Opinion
No. CV 09-5013051
August 18, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT [#103]
FACTS
On September 2, 2009, the plaintiff, Citibank (South Dakota) N.A., filed a complaint against the defendant, Bruce R. Watt, seeking to collect a credit card balance due in the amount of $12,231.31. The defendant filed an answer on November 10, 2009, in which he denied failing to make payments for the credit extended by the plaintiff, and further denied the amount of the total balance due. On January 27, 2010, the plaintiff filed a motion for summary judgment on the ground that no genuine issue of material fact exists, and the plaintiff is entitled to judgment as a matter of law. In support of its motion, the plaintiff submitted a memorandum of law, the affidavits of Julie Soloman, the plaintiff's attorney, and Mary E. Crum, an authorized agent for the plaintiff's credit accounts, and copies of monthly billing statements of the defendant's account. The defendant filed an objection to the plaintiff's motion for summary judgment on February 16, 2010, accompanied by a memorandum of law in opposition. On April 9, 2010, the plaintiff filed a reply memorandum. The defendant filed a reply memorandum on April 16, 2010. On May 13, 2010, the plaintiff filed a supplemental memorandum in further support of its motion.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith 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." Provencher v. Enfield, 284 Conn. 772, 790, 936 A.2d 625 (2007). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . .
"The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue . . . The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist . . . To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents . . . The opposing party to a motion for 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 . . . The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Citations omitted; internal quotation marks omitted.) Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 464-65, 976 A.2d 23 (2009). When a party moves for summary judgment "and there [are] no contradictory affidavits, the court properly decide[s] the motion by only looking to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).
The plaintiff's claim is based upon the theory of account stated. Our Appellate Court recently set out the requirements of an action on the theory of account stated. "The delivery by the [creditor] to the [debtor] of each statement of the latter's account, with the [documentation] upon which the charges against [the debtor's account] were based, [is] a rendition of the account so that retention thereof for an unreasonable time constitute[s] an account stated which is prima facie evidence of the correctness of the account." Citibank (South Dakota), N.A. v. Manger, 105 Conn.App. 764, 766 n. 2, 939 A.2d 629 (2008). "Such account stated can be opened or 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." Credit One, LLC v. Head, 117 Conn.App. 92, 98, 977 A.2d 767, cert. denied, 294 Conn. 907, 982 A.2d 1080 (2009).
In the present case, the defendant failed to file a counteraffidavit, and therefore, the court will look to the sufficiency of the plaintiff's affidavits and other proof. The plaintiff's affidavits and the attached exhibits reveal the following facts. The defendant had a credit card issued by the plaintiff. The defendant used the credit card and made payments against the balance owed. The defendant's name and address appear on the final monthly billing statement. There is no record of the defendant ever disputing any of the charges on the monthly billing statements. The last payment the defendant made on the account was in December 2008. The balance due on the defendant's account is $12,231.31.
The defendant first argues that the plaintiff's affidavits are self-serving, and fail to demonstrate any substantive evidence to support the plaintiff's motion. "The Superior Courts have consistently discounted self-serving affidavits as insufficient to support a motion for summary judgment . . . In these cases, however, the self-serving affidavits typically contain conclusory statements that, in and of themselves, form the sole basis for the movant's motion for summary judgment." (Citation omitted.) Corsi v. Pascal, Superior Court, judicial district of New Haven, Docket No. CV 04 4004535 (June 13, 2007, Holden, J.). In the present case, the plaintiff's affidavits do not merely contain conclusory statements that form the sole basis of the plaintiff's motion. Moreover, the plaintiff has provided additional evidence in support of its claim. As a result, the defendant's argument that the submitted affidavits fail to provide substantive evidence to support the plaintiff's motion does not preclude summary judgment on the plaintiff's complaint.
The defendant also argues that the plaintiff did not meet the requirements for an account stated action by failing to provide the court with copies of cancelled checks. This court finds, however, that the plaintiff has provided sufficient documentation for its claim pursuant to the requirements set forth in Citibank (South Dakota), N.A. v. Manger, supra, 105 Conn.App. 764, 766 n. 2. Therefore, the defendant's argument concerning the plaintiff's failure to provide cancelled checks does not preclude this court from granting the plaintiff's motion for summary judgment.
The defendant further argues that the plaintiff failed to provide a signed contract indicating that the defendant is responsible for the debt. A cause of action based on the theory of account stated, however, does not require the plaintiff to have a signed agreement by the defendant in order to find the defendant liable on the account. Discover Bank v. Clachrie, Superior Court, judicial district of New London, Docket No. CV 08 5009650 (February 18, 2010, Martin, J.); CACV of Colorado, LLC v. Bair, Superior Court, judicial district of Tolland, Docket No. CV 06 5000400 (April 5, 2007, Klaczak, J.T.R.). The plaintiff must only meet the requirements set forth in Citibank (South Dakota), N.A. v. Manger, supra, 105 Conn.App. 764, 766 n. 2, and this court finds that the plaintiff has met those requirements. Moreover, the defendant has failed to prove that the account, as stated, was the result of fraud or mistake. Credit One, LLC v. Head, supra, 117 Conn.App. 98. As a result, no genuine issue of material fact exists in the present case, and the plaintiff is entitled to judgment as a matter of law on its complaint sounding in account stated.
CONCLUSION
Based on the foregoing, the court hereby grants the plaintiff's motion for summary judgment.