Monitor Bank v. Griffith , 2017 Ohio 7785 ( 2017 )

[Cite as Monitor Bank v. Griffith, 2017-Ohio-7785.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
THE MONITOR BANK C.A. No. 16AP0079
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CHAD GRIFFITH COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellee CASE No. 2016 CVC-H 000238
DECISION AND JOURNAL ENTRY
Dated: September 25, 2017
TEODOSIO, Judge.
{¶1} Chad Griffith appeals the judgment of the Wayne County Court of Common Pleas
granting summary judgment in favor of Monitor Bank. We reverse and remand.
I.
{¶2} In March 2016, Monitor Bank received a judgment against GDG Properties, LLC,
on a promissory note. In May 2016, Monitor Bank filed a complaint against Chad Griffith,
pursuant to a guaranty, for the amount of said judgment. Mr. Griffith filed an answer denying
the allegations made in the complaint, and Monitor Bank subsequently filed its motion for
summary judgment. Mr. Griffith filed his response brief in opposition, and contended that
Monitor Bank had failed to support its motion with proper evidentiary materials and had failed to
attach an affidavit. Five days later, Monitor Bank filed the affidavit of Doug Akins, an officer of
the bank, and attached as exhibits: (1) a copy of the guaranty; (2) a copy of the complaint
against GDG Properties, LLC; (3) a copy of the signature page from the note, indicating Monitor
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Bank as the lender and GDG Properties, LLC, as the borrower, and signed for the lender by
“Douglas D. Akins, Sr. Vice President” and signed for the borrower by “Chad Griffith,
Member”; (4) an account balance; (5) a copy of the warrant of attorney answer to the complaint
on the promissory note; and (6) a copy of the judgment entry against GDG Properties, LLC.
{¶3} Mr. Griffith filed a motion to strike the affidavit and the evidentiary materials as
being improper, untimely and without leave of court. Monitor Bank followed by filing a motion
for leave to file the affidavit instanter, which was granted by the trial court. The court denied
Mr. Griffith’s motion to strike and on November 8, 2016, granted summary judgment in favor of
Monitor Bank. Mr. Griffith now appeals, raising one assignment of error.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY GRANTING THE PLAINTIFF-APPELLEE
BANK’S MOTION FOR SUMMARY JUDGMENT AGAINST DEFENDANT-
APPELLANT CHAD GRIFFITH, IN HIS PERSONAL CAPACITY, WHERE
GENUINE ISSUES OF MATERIAL FACT EXISTED FOR TRIAL
CONCERNING (1) WHETHER THERE WAS [A] LOAN GUARANTY
CONTRACT BETWEEN THE APPELLEE BANK AND APPELLANT; (2)
HOW MUCH MONEY IS OWED TO APPELLEE BANK AT THIS POINT IN
TIME, IF ANY; AND (3) WHETHER APPELLANT OWES ANY AMOUNT
OF MONEY TO APPELLEE BANK AND IF SO, THE AMOUNT OWED.
{¶4} In his assignment of error, Mr. Griffith argues that the affidavit of Doug Akins
provided by Monitor Bank did not meet the requirements of Civ.R. 56(E) in that it was not made
on personal knowledge and did not show affirmatively that the affiant was competent to testify to
the matters stated in the affidavit. We agree.
{¶5} Specifically, Mr. Griffith contends that the affidavit fails to set forth any facts
pertaining to Mr. Akins’ competency or to what his job entails, other than that he is “an officer of
plaintiff.” Mr. Griffith further contends the affidavit fails to set forth the records or documents
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that Mr. Akins reviewed, any experience he has with the account, or his knowledge of the bank’s
business record procedures. Mr. Griffith also argues the affidavit and the attached exhibits do
not meet the requirements of Civ.R. 56(E) because the documents are not sworn or certified, and
that therefore no credible evidence was before the trial court. We note that Mr. Griffith also
argues the affidavit lacks a notary seal, however he did not raise this issue at the trial court, and
therefore the issue is not properly before us. See Carnegie Cos., Inc. v. Summit Properties, Inc.,
9th Dist. Summit No. 25622, 2012-Ohio-1324, ¶ 8.
{¶6} Appellate review of an award of summary judgment is de novo. Grafton v. Ohio
Edison Co., 77 Ohio St. 3d 102, 105 (1996). Summary judgment is appropriate under Civ.R. 56
when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is
entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of
the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is
adverse to the nonmoving party. Temple v. Wean United, Inc., 50 Ohio St. 2d 317, 327 (1977),
citing Civ.R. 56(C). A court must view the facts in the light most favorable to the non-moving
party and must resolve any doubt in favor of the non-moving party. Murphy v. Reynoldsburg, 65
Ohio St. 3d 356, 358–359 (1992). A trial court does not have the liberty to choose among
reasonable inferences in the context of summary judgment, and all competing inferences and
questions of credibility must be resolved in the nonmoving party’s favor. Perez v. Scripps–
Howard Broadcasting Co., 35 Ohio St. 3d 215, 218 (1988).
{¶7} The Supreme Court of Ohio has set forth the nature of this burden-shifting
paradigm:
[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
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nonmoving party’s claims. The moving party cannot discharge its initial burden
under Civ.R. 56 simply by making a conclusory assertion that 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 that 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 that
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.
Dresher v. Burt, 75 Ohio St. 3d 280, 293 (1996).
{¶8} “[A]ffidavits submitted in support of or in opposition to motions for summary
judgment ‘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.’” Maxum Indemnity Co. v. Selective Ins. Co. of S.C., 9th Dist.
