115 So. 3d 704
La. Ct. App.2013Background
- Capital One Bank sued Thompson on March 4, 2011 for balance of $7,722.23 plus accruing interest and costs.
- Thompson answered and alleged the card was allowed to exceed credit limit without her authorization.
- Plaintiff moved for summary judgment on April 2, 2012 with two affidavits (Zalewski and White) showing different owed amounts.
- Thompson challenged hearsay, lack of accounting documents, and that Zalewski’s affidavit was stale and White’s lacked personal knowledge.
- MSJ hearing was set for June 20, 2012, continued; supplemental opposition filed August 2, 2012; MSJ granted August 6, 2012.
- Appellate court reversed, finding genuine issues of material fact and unreliable/inconsistent affidavits precluded summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there are genuine issues of material fact precluding summary judgment | Plaintiff contends affidavits and records establish balance. | Thompson argues affidavits are inconsistent and unauthenticated; records incomplete. | Reversed; genuine issues of material fact exist. |
| Admissibility and reliability of Zalewski and White affidavits | Affidavits verify account and balance. | Affidavits are hearsay, stale, or lack personal knowledge. | Unreliable; summary judgment improper. |
| Existence of a detailed statement of mutual demands | Affidavits support the debt with account details. | No complete, admissible statement of debits and credits. | Material fact question; MSJ inappropriate. |
Key Cases Cited
- Samaha v. Rau, 977 So.2d 880 (La. 2008) (summary judgment standard and de novo review)
- Amos v. Crouch, 71 So.3d 1053 (La. App. 2d Cir. 2011) (open record; burden on movant; genuine issue of material fact)
- CACV of Colorado, L.L.C. v. Spiehler, 11 So.3d 673 (La. App. 3d Cir. 2009) (prima facie case on open account; burden shift)
- Sears v. Richardson, 759 So.2d 190 (La. App. 2d Cir. 2000) (affidavit of correctness; hearsay concerns)
- Jenkins v. Willis Knighton Medical Center, 986 So.2d 247 (La. App. 2d Cir. 2008) (summary judgment standards and evidence requirements)