GILBERTSON, Chief Justice.
[¶ 1.] Discover filed a motion for summary judgment in a breach of contract claim against cardholder Joseph Stanley. Discover did so without filing a statement of undisputed material facts. The circuit court granted Discover's motion, and entered a judgment against Stanley. Stanley appeals. We reverse.
[¶ 2.] Joseph Stanley applied for and was granted a Discover card in March of 1996. The terms which Discover applied to issuance of the card are not in dispute. In part the terms stated: "We must hear from you no later than 60 days after we sent you the first bill on which the error or problem appeared."
[¶ 4.] In 2004 after paying over $8,600.00 on the account, yet failing to pay off the balance, Stanley disputed the 1997 charge(s). The record is unclear if he did so over the telephone or in writing. During the time Stanley continued to dispute the charge(s), Discover claimed it was unable to provide account statements prior to June 15, 1998, as requested by Stanley. Discover claimed it had not retained records prior to June 15, 1998, which showed the original charge(s) made sometime in calendar year 1997.
[¶ 5.] In addition to not being able to provide Stanley with documentation prior to June 15, 1998, Discover would not close Stanley's account despite repeated requests to do so. Stanley was told over the telephone by several Discover employees that they were unable to close the account without a credit counselor being present on the telephone line. At some point, Stanley ceased paying on the account.
[¶ 6.] On March 8, 2005, Discover Bank sued Stanley for the unpaid balance on the account, which at that time totaled $6,565.41. Based on the prayer for relief, the complaint appears to allege breach of contract. Discover's request for relief demanded judgment against Stanley in the sum of $6,565.41 with interest "as authorized under said Discover Card plus costs
[¶ 7.] Stanley did not file an answer with the court. Instead, he wrote the attorney representing Discover in the matter and disputed Discover's claim that Stanley owed $6,565.41 on the account, stating that he had not made the original charge(s).
[¶ 8.] On May 31, 2007, Discover moved for summary judgment. Discover failed to file a statement of undisputed material facts with its motion and affidavit. Stanley resisted the motion for summary judgment, and argued that Discover's failure to provide a statement of undisputed material facts was fatal to its motion under SDCL 15-6-56. Stanley also argued that Discover's inability to substantiate the original charge(s) to the account upon which the balance of $6,565.41 was based raised a genuine issue of material fact for the finder of fact as to whether Stanley had made the original charge(s) in 1997, and whether he owed the money in question. Finally, Stanley raised the defense of accord and satisfaction, claiming he was told by Discover telephone agents that the balance had been satisfied. Stanley evidenced this with a copy of a statement provided by Discover dated December 31, 2004, which showed a zero balance.
[¶ 9.] On January 15, 2008, a hearing was held on Discover's motion for summary judgment. The circuit court held that Discover's failure to file a statement of undisputed material facts was not fatal to its motion for summary judgment, as the circuit court concluded there were no disputed facts in contention. The circuit court further found that it was not relevant to the motion for summary judgment that Discover was unable to provide the original record of the charge(s) from 1997.
[¶ 10.] Stanley presented evidence to dispute Discover's claim that he owed on the charge account. That evidence included an affidavit in which Stanley claimed he paid over $8,600.00 on the account, a claim Discover never disputed.
[¶ 11.] The evidence also included a copy of the account statement from December 31, 2004, in which a payment credit of $6,565.41 against a balance of the exact amount was reflected, and an affidavit in which Stanley claimed he had been told by Discover that he no longer owed anything on the account. A description at the bottom of the statement indicated an internal charge off of $6,565.41 was made on December 31, 2004. The circuit court accepted the explanation provided by Discover's counsel, that the designation "internal charge off" was an accounting method used by Discover prior to sending out an account for legal action. The circuit court did so despite Stanley's affidavit, which stated Stanley was told by a Discover telephone customer service agent that Stanley no longer owed anything on the account. The circuit court rejected Stanley's statement based on an argument advanced by counsel for Discover that Stanley's self-serving statement in his affidavit without more, such as the name of the Discover telephone customer service agent or confirmation in writing, was insufficient to
[¶ 12.] The circuit court further found that the time for Stanley to contest the 1997 charge(s) had long passed. The circuit court found that Stanley's attempts to contest the charge(s) in 2004 and 2005 were untimely, and were subject to the defenses of laches or waiver. Regardless of the rationale, the circuit court held that it was an undisputed fact that Stanley owed the original charge(s) due to the passage of time and Stanley's failure to contest the charge(s) within sixty-days as required by the terms and conditions of the credit card account.
[¶ 13.] The circuit court granted Discover's motion for summary judgment and entered an order of judgment against Stanley in the amount of $6,565.41 for principal, prejudgment interest of $1,331.32, plus court costs and service fees in the amount of $67.10, for a total judgment of $7,963.83. Stanley appeals.
[¶ 14.] Stanley raises the following issues on appeal:
STANDARD OF REVIEW
[¶ 15.] Statutory interpretation is a question of law to be reviewed under the de novo standard of review. Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611 (citing Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17 (citing U.S. West Communications, Inc. v. Public Util. Comm'n, 505 N.W.2d 115, 122-23 (S.D.1993))).
