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American Express Centurion Bank v. Scheer

Court of Appeals of Nebraska

April 17, 2018

American Express Centurion Bank, appellee,
v.
R.D. Scheer, also known as Ronald D. Scheer, appellant.

         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.

         [25 Neb.App. 785] 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: Timothy P. Burns, Judge.

          Hugh I. Abrahamson, of Abrahamson Law Office, for appellant.

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

          Moore, Chief Judge, and Riedmann, Judge, and Inbody, Judge, Retired.

          ...


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