[Cite as Bank of Am., N.A. v. Shailer, 2021-Ohio-3939.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
BANK OF AMERICA, N.A. : : Plaintiff-Appellee : Appellate Case No. 29036 : v. : Trial Court Case No. 2020-CVF-1096E : BOBBY M. SHAILER : (Civil Appeal from : Municipal Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 5th day of November, 2021.
SEAN M. WINTERS, Atty. Reg. No. 0084612, 2489 Stelzer Road, Suite 100, Columbus, Ohio 43219 Attorney for Plaintiff-Appellee
BOBBY M. SHAILER, 4880 Springfield Street, Apt. 6, Dayton, Ohio 45431 Defendant-Appellant, Pro Se
............. -2-
EPLEY, J.
{¶ 1} Bobby M. Shailer, pro se, appeals from a judgment of the Municipal Court of
Montgomery County, Eastern Division, which granted summary judgment to Bank of
America, N.A., on its claims based on Shailer’s unpaid credit card balance. For the
following reasons, the trial court’s judgment will be reversed, and the matter will be
remanded for further proceedings.
I. Facts and Procedural History
{¶ 2} On October 2, 2020, Bank of America filed a complaint against Shailer in
municipal court, raising an action on account and unjust enrichment. The bank attached
two credit card statements for the periods of March 5 to April 4, 2017 (account ending
0132) and May 5 to June 4, 2019 (account ending 2133). The bank alleged that the June
2019 statement, with a balance of $2,315.36, was the last periodic statement provided to
Shailer before the debt was written off as uncollectible. Bank of America requested
judgment in that amount ($2,315.36), plus court costs.
{¶ 3} Shailer responded to the complaint, alleging that he was not responsible for
the debt due to violations of the Fair Debt Collection Practices Act (FDCPA) by the bank’s
attorneys and because he had no contract with the attorneys. A magistrate set a trial
date of February 10, 2021.
{¶ 4} On December 7, 2020, Bank of America filed a notice of service of its first set
of interrogatories, request for production of documents, and request for admissions. The
notice stated that Shailer had been served with those discovery requests by first class
mail on November 25, 2020. Consistent with Civ.R. 5(D), the first set of interrogatories,
request for production of documents, and request for admission were not filed with the -3-
court along with the notice of service.
{¶ 5} On January 5, 2021, Bank of America sought leave to file a motion for
summary judgment. The next day, the trial court granted the motion for leave and,
minutes later, the bank’s motion for summary judgment was filed. The bank’s motion
asserted that Shailer had failed to respond to the request for admissions, that those
matters must be deemed admitted, and that no genuine issues of fact, therefore, existed.
The bank further asserted that it was not required to produce a written contract between
the parties and that Shailer’s use of the credit card was sufficient to establish a contractual
relationship. In support of its motion, Bank of America attached a copy of its request for
admissions and copies of the same two billing statements that had been attached to its
complaint. In addition, one of the bank’s attorneys filed an affidavit that Shailer was not
on active duty in the United States military (and therefore not entitled to a range of
protections under the Servicemembers Civil Relief Act).
{¶ 6} Shailer responded to Bank of America’s summary judgment motion on
January 19, 2021. He asserted in his opposition memorandum that (1) he could not
respond to the bank’s request for admissions, because he never received the bank’s
discovery packet; (2) the bank did not timely file its notice of service and discovery
requests, (3) the court should not consider the bank’s motion for summary judgment; (4)
he “has not admitted to anything, and does not admit to anything,” (5) the bank had the
burden to prove Shailer’s financial responsibility for the alleged debt; and (6) the bank
had not provided proof of validation for the alleged debt and had violated the FDCPA.
Shailer also enumerated several items that he had requested from Bank of America, and
he claimed that the bank had yet to respond. Shailer attached copies of correspondence -4-
between the bank’s attorneys and him.
{¶ 7} A week later, Shailer timely filed an addendum to his response. He
emphasized that the only evidence from the bank that could be considered was the
“uncertified account statement pages, which also fail for not being certified.”
