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Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

AMERICAN EXPRESS CENTURION BANK v. SCHEER

Cite as 25 Neb. App. 784

American Express Centurio

appellee, v. R.D. Scheer, also

as Ronald D. Scheer, appe

___ N.W.2d ___

Filed April 17, 2018. No. A-17-219.

1. Summary Judgment: Appeal and Error. An appellate court will affirm 

a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts 

or as to the ultimate inferences that may be drawn from those facts and 

that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment: Proof. A party moving for summary judgment 

makes a prima facie case for summary judgment by producing enough 

evidence to demonstrate that the movant is entitled to judgment if the 

evidence were uncontroverted at trial.

3. ____: ____. Once the party moving for summary judgment makes a 

prima facie case, the burden shifts to the party opposing the motion to 

produce admissible contradictory evidence showing the existence of a 

material issue of fact that prevents judgment as a matter of law.

4. Debtors and Creditors: Words and Phrases. An account stated is an 

agreement between persons who have had previous dealings determining 

the amount due by reason of such transactions.

5. Actions: Debtors and Creditors. An account stated creates a new cause 

of action in which pleading and proof of the original items of indebtedness are unnecessary.

6. Debtors and Creditors. The creditor in a valid account stated may 

recover thereon without pleading and proving the original items of the 

indebtedness.

7. Debtors and Creditors: Proof. The failure to object to an account 

stated is admissible in evidence as tending to prove an acknowledgment 

of its correctness; proof of an express promise to pay is not required.

8. Debtors and Creditors. An account stated is not subject to the usual 

defenses attacking the original items of indebtedness, but is subject to 

the defenses of usury, fraud, and mistake.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

04/24/2018 01:08 AM CDT
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Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

AMERICAN EXPRESS CENTURION BANK v. SCHEER

Cite as 25 Neb. App. 784

9. Appeal and Error. Errors that are assigned but not argued will not be 

addressed by an appellate court.

Appeal from the District Court for Douglas County: Timoth

P. Burns, Judge. Affirm

Hugh I. Abrahamson, of Abrahamson Law Office, for 

appellant.

Sara E. Bauer and Shawn D. Flint, of Gurstel Law Firm, 

P.C., for appellee.

Moore, Chief Judge, and Riedmann, Judge, and In

Judge, Retired.

Riedmann, Jud

INTRODUCTION

R.D. Scheer, also known as Ronald D. Scheer, appeals from 

an order of the district court for Douglas County granting summary judgment in favor of American Express Centurion Bank 

(American Express) and ordering Scheer to pay American 

Express the sum of $72,197.11. Because no genuine issue of 

material fact exists as to an account stated, we affirm.

BACKGROUND

American Express filed a complaint against Scheer alleging that it had issued three credit card accounts to Scheer and 

extended credit to him. According to the complaint, Scheer 

used the credit cards to make purchases but failed to pay the 

amounts owed, leaving balances due totaling $72,197.11. Each 

of the first three counts sought recovery for breach of the credit 

card contracts, and the fourth count sought recovery on an 

account stated. Scheer filed an answer and asserted 17 affirmative defenses, the majority of which were directed to the breach 

of contract claim. As to the account stated, Scheer asserted 

that he was charged a usurious interest rate, the balances were 

inaccurate, American Express failed to attach an itemization 

of the accounts from their start date, and American Express 

defrauded him.
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AMERICAN EXPRESS CENTURION BANK v. SCHEER

Cite as 25 Neb. App. 784

American Express then filed a motion for summary judgment. At the hearing on the motion, American Express offered 

into evidence three affidavits establishing the history and the 

outstanding balance for each credit card account. Each affidavit 

stated that American Express mailed monthly billing statements 

to Scheer and that he never asserted “a valid unresolved objection” to the balance shown as due and owing. The final billing 

statement for each account was attached to the affidavits. The 

affidavits and attachments were received into evidence without 

objection from Scheer. Scheer did not offer any evidence at 

the hearing.

In a subsequent written order, the district court determined 

that American Express made a prima facie case for summary 

judgment and that Scheer produced no contrary evidence showing the existence of a material issue of fact. Therefore, the court 

granted American Express’ motion for summary judgment and 

entered judgment against Scheer in the amount of $72,197.11. 

Scheer subsequently filed a motion for reconsideration, which 

was denied. Scheer now appeals to this court.

ASSIGNMENTS OF ERROR

Scheer assigns that the district court erred in granting 

American Express’ motion for summary judgment and in denying his motion for reconsideration.

STANDARD OF REVIEW

[1] An appellate court will affirm a lower court’s grant of 

summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts 

or as to the ultimate inferences that may be drawn from those 

facts and that the moving party is entitled to judgment as a 

matter of law. Sulu v. Magana, 293 Neb. 148, 879 N.W.2d 

674 (2016).

