American Express Bank, FSB v. Rutkowski ( 2017 )

 AMERICAN EXPRESS BANK, FSB v. KRZYSZTOF
RUTKOWSKI ET AL.
(AC 38900)
Sheldon, Beach and Sheridan, Js.
Syllabus
The defendants appealed from the trial court’s judgment rendered in favor
of the plaintiff in connection with the plaintiff’s action to recover for
the defendants’ breach of a contractual credit agreement. The defendants
opened a credit card account with the plaintiff, were mailed a credit
card and cardmember agreement, used the account to pay for various
goods and services, and received monthly billing statements from the
plaintiff. When the defendants failed to make payments on the account,
the plaintiff closed the account, which had a balance of $182,367.29. In
opposing the plaintiff’s motion for summary judgment, the defendants
asserted, inter alia, that the plaintiff’s claim was barred by the statute
of frauds (§ 52-550 [a] [6]), which bars civil actions upon any agreement
for a loan in excess of $50,000 unless the agreement is written and
signed by the party to be charged. The trial court granted the motion
for summary judgment as to liability and, following a hearing in damages,
rendered judgment for the plaintiff for the full amount of the balance,
plus costs. On appeal to this court, the defendants claimed that the trial
court improperly granted summary judgment on the issue of liability
because the credit card agreement constituted a loan under the statute
of frauds, and, therefore, enforcement of the agreement was barred in
the absence of a writing signed by the defendants. Held that the trial
court properly granted the plaintiff’s motion for summary judgment
because the present action was not barred by the statute of frauds: the
plaintiff’s claim for breach of a contractual credit agreement was not
related to any agreement for a loan that exceeded $50,000 because the
underlying agreement was not a loan within the meaning of § 52-550
(a) (6); furthermore, the defendants were never given a sum of more
than $50,000 by the plaintiff but, rather, were able to make third party
transactions in varying amounts through the use of the credit card
account.
Argued April 24—officially released July 4, 2017
(Appeal from Superior Court, judicial district of New
Britain, Hon. Joseph M. Shortall, judge trial referee
[summary judgment as to liability]; Wiese, J.
[judgment].)
Procedural History
Action to recover damages for, inter alia, breach of
a credit card agreement, and for other relief, brought
to the Superior Court in the judicial district of New
Britain, where the defendants were defaulted for failure
to plead; thereafter, the court, Abrams, J., granted the
defendants’ motion to open the judgment; subsequently,
the court, Hon. Joseph M. Shortall, judge trial referee,
granted the plaintiff’s motion for summary judgment as
to liability; thereafter, following a hearing in damages,
the court, Wiese, J., rendered judgment for the plaintiff,
from which the defendants appealed to this court.
Affirmed.
Scott M. Schwartz, for the appellants (defendants).
Erica Gesing, for the appellee (plaintiff).
Opinion
SHERIDAN, J. The defendants, Krzysztof Rutkowski
and Tri-City Trading, LLC, appeal from the judgment
rendered by the trial court in favor of the plaintiff,
American Express Bank, FSB. On appeal, the defen-
dants claim that the court improperly rendered sum-
mary judgment as to liability on the plaintiff’s claim of
breach of a contractual credit agreement because the
statute of frauds, General Statutes § 52-550 (a) (6), bars
enforcement of the agreement. We disagree and,
accordingly, affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The defendants opened a credit
card account with the plaintiff on February 26, 2004.
Upon opening the account, the defendants were mailed
a credit card along with a copy of the cardmember
agreement. The defendants used the credit card account
to pay for various goods and services and received
monthly billing statements from the plaintiff. The defen-
dants did not object to the balances shown as due
and owing on the monthly statements provided by the
plaintiff. Following the defendants’ failure to make pay-
ments on the credit card account, the plaintiff closed
the account with a remaining balance due and owing
of $182,367.29.
On August 15, 2013, the plaintiff commenced the pre-
sent action against the defendants. The amended com-
plaint filed on December 20, 2013, alleged one count
of breach of a contractual credit agreement (count one)
and one count of unjust enrichment (count two).1 The
defendants filed an answer denying the allegations of
the complaint and alleging special defenses claiming
inter alia, that the plaintiff’s claims were barred by the
statute of frauds, § 52-550 (a) (6).
The plaintiff subsequently filed a motion for summary
judgment on both counts on August 13, 2015. The court,
Hon. Joseph M. Shortall, judge trial referee, found that
the statute of frauds did not bar the plaintiff’s claim,
there was no genuine issue of material fact, and thus
the plaintiff was entitled to judgment as a matter of law
on count one as to liability only.2 Following a hearing in
damages, the court, Wiese, J., rendered judgment for
the plaintiff on count one in the amount of $182,367.29
plus costs. This appeal followed. Additional facts will
be set forth as necessary.
