Discover Bank v. Lemieux

September 11 2012
DA 11-0636
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 204N
DISCOVER BANK,
Plaintiff and Appellee,
v.
DAWN C. LEMIEUX,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV 10-1045C
Honorable John C. Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Dawn C. Lemieux (self-represented), Manhattan, Montana
For Appellee:
Charles Dendy, Rodenburg Law Firm, Bismarck, North Dakota
Submitted on Briefs: July 18, 2012
Decided: September 11, 2012
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Dawn C. Lemieux (Lemieux) appeals pro se from a grant of summary judgment
entered by the Eighteenth Judicial District Court, Gallatin County. We affirm.
¶3 Lemieux applied for a credit card account with Discover Bank (Discover) in April
2006 and was issued a credit card in June 2006. Lemieux thereafter accumulated an
unpaid account balance of $4,021.71 as of March 26, 2010. This balance remains unpaid.
¶4 Discover filed a collection action on October 4, 2010, in Gallatin County District
Court demanding judgment against Lemieux for the outstanding account balance of
$4,021.71, interest accrued “at the legal rate” from March 26, 2010, until the date of
judgment, and court costs. Lemieux’s answer to the complaint denied signing a credit
card application, asserted that Lemieux had attempted to tender a “financial instrument”
in the amount of $3,785.40 to Discover, and denied the presence of an account stated.
Lemieux’s answer also asserted what it termed “counter claim” against Discover, alleging
a lack of standing, requesting production of information, and alleging that Discover failed
to respond to an affidavit sent by Lemieux. The court dismissed Lemieux’s
counterclaims for failing to state any claim upon which relief could be granted.
¶5 On July 20, 2011, Lemieux filed a motion to dismiss based on Discover’s alleged
failure to respond to a debt validation request, presumably under the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692 et seq. Discover opposed the motion, claiming that the
FDCPA did not apply because Discover was the original creditor seeking collection in its
own name. Discover then moved for summary judgment on August 22, 2011, relying on
the affidavit of an account manager to establish the amount Lemieux owed. Lemieux
responded to the motion for summary judgment with a motion “For a More Definite
Statement,” seeking “a full tracing and audit” of the credit account. Lemieux’s motion
did not offer any evidence seeking to prove that issues of material fact concerning the
unpaid balance remained. The District Court denied Lemieux’s motion to dismiss and
motion for a more definite statement on September 26, 2011, and granted summary
judgment for Discover for the unpaid balance of $4,021.71, interest of $561.94, and costs
of $224.00, for a total judgment of $4,807.65.
¶6 We review a district court’s grant of summary judgment de novo, using the same
M. R. Civ. P. 56 criteria used by the district court. Styren Farms, Inc. v. Roos, 2011 MT
299, ¶ 10, 363 Mont. 41, 265 P.3d 1230. Summary judgment is appropriate where “the
pleadings, the discovery and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” M. R. Civ. P. 56(c)(3). The moving party must show that
no genuine issues of material fact exist. Williams v. Plum Creek Timber Co., 2011 MT
271, ¶ 14, 362 Mont. 368, 264 P.3d 1090. The burden then shifts to the non-moving
party “to prove by more than mere denial and speculation that a genuine issue of material
fact does exist.” Williams, ¶ 14 (citing Roy v. Blackfoot Telephone Co-op, 2004 MT 316,
¶ 11, 324 Mont. 30, 101 P.3d 301). The evidence must be viewed in the light most
favorable to the non-moving party, and all reasonable inferences must be drawn in favor
of the non-moving party. Williams, ¶ 15 (citing Prindel v. Ravalli County, 2006 MT 62,
¶ 19, 331 Mont. 338, 133 P. 3d 165). We further review a question of law to determine if
the district court’s legal conclusions are correct. Palmer v. Bahm, 2006 MT 29, ¶ 11, 331
Mont. 105, 128 P.3d 1031. Additionally, we generally afford pro se litigants a certain
amount of latitude. Greenup v. Russell, 2000 MT 154, ¶ 15, 300 Mont. 136, 3 P.3d 124.
¶7 On appeal Lemieux asserts the motion for summary judgment was not supported
by evidence, and that a law clerk for Judge Brown improperly formed an agency
relationship with Discover’s counsel. First, Discover produced an account manager’s
affidavit in support of the motion for summary judgment. The affidavit contained a
sworn copy of Lemieux’s monthly credit card statements, which reflected an unpaid
balance of $4,021.71 as of March 2010. Such affidavits are proper means of supporting
motions for summary judgment. M. R. Civ. P. 56(c)(3). In response, Lemieux did not
produce any evidence disputing the veracity of the affidavit, the monthly statements, or
the remaining account balance. Even if Lemieux’s motion for a more definite statement
is viewed as a proper reply to Discover’s motion for summary judgment, Lemieux’s
assertions concerning the account balance do not amount to more than mere denial and
speculation. Williams, ¶ 14. Similarly, Lemieux’s arguments on appeal primarily focus
on a payment protection plan she purchased from Discover and do not seek to prove the
existence of an issue of material fact by way of anything more than mere denial.
Lemieux’s unsupported assertions do not carry her burden as the non-moving party
seeking to avoid summary judgment.
¶8 Moreover, the law clerk’s actions during the scheduling conference were not
improper. No ex parte contact occurred between the law clerk and the opposing counsel
as both parties, including Lemieux, were present. The law clerk’s signature on behalf of
the Discover’s counsel did not establish the sort of improper agency relationship, either
ostensible or actual, that Lemieux asserts. See § 28-10-103, MCA (2011); Semenza v.
Kniss, 2008 MT 238, ¶ 19, 344 Mont. 427, 189 P.3d 1188.
¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(d), of
our Internal Operating Rules, which provides for noncitable memorandum opinions. The
issues in this case are legal and are controlled by settled Montana law, which the District
Court correctly interpreted.
¶10 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS
/S/ BETH BAKER