Discover Bank v. Stanley

• Decision Date: 12 November 2008
• Docket Number: No. 24822.,24822.
• Citation: 757 N.W.2d 756,2008 SD 111
• Parties: DISCOVER BANK, Plaintiff and Appellee, v. Joseph STANLEY, Defendant and Appellant.
• Court: South Dakota Supreme Court

757 N.W.2d 756

2008 SD 111

DISCOVER BANK, Plaintiff and Appellee, v. Joseph STANLEY, Defendant and Appellant.

No. 24822.

Supreme Court of South Dakota.

Argued September 30, 2008.

Decided November 12, 2008.

Robert A. Martin, Rapid City, South Dakota, Attorney for plaintiff and appellee.

Casey N. Bridgman of Bridgman and Adel, Wessington Springs, South Dakota, Attorneys for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] Discover filed a motion for summary judgment in a breach of contract claim against cardholder Joseph Stanley. Discover did so without filing a statement of undisputed material facts. The circuit court granted Discover's motion, and entered a judgment against Stanley. Stanley appeals. We reverse.

FACTS

[¶ 2.] Joseph Stanley applied for and was granted a Discover card in March of 1996. The terms which Discover applied to issuance of the card are not in dispute. In part the terms stated: "We must hear from you no later than 60 days after we sent you the first bill on which the error or problem appeared."¹

[¶ 3.] Stanley received a billing statement sometime in calendar year 1997 for a charge or charges totaling $1,718.02. Stanley claimed he did not make the charge(s), but believed he owed something on the account. Stanley did not dispute the charge(s) within the sixty-day period as provided in the "Your Billing Rights" section of the credit card agreement. Over the next eight years, Stanley continued to pay on the account without making any additional charges to the account.

[¶ 4.] In 2004 after paying over $8,600.00 on the account, yet failing to pay off the balance, Stanley disputed the 1997 charge(s). The record is unclear if he did so over the telephone or in writing. During the time Stanley continued to dispute the charge(s), Discover claimed it was unable to provide account statements prior to June 15, 1998, as requested by Stanley. Discover claimed it had not retained records prior to June 15, 1998, which showed the original charge(s) made sometime in calendar year 1997.

[¶ 5.] In addition to not being able to provide Stanley with documentation prior to June 15, 1998, Discover would not close Stanley's account despite repeated requests to do so. Stanley was told over the telephone by several Discover employees that they were unable to close the account without a credit counselor being present on the telephone line. At some point, Stanley ceased paying on the account.

[¶ 6.] On March 8, 2005, Discover Bank sued Stanley for the unpaid balance on the account, which at that time totaled $6,565.41. Based on the prayer for relief, the complaint appears to allege breach of contract. Discover's request for relief demanded judgment against Stanley in the sum of $6,565.41 with interest "as authorized under said Discover Card plus costs and whatever further and additional relief is deemed equitable by the Court."

[¶ 7.] Stanley did not file an answer with the court. Instead, he wrote the attorney representing Discover in the matter and disputed Discover's claim that Stanley owed $6,565.41 on the account, stating that he had not made the original charge(s).² Stanley did so in writing using the method prescribed in the Complaint, which cited to the Fair Credit Billing Act, 15 USC § 1601 et seq. Discover served Stanley with requests for production, requests for admission, and interrogatories, which Stanley failed to answer. Discover filed a motion for default judgment at which time Stanley hired legal counsel.

[¶ 8.] On May 31, 2007, Discover moved for summary judgment. Discover failed to file a statement of undisputed material facts with its motion and affidavit. Stanley resisted the motion for summary judgment, and argued that Discover's failure to provide a statement of undisputed material facts was fatal to its motion under SDCL 15-6-56. Stanley also argued that Discover's inability to substantiate the original charge(s) to the account upon which the balance of $6,565.41 was based raised a genuine issue of material fact for the finder of fact as to whether Stanley had made the original charge(s) in 1997, and whether he owed the money in question. Finally, Stanley raised the defense of accord and satisfaction, claiming he was told by Discover telephone agents that the balance had been satisfied. Stanley evidenced this with a copy of a statement provided by Discover dated December 31, 2004, which showed a zero balance.

