Sells v. Miles Homes of Ohio, Inc.

3 Ohio App. Unrep. 125
CourtOhio Court of Appeals
DecidedMay 25, 1990
DocketCase No. 18-CA-89
StatusPublished

This text of 3 Ohio App. Unrep. 125 (Sells v. Miles Homes of Ohio, Inc.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sells v. Miles Homes of Ohio, Inc., 3 Ohio App. Unrep. 125 (Ohio Ct. App. 1990).

Opinion

MILLIGAN, P.J.

On August 13,1975, appellees, Martin and Peg Sells, bought a home from appellant, Miles Homes of Ohio, Inc. Contemporaneous with the purchase agreement, the Sells executed and delivered to Miles Homes a promissory note for the purchase price of the home. The note was secured by a mortgage granting Miles Homes a lien on the property. Mortgage Record Vol. 376, p. 462, Fairfield County Recorder's Office.

The purchase agreement provided that the Sells had an option to purchase on a credit basis from Miles Homes various building supplies to be affixed to the home. Article IV, Purchase Agreement. The additional cost of these materials to be added to the purchase price The mortgage deed echoed this provision in its "open end feature" which authorized and secured future advances by Miles Homes to the Sells not to exceed $29,000.00.

On December 16, 1986, the Sells sought a declaratory finding that the open end mortgage provision invalidated the mortgage lien because it failed to comply with R.C. 5301.32(A). Miles Homes answered the complaint and counterclaimed seeking foreclosure on the property. The Fairfield County Common Pleas Court held the open end mortgage provision to be valid but found Miles Homes failed to prove any balance due on the note and mortgage, declaring the note paid in full. Miles Homes appeals:

"I. THE TRIAL COURT’S DECISION DECLARING THE PROMISSORY NOTE EXECUTED AND DELIVERED BY THE SELLS TO MILES HOMES PAID IN FULL AND HOLDING THAT MILES HOMES FAILED TO PROVE ANY BALANCE DUE ON SAID PROMISSORY NOTE AND THE MORTGAGE SECURING SAME WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

"II. THE TRIAL COURT COMMITTED REVERSIBLE PREJUDICIAL ERROR IN FAILING TO ADMIT THE PRINCIPAL REDUCTION ACCOUNT RECORD MARKED AS DEFENDANT'S EXHIBIT C, AS A "BUSINESS RECORD."

II

In its attempt to prove the amount of the balance due, appellant offered a document labeled Exhibit "C" called "Principal Reduction Account Record." This exhibit is a handwritten, ledger-style copy of payments and additions that [126]*126have been made to Sells' account and retrieve from the Miles Homes computer. T. at 40. Appellant's witness, Leo Flynn, manager of the property'sdepartmentfor Miles Homes, testified:

"Q: (By Ms. Rasmussen) Mr. Flynn, when we began your testimony, did you - let me just ask it this way: In addition to being familiar with this account, are you in fact the custodian of the records with respect to this account?

"A: I do not personally prepare these records, no; but I am responsible for the people that do. I don't personally enter these It's just physically impossible to monitor 5,000 accounts like this. But I do have supervisory capacity over those people.

Q: The people who do enter these accounts, what information "are they working from when they make these entries?

"A: As an example, if a payment comes in, we have a physical check, the money order, what have you. As far as the invoice in concerned, when the invoice is delivered by the supplier of the material or by our delivery assistancepeople.

"Q: When the invoice comes in, the person sees the invoice. They go [to] the account to which it relates, and what do they do?

"A: It gets entered into the system, what I call it. It goes on the computer today. Years ago of course it was manual. Today it's all computerized.

"Q: But it was always done at the time that the invoice came out or the check came in?

"A: Yes, that's right.

"Q: And is it the normal practice of Miles Homes in all of its various forms to do this each and every time a payment or an invoice comes in?

"A: Yes. It may not be the same day, but it again depends upon the volume of the day. Some days it's a day lag, sometimes it's the same day, sometimes it's a two-day lag. But as it is processed, it is processed on the account.

"Q: And there are people who work for Miles Homes whose job it is to do this?

"A: That is correct.

"Q: It's not an unusual sort of thing, you don't hire extra people to do it when you take a case to court, you do it every time?

"A: This is just a regular business transaction, yes.

"Q: Day in and day out?

"A: Day in and day out."

[Objection made by defendant.]

"Q: (By Ms. Rasmussen) Mr. Flynn, going to the question that we keep trying to get to. Can you tell us based on these records before you, what has been marked for identification as Defendant's Exhibit C, was the amount due and owing is?

"A: As of December 15,1988 --

"Q: December or September?

"A: I'm sorry, September. The balance due is $23,651.57." T. 41-46."

Appellant claims the trial court erred in excluding Exhibit "C" from evidence because it fully complies with Evid. R. 803(6).

Evid. R. 803:

"(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimory of the custodian or other qualified witness or as provided by Rule 901(BX10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness The term "business" as used in this paragraph includes business, institution, association,profession, occupation, and calling of every kind, whether or not conducted for profit."

Evid. R. 803(6) does not require the foundation witness be the person who entered the data into the computer. State v. Knox (1984), 18 Ohio St. 3d 36, 480 N.E. 2d 120. (Telephone company's computer printouts admissible under 803(6) regarding telephone harassmentcomplaints The court found installing computerized traps is a regular business activity of the security department, and security department's manager lays a foundation by testifying as to department policies and procedures although not the immediate custodian of the data compilation. Hardesty v. Corrova (1986), 27 Ohio App. 3d 332, 501 N.E. 2d 81 ("It is not necessary to present testimony of person who made actual postings in order to authenticate account record for purposes of business record exception to hearsay rule. Rules of Evid., Rule 803(6)."). See also United States v. Hudson (5th Cir., 1987), 821 F.2d 1015. When a witness is used to lay foundation for admitting records under the business record exception, all that is required is the witness be familiar with the record-keeping system. U.S. v. Hathaway (6th Cir. 1986), 798 F.2d 902.

[127]*127We find Mr. Flynn's testimony adequately lays the foundation in qualifying him to testify that Exhibit "C" is a business record under Evid. R. 803(6). The exhibit qualifies as a business record within the rule.

Appellant's second assignment of error is sustained.

I

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Bluebook (online)
3 Ohio App. Unrep. 125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sells-v-miles-homes-of-ohio-inc-ohioctapp-1990.