TPI Asset Management, L.L.C. v. Conrad-Eiford , 193 Ohio App. 3d 38 ( 2011 )

[Cite as TPI Asset Mgt. v. Conrad-Eiford, 193 Ohio App. 3d 38, 2011-Ohio-1405.]
IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO
TPI ASSET MANAGEMENT, L.L.C., :
Appellee, : C.A. CASE NO. 10CA0044
v. : T.C. CASE NO. 09CV1387
CONRAD-EIFORD, : (Civil Appeal from
Common Pleas Court)
Appellant. :
. . . . . . . . .
O P I N I O N
Rendered on the 25th day of March, 2011.
. . . . . . . . .
Bryan Johnson, for appellee.
Jeremiah E. Heck and Michelle Pierro, for appellant.
. . . . . . . . .
GRADY, Presiding Judge.
{¶ 1} This is an appeal from a summary judgment for a plaintiff
in an action on a claim on an account. The action was commenced by
appellee, TPI Asset Management, L.L.C. (“TPI”), against appellant,
Debra Conrad-Eiford. TPI alleged that Conrad-Eiford owed a balance
of $14,325.04 plus interest on a Visa credit card account that was
due, and that TPI succeeded the rights of the creditor by assignment.
Attached to TPI’s complaint were copies of documents purporting to
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be an agreement governing the Visa account and statements sent to
Conrad-Eiford.
{¶ 2} Following Conrad-Eiford’s responsive pleading, TPI filed
a motion for summary judgment. Attached to the motion were copies
of additional documents purporting to demonstrate the debt and the
amount due. Two affidavits of authentication relating to the copies
were also attached, as well as answers by Conrad-Eiford to
interrogatories propounded by TPI. Conrad-Eiford filed memoranda
contra the motion, to which TPI replied.
{¶ 3} On March 17, 2010, the trial court granted TPI’s motion
for summary judgment, awarding a judgment against Conrad-Eiford in
the amount of $14,325.04 plus interest and accrued charges of
$2,027.69 and costs. Conrad-Eiford filed a timely notice of appeal.
FIRST ASSIGNMENT OF ERROR
{¶ 4} “The trial court erred in granting summary judgment where
appellee included no affidavit or otherwise authenticating the
attached business record.”
{¶ 5} Motions for summary judgment are governed by Civ.R. 56.
Subsection (C) of that rule states:
{¶ 6} “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
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there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. No evidence or
stipulation may be considered except as stated in this rule. A summary
judgment shall not be rendered unless it appears from the evidence
or stipulation, and only from the evidence or stipulation, that
reasonable minds can come to but one conclusion and that conclusion
is adverse to the party against whom the motion for summary judgment
is made, that party being entitled to have the evidence or stipulation
construed most strongly in the party's favor.” (Emphasis added.)
{¶ 7} TPI’s motion relied on the copies of documents attached
to its motion for summary judgment to demonstrate that there is no
genuine issue of material fact with respect to its claim against
Conrad-Eiford and that TPI is entitled to judgment on its claim as
a matter of law. Being out-of-court declarations, the substance of
those documents is hearsay evidence, Evid.R. 801, and inadmissible
pursuant to Evid.R. 802, absent one of the exceptions in Evid.R. 803
or 804.
{¶ 8} The relevant exception to inadmissibility, and the
exception on which TPI relies, is the “business records” exception
in Evid.R. 803(6), which provides that the following evidence is not
excluded by the rule against hearsay:
{¶ 9} “Records of regularly conducted activity. A memorandum,
report, record, or data compilation, in any form, of acts, events,
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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 testimony of the
custodian or other qualified witness or as provided by Rule
901(B)(10), 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.” (Emphasis added.)
{¶ 10} Evid.R. 901 states:
{¶ 11} “Requirement of Authentication or Identification
{¶ 12} “(A) General provision. The requirement of
authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims.”
{¶ 13} “Authentication and identification are terms which apply
to the process of laying a foundation for the admissibility of such
nontestimonial evidence as documents and objects.” Weissenberger,
Ohio Evidence Treatise (2010), Section 901.1. It is actually a rule
of relevance connecting the evidence offered to the facts of the case.
Id.
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{¶ 14} Evid.R. 901(B) sets out a number of illustrative examples
of identification or identification conforming with the requirements
of the rule. The most commonly employed is at Evid.R. 901(B)(1):
“Testimony of a witness with knowledge. Testimony that a matter is
what it is claimed to be.”
{¶ 15} Evid.R. 901(B)(1) provides that “any competent witness who
has knowledge that a matter is what its proponent claims may testify
to such pertinent facts, thereby establishing, in whole or in part,
the foundation for identification.” Ohio Evidence Treatise,
Section 901.2. Conclusive evidence is not required, but the
witness’s testimony must be sufficient to satisfy the requirement
of Evid.R. 602 that “[a] witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter.” Id.
{¶ 16} Evid.R. 901(B)(10) states that the requirements of
authentication or identification may include the following:
{¶ 17} “Any method of authentication or identification provided
by statute enacted by the General Assembly not in conflict with a
rule of the Supreme Court of Ohio or by other rules prescribed by
the Supreme Court.”