{¶ 8} Shortly after the addendum was filed, the trial court granted Bank of
America’s motion for summary judgment. The court concluded, in summary fashion, that
“upon the examination of the records and the uncontroverted Requests for Admissions in
the record, * * * there appears to be no genuine issue of fact.” The court entered
judgment in the bank’s favor in the amount of $2,315.36, plus court costs.
{¶ 9} Shailer appeals from the trial court’s judgment, raising nine assignments of
error. We will address his assignments of error in a manner that facilitates our analysis.
II. Summary Judgment Standard
{¶ 10} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no
genuine issue as to any material fact, (2) the moving party is entitled to judgment as a
matter of law, and (3) reasonable minds, after construing the evidence most strongly in
favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor
Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving
party carries the initial burden of affirmatively demonstrating that no genuine issue of
material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526
N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials
of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary
judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). The
substantive law of the claim or claims being litigated determines whether a fact is -5-
“material.” Perrin v. Cincinnati Ins. Co., 2020-Ohio-1405, 153 N.E.3d 832, ¶ 29 (2d
Dist.).
{¶ 11} Once the moving party satisfies its burden, the nonmoving party may not
rest upon the mere allegations or denials of the party’s pleadings. Dresher at 293; Civ.R.
56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits
or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is
a genuine issue of material fact for trial. Dresher at 293. Throughout, the evidence
must be construed in favor of the nonmoving party. Id.
{¶ 12} We review the trial court’s ruling on a motion for summary judgment de
novo. Schroeder v. Henness, 2d Dist. Miami No. 2012-CA-18, 2013-Ohio-2767, ¶ 42.
De novo review means that this court uses the same standard that the trial court should
have used, and we examine all the Civ.R. 56 evidence, without deference to the trial court,
to determine whether, as a matter of law, no genuine issues exist for trial. E.g., Ward v.
Bond, 2d Dist. Champaign No. 2015-CA-2, 2015-Ohio-4297, ¶ 8; Harris v. Dayton Power
& Light Co., 2d Dist. Montgomery No. 25636, 2013-Ohio-5234, ¶ 11.
III. Evidence for Summary Judgment Review
{¶ 13} In support of its motion for summary judgment, Bank of America relied upon
statements deemed admitted due to Shailer’s failure to respond to the bank’s request for
admissions, as well as two credit card statements. In response, Shailer attached copies
of correspondence to his opposition memorandum. On appeal, he presents additional
documents in appendices to his appellate brief.
{¶ 14} We begin with the documents attached to Shailer’s appellate brief. In
reviewing the judgment on appeal, we are limited to the record before the trial court. E.g., -6-
Bajaj v. Green, 2d Dist. Darke No. 2021-CA-7, 2021-Ohio-3113, ¶ 10; Kahler v.
Eytcheson, 2d Dist. Montgomery No. 23523, 2012-Ohio-208, ¶ 23. “An exhibit merely
appended to an appellate brief is not part of the record, and we may not consider it in
determining the appeal.” Williams v. Pioneer Credit Recovery, Inc., 2d Dist. Montgomery
No. 28524, 2020-Ohio-397, ¶ 16, quoting State v. Grant, 10th Dist. Franklin No. 12AP-
650, 2013-Ohio-2981, ¶ 12. Accordingly, we cannot consider any new exhibits attached
to Shailer’s brief in resolving this appeal.
{¶ 15} Turning to the evidence presented in the trial court, Civ.R. 56(C) lists the
type of evidence that a court may consider in ruling on a motion for summary judgment.
That list includes “the pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written stipulations of fact[.]” Civ.R.
56(C). Absent an exception, hearsay may not be considered in a motion for summary
judgment. E.g., Bledsoe-Baker v. Trotwood, 2d Dist. Montgomery No. 28052, 2019-
Ohio-45, ¶ 28.
{¶ 16} “Although Civ.R. 56 does not directly refer to evidentiary exhibits, such
evidence may be considered when it is incorporated by reference into a properly framed
affidavit pursuant to Civ.R. 56(E).” Natl. Collegiate Student Loan Tr. 2005-3 v. Demers,
2d Dist. Clark No. 2018-CA-93, 2019-Ohio-1475, ¶ 15, quoting Citibank (South Dakota)
N.A. v. Ogunduyile, 2d Dist. Montgomery No. 21794, 2007-Ohio-5166, ¶ 10. Civ.R.