Id. The same rule applies to construction of this Court's rules of civil procedure. See Maynard v. Heeren, 1997 SD 60, ¶ 14, 563 N.W.2d 830, 835 (citing Cummings v. Mickelson, 495 N.W.2d 493, 500 (S.D. 1993)).
[¶ 16.] Our well-settled standard of review for a motion for summary judgment provides:
Mueller v. Cedar Shore Resort, Inc., 2002 SD 38, ¶ 10, 643 N.W.2d 56, 62 (quoting
[¶ 17.] The construction of a written contract is a question of law. Campion v. Parkview Apartments, 1999 SD 10, ¶ 25, 588 N.W.2d 897, 902 (citing Production Credit Ass'n v. Wynne, 474 N.W.2d 735, 740 (S.D.1991) (quoting Baker v. Wilburn, 456 N.W.2d 304, 306 (S.D. 1990) (citations omitted))). The effects and terms of a contract are questions of law to be resolved by the court. Cotton v. Manning, 1999 SD 128, ¶ 15, 600 N.W.2d 585, 588 (quoting Campion, 1999 SD 10, ¶ 25, 588 N.W.2d at 902) (citations omitted). "On appeal, this [C]ourt can read a contract itself without a presumption in favor of the trial court's determination. The court is to enforce and give effect to the unambiguous language and terms of the contract." Campion, 1999 SD 10, ¶ 25, 588 N.W.2d at 902 (citing Production Credit Ass'n v. Wynne, 474 N.W.2d 735, 740 (S.D.1991) (quoting Baker v. Wilburn, 456 N.W.2d 304, 306 (S.D.1990) (citations omitted))).
[¶ 18.] SDCL 15-6-56 provides the procedure for when and how a motion for summary judgment may be filed with a circuit court. SDCL 15-6-56(a)-(g). Any party to an action to recover a "claim, counterclaim, or cross-claim or to obtain a declaratory judgment" is permitted under the rules to file a motion for summary judgment. SDCL 15-6-56(a)-(b). The parties may do so with or without supporting affidavits. Id.
[¶ 19.] "Summary judgment is an extreme remedy, is not intended as a substitute for a trial." Continental Grain Co. v. Heritage Bank, 1996 SD 61, ¶ 17, 548 N.W.2d 507, 511 (quoting Piner v. Jensen, 519 N.W.2d 337, 339 (S.D.1994)). However, on appeal this Court will affirm the circuit court's ruling granting a motion for summary judgment if any basis exists to support the ruling. Westfield Ins. Co., Inc. v. Rowe ex rel. Estate of Gallant, 2001 SD 87, ¶ 4, 631 N.W.2d 175, 176 (citing Estate of Juhnke v. Marquardt, 2001 SD 26, ¶ 5, 623 N.W.2d 731, 732).
[¶ 21.] As a rule of statutory construction, we have determined that "[w]hen `shall' is the operative verb in a statute, it is given `obligatory or mandatory' meaning." In re J.H., 1999 SD 36, ¶ 31, 590 N.W.2d 473, 479 (citing In re Groseth Int'l, Inc., 442 N.W.2d 229, 231-32 (S.D.1989) (citing Person v. Peterson, 296 N.W.2d 537 (S.D.1980)); Tubbs v. Linn, 75 S.D. 566, 70 N.W.2d 372 (1955); 2A Sutherland Stat. Const. § 57.03 at 643-44 (4th ed. 1984); Sutton, Use of "Shall" in Statutes, 4 J. Marshall LQ 204 (1938), reprinted in 1A Sutherland Stat. Const. 691 (4th ed. 1985)). The statutory definition of "shall" is in accord: "As used in the South Dakota Codified Laws to direct any action, the term, shall, manifests a mandatory directive and does not confer any discretion in carrying out the action so directed." SDCL 2-14-2.1. Statutes and court rules must be construed in their entirety. Jensen v. Turner County Bd. of Adjustment, 2007 SD 28, ¶ 12, 730 N.W.2d 411, 415 (citing Peterson ex rel. Peterson v. Burns, 2001 SD 126, ¶ 32, 635 N.W.2d 556, 568 (quoting Maynard, 1997 SD 60, ¶ 14, 563 N.W.2d 830, 835)). The effect of the word
[¶ 22.] The prior version of SDCL 15-6-56(c) provided as follows:
SDCL 15-6-56(c), SL 2006, ch. 329 (Supreme Court Rule 06-55) (current version enacted September 4, 2007). The prior versions of SDCL 15-6-56(c), including the version enacted under Session Law 2006, chapter 329, did not require the moving party to file a statement of undisputed material facts.
