USA v. Lisa A. Wenzel (2014)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (# 114)

By complaint filed on March 7, 2012, the plaintiff, Capital One Bank (USA), N.A., sued the defendant, Lisa Wenzel, in two counts to collect a Capital One credit card account claimed to be in default since 2009.   Count one is for breach of contract (“default on credit account”).   Count two is based on an “account stated.”   The defendant appeared, representing herself, and answered the complaint perfunctorily.¹

On October 23, 2014, the plaintiff moved for summary judgment.   On November 13, 2013, the defendant filed an objection to the motion.   On November 17, 2014, the attorney for the plaintiff and the defendant, representing herself, appeared at a brief argument on the motion.   Plaintiff's counsel stated that the plaintiff claimed to have met its burden of proof of a debt of $5,773.92 for breach of contract or $5,588.46 on the account stated theory.   The parties then agreed to submit the motion on the papers.

FACTS

In ruling on the present motion, the court views the evidence in the light most favorable to the nonmoving party.  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 57, 68 A.2d 1162 (2013).   The court's function is not to decide issues of material fact, but simply to determine whether any such issues exist.  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).   However, in the absence of evidence, a denial of a fact, let alone failure to admit a fact, does not create a triable issue of fact.  Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319–20, 77 A.3d 726 (2013);  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).   Applying these principles, the court finds there is no real dispute about the following facts pertinent to the present motion.²

The defendant opened and used a Capital One credit card account in the name of Lisa A. Wenzel, with the account number ending in 4200 (“account 4200”).   She has lived at all pertinent times at the address on the account statements submitted as exhibits to the affidavit in support of the present motion.   The defendant, by claiming in her opposing brief that she “never used the credit card after 09/04/2007,” implicitly admits having, and using, account 4200.   She admits that a copy of her agreement with the plaintiff for account 4200 provided to her by the plaintiff is true and correct.   The plaintiff sent the defendant regular account statements, except between December of 2007 and June of 2008, during which time account 4200 had a zero balance.

On or about May 20, 2008, the defendant, or someone authorized by her, used a cash advance “purchase check”—not a use of the credit card, which the defendant denies—on account 4200 for the sum of $5,000.   That charge first appeared on the account 4200 statement for the period ending June 2, 2008, for which a statement was mailed to the defendant at her correct address.   The defendant did not protest that charge.   Account statements were mailed to the defendant, at her correct address, each month for the next year.   The defendant did not protest any of those statements.   She made several payments on the account after the $5,000 charge was entered on the account, the last payment being $292 during the account period ending December 2, 2008.³  As of June 2, 2009, the balance on the account was $5,588.46.

Other facts will be found, as needed, in the analysis below.

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.”   The purpose of summary judgment is to resolve litigation without the delay and expense of trial when 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.  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012).   The party seeking summary judgment has the burden of submitting evidence that proves the nonexistence of any genuine issue of material fact.  Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 10–11.   A motion for summary judgment cannot be granted based on inferences, which are for the trier of fact.   See Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994) (summary judgment inappropriate based on inferences about state of mind).   Although the court views the evidence in the light most favorable to the opposing party, once the movant has met his burden, the opponent may defeat the motion only by presenting evidence that reveals a material factual dispute.  Id., 11.

The plaintiff's first claim is to judgment in the amount of $5,773.92 on count one, for breach of contract.   While that amount is alleged due from the defendant both in the complaint and in the affidavit filed in support of the present motion, and while testimony is of course evidence, the court does not find that amount in the plaintiff's exhibits.   After the account 4200 statement for the billing period ending June 2, 2009, the account statements submitted are quarterly statements.   The account agreement having been admitted, the plaintiff could have claimed later and higher balances due on account 4200 ⁴ but the court does not find $5,773.92.   Therefore, although the plaintiff has presented sufficient evidence to show a breach of contract—the account 4200 agreement—by the defendant, the specific amount of $5,773.92 is not supported by the evidence.

