First National Bank Of Omaha v. David T. Gilchrist
47474-3
| Wash. Ct. App. | Oct 18, 2016Background
- FNBO sued Gilchrist for $4,302.44, alleging he opened and used a credit card account (ending 9716) and defaulted on payments. FNBO sought recovery and attorney fees.
- Gilchrist moved to dismiss under CR 12(b)(1) and CR 12(b)(6), arguing lack of subject matter jurisdiction and that FNBO failed to attach a written card agreement.
- FNBO produced declarations from its collections manager/records custodian (Mayo) and monthly billing statements (May 2012–Apr 2013) showing charges, payments (including online payments), mailing addresses, and account activity.
- Gilchrist responded that he demanded validation and produced credit reports and correspondence but did not deny the charges, payments, or that the account belonged to him in his affidavit; he also failed to identify specific disputes to the billing statements.
- The superior court denied the motion to dismiss, granted FNBO summary judgment on liability and damages ($4,302.44) but reserved the issue of applicable contract terms, and awarded FNBO $3,600 in attorney fees; FNBO sought appellate fees as prevailing party.
Issues
| Issue | Plaintiff's Argument (Gilchrist) | Defendant's Argument (FNBO) | Held |
|---|---|---|---|
| Subject-matter jurisdiction | Complaint required attached written credit agreement; absence deprives court of jurisdiction | Jurisdiction turns on type of controversy and amount in controversy (>$300); pleadings allege debt >$300 | Court had jurisdiction; dismissal under CR 12(b)(1) denied |
| Failure to state a claim (CR 12(b)(6)) | FNBO failed to state claim without written card agreement attached | Credit card agreements need not be in writing per RCW 19.36.120; complaint alleges use, debt, default | Complaint states a claim; dismissal denied |
| Summary judgment—assent and account ownership | Bridges requires evidence of assent to written card agreement; FNBO failed to show signed agreement or specific acknowledgment | Assent can be shown by conduct (detailed statements, online payments, mailing, admissions); FNBO presented billing statements and custodial declaration | Summary judgment proper—FNBO met burden; Gilchrist failed to raise specific factual rebuttal |
| Attorney fees on appeal | Fees improper because summary judgment was erroneous | FNBO prevailed below and on appeal; RCW 4.84.250/.260/.290 authorize fees for prevailing party | FNBO entitled to trial and appellate attorney fees as prevailing party |
Key Cases Cited
- Dougherty v. Dep’t of Labor & Indus., 150 Wn.2d 310 (jurisdictional inquiry focuses on type of controversy)
- Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57 (summary judgment: one reasonable conclusion supports disposal)
- Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d 157 (nonmoving party must set forth specific facts to rebut moving party)
- Discover Bank v. Bridges, 154 Wn. App. 722 (insufficient proof of assent and detailed usage can defeat summary judgment)
- Am. Express Centurion Bank v. Stratman, 172 Wn. App. 667 (assent may be shown by conduct/use of card)
- Citibank S. Dakota N.A. v. Ryan, 160 Wn. App. 286 (types of admissible evidence showing cardholder acknowledgement and usage)