DA 11
- 0636 IN THE SUPREME COURT OF THE STATE OF MONTANA

2012 MT 204N
DISCOVER BANK, Plaintiff and Appellee,
v. DAWN C. LEMIEUX, Defendant and Appellant.

APPEAL FROM: District Court of theEighteenth Judicial District,

In and For the County of Gallatin, Cause No. DV 10

- 1045C Honorable John C. Brown, Presiding Judge
COUNSEL OF RECORD:

For Appellant: Dawn C. Lemieux (self

- represented), Manhattan, Montana For Appellee: Charles Dendy , Rod enburg Law Firm, Bismarck, North Dakota Submitted on Briefs: July 18, 2012 Decided: September 11, 2012

Filed:

__________________________________________ Clerk September 11 2012Justice Michael E Wheat delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating Rules, this case is decided by me morandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Dawn C. Lemieux ( Lemieux) appealspro se f rom a grant of summary judgment entered by the Eighteenth Judicial District Court, Gallatin County. We affirm. ¶3 Lemieux appl ied for a credit card account with Discover Bank (Discover) in April 2006 and was issued a credit card in June 2006
. Lemieux thereafter accumulated an unpaid account balance of $4,021.71 as of March 26, 2010. This balance remains unpaid. ¶4 Discover

f iledac ollection action

on October 4, 2010 ,in Gallatin County District Court demanding judgment against Lemieux for the outstanding a ccount balance of $4,021.71 , interest accrued“ at the legal rate” f rom March 26, 2010 , u

ntil the date of judgment, and court costs. Lemieux’s answer to the complaint denied sign ing a credit card application , a sserted that Lemieux hadattempted to tender a“ financial instrument” in the amount of $3,785.40 to Discover, andd enied the pr esence of an account stated. Lemieux’s answ er also asserted what it termed “ counter claim” ag ainst Discover , alleg

ing a lack of standing, requesting production of information, and alleging that Discover failed to respond to an affidavit sent by Lemieux. The court dismissed Lemieux’s counterclaims for failing to state any claim upon which relief could be granted.¶5 On July 20, 2011, Lemieux filed a motion to dismiss based on Discover’s alleged

fa ilure to respond to a debt validation request , presumably under the Fair Debt Collection Practices Act, 1 5 U.S.C. § 1692 et seq . D iscover opposed the motion, claiming that the FDCPA did not apply because Discover was the original creditor seeking collection in its
own name. Discover

then mov ed for summary judgment on August 22, 2011, relying on the affidavit of an account manager to establish the amount Lemieux owed. L emieux responded to the motionf or summary judgment with a motion “For a More Definite Statement,” seeking “a full tracing and audit” of the credit account. Lemieux’s motion did not offer

anye vidence seeking to prove thati ssues of material factc oncerning the unpaid balance r emained

. The D istrict C ourtd enied Lemieux’s motion to dismiss and motion for a more definite statement on September 26, 2011 , a nd g ranted summary judgment for

Discover f or the unpaid balance of $4,021.71, interest of $561.94, and costs of $224.00, for a total judgment of $4,807.65. ¶6 We rev

iew adistrict court’s grant of summary judgment de novo, using the same M. R. Civ. P. 56 criteria used by the district court. Styren Farms, Inc. v. Roos , 2011 MT 299, ¶ 10, 363 Mont. 41, 265 P.3d 1230. Summary judgment is appropriate where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the mo vant is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3). The moving party must show that no g enuine issues of

material fact exist. Wi lliams v. Plum Creek Timber Co. , 2011 MT 271, ¶ 14, 362 Mont. 368, 264 P.3d 1090. The burde n then shifts to the non - mo vin g party “ to prove b y more than mere denial and speculation that a genuine issue of materialfact does exist.” Wi lliams , ¶ 14 (citing Roy v. Blackfoot Telephone Co

-op , 2004 MT 316,

¶ 11, 324 Mont. 30, 101 P.3d 301). The ev ide nce must be viewed in the light most fa vorable to the non

- movin g party, andall reasonable inferences must be drawn in favor of the non

- mo ving party. Wi lliams , ¶ 15 (citing Prindel v. Ravalli County , 2006 MT 62, ¶ 19, 331 Mont. 338, 133 P. 3d 165). We further review a question of law to determine if the district court’s legal conclusions are correct. Palmer v. Bahm , 2006 MT 29, ¶ 11, 331 Mont. 105, 128 P.3d 1031. Additionally, we generally afford pro se litigants a certain amount of latitude. Greenup v . Russell , 2000 MT 1 5 4, ¶ 15, 300 Mont. 136, 3 P.3d 124. ¶7 On appeal Lemieux asserts the motion for summary judgment was not supported by evidence, and that a law clerk for Judge Brown improperly formed an agency relationship with Discover’s counsel. F irst, Discover produced ana ccount manager’s affidavit in support of the motion for summary judgment

. The affidavit contained a
sworn copy of Lemieux’s monthly c redit cardstatements , which reflected an unpaid balance of $4,021.7 1 as of March 2010

. Such affid avits are proper means of supporting motions for summary judgment. M . R. Civ. P. 56(c)(3). In response, Lemieux didnot produce any

e vidence disputing the veracity of the affidavit , the monthly statements , or the remaining account balance

. Ev en if Lemie ux’s motion for a more definite statement is viewed as a proper reply to Discover’s motion for summary judgment, Lemieux’s assertions concerning the account balance do not amount to more than mere denial and speculation. Wi lliams , ¶ 14. Similarly, Lemieu x ’sarg umentson appealprimarily focus
ona p ayment protection plan she purchased from Discover and do notseek to prov e the existence of an issue of material fact by way of anything more than mere denial.Lemieux’s unsupported assertions do not carry he r burden as the non - mo vin g party

seeking to avoid summary judgment

. ¶8 Moreover, the law clerk’s actions during the scheduling conference were not improper. No ex parte contact occurred between the law clerk and the opposing counsel as both parties, including L emieux, were present. The law clerk’s signature on behalf of the Discover’s counsel did not establish the sort of im proper ag ency relationship , either ostensible or actual, tha

t Lemieux asserts. See § 28
- 10
- 103, MCA (2011); Semenza v. Kniss , 2008 M T 238, ¶ 19, 344 Mont. 427, 189 P.3d 1188. ¶9 We hav

e determined to decide this case pursuant to Section I, Paragraph 3(d) , of our Internal Operating Rules, which provides for noncitable memorandum opinions. The issues in this case are legal and are controll ed by settled Montana law, which the District Court correctly interpreted

. ¶10 Affirmed

. /S/ MICHAEL E WHEAT
We Concur: /S/ PATRICIA COTTER /S/ JIM RICE /S/ BRIAN MORRIS /S/ BETH BAKER