[Cite as JPMorgan Chase Bank, N.A. v. Houlihan, 2025-Ohio-218.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
JPMORGAN CHASE BANK N.A. C.A. No. 24CA012134
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE JOHN F. HOULIHAN COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 23CV207979
DECISION AND JOURNAL ENTRY
Dated: January 27, 2025
HENSAL, Judge.
{¶1} John Houlihan appeals an order of the Lorain County Court of Common Pleas that
granted summary judgment to JPMorgan Chase Bank NA (“the bank”). This Court reverses.
I.
{¶2} The bank filed a complaint alleging that Mr. Houlihan defaulted under the terms of
a credit card account agreement, leaving $26,238.01 due. The bank moved for summary judgment,
supported by the affidavit of an “[a]uthorized [s]igning [o]fficer” who averred that he had access
to the bank’s business records and made the affidavit “based upon [his] personal knowledge
obtained from [his] review of [the bank’s] Business Records.” The affiant averred that Mr.
Houlihan opened a business credit card account, received a copy of the cardmember agreement,
and last made a payment on the account on July 14, 2021. In his response, Mr. Houlihan
maintained that the credit card was not issued to him in his individual capacity but as agent for
Blue Jay Communications, Inc. (“Blue Jay”). His response noted that Blue Jay had petitioned for 2
bankruptcy and that the bank had filed a proof of claim in the bankruptcy proceedings related to
the account at issue in this case. Mr. Houlihan also maintained that the bank’s signing agent did
not have personal knowledge of the facts relevant to the case and that his affidavit could not
establish a contractual relationship between the bank and Mr. Houlihan. With its reply, the bank
supplied additional evidence: a copy of a credit application signed by Mr. Houlihan. Several
months after briefing was completed, the bank moved the trial court to permit it to supplement its
motion for summary judgment. The motion did not explain the specific content of the proposed
supplement. The trial court granted the motion over Mr. Houlihan’s objection, but that
supplement, if any, does not appear in the record.
{¶3} On May 28, 2024, the trial court granted summary judgment to the bank,
concluding that the card member agreement bound Mr. Houlihan because he was the credit
applicant. Noting that it had “weighed the facts in [Mr. Houlihan’s] favor,” the trial court granted
summary judgment to the bank. Mr. Houlihan appealed, assigning five errors.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN FINDING THAT THERE WAS NO GENUINE ISSUE OF MATERIAL FACTS.
{¶4} In his first assignment of error, Mr. Houlihan argues that the trial court erred by
granting summary judgment because there are genuine issues of material fact. This Court agrees.
{¶5} As an initial matter, this Court notes that Mr. Houlihan has not separately argued
his assignments of error. Under Appellate Rule 12(A)(2), this Court “may disregard an assignment
of error presented for review if the party raising it fails to * * * argue the assignment [of error]
separately in the brief . . . .” See also State v. Walter, 2022-Ohio-1982, ¶ 17 (9th Dist.); Loc.R. 3
16(A)(7) of the Ninth District Court of Appeals. Nonetheless, we exercise our discretion to
consider Mr. Houlihan’s assignments of error in this case. See Walter at ¶ 17.
{¶6} This Court reviews an order granting summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996). Consequently, this Court must “conduct[] an
independent review of the evidence without deference to the trial court’s findings.” Smathers v.
Glass, 2022-Ohio-4595, ¶ 30. Under Civil Rule 56(C), “[s]ummary judgment will be granted only
when there remains no genuine issue of material fact and, when construing the evidence most
strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving
party is entitled to judgment as a matter of law.” Byrd v. Smith, 2006-Ohio-3455, ¶ 10. The
moving party bears the burden of demonstrating that there are no genuine issues of material fact
with reference to “appropriate evidentiary materials.” Id. Similarly, the nonmoving party must
“set forth specific facts showing that there is a genuine issue for trial[]” with reference to the type
of evidentiary materials specified in Rule 56(E). Id., quoting Civ.R. 56(E).