[¶ 23.] However, SDCL 15-6-56(c) was amended once again on October 18, 2006. SDCL 15-6-56(c), SL 2007, ch. 302 (Supreme Court Rule 06-70) (current version enacted September 4, 2007). The October 18, 2006, amendment, which became effective on January 1, 2007, introduced for the first time a requirement that a statement of undisputed material facts be filed with a motion for summary judgment:
SDCL 15-6-56(c) (effective January 1, 2007) (emphasis added). That requirement remains in effect under the current version of SDCL 15-6-56(c). If the moving party claims there are no material facts for a trier of fact to decide, it is fair and not unduly burdensome that he or she so specifically advises the circuit court and opposing counsel in the form of such a statement.
[¶ 24.] The requirement that a statement of undisputed material facts be attached to the motion by the party moving for summary judgment is phrased in the mandatory term shall. In the context of this rule, this Court cannot ascertain any other meaning given to the word "shall" that permits a party to fail to comply with a mandatory requirement in a statute. The fact that affidavits were submitted, while appropriate, cannot negate the need for the statement of undisputed
[¶ 25.] Discover's failure to file a statement of undisputed material facts with its May 31, 2007, motion for summary judgment prevented Stanley from knowing exactly what facts Discover planned on using to support its motion until the day of the hearing. The party opposing a motion for summary judgment should not have to guess at what its opponent plans to present in court. The plain meaning of SDCL 15-6-56(c) leaves no doubt that the moving party must file a statement of undisputed material facts with a motion for summary judgment filed on or after January 1, 2007.
[¶ 26.] The circuit court erred when it did not require Discover to submit a statement of undisputed materials facts as required by SDCL 15-6-56(c). The lack of such a statement denied Stanley the opportunity to submit his mandatory statement controverting those undisputed facts offered by Discover.
[¶ 28.] Discover argued before the circuit court that Stanley was bound by the terms and conditions of the credit card agreement. In this case, the terms and conditions of the credit card agreement entered into by the parties states that Stanley was required to pay:
Thus, by the terms of its own contract, Discover is limited to pursuing Stanley for those charges he personally incurred on the Discover card, or charges incurred by someone Stanley authorized to use the account.
[¶ 29.] Discover was unable to show in its affidavit and supporting exhibits what the 1997 charge(s) was for, when the charge(s) was made, where it was made, who made the charge(s), and whether it was "authorized" within the meaning of the contract.
[¶ 30.] Stanley resisted Discovers motion for summary judgment by affidavit, stating under oath that he did not make the 1997 charge(s), nor did he authorize another person to make the charge(s). Thus, Stanley generated a genuine issue of material fact as to whether he owed the 1997 charge(s) and the outstanding balance. Stanley as the nonmoving party, not Discover, was entitled to all reasonable inferences.
[¶ 31.] Discover offered nothing further to show the nonexistence of a genuine issue of material fact other than its original claim that the balance on the June 15, 1998, billing statement, the earliest statement Discover was able to produce, was owed by Stanley. Without some type of substantiation that the original 1997 charge(s) was "incurred by [Stanley] or anyone [Stanley] authorize[d] or permit[ted] to use [the] Account or [ ] Card
[¶ 32.] Discovers failure to file a statement of undisputed material facts also impacts the issue of accord and satisfaction. An accord and satisfaction is authorized by statute. SDCL 20-7-4. "The `burden of proof to establish such defense is on the party who seeks to rely on it.'" Hubbard Milling Co. v. Frame, 310 N.W.2d 155, 157 (S.D.1981) (citing Lang v. Burns, 77 S.D. 626, 97 N.W.2d 863 (1959)). Nevertheless, there exists a material question of fact on the December 2004 billing statement. Discovers claim that the zero balance on this billing statement was an accounting write-off cannot be ascertained as a matter of undisputed fact from the face of that document. Moreover, Stanley testified by affidavit that he was told over the phone by Discover that the account was satisfied. Thus, Discover has failed to establish that no questions of fact exist as to an accord and satisfaction or lack thereof.
[¶ 33.] Discover also argued that laches and waiver applied. Equitable doctrines such as laches and waiver are generally inappropriate for a summary judgment proceeding. Ahl v. Arnio, 388 N.W.2d 532, 533 (S.D.1986) (citing Wilson v. Great Northern Ry. Co., 83 S.D. 207, 157 N.W.2d 19 (1968)). The circuit courts reliance on the doctrine of laches and waiver in its grant of summary judgment, and Discovers argument on appeal that Stanley could not satisfy the elements of accord and satisfaction, are issues of fact that must be determined below.
[¶ 34.] We reverse and remand the matter to the circuit court for further proceedings consistent with this opinion.
[¶ 35.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.
The language quoted from the Discover card agreement under "Your Billing Rights" is contained verbatim in Regulation Z found at 12 CFR § 226.1 et seq., as issued by the Board of Governors of the Federal Reserve System, which provides the method and manner for implementation of the Truth in Lending Act, 15 § USC 1601. The language is a mandatory disclosure required by the Fair Credit Billing Act, 15 USC § 1666, et seq., (FCBA), which provides dispute resolution procedures for both credit card holders and their creditors. 15 USC § 1666-1666(j).