Capital One Bank (USA), NA v. Sanches

• Decision Date: 12 June 2013
• Docket Number: No. 2013–CA–0003.,2013–CA–0003.
• Citation: 119 So.3d 870
• Parties: CAPITAL ONE BANK (USA), NA v. Karen N. SANCHES.
• Court: Court of Appeal of Louisiana — District of US

119 So.3d 870

CAPITAL ONE BANK (USA), NA

v.Karen N. SANCHES.

No. 2013–CA–0003.

Court of Appeal of Louisiana, Fourth Circuit.

June 12, 2013.

Gregory McCarroll Eaton, Stacey L. Greaud, Paul Edward Pendley, Mia D. Etienne, Eaton Group Attorneys, LLC, Baton Rouge, LA, for Plaintiff/Appellee.

Robert Angelle, Rebecca Ann Rena Coman, Attorney at Law, Metairie, LA, Charles V. Cusimano, III, Cusimano Law Firm, PLC, New Orleans, LA, for Defendant/Appellant.

(Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).

EDWIN A. LOMBARD, Judge.

[4 Cir. 1]The Appellant, Karen Sanches, seeks review of the September 10, 2012, judgment of the second city court granting summary judgment in favor of the Appellee, Capital One Bank (USA) N.A., on an open account. Pursuant to our de novo review, we reverse.

Facts and Procedural History

Capital One Bank (USA) N.A. (“Capital One”), filed suit against Karen Sanches on September 21, 2011, for unpaid sums on her MasterCard account, ending in 2863. Ms. Sanches answered the suit, but did not raise any affirmative defenses therein. Capital One propounded discovery on Ms. Sanches, who did not timely respond. On January 10, 2012, Capital One filed a motion for summary judgment or in the alternative a motion to compel discovery. The second city court denied Capital One's motion for summary judgment, but granted the motion to compel, ordering Ms. Sanches to answer the outstanding discovery within 30 days. Thereafter, Ms. Sanches timely submitted her discovery responses.

[4 Cir. 2]Capital One filed a second motion for summary judgment or, in the alternative, to compel discovery on May 15, 2012, which Ms. Sanches opposed. A hearing was held on August 14, 2012, wherein Ms. Sanches argued that the affidavits submitted by Capital One in support of its motion for summary judgment were insufficient. The second city court took her argument into consideration although it had not been briefed. Nevertheless, the court ultimately held that the affiants were familiar with and had reviewed the business records for Ms. Sanches' account and granted Capital One's summary judgment on September 10, 2012. Thereafter, Ms. Sanches filed a Petition for Devolutive Appeal, which was granted by the second city court on September 25, 2012. The second city court issued a second judgment on September 28, 2012, pertaining to Capital One's motion for summary judgment. Ms. Sanches appealed the second judgment and filed a petition for nullity.

In the instant appeal, Ms. Sanches raises two (2) assignments of error:

1) the second city court erred in granting summary judgment in favor of Capital One, and

2) the second city court erred in issuing a second final judgment on September 28, 2012, after the delays for a new trial had expired and after Ms. Sanches had filed her petition for appeal.

Standard of Review

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate. [4 Cir. 3]John C. Bose Consulting Eng'r, LLC v. John T. Campo &Associates, Inc., 07–1001, p. 2 (La.App. 4 Cir. 2/20/08), 978 So.2d 1033, 1034 ( citing Reynolds v. Select Properties, Ltd., 93–1480 (La.4/11/94), 634 So.2d 1180, 1182). Pursuant to La.Code Civ. Proc. art. 966, a summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law.

If the court finds that a genuine issue of material fact exists, summary judgment must be rejected. Bose, 07–1001, pp. 2–3, 978 So.2d at 1035 ( citing Oakley v. Thebault, 96–0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490). The burden does not shift to the party opposing summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, pursuant to La.Code Civ. Proc. art. 966(C), the party opposing the motion must “make a showing sufficient to establish existence of proof of an element essential to his claim, action, or defense and on which he will bear the burden of proof at trial.”

