American Express Centurion Bank v. Scheer , 25 Neb. Ct. App. 784 ( 2018 )

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04/24/2018 01:08 AM CDT
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AMERICAN EXPRESS CENTURION BANK v. SCHEER
Cite as 25 Neb. Ct. App. 784
A merican Express Centurion Bank,
appellee, v. R.D. Scheer, also known
as Ronald D. Scheer, appellant.
___ N.W.2d ___
Filed April 17, 2018. No. A-17-219.
1. Summary Judgment: Appeal and Error. An appellate court will affirm
a lower court’s grant of summary judgment if the pleadings and admit-
ted evidence show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those facts and
that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Proof. A party moving for summary judgment
makes a prima facie case for summary judgment by producing enough
evidence to demonstrate that the movant is entitled to judgment if the
evidence were uncontroverted at trial.
3. ____: ____. Once the party moving for summary judgment makes a
prima facie case, the burden shifts to the party opposing the motion to
produce admissible contradictory evidence showing the existence of a
material issue of fact that prevents judgment as a matter of law.
4. Debtors and Creditors: Words and Phrases. An account stated is an
agreement between persons who have had previous dealings determining
the amount due by reason of such transactions.
5. Actions: Debtors and Creditors. An account stated creates a new cause
of action in which pleading and proof of the original items of indebted-
ness are unnecessary.
6. Debtors and Creditors. The creditor in a valid account stated may
recover thereon without pleading and proving the original items of the
indebtedness.
7. Debtors and Creditors: Proof. The failure to object to an account
stated is admissible in evidence as tending to prove an acknowledgment
of its correctness; proof of an express promise to pay is not required.
8. Debtors and Creditors. An account stated is not subject to the usual
defenses attacking the original items of indebtedness, but is subject to
the defenses of usury, fraud, and mistake.
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AMERICAN EXPRESS CENTURION BANK v. SCHEER
Cite as 25 Neb. Ct. App. 784
9. Appeal and Error. Errors that are assigned but not argued will not be
addressed by an appellate court.
Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Affirmed.
Hugh I. Abrahamson, of Abrahamson Law Office, for
appellant.
Sara E. Bauer and Shawn D. Flint, of Gurstel Law Firm,
P.C., for appellee.
Moore, Chief Judge, and R iedmann, Judge, and Inbody,
Judge, Retired.
R iedmann, Judge.
INTRODUCTION
R.D. Scheer, also known as Ronald D. Scheer, appeals from
an order of the district court for Douglas County granting sum-
mary judgment in favor of American Express Centurion Bank
(American Express) and ordering Scheer to pay American
Express the sum of $72,197.11. Because no genuine issue of
material fact exists as to an account stated, we affirm.
BACKGROUND
American Express filed a complaint against Scheer alleg-
ing that it had issued three credit card accounts to Scheer and
extended credit to him. According to the complaint, Scheer
used the credit cards to make purchases but failed to pay the
amounts owed, leaving balances due totaling $72,197.11. Each
of the first three counts sought recovery for breach of the credit
card contracts, and the fourth count sought recovery on an
account stated. Scheer filed an answer and asserted 17 affirma-
tive defenses, the majority of which were directed to the breach
of contract claim. As to the account stated, Scheer asserted
that he was charged a usurious interest rate, the balances were
inaccurate, American Express failed to attach an itemization
of the accounts from their start date, and American Express
defrauded him.
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AMERICAN EXPRESS CENTURION BANK v. SCHEER
Cite as 25 Neb. Ct. App. 784
American Express then filed a motion for summary judg-
ment. At the hearing on the motion, American Express offered
into evidence three affidavits establishing the history and the
outstanding balance for each credit card account. Each affidavit
stated that American Express mailed monthly billing statements
to Scheer and that he never asserted “a valid unresolved objec-
tion” to the balance shown as due and owing. The final billing
statement for each account was attached to the affidavits. The
affidavits and attachments were received into evidence without
objection from Scheer. Scheer did not offer any evidence at
the hearing.
In a subsequent written order, the district court determined
that American Express made a prima facie case for summary
judgment and that Scheer produced no contrary evidence show-
ing the existence of a material issue of fact. Therefore, the court
granted American Express’ motion for summary judgment and
entered judgment against Scheer in the amount of $72,197.11.
Scheer subsequently filed a motion for reconsideration, which
was denied. Scheer now appeals to this court.
ASSIGNMENTS OF ERROR
Scheer assigns that the district court erred in granting
American Express’ motion for summary judgment and in deny-
ing his motion for reconsideration.
