                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                          October 18, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 FIRST NATIONAL BANK OF OMAHA,                                        No. 47474-3-II

                                Respondent,

         v.

 DAVID T. GILCHRIST,                                           UNPUBLISHED OPINION

                                Appellant.

       JOHANSON, J. — David T. Gilchrist appeals the superior court’s denial of his motion to

dismiss a credit card collection action brought by First National Bank of Omaha (FNBO). Gilchrist

also appeals the trial court’s grant of summary judgment in FNBO’s favor. We hold that the

superior court did not err when it denied Gilchrist’s motion to dismiss nor did it err when it granted

FNBO’s motion for summary judgment and awarded FNBO attorney fees. We affirm.

                                              FACTS

                  I. FNBO’S COMPLAINT AND GILCHRIST’S MOTION TO DISMISS

       In February 2014, FNBO filed a complaint for moneys due. FNBO alleged that Gilchrist

entered into a credit card agreement with FNBO under which Gilchrist agreed by use of the credit

account to make regular monthly payments. FNBO asserted that Gilchrist used the account, now

owed $4,302.44, and that the account was in default.
No. 47474-3-II


        In early-October, Gilchrist moved to dismiss FNBO’s complaint under CR 12(b)(1) for

lack of subject matter jurisdiction and CR 12(b)(6) for failure to state a claim upon which relief

can be granted. The superior court ruled that because Washington is a notice pleading State, FNBO

was not required to produce all evidence at this stage. The superior court noted that FNBO’s

records custodian’s affidavit stated that FNBO possessed billing records and an account number

for Gilchrist, such that there was evidence of an agreement between the parties. The superior court

further noted that the absence of an agreement from the pleadings was not dispositive because

contracts can be formed without a written document. The superior court denied Gilchrist’s motion

to dismiss, holding that it had subject matter jurisdiction and that a claim for relief was established.

                                   II. REQUEST FOR ADMISSIONS

        In November, FNBO submitted a request for admissions to Gilchrist. Gilchrist responded

that he had contacted Scot Mayo, FNBO’s recovery manager, and demanded that FNBO provide

him with various types of written information regarding the alleged agreement and debt. Gilchrist

stated that because FNBO did not provide him with this information, he was unable to admit or

deny that (1) he had a credit account with FNBO, (2) the account number ended with 9716, (3) he

had ever used the credit account to make purchases, (4) he had ever received billing statements for

the account, (5) he had ever failed to make timely payments on the account, and (6) there was a

balance due on the account. Gilchrist admitted the last four digits of his Social Security number

and that he received mail at his address on 21st Avenue, Longview.

                                 III. SUMMARY JUDGMENT MOTION

        In January 2015, FNBO moved for summary judgment. In support of its motion, FNBO

offered declarations from Mayo. Mayo stated that he is a collections manager and a custodian of


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No. 47474-3-II


records for FNBO and that he made a complete and thorough review of the account records for

Gilchrist.1 Based on his review, Mayo stated that Gilchrist and FNBO entered into an agreement

in which FNBO extended credit to Gilchrist in exchange for Gilchrist’s agreement to pay. Mayo

stated that Gilchrist’s Social Security number ends with 8455 and Gilchrist had an account with

FNBO, number ending with 9716.

       Mayo stated that FNBO maintained a computerized payment history for Gilchrist onto

which the debits from purchases and credits arising from use of the account were posted. FNBO

mailed monthly billing statements to Gilchrist, and Gilchrist did not object to these statements.

Because Gilchrist failed to perform the contractual obligation of making prescribed installment

payments on the account as they became due, FNBO declared the entire balance due and payable

and demanded payment thereof. The amount of $4,302.44 was due, and Gilchrist failed to pay.

An employee of FNBO spoke to Gilchrist, assured him that the account on his credit report was

his account, and explained that FNBO provides an encrypted account number to credit bureaus to

protect his account information.

       Mayo also attached billing statements for each month between May 2012 and April 2013.