ANALYSIS

Scheer argues that the district court erred in granting 

American Express’ motion for summary judgment because 
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AMERICAN EXPRESS CENTURION BANK v. SCHEER

Cite as 25 Neb. App. 784

“there are two very cogent fact issues” that should have precluded summary judgment. Brief for appellant at 5. It appears 

both issues relate to the amount American Express claims is 

due. Scheer contends that questions regarding the underlying 

purchases, amounts paid by him, and the amount of interest charged need to be resolved before awarding judgment 

to American Express. He also asserts the amount American 

Express is seeking is not its actual damages because it may 

have taken a “tax write off” and therefore should be prevented 

from recovering more than its actual damages. Id. at 8. For 

the reasons set forth below, we conclude that the pleadings 

and the evidence presented at the summary judgment hearing show that no genuine issue of material fact exists as to 

American Express’ entitlement to judgment on its account 

stated claim.

Neb. Rev. Stat. § 25-1332 (Reissue 2016) provides in part 

that a motion for summary judgment shall be granted “if the 

pleadings and the evidence admitted at the hearing show that 

there is no genuine dispute as to any material fact and that the 

moving party is entitled to a judgment as a matter of law.”

[2,3] A party moving for summary judgment makes a prima 

facie case for summary judgment by producing enough evidence to demonstrate that the movant is entitled to judgment 

if the evidence were uncontroverted at trial. Sulu v. Magana, 

supra. Once the moving party makes a prima facie case, the 

burden shifts to the party opposing the motion to produce 

admissible contradictory evidence showing the existence of 

a material issue of fact that prevents judgment as a matter of 

law. Id.

In its claim for an account stated, American Express 

alleged that it rendered to Scheer accurate invoices and/or 

statements of the transactions between the parties, that the 

invoices and/or statements were received by Scheer, and that 

Scheer failed to object to any item on the statements within 

a reasonable period of time. At the hearing on the motion for 

summary judgment, American Express offered into evidence 
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AMERICAN EXPRESS CENTURION BANK v. SCHEER

Cite as 25 Neb. App. 784

three affidavits from its assistant custodian of records. In 

each affidavit, the affiant stated that based upon his personal 

knowledge and the company’s business records, “American 

Express sends or otherwise makes available monthly billing 

statements to cardmembers who carry a balance or are otherwise required to receive a monthly statement.” The affiant 

further stated that American Express “transmitted monthly 

billing statements” to Scheer and that “[t]here is no record 

of [him] ever asserting a valid unresolved objection to the 

balance shown as due and owing on the monthly statements 

provided . . . .” Finally, the affiant asserted that due to nonpayment, the accounts were closed, and that after giving 

credit for all payments made, the attached invoices reflected 

the ending balance owed on each account. The attached 

invoices were in the amounts of $16,088.84, $18,002.08, and 

$38,106.19 for a total of $72,197.11. Scheer presented no evidence to rebut these facts.

[4-7] An “account stated” is an agreement between persons 

who have had previous dealings determining the amount due 

by reason of such transactions. Sherrets, Smith v. MJ Optical, 

Inc., 259 Neb. 424, 610 N.W.2d 413 (2000). An account stated 

creates a new cause of action in which pleading and proof of 

the original items of indebtedness are unnecessary. The creditor 

in a valid account stated may recover thereon without pleading and proving the original items of the indebtedness. In re 

Estate of Black, 125 Neb. 75, 249 N.W. 84 (1933). The failure 

to object to an account stated is admissible in evidence as tending to prove an acknowledgment of its correctness. Proof of 

an express promise to pay is not required. John Deere Co. of 

Moline v. Ramacciotti Equip. Co., 181 Neb. 273, 147 N.W.2d 

765 (1967).

Although Scheer alleged in his answer that the amount 

claimed was in error, the evidence offered and received at the 

hearing was that monthly statements had been sent to Scheer 

and that he had not asserted a valid unresolved objection. 

We note that the three invoices received at the hearing were 
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AMERICAN EXPRESS CENTURION BANK v. SCHEER

Cite as 25 Neb. App. 784

dated between April and June 2013. The complaint was filed 

in July 2016. The only indication of an objection to the 

amount contained in our record is in Scheer’s answer filed 

in August 2016. The failure to object to an account stated 

is admissible in evidence as tending to prove an acknowledgment of its correctness. John Deere Co. of Moline v. 

Ramacciotti Equip. Co., supra. Given the absence of any 

objection by Scheer for 3 years, the evidence was sufficient 

to establish an account stated and that the amount claimed 

was correct. See, also, McKinster v. Hitchcock, 19 Neb. 100, 

104-05, 26 N.W. 705, 706 (1886) (stating “perhaps the better 

rule is, that if such an account be retained for an unreasonable 

time without objection it will be treated as an account stated 

and prima facie correct”).