We begin by setting forth 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.
. . . On appeal, we must determine whether the legal
conclusions reached by the trial court are legally and
logically correct and whether they find support in the
facts set out in the memorandum of decision of the
trial court. . . . Our review of the trial court’s decision
to grant the defendant’s motion for summary judgment
is plenary.’’ (Internal quotation marks omitted.)
Bellemare v. Wachovia Mortgage Corp., 94 Conn. App.
593, 597, 894 A.2d 335 (2006), aff’d, 284 Conn. 193, 931
A.2d 916 (2007).
On appeal, the defendants claim that the court erred
in granting summary judgment on the issue of liability
on count one because the statute of frauds, § 52-550
(a) (6),3 bars the enforcement of any loan exceeding
$50,000 in the absence of a writing signed by the party
to be charged. The plaintiff argues that the court did
not err because the contractual credit agreement
between the plaintiff and defendants was not a loan,
and thus it was not governed by the statute of frauds.
We agree with the plaintiff that the present action is
not barred by the statute of frauds. The plaintiff’s claim
for breach of the contractual credit agreement was not
related to ‘‘any agreement for a loan in an amount which
exceeds fifty thousand dollars’’; General Statutes § 52-
550 (a) (6); because the underlying credit agreement
was not a loan within the meaning of the statute of
frauds. Cf. Stelco Industries, Inc. v. Zander, 3 Conn.
App. 306, 307-308, 487 A.2d 574 (1985) (credit sales
agreement was not subject to usury statutes because
indebtedness to plaintiff arose out of credit sales trans-
actions, and not out of loan of money). The defendants
have failed to point to any legal authority in support of
the proposition that the defendants’ credit card
agreement constitutes a loan as contemplated by the
statute of frauds.4 Further, the defendants were never
given a sum that exceeds $50,000 by the plaintiff, but
rather were able to effectuate third party transactions
in various amounts through the use of the defendants’
credit card account with the plaintiff. Accordingly, the
trial court properly granted the plaintiff’s summary
judgment motion, and we affirm the judgment of the
trial court.5
The judgment is affirmed.
In this opinion the other judges concurred.
1
Count two is not at issue in this appeal.
2
The court declined to render final judgment because ‘‘the amount in
demand [was] differently stated in the complaint, the motion [for summary
judgment] and the affidavit of debt, and no bill of costs [was] on file.’’
3
General Statutes § 52-550 (a) provides, in relevant part: ‘‘No civil action
may be maintained in the following cases unless the agreement, or a memo-
randum of agreement, is made in writing and signed by the party, or the
agent of the party, to be charged . . . (6) upon any agreement for a loan
in an amount which exceeds fifty thousand dollars.’’
4
The defendants’ brief cites to Black’s Law Dictionary (9th Ed. 2009) as
defining a ‘‘loan’’ as ‘‘[a] thing lent for the borrower’s temporary use; esp.,
a sum of money lent at interest,’’ as well as a 1962 case stating that ‘‘[a]
loan is made when borrower receives money over which he exercises domin-
ion and which he expressly or impliedly promises to return.’’ Rogers v.
Hannon-Hatch Post No. 9929, 23 Conn. Supp. 326, 327, 182 A.2d 923 (1962).
Although these remote authorities may help to establish what constitutes
a ‘‘loan,’’ they fail to establish how the defendants’ credit card agreement
should be considered as such.
5
At oral argument before this court, a question was raised regarding a
provision in the cardmember agreement specifying that ‘‘Utah law and fed-
eral law govern this Agreement and the Account.’’ Practice Book § 10-3 (b)
provides that ‘‘[a] party to an action who intends to raise an issue concerning
the law of any jurisdiction or governmental unit thereof outside this state
shall give notice in his or her pleadings or other reasonable written notice.’’
The defendants in the present case did not rely on Utah law or federal law in
alleging their special defense or in opposing the plaintiff’s motion, choosing
instead to argue that the action was barred by General Statutes § 52-550
(a) (6). The parties are bound by their pleadings. O’Halloran v. Charlotte
Hungerford Hospital, 63 Conn. App. 460, 463, 776 A.2d 514 (2001). Moreover,
‘‘[g]enerally, claims neither addressed nor decided by the trial court are not
properly before an appellate tribunal.’’ (Internal quotation marks omitted.)
Natarajan v. Natarajan, 107 Conn. App. 381, 394 n.8, 945 A.2d 540, cert.
denied, 287 Conn. 924, 951 A.2d 572 (2008). Accordingly, we decline to
decide any questions under Utah law or federal law.