This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







David G. Nelson,


First National Bank Omaha,


Filed November 30, 2004

Reversed and remanded; motion granted in part, denied in part

Wright, Judge


Dakota County District Court

File No. C8-02-11233



David E. Albright, 7814 131st Street West, Apple Valley, MN  55124 (for appellant)


Derrick N. Weber, Matthew R. Smith; Messerli & Kramer, P.A., 3033 Campus Drive, Suite 250, Plymouth, MN  55441 (for respondent)



            Considered and decided by Wright, Presiding Judge; Peterson, Judge; and Forsberg, Judge.*


U N P U B L I S H E D  O P I N I O N




            In this credit-card billing dispute, appellant sued respondent under the Fair Debt Collection Practices Act (FDCPA), the Fair Credit Reporting Act (FCRA), and the common law of defamation.  After filing counterclaims alleging that appellant was liable for more than $9,000 in outstanding credit-card debt, respondent moved for summary judgment.  The district court ordered summary judgment in favor of respondent.  Appellant now argues that summary judgment was erroneously granted because (1) the facts fail to establish appellant’s liability for the debt based on an account-stated theory of recovery; and (2) spousal liability under Minn. Stat. § 519.05 (2002) does not apply.  Respondent moves to strike numerous documents in appellant’s appendix that are not part of the record and to dismiss part of appellant’s appeal.  We reverse the summary judgment and grant in part and deny in part respondent’s motion.



On January 18, 1990, a Visa credit-card account and a MasterCard credit-card account were opened with respondent First National Bank Omaha (FNB Omaha).  Each account was a joint account in the names of appellant David Nelson and his wife Tara Nelson.  Although appellant and his wife lived together in Stillwater at the time the accounts were opened, appellant maintains that he neither applied for these credit cards nor knew of their existence until 2001.  No evidence has been produced showing appellant’s signature on any credit-card application, charge slips, or checks payable to FNB Omaha for the credit-card debt. 

For approximately one year beginning in late 1995, account statements were mailed to the home of appellant’s father-in-law in Lakeville.  After that period until September 2002, the statements were sent to appellant’s Stillwater address.  Tara Nelson signed checks payable to FNB Omaha out of the joint checking account she shared with appellant.  In February 2001, shortly after appellant learned that these two accounts bore his name, appellant objected in writing through his attorney to any liability for the debt.

The Visa and MasterCard accounts were used to make numerous purchases and remained open until February 2001, when FNB Omaha suspended the accounts for nonpayment.  The account statements establish that purchases were made at clothing stores, department stores, grocery stores, and restaurants.  But the record contains no evidence as to the specific items and services that were purchased. 

Appellant sued FNB Omaha, alleging defamation resulting from FNB Omaha’s statements to credit reporting agencies and violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692o (2000), and the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x (2000).  FNB Omaha counterclaimed on theories of unjust enrichment, recovery of an account-stated debt, and spousal liability under Minn. Stat. § 519.05 (2002).  After appellant’s unsuccessful motion for summary judgment, FNB Omaha moved for summary judgment on its claims.  Appellant did not submit a response, but the record contained several affidavits from appellant’s motion for summary judgment.  The district court granted summary judgment in favor of FNB Omaha, finding appellant liable on both accounts because (1) appellant received the billing statements, retained them without complaint, and paid on the accounts, thereby establishing an account stated; and (2) the accounts were used for necessary family expenses, thereby establishing spousal liability under Minn. Stat. § 519.05.  The district court denied appellant’s motion to vacate the judgment, and this appeal followed.



            When reviewing a summary judgment, we determine whether any genuine issue of material fact exists and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  In doing so, we view the evidence in the light most favorable to the party against whom summary judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  A genuine issue for trial must be established by substantial evidence.  DLH, Inc. v. Russ, 566 N.W.2d 60, 69-70 (Minn. 1997).  Although a party may not rest on the mere averments or denials of the pleadings to resist summary judgment, Rule 56 does not preclude a party from relying on materials already in the record from other proceedings.  Minn. R. Civ. P. 56.05, DLH, Inc., 566 N.W.2d at 70.  Summary judgment is appropriate when “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  DLH, Inc., 566 N.W.2d at 69 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)). 


            Appellant first argues that, in the absence of a credit-card contract bearing his signature and proof that he received any account statements, there are genuine issues of material fact as to whether FNB Omaha is entitled to prevail under the account-stated doctrine. 

