[Cite as Discover Bank v. Peters, 2011-Ohio-3480.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT DISCOVER BANK JUDGES: Plaintiff-Appellee Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. -vs- Hon. Julie A. Edwards, J.
LINDA PETERS Case No. 2010CA00309
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Canton Municipal Court, Case No. 2010CVF03048
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: July 11, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MATTHEW G. BURG MAUREEN FOLEY Weltman, Weinberg & Reis Co., L.P.A. Community Legal Aid Services, Inc. Lakeside Place, Suite 200 50 South Main St., Suite 800 323 W. Lakeside Avenue Akron, Ohio 44308 Cleveland, Ohio 44113 Stark County, Case No. 2010CA00309 2
Hoffman, J.
{¶1} Defendant-appellant Linda Peters appeals the September 29, 2010
Judgment Entry entered by the Canton Municipal Court, which granted summary
judgment in favor of plaintiff-appellee Discover Bank, and overruled Appellant’s motion
to strike affidavit.
STATEMENT OF THE CASE AND FACTS
{¶2} On May 10, 2010, Appellee filed a Complaint in the Canton Municipal
Court, alleging Appellant had defaulted on the terms of a credit card agreement, and
owed a principal balance of $11,483.78, plus interest at a rate of 24.990% per annum
and costs. Appellee attached a copy of a Cardmember Agreement and a copy of
Appellant’s January 14, 2010 statement to the Complaint.
{¶3} Appellant filed a motion for definite statement on June 18, 2010. Therein,
Appellant asserted Appellee failed to satisfy Civ. R. 10(D) as it failed to attach to the
Complaint a copy of the account upon which its claim was founded. Via Judgment
Entry filed June 21, 2010, the trial court overruled Appellant’s motion and granted her
until July 12, 2010, to file an answer. Appellant filed a motion for leave to answer
instanter on July 13, 2010, which the trial court granted.
{¶4} Appellee filed a motion for summary judgment on September 7, 2010. In
support of the motion, Appellee attached copies of Appellant’s telephonic application;
Appellant’s credit card statements from September, 2007, until December, 2009; and
credit card agreement; as well as the Affidavit of Natasha Szczygiel, a Legal Placement
Account Manager for DFS Services LLC, the servicing agent of Discover Bank.
Appellant filed a brief in opposition. Therein, Appellant maintained summary judgment Stark County, Case No. 2010CA00309 3
was inappropriate and should be denied as Appellee failed to provide evidence
supported by an adequate affidavit as required by Civ. R. 56(C) and Civ. R. 56(E); the
affidavit in support of Appellee’s motion for summary judgment failed to comply with Civ.
R. 56(E); and a genuine issue of material fact existed as to whether Appellee was
entitled to an interest rate of 24.99%. Appellant also filed a motion to strike the Affidavit
of Natasha Szczygiel, arguing, inter alia, such was not based upon the affiant’s personal
knowledge and did not affirmatively show affiant was competent to testify to the matters.
Via Judgment Entry filed September 29, 2010, the trial court granted Appellee’s motion
for summary judgment, and denied Appellant’s motion to strike.
{¶5} It is from this judgment entry Appellant appeals, raising the following
assignments of error:
{¶6} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
BECAUSE APPELLEE FAILED TO PRODUCE ANY EVIDENCE PERMITTED BY
CIV.R. 56(C) AND CIV.R. 56(E) TO SUPPORT ITS CLAIM.
{¶7} “II. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
TO STRIKE APPELLEE’S AFFIDAVIT SUBMITTED IN SUPPORT OF APPELLEE’S
MOTION FOR SUMMARY JUDGMENT WHERE THE AFFIDAVIT DOES NOT
COMPLY WITH THE REQUIREMENTS OF CIV.R. 56(E).
{¶8} “III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
BECAUSE A GENUINE ISSUE OF FACT EXISTS AS TO WHETHER APPELLEE IS
ENTITLED TO POST JUDGMENT INTEREST OF 24.99%.” Stark County, Case No. 2010CA00309 4
STANDARD OF REVIEW
{¶9} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As
such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.
