134 So. 3d 626
La. Ct. App.2013Background
- Unifund sued Perkins for an open-account balance allegedly $4,829.60 plus interest and fees.
- Perkins answered denying knowledge of the account or authorization for opening the credit card.
- Unifund moved for summary judgment with three exhibits: Kenney affidavit, an unverified billing statement, and a demand letter.
- Perkins responded with an affidavit denying knowledge of the account and its opening in her name; she challenged the evidence’s competence.
- The trial court granted summary judgment; on appeal, the court reversed and remanded, striking supplementary record documents and finding the evidence insufficient to prove the balance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper given Perkins’ affidavit disputing the debt. | Unifund asserts no genuine facts dispute; debt attached to account statements. | Perkins argues material facts dispute; account ownership not proven. | Not proper; summary judgment reversed. |
| Whether Kenney’s affidavit is competent summary-judgment evidence. | Kenney’s affidavit supports the balance and ownership. | Affidavit lacks personal knowledge and foundation. | Affidavit not competent summary-judgment evidence. |
| Whether unsworn documents attached to the motion can support summary judgment. | Billing statement and demand letter can prove amount. | Uns sworn/unverified documents cannot be used for summary judgment. | Not competent to prove the amount; struck. |
| Whether the record could be supplemented with documents not admitted in the trial court. | Supplementation necessary to reflect entire record. | Supplementation improper absent admissible evidence. | Record supplementation struck; record may not include those exhibits. |
Key Cases Cited
- Williams Law Firm v. Board of Supervisors of Louisiana State University, 878 So.2d 557 (La.App. 1 Cir. 2004) (correction of appellate record; cannot include evidence not admitted)
- Sanches v. Capital One Bank (USA), NA, 119 So.3d 870 (La.App. 4th Cir. 2013) (summary judgment in credit-card debt case requires proper proof of account)
- Hat’s Equipment, Inc. v. WHM, LLC, 92 So.3d 1072 (La.App. 1 Cir. 2012) (prima facie case; burden shift in open-account suits)
- Benoit v. Burger Chef Systems of Lafayette, Inc., 257 So.2d 439 (La.App. 1 Cir. 1972) (personal knowledge requirement for affidavits)
- Bunge North America, Inc. v. Board of Commerce & Industry, 991 So.2d 511 (La.App. 1 Cir. 2008) (unsworn documents not evidence in summary judgment)