
this appeal from appellee AMERICAN EXPRESS NATIONAL BANK.


Judgment entered this 22nd day of December 2022.




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