[8] Because an account stated creates a new cause of action 

in which pleading and proof of the original items of indebtedness are unnecessary, American Express was not required to 

prove the underlying transactions. And because an account 

stated sets the amount agreed upon, Scheer’s argument that 

it does not reflect American Express’ actual damages is irrelevant. An account stated is not subject to the usual defenses 

attacking the original items of indebtedness, but is subject to 

the defenses of usury, fraud, and mistake. See, In re Estate of 

Black, supra; Jorgensen v. Kingsley, 60 Neb. 44, 82 N.W. 104 

(1900). Therefore, once American Express presented a prima 

facie case of an account stated, the burden of proof shifted 

to Scheer to prove that no agreement as to the amount owed 

existed. Absent evidence to dispute the existence of an account 

stated, Scheer was left to his affirmative defenses of usury, 

fraud, and mistake.

Although Scheer asserted the defenses of usury, fraud, and 

mistake in his answer, his allegations are conclusory and he 

has not directed us to any disputed material fact in evidence 

as to these defenses. We note that he also does not make any 

argument on appeal specific to these defenses. We therefore do 

not address them.
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AMERICAN EXPRESS CENTURION BANK v. SCHEER

Cite as 25 Neb. App. 784

Scheer relies upon City State Bank v. Holstine, 260 Neb. 

578, 618 N.W.2d 704 (2000), to argue that before American 

Express was entitled to summary judgment, it was not only 

required to present evidence supporting its claims, but it was 

also required to disprove the affirmative defenses pled in his 

answer. In City State Bank v. Holstine, supra, the plaintiff 

commenced an action against the defendant for defaulting 

on a promissory note which the defendant had cosigned. The 

defendant raised various affirmative defenses in his answer, 

including that the plaintiff made fraudulent representations 

to induce him to cosign the note. In support of this defense, 

the defendant pled six specific fraudulent misrepresentations 

allegedly made by the plaintiff. The plaintiff moved for 

summary judgment and presented evidence in support of its 

claims. The trial court granted the motion, and the defendant appealed.

On appeal, the Nebraska Supreme Court observed that 

the evidence presented by the plaintiff at the summary judgment hearing generally established its claims, but the plaintiff presented no evidence regarding most of the affirmative 

defenses pled in the answer. The Supreme Court recognized 

that the petition sought judgment on a promissory note, and 

the operative answer raised numerous purported affirmative 

defenses, which were denied by the plaintiff; thus, the issues 

were framed by those pleadings. The court then stated that 

in order for the plaintiff to succeed on its motion for summary judgment, it was required to produce evidence of the 

promissory note on which the defendant was the cosigner 

and a default thereon. The court additionally determined that 

given the posture of the case, the plaintiff was also required 

to produce evidence which demonstrated that there were no 

genuine issues of material fact regarding the defendant’s cognizable affirmative defenses and that it was entitled to judgment as a matter of law. Because the plaintiff produced no 

evidence regarding the material factual allegations set forth 

in certain of the defendant’s purported affirmative defenses, 
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AMERICAN EXPRESS CENTURION BANK v. SCHEER

Cite as 25 Neb. App. 784

the Supreme Court concluded that the plaintiff failed to meet 

its initial burden as the party moving for summary judgment 

to produce evidence which, if uncontroverted, would entitle 

it to judgment as a matter of law. Accordingly, the court held 

that the trial court erred in granting summary judgment in the 

plaintiff’s favor.

[9] In the present case, however, Scheer did not plead 

material factual allegations in his answer when asserting his 

affirmative defenses as did the defendant in City State Bank 

v. Holstine, supra; rather, Scheer alleged general legal conclusions. His generalized defenses of fraud and usury are 

not material factual allegations, and although we recognize 

that Scheer was not required to plead specific facts because 

Nebraska is no longer a code-pleading jurisdiction as it was 

at the time City State Bank v. Holstine, supra, was decided, it 

remained Scheer’s burden to produce material facts in dispute 

to overcome American Express’ motion. By electing not to 

offer any evidence at the hearing on the motion for summary 

judgment, Scheer failed to prove the existence of a genuine 

issue of material fact and the district court properly granted 

judgment in favor of American Express. Scheer’s assigned 

error also asserts that the district court erred in denying his 

motion for reconsideration; however, Scheer does not argue 

this assignment. Errors that are assigned but not argued will 

not be addressed by an appellate court. Linscott v. Shasteen, 

288 Neb. 276, 847 N.W.2d 283 (2014).

CONCLUSION

We conclude that Scheer failed to establish the existence 

of a genuine issue of material fact once American Express 

presented a prima facie case. We therefore affirm the decision 

of the district court granting summary judgment in favor of 

American Express.

Affirmed