Discover Bank v. Danner

Cite as 2013 Ark. App. 540ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-12-816
Opinion Delivered October 2, 2013
DISCOVER BANK
APPELLANT APPEAL FROM THE CLARK
COUNTY CIRCUIT COURT
[NO. CV-2005-112]
V.
HONORABLE ROBERT
McCALLUM, JUDGE
BETSY R. DANNER
APPELLEE REVERSED AND REMANDED
JOHN MAUZY PITTMAN, Judge
This is an appeal after remand of an action arising out of a disputed credit-card debt.
The appellant is a credit-card company seeking collection of credit-card debt from appellee.
In the first appeal, we held that the trial court erred in shifting the burden to the debtor to
show that the charges were authorized. We said:
Here, there was no evidence to verify [Discover Bank’s] statements of accounts. It
would, for example, have been possible to prove that the “Discover Card
Telemarketing Sale” by which the account was opened was in fact made to appellant’s
home, or that appellant had executed a credit application, a cardholder agreement, or
sales slips in connection with the disputed account so as to identify appellant as the
cardholder and the charges as authorized.
Danner v. Discover Bank, 99 Ark. App. 71, 257 S.W.3d 113 (2007).
The facts adduced at trial on remand were very different. First, appellee stipulated that
the credit card was in fact her card, that she had used it for a substantial period of time, and
that she had made payments on that account. Second, appellant presented significant
Cite as 2013 Ark. App. 540evidence to show that at least some of the disputed charges had been made by appellee,
including an affidavit from a California merchant saying that a machine costing over $9,000
had been purchased for shipment, that $6,000 of the purchase price was charged to appellee’s
Discover card, and that the machine was shipped to appellee at her home address. Despite
acknowledging this evidence, the trial court nevertheless found that appellant failed to meet
its burden of proof, ruling that:
However, the Oxyhealth, LLC documents do not reflect a signature or other written
authorization by [appellee]. The documents also do not constitute an executed “sales
slip” by [appellee]. [Appellant] also did not present a signed receipt from UPS
verifying the delivery of the hyperbaric chamber that was allegedly delivered to
[appellee’s] home. [Appellant] did not present an executed credit application or
cardholder agreement executed by [appellee].
....
[Appellant] contends that it is impractical and unfair for them to require
merchants who accept payment through Discover Card to keep signed sales receipts
or signed sales slips just to prove a disputed case by a disgruntled customer. However,
I disagree with this position based upon the Court of Appeals decision in this case and the
reasoning of the Crestar case.
(Emphasis added.) The trial court clearly believed that the debt could be proved only by
written documents signed by appellee. We did not so hold in the prior appeal.
Furthermore, the court of appeals has since had occasion to further explain our initial
decision and has expressly rejected the notion that the sole means of proving authorized
charges was by signed sales slips or receipts. Cavalry SPV, LLC v. Anderson, 99 Ark. App.
309, 260 S.W.3d 331 (2007).
Unlike the facts presented in the prior appeal, it is clear here that the credit card was
in fact issued to appellee and that the debt appellant seeks to collect is based on charges
2
Cite as 2013 Ark. App. 540alleged to have been made to her credit card. Furthermore, there is significant and persuasive
evidence to show that appellee did in fact authorize at least some of the charges made in this
case. But for its error of law requiring a signed sales receipt in every case, the trial court
could have found differently. We therefore again reverse and remand for further proceedings
consistent with this opinion.
Reversed and remanded.
WALMSLEY and VAUGHT, JJ., agree.
Allen & Withrow, by: Teaven Stamatis, for appellant.
Scholl Law Firm, P.L.L.C., by: Scott A. Scholl, for appellee.
3