Discover Bank v. Combs

2012 Ohio 3150

• Court: Ohio Court of Appeals
• Decided: July 9, 2012
• Docket: 11CA25
• Status: Published

Opinion

[Cite as Discover Bank v. Combs, 2012-Ohio-3150.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY

DISCOVER BANK, : : Plaintiff-Appellee, : Case No: 11CA25 : v. : : DECISION AND BURNIS COMBS II, : JUDGMENT ENTRY : Defendant-Appellant. : Filed: July 9, 2012

APPEARANCES:

Burnis Combs II, Commercial Point, Ohio, pro se, Appellant.

Raymond F. Moats, III, Weltman, Weinberg & Reis Co., L.P.A., Columbus, Ohio, for Appellee.

Kline, J.:

{¶1} Burnis Combs II (hereinafter “Combs”) appeals the judgment of the

Circleville Municipal Court, which granted summary judgment in favor of Discover Bank

(hereinafter “Discover”). Initially, Combs argues that Discover’s summary-judgment

evidence does not satisfy Civ.R. 56. Because Discover’s evidence complies with Civ.R.

56, we disagree. Furthermore, we find the following: (1) there are no genuine issues of

material fact; (2) Discover is entitled to judgment as a matter of law; and (3) reasonable

minds can come to just one conclusion, and that conclusion is adverse to Combs.

Accordingly, we overrule Combs’s assignments of error and affirm the judgment of the

trial court.

I. Pickaway App. No. 11CA25 2

{¶2} On April 1, 2011, Discover filed its complaint against Combs. Discover

alleged that Combs owed them $10,573.76 after defaulting on a credit card account.

{¶3} On October 17, 2011, Discover moved for summary judgment. As part of

its summary-judgment motion, Discover attached the affidavit of Barbara Ferguson

(hereinafter “Ferguson”), a record of Combs’s credit card application, the cardmember

agreement, and copies of Comb’s monthly account statements. Ferguson’s affidavit

states the following:

I am a Legal Placement Account Manager for DB Servicing

Corporation the servicing agent of Discover Bank, an FDIC

insured Delaware State Bank.

THAT this affidavit is made on the basis of my personal

knowledge and in support of the Plaintiff’s suit on account

against the Debtor(s).

THAT, in my capacity as Legal Placement Account Manager,

I have access to records regarding the Discover Card

Account of the above referenced Debtor(s), further, that I

have personally inspected said Account and statements

regarding the balance due on said account. DB Servicing

Corporation maintains these records in the ordinary course

of business.

THAT the account is in default. Pickaway App. No. 11CA25 3

THAT [Combs’s monthly account statements are] a true and

accurate statement of what is now due and owing Discover

Bank on the account.

***

I declare under penalty of perjury that the foregoing is true

and correct to the best of my knowledge.

{¶4} Combs did not attach any evidence to his “PRO SE MOTION TO

OPPOSE SUMMARY JUDGEMENT [sic].” Combs did, however, move to strike

Ferguson’s affidavit. According to Combs, Ferguson’s affidavit does not comply with

Civ.R. 56(E). But the trial court disagreed and granted summary judgment in favor of

Discover. As a result, the trial court ordered Combs to pay “the principal amount of

$10,573.76, plus interest from December 3, 2010[,] on the principal balance at the rate

of 19.490% per annum and costs.” Entry on Plaintiff’s Motion for Summary Judgment at

2.

{¶5} Combs appeals and asserts the following four assignments of error: I.

“Civ.R. 56 provides summary judgment may be granted only after the trial court

determines: a. ‘no genuine issues as to any material fact remain to be litigated; 2) the

moving party is entitled to judgment as a matter of law; and 3) it appears from the

evidence that reasonable minds can come to but one conclusion and viewing such

evidence most strongly in favor of the party against whom the motion for summary

judgment is made, that conclusion is adverse to that party.’ Temple v. Wean United,

Inc. (1977), 50 Ohio St.2d 317, 364 N.E.2d 267.” II. “It is well established the moving

party bears the burden of proving that no issues of material fact exist for trial. Celotex Pickaway App. No. 11CA25 4

Corp. v. Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.E.2d 265. The

standard for granting summary judgment is explained in Dresher v. Burt (1996), 75 Ohio

