Dalo v. Thalmann

878 A.2d 194, 60 U.C.C. Rep. Serv. 2d (West) 1095, 2005 R.I. LEXIS 148, 2005 WL 1646054
CourtSupreme Court of Rhode Island
DecidedJuly 13, 2005
DocketNo. 2003-403-Appeal
StatusPublished
Cited by6 cases

This text of 878 A.2d 194 (Dalo v. Thalmann) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dalo v. Thalmann, 878 A.2d 194, 60 U.C.C. Rep. Serv. 2d (West) 1095, 2005 R.I. LEXIS 148, 2005 WL 1646054 (R.I. 2005).

Opinion

OPINION

PER CURIAM.

This case came before the Supreme Court on May 10, 2005, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing arguments of counsel and reviewing the memoranda submitted by the parties, we are satisfied that cause has not been shown. Accordingly, we shall decide the appeal at this time. We affirm in part and reverse in part.

On February 18, 1991, defendants, Mark Stepanian (Stepanian) and Judy Thalmann (defendant or Thalmann), then husband and wife, executed a promissory note (note) payable to plaintiff, Kathy Dalo (plaintiff or Dalo), for $20,000, plus 7 percent interest.1 The terms of this note required Stepanian and Thalmann to make ninety-six monthly payments to plaintiff and expressly provided that Stepanian and defendant were jointly and severally liable for repayment of the note.

On January 17, 2001, plaintiff commenced an action in Superior Court alleging that the now-divorced Stepanian and Thalmann defaulted on the promissory note. On April 30, 2001, plaintiff obtained a default judgment against Stepanian for $27,131.98. The case proceeded against Thalmann.

The plaintiff then moved for summary judgment against Thalmann, and that motion was heard in the Superior Court on October 16, 2001. Although defendant objected to plaintiffs motion for summary judgment, the only evidence presented to support the-objection was defendant’s own affidavit (affidavit) and the Family Court judgment dissolving Stepanian and Dab’s marriage. The hearing justice granted summary judgment on liability and continued the case for a hearing on the issue of money damages.

On December 3, 2001, plaintiff filed a motion requesting a jury trial. On December 11, 2001, Thalmann and Dab, by stipulation, demanded a jury trial, and the case was assigned to the continuous jury trial calendar.

On March 18, 2003, the Superior Court, sitting without a jury, heard plaintiffs oral proof of claim and motion to attach defen[197]*197dant’s real estate (hearing on damages). The trial justice, over defendant’s objection, admitted an amortization schedule as a full exhibit. The trial justice entered judgment in favor of plaintiff for $25,904.60, which took into account an interest rate of 7 percent per annum, plus statutory interest of $183, and he denied plaintiffs motion for the issuance of a writ of attachment against defendant.2 The defendant timely appealed.

On appeal, defendant argues that the hearing justice erred by granting partial summary judgment to plaintiff and that the trial justice erred by denying her a jury trial on the issue of damages, admitting the amortization schedule as a full exhibit, and incorrectly calculating damages by using an interest rate of 7 percent per annum when the note called for 7 percent interest payable over eight years.

Summary Judgment

The defendant argues that the hearing justice erred by entering partial summary judgment on the issue of liability.3 When reviewing a grant of summary judgment on appeal, we conduct a de novo review and employ “[t]he same standards applicable to the trial justice.” Town of Cumberland v. Rhode Island Interlocal Risk Management Trust, Inc., 860 A.2d 1210, 1214 (R.I.2004). “Accordingly, we will affirm a summary judgment if, after reviewing the admissible evidence in the light most favorable to the nonmoving party, we conclude that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.” Id. (quoting Rotelli v. Catanzaro, 686 A.2d 91, 93 (R.I.1996)). “[A] party who opposes a motion for summary judgment carries the burden of proving by competent evidence the existence of a disputed material issue of fact and cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions.” United Lending Corp. v. City of Providence, 827 A.2d 626, 631 (R.I.2003) (quoting Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1225 (R.I. 1996)).

The defendant argues that the hearing justice erred in granting summary judgment without addressing defendant’s allegation of duress and by failing to determine the capacity — whether as a maker, guarantor, or accommodation party — in which defendant executed the note.

We conclude that defendant did not carry her “burden of proving by competent evidence the existence of a disputed material issue of fact” and that the hearing justice properly granted summary judgment in favor of plaintiff. In her affidavit, defendant admits that she signed the note, but makes only the bare assertion that “I signed this promissory note under duress from Mark Stepanian.” However, defen[198]*198dant did not supply any evidence supporting her assertion of the defense of duress, such as a wrongful act or threat sufficient to defeat her free will and cause her to sign this note.4

Further, in her affidavit defendant stated that “[she] never received any proceeds or benefit from this loan; * * * [p]laintiff * * * never remitted to me any proceed[s] of this loan; [and] plaintiff * * * admits she remitted the proceeds of this loan to Mark Stepanian in the form of a check made payable to him.” As a matter of law, these allegations do not afford defendant a means to escape liability for her obligations under the note. General Laws 1956 § 6A-3-116 provides, in pertinent part:

“Joint and several liability — Contribution. — (a) Except as otherwise provided in the instrument, two or more persons who have the same liability on an instrument as makers, drawers, acceptors, indorsers who indorse as joint payees, or anomalous indorsers are jointly and severally liable in the capacity in which they sign.” (Emphases added.)

The note does not differentiate between the liability of Stepanian and Thalmann; in particular, both parties signed a note that clearly indicated that “we jointly and severally promise to pay to the order of Kathy Dalo [$20,000, plus] 7% interest.”

Even if defendant signed the note as an accommodation party, an accommodation-party incurs liability to the holder of the note unless “the signature of a party to an instrument is accompanied by words indicating unambiguously that the party is guaranteeing collection rather than payment of the obligation of another party to the instrument.”5 Section 6A-3-419(d). Such words are not present in the note at issue. By failing to present any evidence that she or Stepanian fulfilled their obligations under the note or that she was entitled to a defense or otherwise excused for nonpayment, defendant failed to establish the existence of an issue of disputed fact, and the hearing justice properly granted summary judgment in favor of plaintiff on the issue of liability.6

[199]*199Jury Trial

The defendant argues that she was entitled to a jury trial on the issue of damages.

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Bluebook (online)
878 A.2d 194, 60 U.C.C. Rep. Serv. 2d (West) 1095, 2005 R.I. LEXIS 148, 2005 WL 1646054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dalo-v-thalmann-ri-2005.