The plaintiff also claims to have established liability under the “account stated” theory of liability.  “An account stated cause of action has been recognized for over one hundred years.   See Zacarino v. Pallotti, 49 Conn. 36, 38 [ (1881) ].  “An account stated is an agreement between persons who had previous transactions, fixing the amount due in respect to such transactions and promising payment.”   Oliver Painting & Construction, LLC v. Vassilowitch, Superior Court, judicial district of New Haven, Docket No. CV-l 1–6018911–S (October 27, 2011).   Our Appellate Court discussed “account stated” as a theory of liability in Credit One, LLC v. Head, 117 Conn.App. 92, 977 A.2d 767, cert. denied, 294 Conn. 907, 982 A.2d 1080 (2009), in the context of an alleged “default on an open end credit account.”   Id., 97–98 n.6. In Head, the court affirmed the entry of summary judgment “on count two ․ sounding in account stated”;  id., 97;  and found it unnecessary to address count one, for breach of contract.  Id., 97–98 n.6. Head cites General Petroleum Products, Inc. v. Merchants Trust Co., 115 Conn. 50, 160 A. 296 (1932), for the basic elements of an account stated.  “The delivery by the bank to the plaintiff of each statement of the latter's account, with the canceled checks upon which the charges against it were based, was a rendition of the account so that retention thereof for an unreasonable time constituted an account stated which is prima facie evidence of the correctness of the account.   Such account stated can be opened and 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.”  Id., 56;  see Credit One, LLC v. Head, supra, 117 Conn.App. 91–92.  General Petroleum Products, Inc. v. Merchants Trust Co.—which concerned a checking account, not a loan account—only holds that an account stated is prima facie, rebuttable “evidence of the correctness of the account.”  Credit One, LLC v. Head, supra, 117 Conn.App. 99.

In this case, count two alleges, in essence, as follows:

On or before July 3, 2009, the plaintiff became indebted to the plaintiff in the sum of $5,773.92 for charges and/or cash advances on account 4200.

That amount is unpaid by the defendant, despite demand.

Account 4200 was the defendant's account, concerning which the plaintiff sent the defendant periodic statements detailing the charges, credits and balance due as of that period.

The defendant received those account statements, including a final statement, and did not object within a reasonable time to any of them.   Count two is based on the cardmember agreement alleged in count one.

Count two does not allege any “agreement between persons who had previous transactions, fixing the amount due in respect to such transactions,” other than that in the account 4200 account agreement admitted by the defendant.   See Zacarino v. Pallotti, supra, 49 Conn. 38.  “An account stated only determines the amount of the debt where a liability exists, and cannot be made to create a liability per se where none before existed ․ In other words, an account stated is merely a form of proving damages for the breach of a promise to pay on a contract.”  (Citations omitted;  internal quotation marks omitted.)  Dreyer Medical Clinic v. Corral, 227 Ill.App.3d 221, 226, 591 N.E.2d 111 (1992).”   See American Express Centurion Bank v. LaRose, judicial district of New London, Docket No. CV–13–6016109–S (December 12, 2013) (“account stated” can be a principle of evidence akin to estoppel or it can be a contract theory).

The plaintiff's monthly statements after the $5,000 check through the billing period ending June 2, 2009, when the account balance was $5,588.46, are unchallenged in their authenticity and admittedly were not protested, let alone protested in writing.   From the facts found, the plaintiff is entitled to judgment in the sum of $5,588.46 unless the defendant shows that there is a triable issue of material fact;  i.e., an issue that could alter or defeat that entitlement.   See Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 319–20 (when the party seeking summary judgment has met its burden, the burden shifts to the opponent to present evidence of the existence of a disputed material fact).

The defendant offers no evidence in opposition to the present motion.   The two pages attached to her brief are from the plaintiff's evidence.   In particular, the defendant has submitted no affidavit denying the plaintiff's claims, in general or in detail.   From this absence alone, the court could grant the plaintiff's motion.   The defendant does argue that, for three reasons, the motion should be denied.   First, she points out that the account had a credit balance on August 3, 2007, after which there were no charges until the $5,000 “purchase check.”   She argues that the motion should be denied because the plaintiff does not explain that transaction, such as by showing that the defendant authorized it and who got the money.   As to the authority, that is sufficiently shown by the use of the check, by the defendant's failure to protest the charge, and by the defendant's payments on the account after that charge was added to the account.   As to who got the $5,000, it is sufficiently shown, for the same reasons, that the defendant got the benefit of the money.   Who actually received the money is not the plaintiff's burden to know, let alone to prove.

Second, the defendant argues—but does not testify—that she never used the credit card after September 4, 2007.   Had the defendant testified, upon penalty of perjury, that she never used or authorized anyone else to use the account after that day, the court might have to find a triable issue of material fact, despite skepticism induced by the defendant's failure to protest the $5,000 charge and her undisputed payments on the account after that day.   But the defendant did not so testify.

Third, the defendant argues that the plaintiff did not, contrary to the plaintiff's claim, send statements to the defendant every month.   It appears to be true that the plaintiff did not send the defendant statements after December of 2007 through May of 2008.   However, that is explained by the zero account balance as of December 3, 2007, and the zero “previous balance” at the beginning of the account period ending June 2, 2008.   What matters is that the plaintiff sent the defendant, at her admitted address, statements each month from the posting to account 4200 of the $5,000 “purchase check” until June of 2009, as of which time the balance is the $5,588.46 sought, and proven, by the plaintiff.