St.3d 280 at 293, 662 N.E.2d 264: i. ‘a party seeking summary judgment, on the ground

that the nonmoving party cannot prove its case, bears the initial burden of informing the

trial court of the basis for the motion, and identifying those portions of the record that

demonstrate the absence of a genuine issue of material fact on the essential element(s)

of the nonmoving party’s claims. The moving party cannot discharge its initial burden

under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no

evidence to prove its case. Rather, the moving party must be able to specifically point

to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the

nonmoving party has no evidence to support the nonmoving party’s claims. If the

moving party fails to satisfy its initial burden, the motion for summary judgment must be

denied. However, if the moving party has satisfied its initial burden, the nonmoving

party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts

showing there is a genuine issue for trial and, if the nonmovant does not so respond,

summary judgment, if appropriate, shall be entered against the nonmoving party.’” III.

“The record on summary judgment must be viewed in the light most favorable to the

opposing party. Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150,

309 N.E.2d 924. The plaintiff’s evidence must be such that a reasonable jury might

return a verdict in the plaintiff’s favor. Seredick v. Karnok (1994), 99 Ohio App.3d 502,

651 N.E.2d 44. Civ.R. 56(C) only allows the trial court to deliberate ‘pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence in the pending case, and written stipulations of fact.’ Generally, the failure to Pickaway App. No. 11CA25 5

authenticate a document submitted on summary judgment renders the document void of

evidentiary value. See Citizens Ins. Co. v. Burkes (1978), 56 Ohio App.2d 88, 381

N.E.2d 963.” And IV. “Upon summary judgment consideration, the proper procedure for

introducing evidence authorized by the rule is to incorporate such material by reference

in a properly framed affidavit. See Biskupich v. Westbay Manor Nursing Home (1986),

33 Ohio App.3d 220, 515 N.E.2d 632. Civ.R. 56(E) mandates sworn or certified copies

of all papers filed in support of or in opposition to a motion for summary judgment must

be accompanied by an affidavit swearing the matters contained within the document

were made on the affiant’s personal knowledge. The affidavit will also set forth facts

that would be admissible into evidence, and shall affirmatively show the affiant is

competent to testify to those matters. Thus, the proper procedure for introducing an

evidentiary matter not specifically authorized by Civ.R. 56(E) is to ‘incorporate it by

reference into a properly framed affidavit.’ Biskupich, supra, citing State ex rel. Corrigan

v. Seminatore (1981), 66 Ohio St.2d 459, 467, 423 N.E.2d 105.”

II.

{¶6} In his four assignments of error, Combs argues that the trial court should

not have granted summary judgment in favor of Discover. Therefore, we will address

Combs’s assignments of error together.

{¶7} “Because this case was decided upon summary judgment, we review this

matter de novo, governed by the standard set forth in Civ.R. 56.” Comer v. Risko, 106

Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Summary judgment is

appropriate only when the following have been established: (1) that there is no genuine

issue as to any material fact; (2) that the moving party is entitled to judgment as a Pickaway App. No. 11CA25 6

matter of law; and (3) that reasonable minds can come to only one conclusion, and that

conclusion is adverse to the nonmoving party. Civ.R. 56(C). Accord Bostic v. Connor,

37 Ohio St.3d 144, 146, 524 N.E.2d 881 (1988); Grimes v. Grimes, 4th Dist. No.

08CA35, 2009-Ohio-3126, ¶ 14. In ruling on a motion for summary judgment, the court

must construe the record and all inferences therefrom in the opposing party’s favor.

Doe v. First United Methodist Church, 68 Ohio St.3d 531, 535, 629 N.E.2d 402 (1994).

{¶8} The burden of showing that no genuine issue of material fact exists falls

upon the party who moves for summary judgment. Dresher v. Burt, 75 Ohio St.3d 280,

294, 662 N.E.2d 264 (1996). However, once the movant supports his or her motion with

appropriate evidentiary materials, the nonmoving party “may not rest upon the mere

allegations or denials of the party’s pleadings, but the party’s response, by affidavit or

as otherwise provided in [Civ.R. 56], must set forth specific facts showing that there is a

genuine issue for trial.” Civ.R. 56(E). Accord Grimes at ¶ 15.

{¶9} “In reviewing whether an entry of summary judgment is appropriate, an

appellate court must independently review the record and the inferences that can be

drawn from it to determine if the opposing party can possibly prevail.” Grimes at ¶ 16.

