RANDOLPH C. COOPER APPELLANT
DISCOVER BANK APPELLEE
From The Randolph County Circuit Court [No. 61CV-16-92]
Honorable Harold S. Erwin, Judge
Randolph C. Cooper, pro se appellant.
and Withrow, by: Lori Withrow; and Gary J. Barrett, for
W. GRUBER, Chief Judge
appellant Randolph Cooper appeals from an order granting
summary judgment in favor of appellee Discover Bank
(Discover) on its action to recover a balance due on a credit
card account. Because we conclude that a genuine issue of
material fact remains, we reverse and remand for further
August 22, 2016, Discover filed a complaint against Cooper
seeking to recover the balance due on a credit card account.
Attached to the complaint was the cardmember agreement and an
affidavit of account indicating that Cooper's account was
in default and had a balance due of $15, 493.23. Two credit
card statements were attached as exhibits to the
affidavit-exhibit A was the last periodic statement sent by
Discover and exhibit B was the current balance owed and
included any activity since the last periodic statement.
was served with the summons and complaint on November 17,
2016. He filed an answer on December 13, 2016, denying the
allegations and raising numerous affirmative defenses. In
response to the allegation that he was a resident of Randolph
County, Cooper denied the allegation and stated that he
maintained a post office address in Maynard, Arkansas, but
was homeless and sleeps in his vehicle.
filed requests for admission, as well as interrogatories and
requests for production of documents, on February 17, 2017;
the certificate of service indicates that both were mailed on
February 13, 2017, to the following address:
RANDOLPH C COOPER PO BOX 1 714 Cree Trl Maynard, AR
filed a motion for summary judgment on November 9, 2017,
alleging that (1) Cooper failed to respond to its requests
for admission containing the allegations of the complaint;
(2) the requests for admission are deemed admitted pursuant
to Ark. R. Civ. P. 36; (3) the admissions taken together with
the pleadings reveal there is no genuine issue as to any
material fact; and (4) Discover is entitled to summary
filed a response to the motion for summary judgment on
November 29, 2017. Cooper asserted the defense of lack of
personal jurisdiction, stating that he was amending his
answer to include this defense as he had reserved the right
to amend his answer to assert additional defenses. He alleged
that he was not a resident of Arkansas and did not own
property, work, or do business in Arkansas. He denied the
following: the genuineness of the cardmember agreement
because it was unsigned and did not identify him as a party
to the agreement and therefore did not comply with Ark. R.
Civ. P. 10(d); the correctness of the affidavit of account in
support of the complaint because it did not make a full
accounting of items purportedly purchased by him; and that
the requests for admission were properly served on him
pursuant to Ark. R. Civ. P. 5(b)(2). Cooper attached his own
affidavit in support of his response. In his response, Cooper
also asked the court to dismiss the action and to strike the
requests for admission because they were not properly served,
and therefore, Discover's motion for summary judgment did
not meet the threshold requirement under Ark. R. Civ. P. 56.
Cooper also requested a hearing.
November 29, 2017, shortly after Cooper filed his response,
the trial court entered an order of summary
judgment. The order provided that the requests for
admission, which Cooper did not answer and were deemed
admitted pursuant to Ark. R. Civ. P. 36, contained all the
allegations of the complaint; that he was indebted to
Discover in the amount of $15, 493.23; and that Discover was
entitled to judgment for that amount. Cooper filed a timely
notice of appeal on December 21, 2017.
lists the following four points on appeal: (1) "Does the
unsigned cardmember agreement and deficient Affidavit of
Account satisfy Rule 10(d) [of the Arkansas Rules of Civil
Procedure], and sufficiently make a prima facie case?";
(2)"Does Randolph County Circuit court lack jurisdiction
of the person in this matter?"; (3) "Does Rule
36(a) [of the Arkansas Rules of Civil Procedure] operate when
the requirements for service under Rule 5(b)(2) [of the
Arkansas Rules of Civil Procedure] are not met?"; and
(4) "Were procedural requirements and due process
met?" The question before us is whether summary judgment
was proper in this case.
standard of review for summary-judgment cases is well
established. Anderson v. Mountain Crest, LLC v.
Kimbro, 2018 Ark.App. 626, at 5, S.W.3d, . Summary
judgment should be granted only when there are no genuine
issues of material fact to be litigated and the moving party
is entitled to judgment as a matter of law. Id. The
purpose of summary judgment is not to try the issues, but to
determine whether there are any issues to be tried.
Id. In reviewing a grant of a summary judgment, the
appellate court determines if summary judgment was
appropriate based on whether the evidentiary items presented
by the moving party left a material question of fact
unanswered. Id. We ...