GE v. Theodore Cacciotti (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (150.00)

I. Background

This case began as an action by the plaintiff GE Money Bank to collect an alleged credit card debt and has become somewhat more complicated by the actions of the defendant, Theodore Cacciotti, who defends against the claim by asserting that he does not owe the claimed amount because that amount represents charges for dental services rendered by one Hayley Barocas, D.M.D which Cacciotti alleges were unsatisfactory.

The plaintiff bank has moved for summary judgment on both counts of its complaint alleging breach of the credit agreement and account stated.   The amount claimed to be owing is $6,634.00.   Cacciotti served an answer, special defenses and a counterclaim.   The answer effectively denied the allegations of the complaint, the special defenses allege that Dr. Barocas provided the plaintiff with defective temporary and permanent dentures and the failure to receive functional dentures made the agreement to put the charges on the plaintiff's credit card void.   The “counterclaim” (sic) sought indemnification from Dr. Barocas, obviously a nullity since the dentist was not a party to the suit at the time.   Subsequently, on the second attempt, plaintiff's motion to cite in Dr. Barocas and her LLC as third-party defendants was granted and the third-party complaint alleges dental malpractice and negligent misrepresentations by Dr. Barocas.   Since the plaintiff opened the credit account at issue in order to pay Dr. Barocas, it is claimed Dr. Barocas is liable for the credit card charges.

II. Standard of Review

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.  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  Appleton v. Board of Education, 254 Conn. 205, 209 (2000).   Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  Miller v. United Technologies Corp., 233 Conn. 732, 751 (1985).  “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 judgment as a matter of law.”  Appleton v. Board of Education, supra, 254 Conn. 209.  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)   United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379 (1969).   The trial court, in the context of summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500 (1988).  “Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] ․ a 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.   It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.”  Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554 (1998).  “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  Appleton v. Board of Education, supra, 254 Conn. 209.

III. Discussion

The affidavit and exhibits in support of summary judgment and the defendant's response to requests to admit, as well as exhibits submitted in opposition, show the following.   Cacciotti opened the credit account in January 2009.   The initial charges for dental services were in excess of $7,000.00 and Cacciotti made monthly payments for a few months on the account.   Pl. Affidavit, ¶ 3 and Ex. B. In October 2009 Cacciotti disputed the bill in a lengthy letter detailing the reasons for dissatisfaction with Dr. Barocas, her dental services, and the results.   The letter also states that it was Dr. Barocas' suggestion that Cacciotti apply for the GE Money Bank card.   Def. Opposition, Ex. A. The bank concluded it was not a billing error and placed the disputed charge back on the account.   Pl. Affidavit, Exs. C, D. In responding to requests to admit Cacciotti admitted the following:  he lived at the address to which the monthly statements were sent;  that he had and used a credit card issued by the plaintiff;  that GE Money Bank was owed $6,634.00 on his credit card but that money was really owed by Dr. Barocas;  admitted that Cacciotti was responsible for the amount “as well as” Dr. Barocas;  admitted the bank was entitled to attorneys fees and costs of collection, and that the bank had the right to enforce the debt of $6,634.00 against the defendant.   Ex. 2 to Pl. Memorandum.

In opposition to summary judgment Cacciotti asserts there are disputed material facts so as to preclude summary judgment.   First, Cacciotti asserts the existence of a disputed fact question as to whether he timely filed a billing error notice pursuant to 12 C.F.R. § 226.13(b) which requires that such a notice must be filed within 60 days of the sending of the first statement reflecting the billing error.   Cacciotti argues his notice was timely, and the bank says it was not.   The bank is correct, but the dispute is immaterial.   The bank is correct because Dr. Barocas' bill appeared on an early 2009 statement whereas the dispute letter was dated October 31, 2009—far more than 60 days.¹  The dispute is immaterial because the bank investigated the billing error anyway, and found there was no “billing error.”

The defendant also asserts that the bank did not do an adequate job investigating the billing dispute claim.   This purported fact dispute is also immaterial.   The question at issue is not whether Dr. Barocas overcharged or undercharged, but whether Cacciotti authorized the bank to pay Dr. Barocas, and Cacciotti does not dispute that he did.   What is at issue on this motion is whether the plaintiff is entitled to summary judgment on its claim, and the court concludes that summary judgment is appropriate in this case based on the defendant's admissions and recognition that the bank issued the credit to Cacciotti and paid Dr. Barocas.   It may very well be that the defendant is entitled to recover from the dentist, but that possibility is not a legal defense to this claim.

IV. Conclusion

Judgment may enter in favor of the plaintiff in the amount of $6,634.00

BY THE COURT

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. The monthly credit card statements attached as an exhibit to plaintiff's affidavit in the electronic court file are difficult to read, particularly the dates and amounts, but the Barocas charge appeared on the March 2009 statement, if not before.   Plaintiff's counsel should solve this legibility problem in the future..  FN1. The monthly credit card statements attached as an exhibit to plaintiff's affidavit in the electronic court file are difficult to read, particularly the dates and amounts, but the Barocas charge appeared on the March 2009 statement, if not before.   Plaintiff's counsel should solve this legibility problem in the future.

Adams, Taggart D., J.T.R.