Opinion
No. 1CV08 501 55 44
January 27, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #103
On December 31, 2008, the plaintiff, Palisades Collection, LLC, moved for summary judgment on its complaint, which alleges that the defendant, Everton Wright, failed to make payments for credit extended in the amount of $768.53. The complaint further alleged that the plaintiff is owner and holder of the account, and that the original creditor, HSBC Credit Service, Inc. rendered to the defendant "monthly, full and true accounts of the indebtedness," and seeks recovery based on an "account stated" claim. The defendant, in his answer filed on July 18, 2008, agreed that he entered into a credit agreement with the original creditor, HSBC Credit Service, Inc., that the plaintiff is owner and holder of that account, and that he was obligated for all charges made in connection with the credit extended under the agreement. He denied that the balance due is $768.53, and indicated a lack of knowledge as to the remaining allegations of the complaint. No special defenses were asserted.
In its motion for summary judgment, the plaintiff contends that no genuine issue of material fact exists, and that it is entitled to judgment as a matter of law. The plaintiff submitted a memorandum of law in support of the motion, as well as an affidavit of one Anna Hernandez, an authorized representative of the plaintiff. No objection or counter affidavit was filed by the defendant. The motion for summary judgment was before the court as a non-arguable matter on January 20, 2009.
Before turning to the merits, it is first necessary to consider the relevant 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 . . ." (Citation omitted; internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 926 A.2d 656 (2007). In seeking summary judgment, "[t]he courts are in entire agreement that the moving party . . ." has the burden of showing the absence of any genuine issue as to all the material facts which under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . ." Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). When a party moves for summary judgment "and there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995).
As the defendant has not filed a counter affidavit, the court looks to the sufficiency of the plaintiff's affidavit and supporting documentation, which indicates the following. The original creditor, HSBC Credit Service, Inc., extended credit to the defendant. Although the agreement required that payments be made to HSBC for the credit, the defendant refused to pay, despite numerous demands. The sum of $768.53 is due under the agreement.
Based on this evidence, the plaintiff seeks a determination of liability on the theory of "account stated." The account stated theory has been recognized by this state's Supreme Court as early as 1900. See Dunnett v. Thorton, 73 Conn. 1, 15-16 (1900). In General Petroleum v. Merchants Trust Co., 115 Conn. 50, 56 (1932), the court explained the account stated theory: "[t]he delivery by the bank . . . of each statement of account . . . 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." Numerous superior court decisions have since recognized the validity of an account stated cause of action in Connecticut. See e.g., Citibank (South Dakota) N.A., v. Moniz, Superior Court, judicial district of Danbury, Docket No. 075003144 (February 22, 2008, Sheedy, J.); Citibank (South Dakota,) N.A. v. Strumpf, Superior Court, judicial district of Litchfield, Docket No. 064004215 (September 13, 2006, Pickard, J.); Citibank (South Dakota) N.A. v. Marger, Superior Court, judicial district of Danbury, Docket No. 054001358 (May 25, 2006, Schuman, J.); Citibank (South Dakota), N.A. v. Piscitelli, Superior Court, judicial district of New Haven, Docket No. CV040491060 (March 17, 2006, Corradino, J.) [40 Conn. L. Rptr. 873]; Citibank v. Gemske, Superior Court, judicial district of Middlesex, Docket No. CV05 4002020 (December 21, 2005, McWeeny, J.) [40 Conn. L. Rptr. 489]; Citibank (South Dakota), N.A. v. Stewart, Superior Court, judicial district of New Haven, Docket No. CV05 4012384 (November 30, 2005, Silbert, J.) [40 Conn. L. Rptr. 337]. Additionally, this court has also recognized the validity of an account stated cause of action. Cach, LLC v. Palacios, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 085017225 (January 22, 2009, Bellis, J.); Citibank (South Dakota), N.A. v. Francis, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 075008501 (January 20, 2009, Bellis, J.).
While the "account stated" cause of action is recognized in this state, the plaintiff has failed to put forth admissible evidence in support of that cause of action. "[U]nadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact." (Internal quotation marks omitted.) Martinez v. Southington Metal Fabricating Co., 101 Conn.App. 796, 800, 924 A.2d 150, cert denied, 284 Conn. 930, 934 A.2d 246 (2007). The plaintiff's non-evidentiary assertions of fact are insufficient to show that there is no genuine issue of material fact. Therefore, the plaintiff's argument as it relates to its "account stated" cause of action fails, and the plaintiff is not entitled to summary judgment as to that cause of action.
While the plaintiff argues at length in its memorandum of law that the facts give rise to an "account stated cause of action," it is just that — argument. As an example, while the plaintiff argued that the defendant did not object to the credit card billings, and that the defendant was provided with and sent monthly billings, there was absolutely no documentation submitted to support that argument. Additionally, the argument repeatedly makes reference to "Citibank," which does not appear to have any involvement in this matter.
The complaint, however, while comprised of six paragraphs, appears to set forth two separate causes of action, with the second count alleging the "account stated" claim. The motion for summary judgment, although not specific, appears to be directed to the "account stated" claim only, in count two. Therefore, the plaintiff's motion for summary judgment, as to count two, is denied.