DISCOVER BANK VS. SEA (DOROTHY)
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RENDERED: APRIL 9, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000515-MR
DISCOVER BANK
v.
APPELLANT
APPEAL FROM CLARK CIRCUIT COURT
HONORABLE GARY D. PAYNE, JUDGE
ACTION NO. 08-CI-00261
DOROTHY SEA
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT AND STUMBO, JUDGES; WHITE,1 SENIOR JUDGE.
STUMBO, JUDGE: Discover Bank appeals from an Order of the Clark Circuit
Court denying its motion to vacate a Summary Judgment in favor of Dorothy Sea.
Discover Bank contends that the circuit court erred in failing to allow the Bank to
resurrect the action and tender additional proof after Summary Judgment was
rendered. For the reasons stated below, we affirm the Order on appeal.
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Senior Judge Edwin M. White sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
On April 4, 2008, Discover Bank filed the instant action to recover
damages allegedly arising from Sea’s usage of a Discover Bank credit card. The
Bank alleged that Sea was issued a consumer credit card by the Bank, that she
incurred debt to the Bank by using the card, and that she fell behind on the
payments and defaulted on her obligation to make payments on the card. Sea filed
a general denial of the allegations on April 28, 2008, and shortly thereafter filed a
Request for Production of Documents and Interrogatories. Sea sought from
Discover Bank the signed contract between herself and the Bank, and an
accounting of all charges and credits.
The Bank responded by producing internal documents related to the
account, but did not provide a signed contract or accounting of the alleged
transactions. The Bank stated in its response that the account application was not
available, but would be provided if it became available.
On July 2, 2008, Sea filed a Motion for Summary Judgment and
Motion to Compel the Bank’s response to her discovery motion. On September 4,
2008, the Clark Circuit Court sustained the Motion to Compel, granting Discover
Bank 30 days to provide the requested documents. The Court passed the Motion
for Summary Judgment for later adjudication.
Discover Bank mailed a Supplemental Response to Sea’s counsel on
September 29, 2008. The response failed to include a copy of the signed
agreement between the Bank and Sea, and again stated that it was unavailable but
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would be provided at a later date. The Bank filed a second Supplemental Response
on October 9, 2008.
On November 6, 2008, Sea’s Motion for Summary Judgment was
heard before the Clark Circuit Court. The motion was sustained by way of an
Order rendered on November 14, 2008. The Bank responded by filing a CR 59
Motion to Vacate Judgment on November 26, 2008. The motion was denied, and
this appeal followed.
Discover Bank now argues that the Clark Circuit Court erred in
sustaining Sea’s motion for Summary Judgment. It maintains that it presented
affirmative evidence demonstrating that genuine issues of material fact existed
regarding liability and damages. As such, it contends that Summary Judgment was
improperly rendered. The Bank contends that its action to recover damages arising
from Sea’s alleged default on the credit card debt is at its core an action in contract,
and that it presented sufficient documentary evidence to rebut Sea’s motion for
Summary Judgment. In support of this claim, the Bank first directs our attention to
the Complaint, in which it alleged that Sea’s credit card account through Discover
Bank had a principal balance of $10,094.46 plus interest accruing at the rate of
19.800% per annum. Further, in response to Sea’s Motion for Summary Judgment,
the Bank produced an affidavit of an employee of the Bank’s servicing agent,
which set out the alleged account number, two transactions, the interest rate and
purported balance, and related information. The Bank also notes that Sea did not
attach any affidavit to her Motion for Summary Judgment. It goes on to maintain
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that after Summary Judgment was rendered, it located an executed application
bearing Sea’s signature, and argues that even if it did not properly comply with
Sea’s discovery request, dismissal was not warranted. In response, Sea maintains
that Summary Judgment was proper because the Bank failed to produce any
evidence whatsoever that a contract existed, making it impossible for the Bank to
prevail at trial.
Summary judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” CR 56.03. “The record must be viewed in a light most favorable to the party
opposing the motion for summary judgment and all doubts are to be resolved in his
favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.
1991). “Even though a trial court may believe the party opposing the motion may
not succeed at trial, it should not render a summary judgment if there is any issue
of material fact.” Id. Finally, “[t]he standard of review on appeal of a summary
judgment is whether the trial court correctly found that there were no genuine
issues as to any material fact and that the moving party was entitled to judgment as
a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
When viewing the record in a light most favorable to Discover Bank
and resolving all doubts in its favor, we find no basis for disturbing the Summary
Judgment on appeal. Sea properly argues that in order to prevail on a breach of
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contract claim, the plaintiff must demonstrate the existence of a valid contract, a
breach by the opposing party, and resultant damages. Barnette v. Mercy Health
Partners-Lourdes, Inc., 233 S.W.3d 723 (Ky. App. 2007). Additionally, the terms
of a contract must be complete and sufficiently definite for the Court to determine
damages. Mitts & Pettit, Inc. v. Burger Brewing Co., 317 S.W.2d 865 (Ky. 1958).
Discover Bank did not produce a credit card application bearing Sea’s signature,
nor any proof that a contract existed between the Bank and Sea, and upon which a
claim for damages could be based. While the Bank did produce partial internal
documentation, the Clark Circuit Court implicitly determined via its entry of
Summary Judgment that this internal documentation, taken alone, would not
sustain the Bank’s action if the matter went to trial. At trial, the burden would rest
with Discover Bank to demonstrate the existence of a valid contract and to show
damages arising from Sea’s breach thereof. Barnette, supra. The Bank was
unable to produce any proof to support a breach of contract claim in response
either to Sea’s discovery request or her Summary Judgment motion. As such,
Summary Judgment in favor of Sea was proper.
The Bank also contends that even if it failed to comply with Sea’s
discovery motion, it was never warned that its failure to comply would result in the
dismissal of its action. This claim is refuted by the record and the law. Sea’s
Summary Judgment motion placed the Bank on notice that its action could be
terminated if the court found no genuine issue of material fact and that Sea was
entitled to a judgment as a matter of law. The Bank failed to offer proof in support
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of its claim for damages, and accordingly Summary Judgment was properly
rendered.
For the foregoing reasons, we affirm the Order of the Clark Circuit
Court sustaining Sea’s Motion for Summary Judgment.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jill A. Keck
Cincinnati, Ohio
David G. Perdue
Winchester, Kentucky
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