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Click here for the full text of this decision FACTS:Jack Tully appeals the granting of Citibank (South Dakota) NA’s motion for summary judgment for collection on a delinquent credit-card debt. Tully had alleged that some of the charges contained in the account statements on the card issued to him by Citibank were inaccurate and that Citibank, rather than correct its statements, charged interest on the incorrect and disputed amounts at rates of almost 25 percent. Citibank sued Tully and alleged that Tully had failed to make payments due, which had accelerated the maturity of the amounts due. Tully denied Citibank’s allegations and filed a counterclaim alleging that Citibank was in bad faith and that the suit was brought for the purpose of harassment. Tully also alleged that Citibank attempted to collect interest, fees or expenses without authorization. HOLDING:Reversed and remanded. Tully argues: 1. Citibank is not entitled to summary judgment because it failed to plead or prove grounds to support the summary judgment and failed to prove there are no genuine issues of material fact; 2. Citibank is not entitled to summary judgment because it failed to prove Tully’s counterclaim was pre-empted or disproved the counterclaim; and 3. the summary judgment erroneously makes an unconditional award of appellate attorney’s fees. The court agrees with Tully’s assertion that genuine issues of material fact exist concerning the amount of damages due to the breach of contract. The court points out that a suit on a credit-card debt cannot be recovered through a suit on a sworn account. The court finds that, because the summary judgment evidence conclusively established that a contract existed, Citibank could not recover under its quantum meruit theory. The court notes that, in general, recovery under quantum meruit is limited to only when there is no express contract covering the services or materials furnished. The court also finds that a fact issue exists concerning the amount owed based on breach of contract because Citibank failed to prove that the interest rate charged was agreed on by Tully. The court also holds that Citibank has failed to show that the interest rate is authorized. The court finds that the summary judgment evidence lacks any proof as to the interest rate authorized by the credit-card contract. The court also notes that the contract introduced into evidence does not specify the interest rate that was agreed on. Consequently, the court finds that there are also genuine issues of material fact concerning whether the interest rates Citibank charged Tully are authorized by South Dakota law. Because Citibank failed to prove the contractual interest rate, the court holds that Citibank has failed to prove it was entitled to summary judgment. As to Tully’s argument that the trial court erred in not conditioning the award of attorney’s fees in the event of an appeal on the success of that appeal, the court reforms the judgment to reflect that Citibank is eligible to receive attorney’s fees only if the appeal is successful. Because the court holds that the trial court erred in granting the summary judgment, it also holds that Citibank is not eligible to receive attorney’s fees for its unsuccessful appeal. OPINION:Carter, J.; Morriss, C.J., Ross and Carter, JJ.

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