All of the statements contain Gilchrist’s name and all of the 2013 statements include his address

on 21st Avenue, Longview. The 2012 statements are all addressed to a Longview P.O. Box

address. Online payments were made for the months of May, July, August, September, October,

and December 2012, and January 2013. The statements list where purchases were made, the exact




1
 The records Mayo reviewed were made in the regular course of business at FNBO, were made
near the time of the events recorded, and were recorded by FNBO employees who had personal
knowledge of each event.

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No. 47474-3-II


amounts, and that all of the purchases occurred in Longview or Kelso. Each statement notes when

payment was due, the interest rates, and fees charged for late payments. Each statement also lists

procedures for cardholders to use in order to refute any charges made on the account. The account

had a $4,000 credit limit that was exceeded as of the April 2013 statement with $4,302.44 due.

None of the statements say the account was closed.

       Mayo also attached an April 2013 card member agreement, but neither Mayo nor the

agreement stated that the agreement reflected the specific terms of Gilchrist’s account when it was

opened or for any period before April 2013.

       Gilchrist opposed FNBO’s motion for summary judgment. He filed an affidavit, three

credit reports, and correspondence between him, FNBO, and Patenaude & Felix.

       In his affidavit, Gilchrist did not deny the FNBO account belonged to him or that he made

the charges or payments to the account in the billing statements. Rather, Gilchrist stated that he

possessed a letter in which Patenaude & Felix stated that the debt from the alleged account was

assigned to them and that he demanded a full validation of the amount owed to FNBO. Gilchrist

stated that his credit reports did not show this account.

       FNBO’s attorney, Matthew Cheung, filed a reply declaration. Cheung stated that he is an

associate at Patenaude & Felix and that Patenaude & Felix had not purchased or been assigned

Gilchrist’s debt, but was simply representing FNBO.

       In March 2015, the superior court granted summary judgment on all issues except what

were the applicable terms and conditions of the agreement. With respect to that issue, the superior

court stated that FNBO had not met its burden to demonstrate the April 2013 agreement terms and

conditions applied to Gilchrist. The superior court addressed each of Gilchrist’s remaining


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No. 47474-3-II


arguments in its written decision. The superior court awarded FNBO $4,302.44 and $3,600.00 in

attorney fees. Gilchrist appeals.

                                           ANALYSIS

                    I. GILCHRIST’S MOTION TO DISMISS FNBO’S COMPLAINT

       Gilchrist argues that the superior court erred when it denied his motion to dismiss for lack

of subject matter jurisdiction and for failure to state a claim upon which relief could be granted.

We disagree.

                    A. SUPERIOR COURT HAD SUBJECT MATTER JURISDICTION

       First, Gilchrist argues that the superior court erred when it denied his motion to dismiss for

lack of subject matter jurisdiction pursuant to CR 12(b)(1) because FNBO had failed to attach a

copy of the credit card agreement to the complaint. We disagree.

       We review de novo a motion to dismiss under CR 12(b)(1). Evergreen Wash. Healthcare

Frontier LLC v. Dep’t of Soc. & Health Servs., 171 Wn. App. 431, 444, 287 P.3d 40 (2012). The

critical concept in determining whether a court has subject matter jurisdiction pursuant to CR

12(b)(1) is the “‘type of controversy.’” Dougherty v. Dep’t of Labor & Indus., 150 Wn.2d 310,

316, 76 P.3d 1183 (2003) (quoting Marley v. Dep’t of Labor & Indus., 125 Wn.2d 533, 539, 886

P.2d 189 (1994)). “‘If the type of controversy is within the subject matter jurisdiction, then all

other defects or errors go to something other than subject matter jurisdiction.’” Dougherty, 150

Wn.2d at 316 (internal quotation marks omitted) (quoting Marley, 125 Wn.2d at 539). The trial

court has original jurisdiction in cases in which “the demand or the value of the property in

controversy amounts to three hundred dollars.” RCW 2.08.010.




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No. 47474-3-II


       In February 2014, FNBO filed a complaint for moneys due. FNBO alleged that Gilchrist

entered into a credit agreement with FNBO that Gilchrist agreed to by use of the credit account to

make regular monthly payments. FNBO asserted that Gilchrist used the account, that he now owed

$4,302.44, and that the account was in default.

       The superior court had subject matter jurisdiction over this type of case: a civil dispute

with over $300 in controversy. RCW 2.08.010. Thus, Gilchrist fails to show that the superior

court lacked subject matter jurisdiction. Dougherty, 150 Wn.2d at 316.

              B. FNBO STATED A CLAIM UPON WHICH RELIEF MAY BE GRANTED

       Next, Gilchrist argues that the superior court erred when it denied his motion to dismiss for

FNBO’s failure to state a claim upon which relief could be granted pursuant to CR 12(b)(6).

Again, we disagree.

       We review de novo a trial court’s ruling on a motion to dismiss for failure to state a claim

upon which relief can be granted under CR 12(b)(6). Cutler v. Phillips Petroleum Co., 124 Wn.2d

749, 755, 881 P.2d 216 (1994). Dismissal is warranted only if the court concludes beyond a

reasonable doubt that the plaintiff cannot prove any set of facts that would justify recovery.

Rodriguez v. Loudeye Corp., 144 Wn. App. 709, 717, 189 P.3d 168 (2008).

       Such motions to dismiss should only be granted “‘in the unusual case in which plaintiff

includes allegations that show on the face of the complaint that there is some insuperable bar to

relief.’” Tenore v. AT & T Wireless Servs., 136 Wn.2d 322, 330, 962 P.2d 104 (1998) (quoting

Hoffer v. State, 110 Wn.2d 415, 420, 755 P.2d 781 (1988), aff’d, 113 Wn.2d 148, 776 P.2d 963

(1989)). The court’s inquiry is normally confined to the factual allegations contained in the




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No. 47474-3-II


complaint and these allegations are presumed to be true. AT & T Wireless Servs., 136 Wn.2d at

330.

       Typically, credit agreements are not enforceable against a creditor unless the agreement is

in writing and is signed by the creditor. RCW 19.36.110. But RCW 19.36.110 does not apply to

a promise, agreement, undertaking, document, or commitment relating to a credit card. RCW

19.36.120. Thus, a credit card agreement does not have to be in writing or signed by the creditor

in order to be enforceable against the creditor. RCW 19.36.120.

       Gilchrist appears to argue that FNBO’s claim necessitated further evidence including a

copy of the consumer credit agreement. But the superior court’s inquiry when considering a CR

12(b)(6) motion is confined to the factual allegations in the complaint. AT & T Wireless Servs.,

136 Wn.2d at 330.

       Here, FNBO alleged that Gilchrist entered into a credit agreement with FNBO, Gilchrist

agreed by use of the credit account to make regular monthly payments, Gilchrist owed $4,302.44,

and the account was in default. This set of facts, if proved true, would justify recovery. Loudeye

Corp., 144 Wn. App. at 717. FNBO’s failure to attach to the complaint a written credit card

account agreement does not mean FNBO failed to state a claim upon which relief could be granted

because no written agreement is required. RCW 19.36.120. Gilchrist has not shown some

insuperable bar to relief. AT & T Wireless Servs., 136 Wn.2d at 330. The superior court properly

denied Gilchrist’s motion to dismiss for failure to state a claim.




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No. 47474-3-II


                                     II. SUMMARY JUDGMENT

       Gilchrist argues that the superior court erred when it granted summary judgment in

FNBO’s favor because he raised genuine issues of material fact. Gilchrist’s argument fails.

                          A. STANDARD OF REVIEW AND RULES OF LAW

       We review summary judgment orders de novo. Hisle v. Todd Pac. Shipyards Corp., 151

Wn.2d 853, 860, 93 P.3d 108 (2004). Summary judgment is appropriate where the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law. CR 56(c). An appellate court considers all facts and reasonable

inferences from them in the light most favorable to the nonmoving party. City of Lakewood v.

Pierce County, 144 Wn.2d 118, 125, 30 P.3d 446 (2001). But “where reasonable minds could

reach but one conclusion from the admissible facts in evidence, summary judgment is appropriate.”

Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 65-66, 837 P.2d 618 (1992).

       “Once the moving party meets its burden of showing there is no genuine issue of material

fact, the nonmoving party must set forth specific facts rebutting the moving party’s contentions.”

Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d 157, 169, 273 P.3d 965 (2012). The party

opposing summary judgment may not rest on mere allegations or denials of a pleading, but must

produce a response by affidavits or otherwise setting forth specific facts showing that there is a

genuine issue for trial. CR 56(e). The party opposing summary judgment also may not rely on

“[m]ere allegations, argumentative assertions, conclusory statements, and speculation” to

demonstrate the existence of a genuine issue of material fact. Greenhalgh v. Dep’t of Corr., 160

Wn. App. 706, 714, 248 P.3d 150 (2011).


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No. 47474-3-II


                  B. FNBO SHOWS NO GENUINE DISPUTE OF MATERIAL FACT

       As the moving party, FNBO met its burden to show the absence of a genuine issue of

material fact. FNBO supported its motion with Mayo’s declarations and billing statements from

Gilchrist’s account. Mayo was FNBO’s collections manager and a records custodian. Mayo made

a thorough review of Gilchrist’s account records with FNBO. Mayo stated that Gilchrist and

FNBO entered into an agreement whereby FNBO would extend credit to Gilchrist and Gilchrist

would make payments on the account. Mayo stated that account number 9716 is Gilchrist’s

account and that the account lists Gilchrist’s admitted Social Security number ending in 8455.

       Mayo stated that FNBO maintained a computerized payment history for Gilchrist that

showed the debits from purchases and credits from use of the account. In 2013, FNBO mailed

monthly account statements to Gilchrist at the mailing address Gilchrist admitted belonged to him,

and Gilchrist did not object to these statements. The amount of $4,302.44, an amount above the

stated credit limit, was due and Gilchrist failed to pay it. Thus, Gilchrist failed to perform the

contractual obligation of making prescribed installment payments on the account as they became

due, and FNBO declared the entire balance due and payable and demanded payment thereof.

FNBO’s system notes also state that an employee of FNBO spoke to Gilchrist and assured him

that the account listed in his credit reports was his account with FNBO.

       Mayo also attached billing statements for an account bearing Gilchrist’s name for each

month between May 2012 and April 2013. The statements list where purchases were made, the

exact amounts, and that all of the purchases occurred in the Longview-Kelso area where Gilchrist

lives. Each statement noted when payment is due, the interest rates, and fees charged for late

payments. Mayo established that Gilchrist allowed the account to enter default and never refuted


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No. 47474-3-II


any of the charges or reported the card lost or stolen. Thus, FNBO established that there was no

genuine issue as to any material fact as to whether the account belonged to Gilchrist, that he was

notified of the amounts due, the interest rates and fees charged, that he used the account to make

purchases, that he failed to pay, and that the balance due was $4,302.44. Thus, we conclude that

FNBO met its initial burden to show the absence of any material fact under CR 56(c).

                                   C. GILCHRIST’S REBUTTAL

       Gilchrist argues that the superior court erred because the evidence was insufficient to

determine on summary judgment that Gilchrist owed the argued amount to FNBO. We disagree.

1.     ABSENCE OF ASSENT

       First, Gilchrist relies on Discover Bank v. Bridges for the proposition that in order for

FNBO to establish a claim, it had to show that Gilchrist assented to a contract by accepting a

written card member agreement, which FNBO failed to do. 154 Wn. App. 722, 226 P.3d 191

(2010). Gilchrist argues that proof of his assent to a written agreement is necessary evidence to

show default on the account and subsequent acceleration rendering the principal amount due.