56(E) requires affidavits to be “made on personal knowledge,” to “set forth such facts as
would be admissible in evidence,” and to “show affirmatively that the affiant is competent
to testify to the matters stated in the affidavit.”
{¶ 17} Civ.R. 56(E) further requires that “[s]worn or certified copies of all papers or -7-
parts of papers referred to in an affidavit” be attached to or served with the affidavit.
Civ.R. 56(E). To properly incorporate attached evidentiary exhibits, an affidavit merely
needs to state that “the attached materials are true copies and reproductions of the
original documents.” Demers at ¶ 16, citing Citibank at ¶ 10 and State ex rel. Corrigan
v. Seminatore, 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (1981).
{¶ 18} A trial court may consider evidence that has not been authenticated if the
non-moving party fails to object. Id.; see Credit Invests., Inc. v. Obanion, 2d Dist.
Montgomery No. 26129, 2014-Ohio-5799, ¶ 15 (failure to raise a hearsay or
authentication challenge in a memorandum in opposition to summary judgment waived
that issue for appeal).
A. Credit Card Statements
{¶ 19} In his ninth assignment of error, Shailer claims that “[n]on-public record
documents, without a supporting witness, should be properly authenticated before being
accepted into evidence.” Shailer specifically argues that the credit card statements were
not properly authenticated and should not have been considered by the trial court in ruling
on Bank of America’s summary judgment motion.
{¶ 20} Bank of America submitted two credit card statements in support of its
summary judgment motion. As noted by Shailer, however, Bank of America failed to
provide a properly framed affidavit to authenticate them. Although Shailer did not
expressly object to consideration of the bank’s credit card statements in his initial
opposition memorandum, he stated in his addendum that “the uncertified account
statement pages * * * also fail for not being certified.” He repeatedly referred to the
FDCPA as a basis for why the statements were not proper evidence, and we construe -8-
Shailer’s opposition memoranda as raising an authentication challenge.
{¶ 21} In its appellate brief, Bank of America comments that “[t]here is no evidence
in the record to suggest, however, that the trial court considered those documents [the
credit card statements] when granting Bank of America’s Motion for Summary Judgment.”
The bank emphasizes that Shailer failed to provide evidence to rebut the facts
“conclusively established” by his failure to respond to the request for admissions.
{¶ 22} In ruling on the summary judgment motion, the trial court indicated that it
had conducted an “examination of the records.” It is unclear whether that means that
the trial court considered the bank’s credit card statements. Regardless, for purposes of
our review, we conclude that, in light of Shailer’s objection to the court’s consideration of
the unauthenticated credit card statements, the trial court should not have considered
them in ruling on the summary judgment motion.
B. Request for Admissions
{¶ 23} In his first and fourth assignments of error, Shailer argues that Bank of
America’s discovery packet, which included its request for admissions, was not properly
served and, therefore, the trial court erred in deeming Bank of America’s request for
admissions admitted due to his failure to respond. Shailer’s fifth assignment of error
specifically addresses the bank’s alleged failure to properly serve “interrogatories” by
electronic means, and he argues that “any granting of Summary Judgment, on the basis
of unanswered interrogatories, [was] invalid.” Because Bank of America did not rely on
interrogatories, it appears that Shailer has confused the terms interrogatories and
requests for admission or conflated them.
{¶ 24} Civ.R. 36 governs requests for admissions. It provides, in relevant part: -9-
(A) Availability; procedures for use. A party may serve upon any
other party a written request for the admission, for purposes of the pending
action only, of the truth of any matters within the scope of Civ.R. 26(B) set
forth in the request, that relate to statements or opinions of fact or of the
application of law to fact, including the genuineness of any documents
described in the request. * * * The party serving the request for admission
shall serve an electronic copy of the request on a shareable medium and in
an editable format, by electronic mail, or by other means agreed to by the
parties. A party who is unable to provide an electronic copy of a request
for admission may seek leave of court to be relieved of this requirement
***
(B) Effect of admission. Any matter admitted under this rule is
conclusively established unless the court on motion permits withdrawal or
amendment of the admission. * * *
Civ.R. 36(A), (B).
