Opinion
No. CV 05-4001358-S
May 25, 2006
RULING ON MOTION FOR SUMMARY JUDGMENT
The plaintiff, Citibank (South Dakota), N.A., moves for summary judgment on its complaint, which alleges that the defendant, Leslie T. Manger, failed to make payments for credit extended in the amount of $19,501.32, and that the defendant is liable to the plaintiff on the theory of "account stated." For the following reasons, the court grants the motion.
I
Practice Book § 17-49 provides for summary judgment "if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The party moving for summary judgment has the initial burden to bring forward evidentiary facts showing the absence of any material factual dispute. See Doty v. Shawmut Bank, 58 Conn.App. 427, 430, 755 A.2d 219 (2000). Correspondingly, "the party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Id. Stated differently, "the party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Emphasis in original; internal quotation marks omitted.) Mytych v. May Department Stores Co., 260 Conn. 152, 164 n. 8, 793 A.2d 1068 (2002). When a party moves for summary judgment and there are no contradictory affidavits, "the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. 1 v. Insurance Company of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).
II
Because the defendant has failed to file a counter affidavit, the court looks to the sufficiency of the plaintiff's affidavit and other proof. See id. The plaintiff's affidavit and the attached exhibits reveal the following facts. The plaintiff is a national bank that extended credit to the defendant to pay for various goods and services by credit card. The defendant signed a credit card acceptance certificate on January 2, 1999. On January 20, 1999, the defendant utilized $12,871.52 in convenience checks and, as a result, owed a balance in that amount due February 27, 1999. The plaintiff thereafter sent the defendant monthly statements reflecting her payments, new borrowing or other activity, and new balance. The defendant never objected to these statements. The last statement reveals a new balance of $19,501.32 due on August 30, 2004.
The plaintiff's evidentiary presentation leaves much to be desired. The plaintiff attaches a thick stack of exhibits to its affidavit but does not tab or separately demarcate each exhibit. It appears that Exhibit E is placed before Exhibit D. Paragraph 6 of the affidavit states that there are highlighted portions of a document entitled Terms and Conditions, but no such highlights are apparent. The result is that the court has to do the work that plaintiff's counsel should have done.
Based on these facts, the plaintiff seeks a determination of liability on the theory of account stated. Several superior court decisions have recognized the validity of an account stated cause of action in Connecticut involving the same plaintiff as here. See Citibank (South Dakota), N.A. v. Piscitelli, Superior Court, judicial district of New Haven, Docket No. CV04 0491060 (March 17, 2006, Corradino, J.); Citibank v. Gemske, Superior Court, judicial district of Middlesex, Docket No. CV05 4002020 (December 21, 2005, McWeeny, J.); Citibank (South Dakota), N.A. v. Stewart, Superior Court, judicial district of New Haven, Docket No. CV05 4012384 (November 30, 2005, Silbert, J.). These decisions ultimately rely on our Supreme Court's opinion in General Petroleum Products v. Merchants Trust Co., 115 Conn. 50, 160 A. 296 (1932), in which the court stated:
The delivery by the bank to the plaintiff of each statement of the latter's account, with the canceled checks upon which the charges against it were based, was a rendition of the account so that retention thereof for an unreasonable time constituted an account stated which is prima facie evidence of the correctness of the account. Such account stated can be opened and impeached upon proof of mistake or fraud, but the plaintiff's silence as to the correctness of the account rendered puts upon it the burden of proving that the account, as stated, was the result of such fraud or mistake.
Id., 56. An account stated has been defined generally as "an agreement between parties who have had previous transactions of a monetary character that all the items of the account representing such transactions, and the balance struck, are correct, together with a promise, express or implied, for the payment of such balance." 1A C.J.S. Account Stated, § 2a, p. 67 (1985).
Applying this theory, the plaintiff's provision in this case of regular statements to the defendant of a balance owed constitutes at least prima facie evidence of the correctness of the ultimate balance. The plaintiff's affidavit establishes without dispute that the defendant never objected to these account statements. Thus, in the absence of any other legal barrier, the plaintiff has established liability under the account stated theory.
The defendant has filed a three and one-half page objection to summary judgment that contains almost no analysis. The defendant's first point seems to be that the plaintiff has failed to prove certain allegations in its complaint. But while the issue in summary judgment must be one that the party is entitled to litigate under its pleadings, see New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995), the ultimate question is not whether the movant's evidentiary submission proves every allegation in its complaint, but rather whether that submission entitles it to judgment as a matter of law. Practice Book § 17-49. The court has found that it does.
Second, the defendant suggests that either South Dakota law may apply and require arbitration or that Connecticut law may apply and bar the proposed interest rate as usurious. The defendant's entire discussion of this matter consists of three sentences. She provides no analysis of the contract or the governing law. Such cursory of treatment of a claim does not require a response from the court. See Merchant v. State Ethics Commission 53 Conn.App. 808, 818, 733 A.2d 287 (1999). In any event, the contract clearly provides that either party "may, without the other's consent, elect mandatory, binding arbitration for any controversy between you and us (called `Claims')." Thus, arbitration is only mandatory if one party requests it, and there is no evidence of any request here. The contract also provides that the "terms and enforcement of this Agreement shall be governed by federal law and the law of South Dakota, where we are located." Under federal law, a national bank may charge interest and late-payment fees at an interest rate allowed by its home state. See Smiley v. South Dakota, 517 U.S. 735 (1996). The defendant presents no argument that the interest rate allowed in the contract violates usury law in the plaintiff's home state of South Dakota. Thus, there are no valid legal barriers raised by the defendant to the entry of judgment for the plaintiff.
The defendant also presents no argument that Connecticut law does not apply to the account stated theory of enforcement. In any event, South Dakota law also recognizes the theory of account stated. See Starr v. Baldwin Piano Co., 59 S.D. 174, 176-77, 238 N.W. 877 (1931).
III
The court grants the motion for summary judgment and enters judgment for the plaintiff in the amount of $19,501.32.
It is so ordered.