{¶7} The trial court’s role is to determine if there are disputed facts—not to weigh the
evidence. Smathers at ¶ 32. “[O]n a summary-judgment motion, any inferences regarding the
evidence, including the resolution of ambiguities or inconsistencies, must be made in a manner
that favors the nonmoving party[.]” Id. citing Civ.R. 56(C). If a nonmoving party “produce[s]
any Civ.R. 56(C) evidence to show the existence of a genuine issue of material fact for trial,” the
moving party is not entitled to summary judgment. (Emphasis in original.) Horner v. Elyria,
2015-Ohio-47, ¶ 11 (9th Dist.). The trial court does not consider whether the movant is entitled to
summary judgment as a matter of law unless there is no genuine issue of material fact. Id. at ¶ 10.
{¶8} The bank’s motion for summary judgment maintained that Mr. Houlihan opened a
credit card and was provided with a cardmember agreement that set forth the terms of payment but 4
failed to abide by those terms. The bank supported its motion for summary judgment with an
affidavit that incorporated the cardmember agreement, but the bank did not provide the application
for credit in support of its motion for summary judgment. Mr. Houlihan responded to the bank’s
motion for summary judgment with reference to his own affidavit, which was acceptable evidence
under Rule 56(E). See Myers v. Univ. Hosp. Health Sys., Inc., 2023-Ohio-3045, ¶ 9 (9th Dist.). In
his affidavit, he averred that the credit card at issue was opened by him on behalf of Blue Jay and
was used solely to incur business debts. He also averred that the bank filed a proof of claim related
to this account in Blue Jay’s bankruptcy case.
{¶9} The bank filed a reply in support of its motion for summary judgment which
referenced, for the first time and without an authenticating affidavit, a copy of the application for
credit at issue. Mr. Houlihan was not afforded the opportunity to respond the additional evidence
referenced in the bank’s reply. A trial court errs, however, by granting summary judgment based
on arguments that are made for the first time in a reply brief “because doing so denies the
nonmoving party the meaningful opportunity to respond.” State ex rel. Stoicoiu v. Stow-Munroe
Falls City School Dist. Bd. of Educ., 2023-Ohio-2569, ¶ 7 (9th Dist.). Moreover, once Mr.
Houlihan responded to the bank’s motion for summary judgment, Rule 56(C) required the trial
court to resolve “any inferences regarding the evidence, including the resolution of ambiguities or
inconsistencies . . . in a manner that favors the nonmoving party . . . .” Smathers, 2022-Ohio-4595,
at ¶ 32.
{¶10} The trial court indicated in its order that it “weighed the facts in [Mr. Houlihan’s]
favor.” The evidence in this case, however, “could not be weighed, only reviewed by the trial
court . . . .” Smathers at ¶ 32. Accordingly, this Court agrees that the trial court erred by weighing 5
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as JPMorgan Chase Bank, N.A. v. Houlihan, 2025-Ohio-218.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
JPMORGAN CHASE BANK N.A. C.A. No. 24CA012134
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE JOHN F. HOULIHAN COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 23CV207979
DECISION AND JOURNAL ENTRY
Dated: January 27, 2025
HENSAL, Judge.
{¶1} John Houlihan appeals an order of the Lorain County Court of Common Pleas that
granted summary judgment to JPMorgan Chase Bank NA (“the bank”). This Court reverses.
I.
{¶2} The bank filed a complaint alleging that Mr. Houlihan defaulted under the terms of
a credit card account agreement, leaving $26,238.01 due. The bank moved for summary judgment,
supported by the affidavit of an “[a]uthorized [s]igning [o]fficer” who averred that he had access
to the bank’s business records and made the affidavit “based upon [his] personal knowledge
obtained from [his] review of [the bank’s] Business Records.” The affiant averred that Mr.