{¶ 18} The foregoing requirement likewise applies to motions for
summary judgment. Civ.R. 56(E) provides:
{¶ 19} “Form of affidavits; further testimony; defense required.
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Supporting 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. Sworn or
certified copies of all papers or parts of papers referred to in an
affidavit shall be attached to or served with the affidavit.”
{¶ 20} TPI presented two affidavits in support of its motion for
summary judgment. An affidavit of Eric Hunter, identified as a “Team
Leader” at Chase Bank USA, N.A., states: “I am authorized on behalf
of Chase Bank USA, N.A., to make this affidavit.” The affidavit then
states that Conrad-Eiford had a Visa credit card account with Chase
Bank USA, N.A., that the account was sold to Unifund Portfolio A,
L.L.C., on or about March 28, 2008, and that at that time, the balance
Conrad-Eiford owed on the account was $14,325.04.
{¶ 21} The other affidavit was made by Bryan Johnson, identified
as “Vice-President of TPI Asset Management, LLC,” who states, “[F]rom
my own personal knowledge the following facts are true as I verily
believe, and * * * I am competent to testify to same.” The affidavit
then states that Conrad-Eiford’s Visa account was sold by Unifund
Portfolio A to Unifund CCR Partners, which assigned the account to
TPI. The affidavit further states that Conrad-Eiford failed to pay
and refused TPI’s demand to pay the balance due on the account in
the amount of $14,325.02, plus accrued interest and charges of
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$2,027.69, plus additional interest and charges.
{¶ 22} The affiant Hunter’s statement that “I am authorized on
behalf of Chase Bank USA, N.A. to make this affidavit” is insufficient
to demonstrate that he has any personal knowledge of the facts that
the affidavit contains. Hunter’s identification as a “Team Leader”
at that bank, standing alone, fails to portray a basis to find that
through that position he gained the required personal knowledge.
{¶ 23} The affiant Johnson’s assertion that from his own personal
knowledge the facts contained in the affidavit were true as he “verily
believe[d],” and that he was “competent to testify to same,” likewise
fails to portray any basis other than Johnson’s own assertion, that
he has the required personal knowledge. Johnson’s bare assertion
that the facts related in his affidavit are true does not support
a finding that they are.
{¶ 24} The standard that Civ.R. 56(C) imposes for granting a
motion for summary judgment requires the court to find 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” on the claim or defense
the motion concerns. To make the required finding, the court must
have before it more than an assertion that an affiant knows of the
fact or facts related in an affidavit. In addition, the affidavit
must demonstrate the particular basis on which the affiant gained
his understanding of the fact or facts, and that basis must be
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sufficient to support a finding of fact by the court that the affiant
“has personal knowledge of the matter” concerned. Evid.R. 602;
Civ.R. 56(C). Hearsay knowledge based on the affiant’s review of
hearsay business records, for example, is insufficient. St Paul
Fire & Marine Ins. Co. v. Ohio Fast Freight, Inc. (1982), 8 Ohio App. 3d
155.
{¶ 25} Even if the Hunter and Johnson affidavits did portray the
necessary personal knowledge of the facts contained in their
affidavits, that would not permit the court to rely on the copies
of the documents TPI submitted in support of its motion for summary
judgment. The affidavits make no specific reference to those
documents.
{¶ 26} TPI also relies on Conrad-Eiford’s responses to certain
requests for documents and admissions with which she was presented.
Conrad-Eiford admitted that she has no documents showing that the
amount due on the account is other than what TPI alleged in its
complaint. She also admitted that she or someone authorized by her
made purchases on the Visa account, and that she did not recall ever
disputing those charges. TPI argues that these matters show that
Conrad-Eiford “lacked any evidence regarding the subject matter of
this lawsuit,” and therefore that “it was impossible for Eiford to
produce sufficient competent, credible evidence to meet the burden
Civ.R. 56 imposes on a non-moving party.”
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{¶ 27} TPI’s assertions regarding Conrad-Eiford’s lack of
evidence may be correct, but TPI’s conclusion is not. Before a party
against whom summary judgment is sought must bear any evidentiary
burden, the movant must demonstrate the absence of any genuine issue
of material fact regarding the claim or defense on which the movant
relies. Dresher v. Burt (1996), 75 Ohio St. 3d 280. TPI’s motion
failed to do that, for the reasons we explained.
{¶ 28} The trial court erred when it granted TPI’s motion for
summary judgment. The first assignment of error is sustained.
SECOND ASSIGNMENT OF ERROR
{¶ 29} “The trial court erred in granting plaintiff’s motion for
summary judgment when plaintiff failed to prove an account or an
account stated.”
{¶ 30} This assignment of error is rendered moot by our decision
sustaining the first assignment of error. Accordingly, we exercise
the discretion conferred by App.R. 12(A)(1)(c) and decline to decide
the error assigned.
{¶ 31} Having sustained the first assignment of error, we reverse
the summary judgment from which this appeal was taken and remand the
case to the trial court for further proceedings.
Judgment reversed
and cause remanded.
FAIN and DONOVAN, JJ., concur.