“Accordingly, we afford no deference to the trial court’s decision in answering that legal

question.” Morehead v. Conley, 75 Ohio App.3d 409, 412, 599 N.E.2d 786 (4th

Dist.1991). Accord Grimes at ¶ 16.

{¶10} Essentially, Combs raises two arguments on appeal. First, Combs argues

that Discover “failed to produce any evidence permitted by” Civ.R. 56. Appellant’s

Opening Brief and Excerpt of the Record at 6. And second, Combs argues that he Pickaway App. No. 11CA25 7

“clearly raised genuine issues of fact regarding the case[.]” Id. at 7. We reject both of

these arguments and find that Discover is entitled to summary judgment.

A.

{¶11} First, we find that Ferguson’s affidavit complies with Civ.R. 56(E), which

states that “[s]upporting and opposing affidavits shall be made on personal knowledge,

shall set forth such facts as would be admissible in evidence, and shall show

affirmatively that the affiant is competent to testify to the matters stated in the affidavit.”

{¶12} To support his argument that Ferguson’s affidavit is invalid, Combs relies

upon Discover Bank v. Peters, 5th Dist. No. 2010CA00309, 2011-Ohio-3480. In Peters,

Discover “filed a Complaint in the Canton Municipal Court, alleging Appellant had

defaulted on the terms of a credit card agreement[.]” Id. at ¶ 2. Eventually, Discover

filed a motion for summary judgment. “In support of the motion, Appellee attached * * *

the Affidavit of Natasha Szczygiel, a Legal Placement Account Manager for DFS

Services LLC, the servicing agent of Discover Bank.” Id. at ¶ 4. Szczygiel’s affidavit

stated the following:

1. Affiant states that (s)he is a Legal Placement Accounts

Manager for DFS Services, LLC, the servicing agent of

Discover Bank * * *

2. Affiant further states that the within Affidavit is being made

in support of [Appellee’s] Motion for Summary Judgment * * *

against [Appellant]. Pickaway App. No. 11CA25 8

3. Affiant further states that there is due from [Appellant] in

this matter, the principal sum of $11,483.78 plus accrued

interest at 24.99 percent and court costs.

4. Affiant further states that [Appellant] has defaulted under

the terms and condition of the Discover Credit Card * * * by

failing to make the required payments as they became due

and owing. (Alterations and omissions sic.) Peters at ¶ 19-

22.

The cardholder filed a motion to strike Szczygiel’s affidavit, but the trial court denied that

motion and granted summary judgment in favor of Discover.

{¶13} On appeal, the Fifth Appellate District found that Szczygiel’s affidavit

“fail[ed] to establish the affiant’s personal knowledge and fail[ed] to affirmatively show

the affiant is competent to testify to those matters.” Peters at ¶ 23. Specifically, the

court explained that “Affiant’s position as ‘Legal Placement Accounts Manager’, without

further description, does not establish the affiant has personal knowledge or is

competent to testify as to Appellant’s account.” Id. at fn. 1.

{¶14} Because Ferguson’s affidavit discusses her job duties, we find that

Combs’s reliance on Peters is misplaced. Unlike the affiant in Peters, Ferguson

explained that she has access to Combs’s account records. Furthermore, Ferguson

stated that she personally inspected Combs’s “[a]ccount and statements regarding the

balance due on said account.” Therefore, we find that Ferguson’s affidavit (1)

establishes her personal knowledge and (2) affirmatively shows that she is competent to Pickaway App. No. 11CA25 9

testify about Combs’s account. As a result, we find that Ferguson’s affidavit complies

with Civ.R. 56(E).

B.

{¶15} Next, we find that Discover’s summary-judgment evidence satisfies Civ.R.

56(C). Under Civ.R. 56(C),

Summary judgment shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence, and written

stipulations of fact, if any, timely filed in the action, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.

{¶16} The Second Appellate District addressed a similar situation in Citibank

(South Dakota) N.A. v. Ogunduyile, 2d Dist. No. 21794, 2007-Ohio-5166. In

Ogunduyile, Citibank “commenced an action in municipal court against Ogunduyile,

seeking $13,560.48 allegedly due on a credit card account.” Id. at ¶ 2. Later,

Citibank presented an affidavit of [a Citibank employee] in

support of its motion for summary judgment. Attached to the

affidavit [we]re computer printouts of monthly account

statements that were sent to Ogunduyile. The statements

showed purchases made by Ogunduyile and finance

charges that were applied to the account during the billing

cycles. Id. at ¶ 8.