Houlihan opened a business credit card account, received a copy of the cardmember agreement,
and last made a payment on the account on July 14, 2021. In his response, Mr. Houlihan
maintained that the credit card was not issued to him in his individual capacity but as agent for
Blue Jay Communications, Inc. (“Blue Jay”). His response noted that Blue Jay had petitioned for 2
bankruptcy and that the bank had filed a proof of claim in the bankruptcy proceedings related to
the account at issue in this case. Mr. Houlihan also maintained that the bank’s signing agent did
not have personal knowledge of the facts relevant to the case and that his affidavit could not
establish a contractual relationship between the bank and Mr. Houlihan. With its reply, the bank
supplied additional evidence: a copy of a credit application signed by Mr. Houlihan. Several
months after briefing was completed, the bank moved the trial court to permit it to supplement its
motion for summary judgment. The motion did not explain the specific content of the proposed
supplement. The trial court granted the motion over Mr. Houlihan’s objection, but that
supplement, if any, does not appear in the record.
{¶3} On May 28, 2024, the trial court granted summary judgment to the bank,
concluding that the card member agreement bound Mr. Houlihan because he was the credit
applicant. Noting that it had “weighed the facts in [Mr. Houlihan’s] favor,” the trial court granted
summary judgment to the bank. Mr. Houlihan appealed, assigning five errors.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN FINDING THAT THERE WAS NO GENUINE ISSUE OF MATERIAL FACTS.
{¶4} In his first assignment of error, Mr. Houlihan argues that the trial court erred by
granting summary judgment because there are genuine issues of material fact. This Court agrees.
{¶5} As an initial matter, this Court notes that Mr. Houlihan has not separately argued
his assignments of error. Under Appellate Rule 12(A)(2), this Court “may disregard an assignment
of error presented for review if the party raising it fails to * * * argue the assignment [of error]
separately in the brief . . . .” See also State v. Walter, 2022-Ohio-1982, ¶ 17 (9th Dist.); Loc.R. 3
16(A)(7) of the Ninth District Court of Appeals. Nonetheless, we exercise our discretion to
consider Mr. Houlihan’s assignments of error in this case. See Walter at ¶ 17.
{¶6} This Court reviews an order granting summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996). Consequently, this Court must “conduct[] an
independent review of the evidence without deference to the trial court’s findings.” Smathers v.
Glass, 2022-Ohio-4595, ¶ 30. Under Civil Rule 56(C), “[s]ummary judgment will be granted only
when there remains no genuine issue of material fact and, when construing the evidence most
strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving
party is entitled to judgment as a matter of law.” Byrd v. Smith, 2006-Ohio-3455, ¶ 10. The
moving party bears the burden of demonstrating that there are no genuine issues of material fact
with reference to “appropriate evidentiary materials.” Id. Similarly, the nonmoving party must
“set forth specific facts showing that there is a genuine issue for trial[]” with reference to the type
of evidentiary materials specified in Rule 56(E). Id., quoting Civ.R. 56(E).
{¶7} The trial court’s role is to determine if there are disputed facts—not to weigh the
evidence. Smathers at ¶ 32. “[O]n a summary-judgment motion, any inferences regarding the
evidence, including the resolution of ambiguities or inconsistencies, must be made in a manner
that favors the nonmoving party[.]” Id. citing Civ.R. 56(C). If a nonmoving party “produce[s]
any Civ.R. 56(C) evidence to show the existence of a genuine issue of material fact for trial,” the
moving party is not entitled to summary judgment. (Emphasis in original.) Horner v. Elyria,
2015-Ohio-47, ¶ 11 (9th Dist.). The trial court does not consider whether the movant is entitled to
summary judgment as a matter of law unless there is no genuine issue of material fact. Id. at ¶ 10.