First Assignment of Error

In her first assignment of error, Ms. Sanches argues that the second city court erred in granting Capital One's summary judgment in favor of Capital One because: 1) the affidavits submitted by Capital One with its motion for summary judgment were not based on the personal knowledge of the affiants, and 2) Capital One failed to furnish admissible evidence sufficient to prove a prima facie case.

Ms. Sanches attacks the sufficiency of the affidavits of Dean Liverman, a Litigation Support Representative for Capital One, and Kate White, an employee [4 Cir. 4]of Capital One's counsel, in her first argument. She avers that neither of the affidavits demonstrates that the affiants had personal knowledge of the facts to which they attest, which is required for affidavits supporting motions for summary judgment under La.Code Civ. Proc. art. 967.

Regarding Mr. Liverman particularly, she avers that his affidavit is a form affidavit wherein he identifies himself only as an “authorized agent” of Capital One. She argues that Mr. Liverman does not define the scope of his employment with Capital One within the affidavit, which also reveals that he does not keep Capital One's records. The affidavit does not indicate how Mr. Liverman obtained the knowledge of her records, according to Ms. Sanches. She further contends that nothing in his affidavit states (1) that she opened an account with Capital One; (2) when she opened it, and (3) what she agreed to when the account was allegedly opened. Thus, she argues, it is clear that Mr. Liverman is not the person who has actual “knowledge of the acts and events” of the disputed account.

Furthermore, she contends that Mr. Liverman's affidavit is insufficient to even meet the “business records” exception to hearsay of La.Code of Evid. art. 803 becauseMr. Liverman does not state in the affidavit that he is the custodian of the records or is otherwise qualified to tell the court what the records show, based upon personal knowledge. The affidavits, she alleges, do not provide facts to indicate how the affiants gained personal knowledge of the facts included therein. She also argues that neither of the contested affidavits identifies any particular documents, which is a defect fatal to the motion for summary judgment. [4 Cir. 5]Additionally, she argues that the second city court previously rejected the same affidavits when it denied Capital One's first motion for summary judgment.

In Louisiana, suits to collect credit card debit are treated as suits on an open account. CACV of Colorado, LLC v. Spiehler, 09–151, p. 2 (La.App. 3 Cir. 6/3/09), 11 So.3d 673, 675. 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 course of business and by introducing supporting testimony regarding its accuracy. Id. (citing Jacobs Chiropractic Clinic v. Holloway, 589 So.2d 31 (La.App. 1 Cir.1991)). Once a prima facie case has been established by the creditor, the burden shifts to the debtor to prove the inaccuracy of the account or to prove the debtor is entitled to certain credits. Id. “[T]he opponent has nothing to prove in response to the motion [for summary judgment] if a prima facie case has not been made.” Hat's Equipment, Inc. v. WHM, L.L.C., 11–1982, p. 7 (La.App. 1 Cir. 5/4/12), 92 So.3d 1072, 1076 [citations omitted].

Article 967 of the Louisiana Code of Civil Procedure sets forth the requirements for affidavits offered in support of motions for summary judgment and provides in pertinent part:

A. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The supporting and opposing affidavits of experts may set forth such experts' opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof [4 Cir. 6]referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.

B. When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

“[I]t is insufficient for an affiant to merely declare that he has “personal knowledge” of a certain fact. The affidavit must affirmatively establish that the affiant is competent to testify to the matters stated by a factual averment showing how he came by such knowledge.” THH Properties Ltd. P'ship v. Hill, 41,038, p. 7 (La.App. 2 Cir. 6/2/06), 930 So.2d 1214, 1219 ( citing Express Pub. Co., Inc. v. Giani Inv. Co., Inc., 449 So.2d 145 (La.App. 4 Cir.1984)). “Personal knowledge means something which a witness actually saw or heard, as distinguished from something a witness learned from some other person or source.” Id. (citations omitted). Furthermore, “ ‘personal knowledge’ encompasses only those facts which the affiant saw, heard or perceived with his own senses.” Express Pub. Co., Inc., 449 So.2d at 147 ( citing Atkinson v. Allstate Ins. Co., 361 So.2d 32 (La.App. 3 Cir.1978)).

Additionally, with regard to business records La.Code...