Capital One Bank (USA) NA v. Thompson

• Decision Date: 15 May 2013
• Docket Number: No. 47,994–CA.,47,994–CA.
• Citation: 115 So.3d 704
• Parties: CAPITAL ONE BANK (USA) NA, Plaintiff–Appellee v. Lynne THOMPSON, Defendant–Appellant.
• Court: Court of Appeal of Louisiana — District of US

115 So.3d 704

CAPITAL ONE BANK (USA) NA, Plaintiff–Appellee

v.Lynne THOMPSON, Defendant–Appellant.

No. 47,994–CA.

Court of Appeal of Louisiana,Second Circuit.

May 15, 2013.

Barham, Warner, Stroud & McKay, L.L.C., Shreveport, LA, by A.M. Stroud, III, for Appellant.

Eaton Group Attorneys, LLC, Baton Rouge, LA, by Gregory M. Eaton, Stacey L. Greaud, Paul E. Pendley, Mia D. Etienne, for Appellee.

Before BROWN, STEWART & PITMAN, JJ.

PITMAN, J.

[2 Cir. 1]Defendant, Lynne Thompson, appeals a judgment from Shreveport City Court granting the motion for summary judgment of Plaintiff, Capital One Bank (USA) NA. For the reasons set forth below, we reverse the trial court's judgment and remand for further proceedings.

FACTS

On March 4, 2011, Plaintiff instituted a suit against Defendant for the outstanding balance of $7,722.23, the amount due on Defendant's MasterCard account, together with accrued interest of $627.72; additional interest from December 4, 2010, until judgment; 19.65 percent interest from date of judgment; attorney fees in the amount of 25 percent of the total of both principal and interest; and all costs of the proceedings.

On April 15, 2011, Defendant filed declinatory and dilatory exceptions, which were later withdrawn, and an answer of general denial. Defendant alleged that Plaintiff wrongfully allowed her card to exceed the credit limit without her authority and that she never authorized anyone to charge items to her account that would exceed her credit limit.

Plaintiff filed a motion for summary judgment (“MSJ”), a supporting memorandum, supporting affidavits and a supplemental memorandum on April 2, 2012. The original affidavit that was attached to the MSJ contains the testimony of Ms. Angela Zalewski and was signed on January 19, 2011. Plaintiff's supplemental affidavit of correctness contains the testimony of Ms. Kay White, an employee of Plaintiff's attorney's firm, not of Plaintiff. The two affidavits introduced contain different total amounts owed by Defendant. Defendant filed a reply memorandum alleging that the affidavits [2 Cir. 2]presented by Plaintiff were inadmissible as hearsay and that there were no accounting documents showing the debits and credits to her account. Defendant further alleged that the original affidavit (“the Zalewski affidavit”) was stale and that the information in the supplemental affidavit (“the White affidavit”) was compiled by an individual who had no personal knowledge of the events to which she attested. Defendant submitted an affidavit from her attorney stating that he had never received a “detailed statement of the mutual demands in the nature of debits and credits between the parties” as he had requested.

The MSJ hearing was set on June 20, 2012, but was continued because Plaintiff's counsel did not receive Defendant's opposition, which had been filed only six days prior to that hearing. Defendant's supplemental opposition to the MSJ, including the affidavit from her attorney, was filed on August 2, 2012, only four days before an August 6, 2012 hearing.

The trial court granted Plaintiff's motion for summary judgment based on Defendant's failure to present countervailing affidavits. The judgment was signed on August 6, 2012.

DISCUSSION

Defendant claims that the trial court erred in granting Plaintiff's motion for summary judgment, asserting that summary judgment was not proper as there are genuine issues of material fact present, including the sufficiency of the evidence introduced, the validity of the affidavits and the lack of evidence corroborating the balance on the account.

[2 Cir. 3]A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 07–1726 (La.2/26/08), 977 So.2d 880;Amos v. Crouch, 46,456 (La.App.2d Cir.6/29/11), 71 So.3d 1053. Appellate courts review summary judgments de novo under the same criteria that govern a lower court's consideration of whether summary judgment is appropriate. Jenkins v. Willis Knighton Medical Center, 43,254 (La.App.2d Cir.6/4/08), 986 So.2d 247. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). A fact is material if its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery. Amos v. Crouch, supra.

The moving party bears the burden of proof. However, the movant is not required to negate all essential elements of the adverse party's claim and need only point out an absence of factual support for one or more essential elements of the adverse party's claim. If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and summary judgment is appropriate. La. C.C.P. art. 966(C)(2).

A prima facie case on an open account requires proof of the account by showing that the record of the account was kept in the...