Harley J. Wise, II v. Discover Bank

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
FILED
Feb 29 2012, 9:39 am
collateral estoppel, or the law of the
case. CLERK
of the supreme court,
court of appeals and
tax court

APPELLANT PRO SE: ATTORNEY FOR APPELLEE:

HARLEY J. WISE, II THOMAS R. KENDALL
Demotte, Indiana Weltman Weinberg & Reis Co., L.P.A.
Cincinnati, Ohio

IN THE
COURT OF APPEALS OF INDIANA

HARLEY J. WISE, II, )
)
Appellant-Defendant, )
)
vs. ) No. 37A03-1108-CC-347
)
DISCOVER BANK, )
)
Appellee-Plaintiff. )

APPEAL FROM THE JASPER SUPERIOR COURT
The Honorable James R. Ahler, Judge
Cause No. 37D01-1005-CC-218

February 29, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge
 STATEMENT OF THE CASE

Harley J. Wise II appeals the small claims court’s grant of Discover Bank’s

motion for summary judgment.

We affirm.

ISSUES

1. Whether the small claims court erred in granting summary
judgment upon the designated evidence.

2. Whether the small claims court erred in not issuing special
findings in support of its grant of summary judgment.

FACTS

On May 18, 2010, Discover Bank filed a complaint alleging that Wise was liable

to Discover Bank under a credit card account agreement. The complaint alleged that

Wise owed the principal amount of $7,147.21. Wise denied the allegation and raised a

counterclaim that Discover Bank committed fraud, mail fraud, and extortion in seeking to

collect a debt that he did not owe.

On January 24, 2011, Discover Bank filed a motion for summary judgment, in

which it claimed that there was no genuine issue of material fact and that Discover Bank

was entitled to judgment as a matter of law on the issue of the debt owed. In support of

its motion, Discover Bank designated the affidavit of Aimee Fabbri, a legal placement

account manager for DFS Services LLC, the servicing affiliate for Discover Bank.

Fabbri averred that Wise applied for a Discover Card account, and an account, governed

by the “Cardmember Agreement,” was opened on December 30, 2005. Fabbri also

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averred that Wise used the account, thereby accruing a balance of $7,147.21. Fabbri

further averred that Wise was in default because he failed to make the required minimum

monthly payments on the account. Discover Bank also designated a check by Wise that

showed a payment on the account. The motion for summary judgment also stated that the

designated evidence showed there was no genuine issue of material fact pertaining to

Wise’s counterclaim and that Discover Bank was entitled to judgment as a matter of law.

Wise, who was acting pro se, responded to the motion for summary judgment with

numerous unsupported arguments.1 Wise designated his own affidavit where he denies

that he had a Discover Bank account.

The small claims court held a hearing on the summary judgment motion. After

hearing the arguments of the parties and examining the designated evidence, the small

claims court granted Discover Bank’s motion for summary judgment on both Discover

Bank’s claim and Wise’s counterclaim.

DECISION

1. Propriety of Summary Judgment

Summary judgment is appropriate if there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. City of Terre Haute v.

Pairsh, 883 N.E.2d 1203, 1206 (Ind. Ct. App. 2008), trans. denied. The moving party
1
Wise cites Haines v. Kerner, 404 U.S. 519 (1972) for the proposition that he should be held to a lesser
standard as a pro se litigant. We note that the standard alluded to was made in the context of determining
whether a pro se complaint would survive a motion to dismiss. Id. at 520. The Court simply held that a
pro see litigant’s allegations need not be as formal as the pleadings drafted by lawyers. Id. The Court’s
declaration about the formality of pleadings has no application to this case. Indeed, it is well-settled in
Indiana that pro se litigants “are held to the same standards as are licensed lawyers.” Goossens v.
Goossens, 829 N.E.2d 36, 43 (Ind. Ct. App. 2005).

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bears the burden of showing that there are no genuine issues of material fact and that it is

entitled to judgment as a matter of law. Id. A fact is material for the purposes of

summary judgment if it facilitates the resolution of the issues involved. Ozinga Transp.

Systems, Inc. v. Michigan Ash Sales, Inc., 676 N.E.2d 379, 384 (Ind. Ct. App. 1997),

trans. denied. Therefore, “despite conflicting facts and inferences on some elements of a

claim, summary judgment may be proper where there is no dispute or conflict regarding a

fact that is dispositive of the claim.” Blackwell v. Dykes Funeral Homes, Inc., 771

N.E.2d 692, 695 (Ind. Ct. App. 2002), trans. denied. We review only the designated

evidentiary material in the record, construing that evidence liberally in favor of the

nonmoving party so as not to deny that party its day in court. Myers v. Irving Materials,

780 N.E.2d 1226, 1228 (Ind. Ct. App. 2003).

Wise claims that Discover Bank is not entitled to summary judgment because it

did not provide evidence of a signed contract. Wise is correct that Discover Bank did not

designate as evidence a document signed by Wise; however, Discover Bank did designate

other evidence to show Wise’s agreement to be liable for charges incurred on the

account. See Meyer v. Nat’l City Bank, 903 N.E.2d 974, 976 (Ind. Ct. App. 2002).