[¶ 9.] On January 15, 2008, a hearing was held on Discover's motion for summary judgment. The circuit court held that Discover's failure to file a statement of undisputed material facts was not fatal to its motion for summary judgment, as the circuit court concluded there were no disputed facts in contention. The circuit court further found that it was not relevant to the motion for summary judgment that Discover was unable to provide the original record of the charge(s) from 1997.

[¶ 10.] Stanley presented evidence to dispute Discover's claim that he owed on the charge account. That evidence included an affidavit in which Stanley claimed he paid over $8,600.00 on the account, a claim Discover never disputed.

[¶ 11.] The evidence also included a copy of the account statement from December 31, 2004, in which a payment credit of $6,565.41 against a balance of the exact amount was reflected, and an affidavit in which Stanley claimed he had been told by Discover that he no longer owed anything on the account. A description at the bottom of the statement indicated an internal charge off of $6,565.41 was made on December 31, 2004. The circuit court accepted the explanation provided by Discover's counsel, that the designation "internal charge off" was an accounting method used by Discover prior to sending out an account for legal action. The circuit court did so despite Stanley's affidavit, which stated Stanley was told by a Discover telephone customer service agent that Stanley no longer owed anything on the account. The circuit court rejected Stanley's statement based on an argument advanced by counsel for Discover that Stanley's self-serving statement in his affidavit without more, such as the name of the Discover telephone customer service agent or confirmation in writing, was insufficient to create a genuine issue of material fact under SDCL 15-6-56.

[¶ 12.] The circuit court further found that the time for Stanley to contest the 1997 charge(s) had long passed. The circuit court found that Stanley's attempts to contest the charge(s) in 2004 and 2005 were untimely, and were subject to the defenses of laches or waiver. Regardless of the rationale, the circuit court held that it was an undisputed fact that Stanley owed the original charge(s) due to the passage of time and Stanley's failure to contest the charge(s) within sixty-days as required by the terms and conditions of the credit card account.

[¶ 13.] The circuit court granted Discover's motion for summary judgment and entered an order of judgment against Stanley in the amount of $6,565.41 for principal, prejudgment interest of $1,331.32, plus court costs and service fees in the amount of $67.10, for a total judgment of $7,963.83. Stanley appeals.

[¶ 14.] Stanley raises the following issues on appeal:

1. Whether a moving party in a motion for summary judgment is required to provide a statement of undisputed material facts.

2. Whether a genuine issue of material fact was in dispute when Discover provided no evidence that Stanley made the original charge(s) to the Discover credit card.

STANDARD OF REVIEW

[¶ 15.] Statutory interpretation is a question of law to be reviewed under the de novo standard of review. Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611 (citing Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17 (citing U.S. West Communications, Inc. v. Public Util. Comm'n, 505 N.W.2d 115, 122-23 (S.D.1993))).

The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court's only function is to declare the meaning of the statute as clearly expressed.

Id. The same rule applies to construction of this Court's rules of civil procedure. See Maynard v. Heeren, 1997 SD 60, ¶ 14, 563 N.W.2d 830, 835 (citing Cummings v. Mickelson, 495 N.W.2d 493, 500 (S.D. 1993)).

[¶ 16.] Our well-settled standard of review for a motion for summary judgment provides:

Summary judgment is authorized "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 any material fact, and that the moving party is entitled to judgment as a matter of law." We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law.

Mueller v. Cedar Shore Resort, Inc., 2002 SD 38, ¶ 10, 643 N.W.2d 56, 62 (quoting

Hayes v. N. Hills General Hosp., 1999 SD 28, ¶ 12, 590 N.W.2d 243, 247 (quoting SDCL 15-6-56(c))). There must be no material facts at issue, and there must "be no genuine issue on the inferences to be drawn from those facts." A-G-E Corp. v. State, 2006 SD 66, ¶ 17, 719 N.W.2d 780, 786 (citations omitted).

[¶ 17.] The construction of a written contract is a question of law. Campion v. Parkview Apartments, 1999 SD 10, ¶ 25, 588 N.W.2d 897, 902 (citin...