STANDARD OF REVIEW
[1] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law. Sulu v. Magana, 293 Neb. 148, 879 N.W.2d
674 (2016).
ANALYSIS
Scheer argues that the district court erred in granting
American Express’ motion for summary judgment because
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AMERICAN EXPRESS CENTURION BANK v. SCHEER
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“there are two very cogent fact issues” that should have pre-
cluded summary judgment. Brief for appellant at 5. It appears
both issues relate to the amount American Express claims is
due. Scheer contends that questions regarding the underlying
purchases, amounts paid by him, and the amount of inter-
est charged need to be resolved before awarding judgment
to American Express. He also asserts the amount American
Express is seeking is not its actual damages because it may
have taken a “tax write off” and therefore should be prevented
from recovering more than its actual damages. Id. at 8. For
the reasons set forth below, we conclude that the pleadings
and the evidence presented at the summary judgment hear-
ing show that no genuine issue of material fact exists as to
American Express’ entitlement to judgment on its account
stated claim.
Neb. Rev. Stat. § 25-1332 (Reissue 2016) provides in part
that a motion for summary judgment shall be granted “if the
pleadings and the evidence admitted at the hearing show that
there is no genuine dispute as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
[2,3] A party moving for summary judgment makes a prima
facie case for summary judgment by producing enough evi-
dence to demonstrate that the movant is entitled to judgment
if the evidence were uncontroverted at trial. Sulu v. Magana,
supra. Once the moving party makes a prima facie case, the
burden shifts to the party opposing the motion to produce
admissible contradictory evidence showing the existence of
a material issue of fact that prevents judgment as a matter of
law. Id.
In its claim for an account stated, American Express
alleged that it rendered to Scheer accurate invoices and/or
statements of the transactions between the parties, that the
invoices and/or statements were received by Scheer, and that
Scheer failed to object to any item on the statements within
a reasonable period of time. At the hearing on the motion for
summary judgment, American Express offered into evidence
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three affidavits from its assistant custodian of records. In
each affidavit, the affiant stated that based upon his personal
knowledge and the company’s business records, “American
Express sends or otherwise makes available monthly billing
statements to cardmembers who carry a balance or are oth-
erwise required to receive a monthly statement.” The affiant
further stated that American Express “transmitted monthly
billing statements” to Scheer and that “[t]here is no record
of [him] ever asserting a valid unresolved objection to the
balance shown as due and owing on the monthly statements
provided . . . .” Finally, the affiant asserted that due to non-
payment, the accounts were closed, and that after giving
credit for all payments made, the attached invoices reflected
the ending balance owed on each account. The attached
invoices were in the amounts of $16,088.84, $18,002.08, and
$38,106.19 for a total of $72,197.11. Scheer presented no evi-
dence to rebut these facts.
[4-7] An “account stated” is an agreement between persons
who have had previous dealings determining the amount due
by reason of such transactions. Sherrets, Smith v. MJ Optical,
Inc., 259 Neb. 424, 610 N.W.2d 413 (2000). An account stated
creates a new cause of action in which pleading and proof of
the original items of indebtedness are unnecessary. The creditor
in a valid account stated may recover thereon without plead-
ing and proving the original items of the indebtedness. In re
Estate of Black, 125 Neb. 75, 249 N.W. 84 (1933). The failure
to object to an account stated is admissible in evidence as tend-
ing to prove an acknowledgment of its correctness. Proof of
an express promise to pay is not required. John Deere Co. of
Moline v. Ramacciotti Equip. Co., 181 Neb. 273, 147 N.W.2d
765 (1967).
Although Scheer alleged in his answer that the amount
claimed was in error, the evidence offered and received at the
hearing was that monthly statements had been sent to Scheer
and that he had not asserted a valid unresolved objection.
We note that the three invoices received at the hearing were
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AMERICAN EXPRESS CENTURION BANK v. SCHEER
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dated between April and June 2013. The complaint was filed
in July 2016. The only indication of an objection to the
amount contained in our record is in Scheer’s answer filed
in August 2016. The failure to object to an account stated
is admissible in evidence as tending to prove an acknowl-
edgment of its correctness. John Deere Co. of Moline v.
Ramacciotti Equip. Co., supra. Given the absence of any
objection by Scheer for 3 years, the evidence was sufficient
to establish an account stated and that the amount claimed
was correct. See, also, McKinster v. Hitchcock, 19 Neb. 100,
104-05, 26 N.W. 705, 706 (1886) (stating “perhaps the better
rule is, that if such an account be retained for an unreasonable
time without objection it will be treated as an account stated
and prima facie correct”).