{¶ 25} “When a party fails to timely respond to requests for admissions, the
admissions become facts of record that the court must recognize.” Martin v. Martin, 179
Ohio App.3d 805, 2008-Ohio-6336, 903 N.E.2d 1243, ¶ 13 (2d Dist.), citing Cleveland
Trust Co. v. Willis, 20 Ohio St.3d 66, 67, 485 N.E.2d 1052 (1985). “[A]ny matter admitted
under Civ.R. 36 ‘is conclusively established unless the court on motion permits withdrawal
or amendment of the admission.’ ” Union Sav. Bank v. Litteral, 2d Dist. Montgomery No.
25106, 2012-Ohio-5108, ¶ 12, quoting Civ.R. 36(B).
{¶ 26} We have repeatedly held that Civ.R. 36 is “self-enforcing” and that the “trial -10-
court has no discretion whether to deem the matters admitted. If the requests are not
answered, they are admitted and conclusively established, and the trial court must
recognize them as so.” Ohio Bell Tel. Co. v. C-5 Constr., Inc., 2d Dist. Montgomery No.
23792, 2010-Ohio-4762, ¶ 41; Litteral at ¶ 12; Demers, 2d Dist. Clark No. 2018-CA-93,
2019-Ohio-1475, at ¶ 19. “Because Civ.R. 36 is self-enforcing, absent a timely answer
or objection, a matter is admitted without the necessity of a court order.” Demers at ¶ 19.
{¶ 27} However, the self-enforcing nature of Civ.R. 36 presupposes that the
request for admissions has been properly served. See Spy v. Arbor Park Phase One
Assoc., 8th Dist. Cuyahoga No. 108819, 2020-Ohio-2944, ¶ 33 (the trial court abused its
discretion in deeming the requests for admissions admitted when the record
demonstrated that the requests had not been properly served). In 2004, Civ.R. 36 was
amended to require service of a printed copy and the provision of an electronic copy of a
request for admissions. As of 2012, however, service of a request for admissions must
be made by electronic means. As noted in the Staff Notes to the 2012 amendment,
The 2012 amendment [to Civ.R. 36] simply requires that an
electronic copy be served, which can be accomplished electronically under
the 2012 amendment to Civ.R. 5(B), or by any other method provided under
Civ.R. 5(B). Although service of a paper copy is no longer necessary, it is
not prohibited and would be appropriate, for example, when a party who is
unable to provide an electronic copy is relieved of that requirement by the
court.
The 2012 amendments were intended to make separate service of a printed copy
“unnecessary except for unusual circumstances.” Staff Notes to 2014 amendments to -11-
Civ.R. 36.
{¶ 28} In this case, Bank of America failed to comply with Civ.R. 36(A) when it
served its request for admissions. Bank of America’s notice of service of its discovery
requests, filed on December 7, 2020, indicated that the bank’s first set of interrogatories,
request for production of documents, and request for admissions were served on Shailer
by first class mail on November 25, 2020. There is no indication in the record that Bank
of America served Shailer an electronic copy of the request for admissions, as required
by Civ.R. 36(A), or requested leave to be relieved of that requirement. In addition, in his
memorandum in opposition to Bank of America’s motion for summary judgment, Shailer
told the court that he had not received the bank’s mailed discovery requests, including
the request for admissions, and that he was not admitting anything. Although not
specifically raised by Shailer, we also note that Bank of America failed to authenticate the
request for admissions that it submitted as evidence.
{¶ 29} On this record, we conclude that the trial court erred in deeming the facts in
Bank of America’s request for admission admitted. Accordingly, the trial court should not
have considered those purported admitted facts in ruling on Bank of America’s motion for
summary judgment. Shailer’s challenge to the trial court’s consideration of Bank of
America’s request for admissions is sustained.