{¶8} The bank’s motion for summary judgment maintained that Mr. Houlihan opened a
credit card and was provided with a cardmember agreement that set forth the terms of payment but 4
failed to abide by those terms. The bank supported its motion for summary judgment with an
affidavit that incorporated the cardmember agreement, but the bank did not provide the application
for credit in support of its motion for summary judgment. Mr. Houlihan responded to the bank’s
motion for summary judgment with reference to his own affidavit, which was acceptable evidence
under Rule 56(E). See Myers v. Univ. Hosp. Health Sys., Inc., 2023-Ohio-3045, ¶ 9 (9th Dist.). In
his affidavit, he averred that the credit card at issue was opened by him on behalf of Blue Jay and
was used solely to incur business debts. He also averred that the bank filed a proof of claim related
to this account in Blue Jay’s bankruptcy case.
{¶9} The bank filed a reply in support of its motion for summary judgment which
referenced, for the first time and without an authenticating affidavit, a copy of the application for
credit at issue. Mr. Houlihan was not afforded the opportunity to respond the additional evidence
referenced in the bank’s reply. A trial court errs, however, by granting summary judgment based
on arguments that are made for the first time in a reply brief “because doing so denies the
nonmoving party the meaningful opportunity to respond.” State ex rel. Stoicoiu v. Stow-Munroe
Falls City School Dist. Bd. of Educ., 2023-Ohio-2569, ¶ 7 (9th Dist.). Moreover, once Mr.
Houlihan responded to the bank’s motion for summary judgment, Rule 56(C) required the trial
court to resolve “any inferences regarding the evidence, including the resolution of ambiguities or
inconsistencies . . . in a manner that favors the nonmoving party . . . .” Smathers, 2022-Ohio-4595,
at ¶ 32.
{¶10} The trial court indicated in its order that it “weighed the facts in [Mr. Houlihan’s]
favor.” The evidence in this case, however, “could not be weighed, only reviewed by the trial
court . . . .” Smathers at ¶ 32. Accordingly, this Court agrees that the trial court erred by weighing 5
the evidence, concluding that there were no genuine issues of material fact and granting summary
judgment to the bank. Mr. Houlihan’s first assignment of error is sustained.
ASSIGNMENT OF ERROR II
THE COURT ERRED IN RELYING ON PLAINTIFF’S AFFIDAVIT WHERE AFFIANT LACKED PERSONAL KNOWLEDGE OF THE RELEVANT AND PERTINENT FACTS.
ASSIGNMENT OF ERROR III
THE COURT ERRED IN THAT THE CONTRACT WAS ENTERED INTO BY DEFENDANT IN HIS INDIVIDUAL CAPACITY.
ASSIGNMENT OF ERROR IV
THE COURT ERRED IN FINDING THAT DEFENDANT APPLIED FOR CREDIT IN HIS INDIVIDUAL CAPACITY.
ASSIGNMENT OF ERROR V
THE COURT ERRED IN APPLYING EVID. R. 803(6) AS AN EXCEPTION TO THE HEARSAY RULE, IN RELYING ON PLAINTIFF’S SELF-SERVING INTERNAL DOCUMENTS.
{¶11} Mr. Houlihan’s second, third, fourth, and fifth assignments of error argue that the
trial court erred by granting summary judgment for other reasons. In light of this Court’s resolution
of his first assignment of error, his remaining assignments of error are moot. See App.R.
12(A)(1)(c).
III.
{¶12} Mr. Houlihan’s first assignment of error is sustained. His second, third, fourth, and
fifth assignments of error are moot. The judgment of the Lorain County Court of Common Pleas
is reversed, and this matter is remanded to the trial court for proceedings consistent with this
opinion.
Judgment reversed and cause remanded. 6
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellee.
JENNIFER HENSAL FOR THE COURT
STEVENSON, P. J. SUTTON, J. CONCUR.
APPEARANCES:
GINO PULITO, Attorney at Law, for Appellant.
ANTHONY J. HUSPASKA, JOSEPH M. JAMMAL and DAVID B. BOKOR, Attorneys at Law, for Appellee.