FNBO argues that assent of an account does not require proof of a signed agreement and that it

presented sufficient other proof of Gilchrist’s assent. We agree with FNBO that the superior court

was not required to find Gilchrist assented to a written agreement nor was assent to a written

agreement a material fact.

       “A valid contract requires an objective manifestation of mutual assent to its terms, which

generally takes the form of offer and acceptance.” Am. Express Centurion Bank v. Stratman, 172

Wn. App. 667, 673, 292 P.3d 128 (2012). Acceptance of an offer may be made through conduct,

and the use of a credit card if sufficiently detailed and itemized constitutes acceptance of terms


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No. 47474-3-II


clearly stated in a card member agreement. Stratman, 172 Wn. App. at 673. Assent to a contract

for card services can be established with “a signed agreement, online payment records, detailed

and itemized proof of the defendant’s card usage, or other evidence of the defendant’s personal

acknowledgement of the account.” Citibank S. Dakota N.A. v. Ryan, 160 Wn. App. 286, 294, 247

P.3d 778 (2011) (emphasis added) (citing Bridges, 154 Wn. App. at 727-28).

       Bridges does not stand for the proposition advanced by Gilchrist. In Bridges, this court

reversed summary judgment against the Bridges based on the fact that Discover Bank’s evidence

failed to show that the Bridges mutually assented to a contract by accepting the card member

agreement and personally acknowledging their account. 154 Wn. App. at 727. But the Bridges

court did not reverse based only on Discover Bank’s failure to show a signed agreement. This

court also stated that Discover Bank’s pleadings also did not show itemized, detailed proof of the

Bridges’ card usage. Bridges, 154 Wn. App. at 727. And the court noted that there was no

evidence that the “Bridges acknowledged the debt, for example, through evidence of cancelled

checks or online payment documentation.” Bridges, 154 Wn. App. at 727. Discover Bank

presented only a “generic summary of the purported account balance and payments made on it.”

Bridges, 154 Wn. App. at 728.

       Unlike the creditor in Bridges, FNBO presented sufficient detail to show that Gilchrist

assented to a credit agreement with FNBO. The statements show online payments for the months

of May, July, August, September, October, and December 2012, and January 2013. The statements

list where purchases were made, the amounts, and that all of the purchases occurred in the

Longview-Kelso area where Gilchrist lives. Each statement notes when payment was due, the




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No. 47474-3-II


interest rates, and fees charged for late payments. Gilchrist admitted to receiving mail at the

address where Mayo stated FNBO sent these monthly billing statements in 2013.

       In opposition to summary judgment, Gilchrist did not deny that the FNBO account belongs

to him or that he made the charges or payments to the account in the billing statements.

       Thus, we conclude that Gilchrist’s argument that a genuine issue regarding his assent to

use the credit account fails.

2.     DISPUTE OF BALANCE DUE AND PURCHASES MADE

       Gilchrist also argues that he disputed whether he had an account with FNBO and disputed

the purchases on the billing statements presented by FNBO. This argument fails.

       In opposition to summary judgment, Gilchrist did not deny that the FNBO account ending

in 9716 belongs to him or that he made the charges or payments to the account as listed in the

billing statements. Contrary to his arguments, there is no evidence in the record that Gilchrist

disputed that he had the account with FNBO or disputed specific purchases listed on the billing

statements.2

       Each billing statement sent to Gilchrist lists procedures for cardholders to use in order to

refute any charges made on the account. But Mayo stated that there is no evidence that Gilchrist

contacted FNBO to question any of the billing statements or to say that his card for the account

was lost or stolen.