C. Shailer’s Correspondence
{¶ 30} Shailer attached two pieces of correspondence to his memorandum
opposing Bank of America’s motion for summary judgment: (1) a letter from him to Levy
& Associates, counsel for Bank of America, dated July 17, 2020 but apparently sent on
August 17, 2020, along with facsimile and mailing information, and (2) correspondence -12-
from Levy & Associates to Shailer, dated November 10, 2020. Bank of America did not
file a reply memorandum in the trial court or move to strike Shailer’s exhibits. It therefore
was within the trial court’s discretion whether to consider Shailer’s exhibits.
IV. Review of Summary Judgment
{¶ 31} In his first assignment of error, Shailer claims that the trial court erred in
granting the bank’s motion for summary judgment on its claims, because genuine issues
of material fact existed.
A. Action on Account
{¶ 32} An action on account is really one for breach of contract. Kwikcolor Sand
v. Fairmount Minerals Ltd., 8th Dist. Cuyahoga No. 96717, 2011-Ohio-6646, ¶ 13. To
prove a breach of contract claim, a plaintiff must establish the existence of a contract,
performance by the plaintiff, breach by the defendant, and resulting damage to the
plaintiff. E.g., Discover Bank v. Pierce, 2d Dist. Montgomery No. 25755, 2014-Ohio-625,
¶ 14. “Ohio recognizes that the issuance and use of a credit card can create a legally
binding agreement.” Unifund CCR Partners Assignee of Palisades Collection, LLC v.
Childs, 2d Dist. Montgomery No. 23161, 2010-Ohio-746, ¶ 17; see also, e.g., Discover
Bank c/o DFS Servs. L.L.C. v. Lammers, 2d Dist. Greene No. 2008-CA-85, 2009-Ohio-
3516. No written agreement is required. Pierce at ¶ 14.
{¶ 33} An action on account “simplifies pleadings by allowing a party to advance,
as one claim, claims for separate breaches of contract based on a series of transactions
by providing a summary of accounting for the transactions.” Kwikcolor Sand at ¶ 13.
“The cause of action exists only as to the balance that may [be] due one of the parties as
a result of the parties’ transactions, and not as to each item of the account.” (Citation -13-
omitted.) Rumpke v. Acme Sheet and Roofing, Inc., 2d Dist. Montgomery No. 17654,
1999 WL 1034455, *4 (Nov. 12, 1999).
{¶ 34} To establish the amount due on the account, a plaintiff must prove “(1) a
beginning balance (zero, or a sum that can qualify as an account stated, or some other
provable sum); (2) listed items, or an item, dated and identifiable by number or otherwise,
representing charges, or debits, and credits; and (3) a summarization by means of a
running or developing balance, or an arrangement of beginning balance and items which
permits the calculation of the amount claimed to be due.” (Citation omitted.) Lammers
at ¶ 20; Pierce at ¶ 17. “Absolute certainty of proof is not required, but there must be
something upon which the court can form its judgment.” Rumpke at *4; see also R.H.
Donnelley Pub. & Advertising v. Armstrong, 2d Dist. Miami No. 2012-CA-15, 2013-Ohio-
1927, ¶ 19.
{¶ 35} Construing the evidence in the light most favorable to Shailer, Bank of
America has failed to present evidence to support its claim. In the absence of statements
deemed admitted by the trial court, Bank of America provided no evidence to establish
that Shailer made purchases with a Bank of America credit card (account ending 2133),
that the account had a final balance of $2,315.36, that Shailer was not entitled to any
credits, offsets, or deductions from that amount, or that he owed $2,315.36 to Bank of
America. Bank of America did not present an affidavit from any employee regarding
Shailer’s account, and it did not provide any evidence showing a beginning credit account
balance, a list of charges to the account, or any means to ascertain the balance due.
{¶ 36} Even if we were to consider the two credit card statements, the June 2019
credit card statement for account ending 2133 shows that the statement was sent to -14-
Shailer and had a balance due of $2,315.36. The only transactions noted on that
statement were a $45 payment made on May 28, 2019, and a charge of $45 on May 30,
2019 due to payment’s being returned. The June 2019 statement, alone, was insufficient
to establish the amount due on the account.