In Meyer, we affirmed the entry of summary judgment in a credit card suit, even

though National City Bank did not produce a card agreement signed by Meyer. We

“note[d] with approval the determinations of other states that credit card agreements are

contracts, and the issuance and use of a credit card creates a legally binding agreement.”

Id. National City Bank designated the card agreement and twelve account statements in

support of its summary judgment motion. Id. Our affirmance of summary judgment on

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these facts recognized that liability on a credit card account is based on use of the account

and the consequent acceptance of the card agreement, rather than the Defendant’s

signature.

Here, Discover Bank designated a copy of the “Cardmember Agreement,” which

provides, under the caption “Your Acceptance of this Agreement,” that “[t]he use of your

Account or a Card by you or an Authorized User, or your failure to cancel your Account

within 30 days after receiving a Card, means you accept the Agreement . . . .” (App. 12).

The Cardmember Agreement obligated the cardholder to repay the balance due, including

interest and fees. (App. 13-14). Discover Bank also designated account statements

reflecting accrual of the entire $7,147.21 balance. (App. 57-58). In addition, Discover

Bank designated a personal check, drawn upon Wise’s checking account, corresponding

to the January 20, 2007 payment received on the subject account. (App. 79). The

designated evidence clearly reveals that Wise used the subject account, thereby accepting

the terms of the Cardmember Agreement. The evidence also reveals that Wise owed

$7,147.21 on the account.

Although Wise makes a general argument about the evidence supporting “a

judgment on the evidence,” Wise’s Br. at 12, he does not direct this court to any

designated evidence that establishes a genuine issue of material fact that would defeat

Discover Bank’s summary judgment motion. In general, Wise’s response to Discover

Bank’s motion was directed toward non-material issues, such as the ethics of the credit

card industry as a whole. Wise did file an affidavit which contains a denial of liability;

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however, he designated no evidence to support the denial.2 In opposing a motion for

summary judgment, where, as here, the moving party has established a prima facie case,

an adverse party may not rest upon “the mere allegations or denials of his pleading, but

his response, by affidavits or as otherwise provided in this rule, must set forth specific

facts showing that there is a genuine issue for trial. If he does not so respond, summary

judgment, if appropriate, shall be rendered against him.” Ind. Trial Rule 56(E).

The trial court did not err in granting Discover Bank’s summary judgment motion,

as the designated evidence shows that there is no genuine issue of material fact and that

Discover Bank is entitled to judgment as a matter of law on the issue of Wise’s liability.

Furthermore, the trial court did not err in granting summary judgment on Wise’s

counterclaim that Discover Bank committed fraud, mail fraud, and extortion because

Wise designated no evidence to support these claims.

2. Propriety of the Court’s Findings

Wise contends that the small claims court erred in not issuing special findings in

support of its grant of summary judgment. Summary judgment motions are covered by

Ind. Trial Rule 56. Ind. Trial Rule 52(A) specifically states that special findings are

unnecessary on decisions pertaining to Trial Rule 56 motions. Therefore, the trial court

did not err in declining to make special findings.

Furthermore, such findings are not required in small claims actions:

2
Wise contends that the trial court based its grant of Discover Bank’s summary judgment motion simply
on the arguments of its attorney. Our review of the transcript discloses that the trial court listened to
Wise’s and Discover Bank’s arguments. However, the small claims court clearly demonstrated that while
it was informed by the arguments, its decision was based upon the designated evidence and the applicable
law.
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 Small claims courts and the small claims divisions of general jurisdiction
courts are intended to be places where justice may be dispensed
inexpensively and promptly. Accordingly, small claims court is intended to
be informal. Therefore, the portion of Ind. Trial Rule 52 which prescribes a
method for obtaining a formalized ruling with special findings from the
trial court has no application in small claims court. Thus, a challenge that a
small claims court judgment fails to satisfy the special findings requirement
of T.R. 52 is not available in an appeal from a judgment entered in small
claims court. Parties who seek more formal litigation and wish to obtain a
particularized statement for examination on appeal as provided by T.R. 52
must file their claims in (or transfer their cases to) the plenary docket.

Flint v. Hopkins, 720 N.E.2d 1230, 1231-32 (Ind. Ct. App. 1999) (citations omitted).

CONCLUSION

The small claims court did not err in granting summary judgment on both

Discover Bank’s claim and Wise’s counterclaim. Furthermore, the small claims court

was not required to make special findings.

Affirmed.

BAKER, J., and BAILEY, J., concur.

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