2
  In his reply brief, Gilchrist raises an argument that he was not required to object to the balance
asserted by FNBO pursuant to the Fair Debt Collection Practices Act, 15 USC § 1692g(c).
Generally, “an argument neither pleaded nor argued to the trial court cannot be raised for the first
time on appeal.” Wash. Fed. Sav. v. Klein, 177 Wn. App. 22, 29, 311 P.3d 53 (2013), review
denied, 179 Wn.2d 1019 (2014). Gilchrist did not raise these arguments in his motion opposing
summary judgment nor argue them at the summary judgment hearing. Thus, we decline to
consider these arguments on appeal. Klein, 177 Wn. App. at 29.
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No. 47474-3-II


       In order to rebut FNBO’s contentions in support of summary judgment, Gilchrist had to set

forth specific facts. Elcon, 174 Wn.2d at 169. He did not and instead relied on allegations of

assignment and speculation about why account numbers differed between his billing statements

and credit reports—this is not sufficient opposition to rebut FNBO’s motion for summary

judgment. CR 56(e); Greenhalgh, 160 Wn. App. at 714. Based on the summary judgment

evidence and declarations, reasonable minds could reach but one conclusion that summary

judgment was appropriate. Hiatt, 120 Wn.2d at 65-66. FNBO established that there was no

genuine issue of material fact, Gilchrist did not properly rebut this contention, and thus the superior

court did not err in granting summary judgment.

                                        III. ATTORNEY FEES

       Gilchrist’s sole argument against an attorney fee award to FNBO is that FNBO is not the

prevailing party because the superior court erred in granting summary judgment to FNBO. FNBO

argues that trial fees were properly awarded, and FNBO also requests appellate fees. We agree

with FNBO.

       RCW 4.84.250 governs the award of attorney fees in damage actions of $10,000 or less

and states,

       Notwithstanding any other provisions of chapter 4.84 RCW and RCW 12.20.060,
       in any action for damages where the amount pleaded by the prevailing party as
       hereinafter defined, exclusive of costs, is seven thousand five hundred dollars or
       less, there shall be taxed and allowed to the prevailing party as a part of the costs
       of the action a reasonable amount to be fixed by the court as attorneys’ fees. After
       July 1, 1985, the maximum amount of the pleading under this section shall be ten
       thousand dollars.




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The party seeking relief shall be deemed the prevailing party within the meaning of RCW 4.84.250

when the recovery, exclusive of costs, is as much as or more than the amount offered in settlement

by the party seeking relief, as set forth in RCW 4.84.280. RCW 4.84.260. Both RCW 4.84.250

and .260 apply to contract actions. Davy v. Moss, 19 Wn. App. 32, 33-34, 573 P.2d 826 (1978).

       Here, the trial court awarded FNBO $3,600 in attorney fees pursuant to RCW 4.84.250 and

.260. Gilchrist’s only attack on the attorney fee judgment awarded at the superior court level is

that attorney fees should not have been granted because the superior court erred in granting

summary judgment. But because we conclude that the superior court properly granted summary

judgment, FNBO was the prevailing party entitled to attorney fees and costs in the superior court.

       The prevailing party on appeal shall be considered the prevailing party for the purpose of

applying the provisions of RCW 4.84.250. RCW 4.84.290. And if the prevailing party on appeal

would be entitled to attorney fees under RCW 4.84.250, we allow to the prevailing party such

additional amount as the court shall adjudge reasonable as attorney fees for the appeal. RCW

4.84.290. Under RAP 18.1(a),(b), if applicable law grants a party the right to recover attorney fees

on appeal, the party must devote a section of its opening brief to the request for the fees or

expenses.

       FNBO complied with RAP 18.1 and devoted a section of its response brief to the request

for attorney fees and costs on appeal. Thus, as the prevailing party below and on appeal, FNBO

is entitled to attorney fees and costs on appeal. RCW 4.84.290.




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No. 47474-3-II


        We affirm the superior court’s grant of summary judgment in favor of FNBO.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                    JOHANSON, J.
 We concur:



 BJORGEN, C.J.




 MAXA, J.




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