{¶ 37} The relevance of the April 2017 statement to Bank of America’s claim is not
apparent. Although the statement was sent to someone named “Bobby M. Shailer,” the
statement was mailed to an address in Sunland, California and concerned a different
account number (account ending 0132) than shown on the 2019 statement. In addition,
the April 2017 statement merely reflected a beginning balance of $1,515.03 and showed
various purchases which were reversed as fraudulent charges. Bank of America has
provided no evidence under Civ.R. 56 to explain the relationship, if any, of the April 2017
statement to the June 2019 statement.
{¶ 38} With the record before us, the trial court erred in granting summary
judgment to Bank of America on its action on account.
B. Unjust Enrichment
{¶ 39} Bank of America also brought a claim for unjust enrichment. In its
appellate brief, Bank of America focuses on its contract claim (as it did in the trial court)
and does not separately address the unjust enrichment claim. Upon review of the
evidence, we conclude that the trial court could not have properly granted summary
judgment to Bank of America based on unjust enrichment.
{¶ 40} “Unjust enrichment occurs when a person ‘has and retains money or
benefits which in justice and equity belong to another.’ ” Johnson v. Microsoft Corp., 106
Ohio St.3d 278, 2005-Ohio-4985, 834 N.E.2d 791, ¶ 20, quoting Hummel v. Hummel, 133 -15-
Ohio St. 520, 528, 14 N.E.2d 923 (1938); Bakhshi v. Baarlaer, 2d Dist. Montgomery No.
28767, 2021-Ohio-13, ¶ 101. Unjust enrichment requires “ ‘(1) a benefit conferred by a
plaintiff upon a defendant; (2) knowledge by the defendant of the benefit; and (3) retention
of the benefit by the defendant under circumstances where it would be unjust to do so
without payment (“unjust enrichment”).’ ” Hambleton v. R.G. Barry Corp., 12 Ohio St.3d
179, 183, 465 N.E.2d 1298 (1984), quoting Hummel at 525; Dart v. Katz, 2d Dist.
Montgomery No. 28913, 2021-Ohio-1429, ¶ 55.
{¶ 41} Claims for breach of contract and unjust enrichment are mutually exclusive.
TruLogic, Inc. v. Gen. Elec. Co., 2d Dist. Greene No. 2021-CA-3, 2021-Ohio-2860, ¶ 3;
Booher Carpet Sales, Inc. v. Erickson, 2d Dist. Greene No. 98-CA-0007, 1998 WL
677159, *6 (Oct. 2, 1998); see also Wiggins v. Safeco Ins. Co. of Indiana, 2d Dist.
Montgomery No. 29034, 2021-Ohio-3526, ¶ 19. “Unjust enrichment involves a contract
implied in law. Where an express agreement exists, there can be no implied agreement.”
TruLogic. at ¶ 3.
{¶ 42} As with its action on account, Bank of America failed to present evidence of
the benefit conferred by the bank on Shailer and the retention of that benefit by Shailer
under circumstances that would be unjust. Accordingly, Bank of America did not
establish that it was entitled to summary judgment on its unjust enrichment claim.
{¶ 43} Shailer’s first assignment of error is sustained.
V. Shailer’s Additional Assignments of Error
{¶ 44} Shailer raises several additional assignments of error, which generally
assert that he had a right to jury trial, that Bank of America and its attorneys were
prohibited from attempting to collect the alleged debt from him due to violations of the -16-
FDCPA, and that Bank of America failed to comply with the Ohio Rules of Civil Procedure
regarding the filing and service of documents and discovery. In light of our conclusion
that the trial court erred in granting summary judgment to Bank of America, Shailer’s
additional assignments of error are overruled as moot.
VI. Conclusion
{¶ 45} The trial court’s judgment will be reversed, and the matter will be remanded
for further proceedings.
.............
TUCKER, P. J. and WELBAUM, J., concur.
Copies sent to:
Sean M. Winters Bobby M. Shailer Hon. William C. Cox