{¶10} Civ.R. 56 provides summary judgment may be granted only after the trial
court determines: 1) 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.
{¶11} It is well established the party seeking summary judgment bears the
burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.
Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for
granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280
at 293, 662 N.E.2d 264: “ * * * 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 Stark County, Case No. 2010CA00309 5
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.” 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.
{¶12} Essentially, a motion for summary judgment forces the plaintiff to produce
probative evidence on all essential elements of the case for which the plaintiff has the
burden of production at trial. Celotex Corp. v. Catrett, supra.
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[Cite as Discover Bank v. Peters, 2011-Ohio-3480.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT DISCOVER BANK JUDGES: Plaintiff-Appellee Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. -vs- Hon. Julie A. Edwards, J.
LINDA PETERS Case No. 2010CA00309
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Canton Municipal Court, Case No. 2010CVF03048
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: July 11, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MATTHEW G. BURG MAUREEN FOLEY Weltman, Weinberg & Reis Co., L.P.A. Community Legal Aid Services, Inc. Lakeside Place, Suite 200 50 South Main St., Suite 800 323 W. Lakeside Avenue Akron, Ohio 44308 Cleveland, Ohio 44113 Stark County, Case No. 2010CA00309 2
Hoffman, J.
{¶1} Defendant-appellant Linda Peters appeals the September 29, 2010
Judgment Entry entered by the Canton Municipal Court, which granted summary
judgment in favor of plaintiff-appellee Discover Bank, and overruled Appellant’s motion
to strike affidavit.
STATEMENT OF THE CASE AND FACTS
{¶2} On May 10, 2010, Appellee filed a Complaint in the Canton Municipal
Court, alleging Appellant had defaulted on the terms of a credit card agreement, and
owed a principal balance of $11,483.78, plus interest at a rate of 24.990% per annum
and costs. Appellee attached a copy of a Cardmember Agreement and a copy of
Appellant’s January 14, 2010 statement to the Complaint.
{¶3} Appellant filed a motion for definite statement on June 18, 2010. Therein,
Appellant asserted Appellee failed to satisfy Civ. R. 10(D) as it failed to attach to the
Complaint a copy of the account upon which its claim was founded. Via Judgment
Entry filed June 21, 2010, the trial court overruled Appellant’s motion and granted her
until July 12, 2010, to file an answer. Appellant filed a motion for leave to answer
instanter on July 13, 2010, which the trial court granted.
{¶4} Appellee filed a motion for summary judgment on September 7, 2010. In
support of the motion, Appellee attached copies of Appellant’s telephonic application;
Appellant’s credit card statements from September, 2007, until December, 2009; and
credit card agreement; as well as the Affidavit of Natasha Szczygiel, a Legal Placement
Account Manager for DFS Services LLC, the servicing agent of Discover Bank.
Appellant filed a brief in opposition. Therein, Appellant maintained summary judgment Stark County, Case No. 2010CA00309 3
was inappropriate and should be denied as Appellee failed to provide evidence
supported by an adequate affidavit as required by Civ. R. 56(C) and Civ. R. 56(E); the
affidavit in support of Appellee’s motion for summary judgment failed to comply with Civ.
R. 56(E); and a genuine issue of material fact existed as to whether Appellee was
entitled to an interest rate of 24.99%. Appellant also filed a motion to strike the Affidavit
of Natasha Szczygiel, arguing, inter alia, such was not based upon the affiant’s personal
knowledge and did not affirmatively show affiant was competent to testify to the matters.
Via Judgment Entry filed September 29, 2010, the trial court granted Appellee’s motion
for summary judgment, and denied Appellant’s motion to strike.
{¶5} It is from this judgment entry Appellant appeals, raising the following
assignments of error:
{¶6} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
BECAUSE APPELLEE FAILED TO PRODUCE ANY EVIDENCE PERMITTED BY
CIV.R. 56(C) AND CIV.R. 56(E) TO SUPPORT ITS CLAIM.