            When proof of an express contract does not exist, liability for a particular debt may be established pursuant to the doctrine of account stated.  Am. Druggists Ins. v. Thompson Lumber Co., 349 N.W.2d 569, 573 (Minn. App. 1984).  This doctrine requires a manifestation of the debtor’s and creditor’s assent to a stated sum as an accurate computation of the amount due the creditor on an account.  Id.  Because assent to the numerical accuracy of the account is required, the doctrine of account stated does not apply in the absence of “some form of assent to the account” in the first instance.  W. Newspaper Union v. Segerstrom Piano Mfg. Co., 118 Minn. 230, 236, 136 N.W. 752, 754 (1912).  Merely transmitting an account to a debtor does not establish an account stated.  Id.  Accordingly, when the putative debtor was not aware of the account when the debt was incurred, the doctrine of account stated does not supply a legal basis for liability because the requisite element of mutual assent is lacking.  See Roehrdanz v. Schlink, 368 N.W.2d 409, 412-13 (Minn. App. 1985) (affirming implicit finding of no account stated when the record indicated that client was unaware of being billed); cf. Everson v. J.L. Owens Mfg. Co., 145 Minn. 199, 202-03, 176 N.W. 505, 507 (1920) (finding that one “cannot be held to a contract with a party with whom he never intended to contract”); Manderfeld v. Krovitz, 539 N.W.2d 802, 806 (Minn. App. 1995), review denied (Minn. Jan. 25, 1996) (finding that one could not be bound to a contract to which one “was not a party, was not aware of at the time of its making, and to which [one] has not been shown to have consented”).

            Here, FNB Omaha failed to produce a credit-card agreement signed by appellant or any other evidence establishing appellant’s assent to the Visa and Mastercard accounts.  FNB Omaha’s production of an unsigned cardmember agreement and numerous billing statements bearing the names of both appellant and Tara Nelson fails to establish that a genuine issue of material fact does not exist as to the parties’ mutual assent, particularly when countered by appellant’s sworn statements, which deny that he (1) had personal knowledge of these accounts; (2) applied for or accepted these credit cards; and (3) agreed to pay any amount.[1]  Without more, appellant’s name on an account, when considered along with his denial of mutual assent, fails to establish the existence of an account.  Thus, when viewed in the light most favorable to appellant, the record fails to establish a necessary element for liability under the doctrine of account stated.[2]   

            FNB Omaha contends that proof of an actual account is not required.  Rather, FNB Omaha argues, it need only prove that appellant received billing statements and retained them without objection.  This argument is unavailing.  It is true that acquiescence to an account balance may be established if the debtor retained without objection, for a long period of time, a statement of account rendered by the creditor.  Am. Druggists’ Ins., 349 N.W.2d at 573.  But implicit in this notion of implied consent to the account balance is an existing relationship between the debtor and creditor in which assent to the account itself is undisputed.  See, e.g., Kittler & Hedelson v. Sheehan Props., Inc., 295 Minn. 232, 238, 203 N.W.2d 835, 840 (1973) (finding that it was proper to consider account-stated theory when attorney and client had established relationship and client received specific, itemized statements without objection); Lentz v. Pearson, 246 Minn. 145, 151, 74 N.W.2d 662, 667 (1956) (“[a]n account stated is an agreement . . . between persons having business relations” (quotation omitted)); Lampert Lumber Co. v. Ram Const., 413 N.W.2d 878, 882 (Minn. App. 1987) (finding that “Ram assented to the offer to provide credit”); Butler Mfg. Co. v. Miranowski, 390 N.W.2d 380, 384-85 (Minn. App. 1986) (finding that debtor and creditor formed an uncontested purchaser-seller relationship and only disputed late payment charges).  Absent undisputed facts that appellant assented to the account with FNB Omaha, received or otherwise had personal knowledge of the credit-card bills and failed to object, there is neither a factual nor a legal basis to grant summary judgment based on an account-stated theory of liability.

            FNB Omaha also argues that, because appellant did not respond to its motion for summary judgment, appellant rested on the pleadings, thereby entitling FNB Omaha to summary judgment.  This argument fails for several reasons.  First, although appellant cannot rest on mere averments in his pleadings to defeat a motion for summary judgment, he can rely on materials already in the record, including affidavits and answers to interrogatories.  See Kessel v. Kessel, 370 N.W.2d 889, 894-95 (Minn. App. 1985) (considering a deposition not attached to motion for summary judgment and finding “[t]he reliability and materiality of [the] admissions [were] not affected by the fact they originated in a separate proceeding”).  Secondly, FNB Omaha, as the moving party on a counterclaim, bore the burden of proving a prima facie case of appellant’s liability and failed to do so.  Lastly, we note that it is extraordinarily difficult to prove a negative.  There was little appellant could produce to prove that he did not assent to an account with FNB Omaha other than what he did produce—sworn assertions that he never assented. 

            Accordingly, we conclude that the district court erred in granting summary judgment in favor of FNB Omaha based on the doctrine of account stated.


            Appellant next argues that the district court erred in concluding that FNB Omaha is entitled to summary judgment based on appellant’s liability for the debts of his spouse under Minn. Stat. § 519.05(a) (2002). 

            “A spouse is not liable to a creditor for any debts of the other spouse.  Where husband and wife are living together, they shall be jointly and severally liable for . . . necessary household articles and supplies furnished to and used by the family . . . .”  Minn. Stat. § 519.05(a) (emphasis added).  To evaluate whether an item is a necessary household article or supply, it is necessary to ascertain the type of item in question.    “Necessary household articles and supplies” include food, clothing, shelter, medical care, and articles of ordinary household use.  Plain v. Plain, 307 Minn. 399, 403 & n.17, 240 N.W.2d 330, 333 & n.17 (1976).  Whether a household item constitutes a necessary article or supply is a question of fact, unless it is clear from the nature of the item.  Gorco Const. Co. v. Stein, 256 Minn. 476, 480, 99 N.W.2d 69, 73 (1959).   

            FNB Omaha did not produce any evidence identifying the items purchased.  The billing statements document only the stores where the goods were purchased, not the nature of the items.  Because the household necessity of an item is ordinarily a question of fact, and the record fails to identify the type of items purchased, genuine issues of material fact remain as to appellant’s liability for these purchases.

            Similarly, the record is devoid of any evidence that the purchases were “furnished to and used by the family,” as required by Minn. Stat. § 519.05(a).  It is conceivable that family friends or relatives who are not part of the household received and used the items purchased.  Because FNB Omaha failed to meet the statutory elements of spousal liability, summary judgment as to this claim also was erroneously granted. 

            FNB Omaha argues that appellant’s claim that FNB Omaha violated the FDCPA is an admission that the outstanding credit-card debt was for the purchase of necessary household articles and supplies.  This argument is without merit.  A comparison of the two statutes establishes that spousal liability under Minn. Stat. § 519.05(a) requires a necessary purchase that is used by the family.  In contrast, under the FDCPA, the purchase need not be necessary and it need not be used by the family.  15 U.S.C. § 1692a(5).  The FDCPA applies to consumer debts arising out of transactions “primarily for personal, family, or household purposes.”  Id.; Holman v. W. Valley Collection Servs. Inc., 60 F. Supp. 2d 935, 936 (D. Minn. 1999).  If goods are purchased for commercial use, the FDCPA does not apply.  Holman, 60 F. Supp. 2d at 936.  The relevant distinction under the FDCPA rests on whether the purpose for incurring the debt was personal, rather than commercial.  Id.  The FDCPA does not include the element of household necessity as required by Minn. Stat. § 519.05(a).  Accordingly, this argument fails.[3]

            Because summary judgment was erroneously granted based on the doctrine of account stated and based on statutory spousal liability, we reverse and remand for further proceedings. 


            FNB Omaha moves to dismiss appellant’s challenge to the district court’s denial of his motion to vacate.  Although raised in the notice of appeal, appellant failed to brief this issue.  Accordingly, this basis for appeal is waived.  Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982).  In light of the waiver, we deny the motion to dismiss as moot.

            FNB Omaha also moves to strike several documents in appellant’s appendix because they were not filed in response to FNB Omaha’s motion for summary judgment.  We are precluded from considering documents that are not part of the record on appeal.  State by Humphrey v. Delano Cmty. Dev. Corp., 556 N.W.2d 922, 924-25 (Minn. App. 1996), aff’d, 571 N.W.2d 233 (Minn. 1997).  The record on appeal consists solely of “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any” that were before the district court when it issued the order that is the subject of the pending appeal.  Minn. R. Civ. App. P. 110.01;Safeco Ins. Cos. v. Diaz, 385 N.W.2d 845, 847 (Minn. App. 1986), review denied (Minn. June 30, 1986), overruled on other grounds, Lobeck v. State Farm Ins. Co., 582 N.W.2d 246 (Minn. 1998).

The documents in appellant’s appendix were filed with the district court and are part of the record on appeal.  Yet, because appellant waived his appeal of the denial of the motion to vacate, documents submitted in support of that motion are outside the record for the purpose of this appeal.  See Safeco Ins. Cos., 385 N.W.2d at 847 (striking from appendix affidavit signed after district court issued order granting summary judgment because the grant of summary judgment was only issue on appeal).  We, therefore, grant FNB Omaha’s motion to strike those documents submitted in support of the motion to vacate that are not otherwise present in the record.

            Reversed and remanded; motion granted in part, denied in part.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] During oral argument, FNB Omaha’s attorney advised the court that the record contained no sworn denials by appellant.  Counsel’s claim is plainly contradicted by appellant’s signed affidavit denying any personal knowledge of these accounts and denying that he ever applied for the accounts.  The record also contains an affidavit signed by appellant’s attorney with attached answers to interrogatories in which appellant again denies that he agreed to obtain credit cards from FNB Omaha.  Also in the record is appellant’s answer to FNB Omaha’s amended counterclaim wherein appellant denies that he owes on either account.  We assume that these misrepresentations to the court by FNB Omaha’s counsel resulted from his lack of familiarity with the record and were not intentional.  Even so, we note the gravity of such action by counsel. 

[2] From the foregoing analysis and the current state of the record, it is evident that FNB Omaha also would fail to meet the requirements of summary judgment on a contract theory.  Without evidence of a credit-card agreement or a contract signed by appellant or any other behavior manifesting assent to contract with FNB Omaha, appellant cannot be held liable for breach of contract. 

[3] We also reject FNB Omaha’s contention that pleading in the alternative results in a party admission.  Attorneys routinely plead and argue alternative grounds for relief.  Indeed, FNB Omaha’s counterclaims for relief include damages for breach of contract and quantum meruit, which is only available in the absence of a contract.  Were we to hold that merely pleading a cause of action foreclosed relief under other causes of action because an adverse admission had been made, litigants, including FNB Omaha, could be unjustly denied relief.