[8] Because an account stated creates a new cause of action
in which pleading and proof of the original items of indebted-
ness are unnecessary, American Express was not required to
prove the underlying transactions. And because an account
stated sets the amount agreed upon, Scheer’s argument that
it does not reflect American Express’ actual damages is irrel-
evant. An account stated is not subject to the usual defenses
attacking the original items of indebtedness, but is subject to
the defenses of usury, fraud, and mistake. See, In re Estate of
Black, supra; Jorgensen v. Kingsley, 60 Neb. 44, 82 N.W. 104
(1900). Therefore, once American Express presented a prima
facie case of an account stated, the burden of proof shifted
to Scheer to prove that no agreement as to the amount owed
existed. Absent evidence to dispute the existence of an account
stated, Scheer was left to his affirmative defenses of usury,
fraud, and mistake.
Although Scheer asserted the defenses of usury, fraud, and
mistake in his answer, his allegations are conclusory and he
has not directed us to any disputed material fact in evidence
as to these defenses. We note that he also does not make any
argument on appeal specific to these defenses. We therefore do
not address them.
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AMERICAN EXPRESS CENTURION BANK v. SCHEER
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Scheer relies upon City State Bank v. Holstine, 260 Neb.
578, 618 N.W.2d 704 (2000), to argue that before American
Express was entitled to summary judgment, it was not only
required to present evidence supporting its claims, but it was
also required to disprove the affirmative defenses pled in his
answer. In City State Bank v. Holstine, supra, the plaintiff
commenced an action against the defendant for defaulting
on a promissory note which the defendant had cosigned. The
defendant raised various affirmative defenses in his answer,
including that the plaintiff made fraudulent representations
to induce him to cosign the note. In support of this defense,
the defendant pled six specific fraudulent misrepresentations
allegedly made by the plaintiff. The plaintiff moved for
summary judgment and presented evidence in support of its
claims. The trial court granted the motion, and the defend­
ant appealed.
On appeal, the Nebraska Supreme Court observed that
the evidence presented by the plaintiff at the summary judg-
ment hearing generally established its claims, but the plain-
tiff presented no evidence regarding most of the affirmative
defenses pled in the answer. The Supreme Court recognized
that the petition sought judgment on a promissory note, and
the operative answer raised numerous purported affirmative
defenses, which were denied by the plaintiff; thus, the issues
were framed by those pleadings. The court then stated that
in order for the plaintiff to succeed on its motion for sum-
mary judgment, it was required to produce evidence of the
promissory note on which the defendant was the cosigner
and a default thereon. The court additionally determined that
given the posture of the case, the plaintiff was also required
to produce evidence which demonstrated that there were no
genuine issues of material fact regarding the defendant’s cog-
nizable affirmative defenses and that it was entitled to judg-
ment as a matter of law. Because the plaintiff produced no
evidence regarding the material factual allegations set forth
in certain of the defendant’s purported affirmative defenses,
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the Supreme Court concluded that the plaintiff failed to meet
its initial burden as the party moving for summary judgment
to produce evidence which, if uncontroverted, would entitle
it to judgment as a matter of law. Accordingly, the court held
that the trial court erred in granting summary judgment in the
plaintiff’s favor.
[9] In the present case, however, Scheer did not plead
material factual allegations in his answer when asserting his
affirmative defenses as did the defendant in City State Bank
v. Holstine, supra; rather, Scheer alleged general legal con-
clusions. His generalized defenses of fraud and usury are
not material factual allegations, and although we recognize
that Scheer was not required to plead specific facts because
Nebraska is no longer a code-pleading jurisdiction as it was
at the time City State Bank v. Holstine, supra, was decided, it
remained Scheer’s burden to produce material facts in dispute
to overcome American Express’ motion. By electing not to
offer any evidence at the hearing on the motion for summary
judgment, Scheer failed to prove the existence of a genuine
issue of material fact and the district court properly granted
judgment in favor of American Express. Scheer’s assigned
error also asserts that the district court erred in denying his
motion for reconsideration; however, Scheer does not argue
this assignment. Errors that are assigned but not argued will
not be addressed by an appellate court. Linscott v. Shasteen,
288 Neb. 276, 847 N.W.2d 283 (2014).
CONCLUSION
We conclude that Scheer failed to establish the existence
of a genuine issue of material fact once American Express
presented a prima facie case. We therefore affirm the decision
of the district court granting summary judgment in favor of
American Express.
A ffirmed.