Based on this evidence, the trial court awarded summary judgment in favor of Citibank. Pickaway App. No. 11CA25 10

{¶17} On appeal, the Second District Court of Appeals discussed Citibank’s

summary-judgment evidence. As the court explained,

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). Skidmore & Assoc. Co. v.

Southerland (1993), 89 Ohio App.3d 177, 179. In order to

properly incorporate attached evidentiary exhibits, the

affidavit needs merely to state that the attached materials

are true copies and reproductions of the original documents.

State ex rel. Corrigan v. Seminatore (1981), 66 Ohio St.2d

459, 467, 423 N.E.2d 105.

The monthly account statements detailing the activity

in Ogunduyile’s Citibank account were properly before the

trial court for consideration under Civ.R. 56(C) and (E). [The

Citibank employee’s] affidavit stated that, by virtue of her

position with Citibank, she had access to all information

regarding delinquent credit card accounts and had personal

knowledge of all relevant financial and account information

regarding Ogunduyile’s account number. Her affidavit also

stated that the monthly account statements attached to her

affidavit were a hard copy printout of the financial information

contained in Ogunduyile’s account. This language is Pickaway App. No. 11CA25 11

sufficient to authenticate the attached account statements.

Citibank (South Dakota), N.A. v. Lesnick, Lake App.

No.2005-L-013, 2006-Ohio-1448, [¶] 14.

Ogunduyile, 2007-Ohio-5166, at ¶ 10-11.

{¶18} We agree with the analysis in Ogunduyile and apply that reasoning to the

present case. As we noted above, Ferguson’s affidavit states that she has access to

Combs’s account records. The affidavit also states that the monthly account statements

are “a true and accurate statement of what is now due and owing Discover Bank[.]”

Therefore, in accordance with Ogunduyile, we find that Citibank’s summary-judgment

evidence complies with Civ.R. 56(C).

C.

{¶19} Finally, we find (1) that there are no genuine issues of material fact and (2)

that Discover is entitled to judgment as a matter of law. As part of its summary-

judgment motion, Discover submitted all of Combs’s monthly account statements. The

first statement shows a balance of zero, and the last statement shows a balance of

$10,573.76. This is significant because

[i]n order to recover money due, “[a]n account must show the

name of the party charged and contain: (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)

summarization by means of a running or developing Pickaway App. No. 11CA25 12

balance, or an arrangement of beginning balance and items

which permits the calculation of the amount claimed to be

due.” Ogunduyile, at ¶ 7, quoting Gabriele v. Reagan, 57

Ohio App.3d 84, 87, 566 N.E.2d 684 (12th Dist.1988).

{¶20} We find that Ferguson’s “affidavit and the account statements are

sufficient to establish a prima facie case for money owned on an account.” Ogunduyile

at ¶ 12. And here, Combs failed to present sufficient rebuttal evidence. In responding

to an interrogatory, Combs claimed that he “does not remember applying for nor using

this card.” But this statement “is nothing more than a general denial of [Discover’s]

claim, which is insufficient to satisfy [Combs’s] reciprocal burden under Dresher[, 75

Ohio St.3d 280, 662 N.E.2d 264,] and Civ.R. 56(E).” Id. at ¶ 15. To meet his burden,

Combs “was required to set forth specific facts that would permit a trier of fact to find

that the amount of debt claimed by [Discover] was incorrect.” Id. Combs, however,

failed to do so.

{¶21} In conclusion, after construing the record and all inferences therefrom in

Combs’s favor, we find the following: (1) there are no genuine issues of material fact; (2)

Discover is entitled to judgment as a matter of law; and (3) reasonable minds can come

to just one conclusion, and that conclusion is adverse to Combs. Accordingly, we affirm

the judgment of the trial court.

JUDGMENT AFFIRMED. Pickaway App. No. 11CA25 13

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed.

The Court finds that there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Circleville Municipal Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, P.J., and McFarland, J.: Concur in Judgment & Opinion.

For the Court

BY:_____________________________ Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.