Wayne No. 11CA0015, 2012-Ohio-2115, ¶ 18, quoting Civ.R. 56(E). “In addition, Civ.R. 56(E)
provides that ‘[s]worn or certified copies of all papers or parts of papers referred to in an
affidavit shall be attached to or served with the affidavit.’” Deutsche Bank Natl. Trust Co. v.
Dvorak, 9th Dist. Summit No. 27120, 2014–Ohio–4652, ¶ 10. Generally, “a mere assertion of
personal knowledge satisfies the personal knowledge requirement of Civ.R. 56(E) if the nature of
the facts in the affidavit combined with the identity of the affiant creates a reasonable inference
that the affiant has personal knowledge of the facts in the affidavit.” Bank One, N.A. v. Lytle, 9th
Dist. Lorain No. 04CA008463, 2004-Ohio-6547, ¶ 13. It is only when “particular averments” in
an affidavit undermine the likelihood that the affiant has personal knowledge of the facts that
more than a conclusory statement of personal knowledge is required. Deutsche Bank Natl. Trust
Co. v. James, 9th Dist. Summit No. 28156, 2016–Ohio–7950, ¶ 10.
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{¶9} “Civ.R. 56(C) sets forth an inclusive list of the materials that may be considered
by a court when determining a motion for summary judgment * * * includ[ing] depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending
case, and written stipulations of fact.” Carter v. Gerbec, 9th Dist. Summit No. 27712, 2016-
Ohio-4666, ¶ 43. “The proper procedure for introducing evidentiary matter not specifically
authorized under Civ.R. 56(C) is to incorporate it by reference in a properly framed affidavit
pursuant to Civ.R. 56(E).” Skidmore & Assoc. Co., L.P.A. v. Southerland, 89 Ohio App. 3d 177,
179 (9th Dist.1993). Civ.R. 56(E) requires that a document attached to an affidavit submitted in
support of a motion for summary judgment “must be sworn, certified, or personally authenticated
based on personal knowledge.” Carter at ¶ 43.
{¶10} With regard to the exhibits attached to the Akins affidavit, the copies of the
guaranty, the note, and the account balance have not been authenticated in any of these ways.
They are neither sworn nor certified, nor did Mr. Akins aver personal knowledge of any of the
documents, or that they are genuine, true and accurate copies. Likewise, the attached copies of
the court filings from the previous case against GDG Properties, LLC, were not certified or
otherwise authenticated. Accordingly, the exhibits were not properly before the trial court on
summary judgment.
{¶11} As previously noted, an affiant’s mere assertion of personal knowledge generally
satisfies Civ.R. 56(E)’s personal knowledge requirement “if the nature of the facts in the
affidavit combined with the identity of the affiant creates a reasonable inference that the affiant
has personal knowledge of the facts in the affidavit.” Lytle at ¶ 13. Mr. Akins did not aver
personal knowledge specifically, nor did the affidavit contain language from which personal
knowledge could be inferred. See AcuSport Corp. v. Triad Gun, LLC, 9th Dist. Summit No.
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27934, 2016-Ohio-7023 (inferring “personal knowledge” even though the specific phrase was
not used in the affidavit). See also CitiMortgage, Inc. v. Elia, 9th Dist. Summit No. 25482,
2011-Ohio-2499. He did not aver familiarity with the documents, the account file, or the
business record procedures of the institution. He did not identify or describe his position or
duties at the bank. As to his competence to testify to the matters contained within the affidavit,
Mr. Akins states only “that he is an officer of plaintiff and that the following is true to the best of
his knowledge and belief * * *.” Based upon this paucity of language from which personal
knowledge could be inferred, the statements made in the affidavit did not create a reasonable
inference that Mr. Akins had knowledge of the facts contained therein. See AcuSport Corp. at ¶
10.
{¶12} Monitor Bank argues that Mr. Akins was present at the signing of the documents,
and that such fact “is ample evidence that the affiant has personal knowledge of the documents
and is competent to testify as to the existence and authenticity of those documents.” Even in
this, there is not enough evidence for the trial court to have conclusively determined that the
affiant, Doug Akins, an officer of the bank, is the same person as “Douglas D. Akins, Sr. Vice
President,” who signed the note, as the affidavit makes no mention of the signature. It is far
from inconceivable, for instance, that the affiant is simply the familial namesake of the signatory.
{¶13} We conclude the affidavit of Doug Akins fails to meet the personal knowledge
requirement of Civ.R. 56(E) and fails to show affirmatively that the affiant is competent to
testify to the matters stated in the affidavit. We further conclude the exhibits attached to the
affidavit did not meet the requirements of Civ.R. 56(E), which requires the attachment of sworn
or certified copies of all papers or parts of papers referred to in an affidavit. Because the trial
court did not have before it for consideration any evidence meeting the requirements of Civ.R.
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56(E), it erred in finding that there were no genuine issues as to any material fact and in finding
that Monitor Bank was entitled to summary judgment.
{¶14} Mr. Griffith’s assignment of error is sustained.
III.
{¶15} Mr. Griffith’s assignment of error is sustained. The judgment of the Wayne
County Court of Common Pleas is reversed and the cause is remanded.
Judgment reversed,
and cause remanded.
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 Wayne, 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.
THOMAS A. TEODOSIO
FOR THE COURT
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HENSAL, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
BRUCE HALL, Attorney at Law, for Appellant.
JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.
JOHN BARRINGTON, Attorney at Law, for Appellee.