The plaintiff's motion for summary judgment as to count one is granted in the amount of $5,588.46, being the account debt proven, and, alternatively, as to count two in the same amount based on account stated, for a total judgment against Lisa A. Wenzel in the amount of $5,588.46, plus costs.

Cole–Chu, J.

FOOTNOTES

FN1. The defendant answered “Disagree” to paragraphs 1 and 2. There are two counts in the complaint.   The first count has four paragraphs.   The second count has six paragraphs, including the first two paragraphs of count one, which are incorporated..  FN1. The defendant answered “Disagree” to paragraphs 1 and 2. There are two counts in the complaint.   The first count has four paragraphs.   The second count has six paragraphs, including the first two paragraphs of count one, which are incorporated.

FN2. The defendant failed timely to respond to the plaintiff's request for admissions.   The court could therefore deem all the facts in that request to be admitted.  Practice Book § 13–23(a).   Although self-represented parties are bound to follow the same rules of court as parties represented by attorneys;  Kaddah v. Commissioner of Correction, 299 Conn. 129, 140, 7 A.3d 911 (2010);  as a form of public service and as a matter of policy, courts show flexibility, within reason and fairness to the other parties, in the enforcement of court rules against self represented parties.   Orcutt v. Commissioner of Correction, 284 Conn. 724, 740 n.26, 937 A.2d 656 (2007).   Here, viewing the evidence in the light most favorable to the defendant;  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010);  the court declines to hold the defendant to the requested admissions and considers her October 6, 2014 answers to those requests..  FN2. The defendant failed timely to respond to the plaintiff's request for admissions.   The court could therefore deem all the facts in that request to be admitted.  Practice Book § 13–23(a).   Although self-represented parties are bound to follow the same rules of court as parties represented by attorneys;  Kaddah v. Commissioner of Correction, 299 Conn. 129, 140, 7 A.3d 911 (2010);  as a form of public service and as a matter of policy, courts show flexibility, within reason and fairness to the other parties, in the enforcement of court rules against self represented parties.   Orcutt v. Commissioner of Correction, 284 Conn. 724, 740 n.26, 937 A.2d 656 (2007).   Here, viewing the evidence in the light most favorable to the defendant;  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010);  the court declines to hold the defendant to the requested admissions and considers her October 6, 2014 answers to those requests.

FN3. The activity on the account is shown, in the monthly statements for the period pertinent to this decision, to be as follows (interest and fees omitted):Bill period ending date Account balance Payment Minimum due next month6/2/08 $5,000 0 $1507/2/08 $5,100.69 0 $3038/2/08 $4,862.79 $350 $1459/2/08 $5,005.87 0 $29510/2/08 $4,813.13 $295 $14411/3/08 $4,956.38 0 $29212/2/08 $4,798.11 $292 $1461/2/09 $4,932.52 0 $3332/2/09 $5,069.60 0 $5243/2/09 $5,160.40 0 $6704/2/09 $5,262.83 0 $8295/2/09 $5,403.04 0 $1,0276/2/09 $5,588.46 0 $1,233After the account statement/invoice for the account period ending June 2, 2009, the statements submitted with the plaintiff's motion are quarterly, not monthly..  FN3. The activity on the account is shown, in the monthly statements for the period pertinent to this decision, to be as follows (interest and fees omitted):Bill period ending date Account balance Payment Minimum due next month6/2/08 $5,000 0 $1507/2/08 $5,100.69 0 $3038/2/08 $4,862.79 $350 $1459/2/08 $5,005.87 0 $29510/2/08 $4,813.13 $295 $14411/3/08 $4,956.38 0 $29212/2/08 $4,798.11 $292 $1461/2/09 $4,932.52 0 $3332/2/09 $5,069.60 0 $5243/2/09 $5,160.40 0 $6704/2/09 $5,262.83 0 $8295/2/09 $5,403.04 0 $1,0276/2/09 $5,588.46 0 $1,233After the account statement/invoice for the account period ending June 2, 2009, the statements submitted with the plaintiff's motion are quarterly, not monthly.

FN4. The balance due at the end of the three-month account period ending September 5, 2010—15 months after the last monthly statement submitted—was stated to be $7,341.44.   By the statement for the quarter ending March 5, 2011, the account 4200 balance was over $8,000..  FN4. The balance due at the end of the three-month account period ending September 5, 2010—15 months after the last monthly statement submitted—was stated to be $7,341.44.   By the statement for the quarter ending March 5, 2011, the account 4200 balance was over $8,000.

Cole–Chu, Leeland J., J.