{¶7} “II. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
TO STRIKE APPELLEE’S AFFIDAVIT SUBMITTED IN SUPPORT OF APPELLEE’S
MOTION FOR SUMMARY JUDGMENT WHERE THE AFFIDAVIT DOES NOT
COMPLY WITH THE REQUIREMENTS OF CIV.R. 56(E).
{¶8} “III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
BECAUSE A GENUINE ISSUE OF FACT EXISTS AS TO WHETHER APPELLEE IS
ENTITLED TO POST JUDGMENT INTEREST OF 24.99%.” Stark County, Case No. 2010CA00309 4
STANDARD OF REVIEW
{¶9} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As
such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.
{¶10} Civ.R. 56 provides summary judgment may be granted only after the trial
court determines: 1) 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.
{¶11} It is well established the party seeking summary judgment bears the
burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.
Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for
granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280
at 293, 662 N.E.2d 264: “ * * * 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 Stark County, Case No. 2010CA00309 5
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.” 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.
{¶12} Essentially, a motion for summary judgment forces the plaintiff to produce
probative evidence on all essential elements of the case for which the plaintiff has the
burden of production at trial. Celotex Corp. v. Catrett, supra. 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.
{¶13} In deciding a motion for summary judgment, Civ.R. 56(C) only allows the
trial court to consider “pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence in the pending case, and written
stipulations of fact.” Generally, the failure to 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.
{¶14} Upon summary judgment consideration, the proper procedure for
introducing evidentiary material not specifically authorized by the rule is to incorporate Stark County, Case No. 2010CA00309 6
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.
{¶15} 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 shall also set forth facts that would be
admissible into evidence, and shall affirmatively show the affiant is competent to testify
to those matters. Id. 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
{¶16} Appellant’s second assignment of error is dispositive of this Appeal;
therefore, we address such first. In her second assignment of error, Appellant contends
the trial court erred in denying her motion to strike Natasha Szczygiel’s Affidavit
because said affidavit did not comply with Civ. R. 56(E). We agree.
{¶17} As stated, supra, 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. Additionally, the affidavit must set forth facts
which would be admissible into evidence, and affirmatively show the affiant is
competent to testify to those matters.
{¶18} In her Affidavit, Szczygiel averred: Stark County, Case No. 2010CA00309 7
{¶19} “1. Affiant states that (s)he is a Legal Placement Accounts Manager for
DFS Services, LLC, the servicing agent of Discover Bank * * *
{¶20} “2. Affiant further states that the within Affidavit is being made in support of
[Appellee’s] Motion for Summary Judgment * * * against [Appellant].
{¶21} “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.
{¶22} “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.” Affidavit of Natasha Szczygiel, attached to motion for
summary judgment.
{¶23} We find the Affidavit does not comply with Civ. R. 56(E). The Affidavit fails
to establish the affiant's personal knowledge and fails to affirmatively show the affiant is
competent to testify to those matters.1 Because the Affidavit did not comply with Civ. R.
56(E), we find the trial court should have granted Appellant’s motion to strike.
{¶24} Appellant’s second assignment of error is sustained.
I, III
{¶25} Having concluded in our discussion of Appellant's second assignment of
error the trial court erred in granting of summary judgment in favor of Appellee, we find
any discussion of Appellant's first and third assignments of error premature.
1 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. Stark County, Case No. 2010CA00309 8
{¶26} The judgment of the Canton Municipal Court is reversed and the matter is
remanded for further proceedings consistent with this Opinion and the law.
By: Hoffman, J.
Gwin, P.J. and
Edwards, J. concur
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN
s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS Stark County, Case No. 2010CA00309 9
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
DISCOVER BANK : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : LINDA PETERS : : Defendant-Appellant : Case No. 2010CA00309
For the reason stated in our accompanying Opinion, the judgment of the Canton
Municipal Court is reversed and the matter is remanded for further proceedings
consistent with our Opinion and the law. Costs to Appellee.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS