Discover Bank v. Combs

SUPREME COURT CASES

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2012-Ohio-3150

Case Date: 07/09/2012

Plaintiff: Discover Bank

Defendant: Combs

Preview:[Cite as Discover Bank v. Combs, 2012-Ohio-3150.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
DISCOVER BANK,                                                                               :
                                                                                             :
Plaintiff-Appellee,                                                                          :   Case No: 11CA25
                                                                                             :
v.                                                                                           :
                                                                                             :   DECISION AND
BURNIS COMBS II,                                                                             :   JUDGMENT ENTRY
:
Defendant-Appellant.                                                                         :   Filed:   July 9, 2012
APPEARANCES:
Burnis Combs II, Commercial Point, Ohio, pro se, Appellant.
Raymond F. Moats, III, Weltman, Weinberg & Reis Co., L.P.A., Columbus, Ohio, for
Appellee.
Kline, J.:
{¶1}   Burnis Combs II (hereinafter “Combs”) appeals the judgment of the
Circleville Municipal Court, which granted summary judgment in favor of Discover Bank
(hereinafter “Discover”).   Initially, Combs argues that Discover’s summary-judgment
evidence does not satisfy Civ.R. 56.   Because Discover’s evidence complies with Civ.R.
56, we disagree.   Furthermore, we find the following: (1) there are no genuine issues of
material fact; (2) Discover is entitled to judgment as a matter of law; and (3) reasonable
minds can come to just one conclusion, and that conclusion is adverse to Combs.
Accordingly, we overrule Combs’s assignments of error and affirm the judgment of the
trial court.
I.

Pickaway App. No. 11CA25                                                                2
{¶2}   On April 1, 2011, Discover filed its complaint against Combs.   Discover
alleged that Combs owed them $10,573.76 after defaulting on a credit card account.
{¶3}   On October 17, 2011, Discover moved for summary judgment.   As part of
its summary-judgment motion, Discover attached the affidavit of Barbara Ferguson
(hereinafter “Ferguson”), a record of Combs’s credit card application, the cardmember
agreement, and copies of Comb’s monthly account statements.   Ferguson’s affidavit
states the following:
I am a Legal Placement Account Manager for DB Servicing
Corporation the servicing agent of Discover Bank, an FDIC
insured Delaware State Bank.
THAT this affidavit is made on the basis of my personal
knowledge and in support of the Plaintiff’s suit on account
against the Debtor(s).
THAT, in my capacity as Legal Placement Account Manager,
I have access to records regarding the Discover Card
Account of the above referenced Debtor(s), further, that I
have personally inspected said Account and statements
regarding the balance due on said account.   DB Servicing
Corporation maintains these records in the ordinary course
of business.
THAT the account is in default.

Pickaway App. No. 11CA25                                                                       3
THAT [Combs’s monthly account statements are] a true and
accurate statement of what is now due and owing Discover
Bank on the account.
I declare under penalty of perjury that the foregoing is true
and correct to the best of my knowledge.
{¶4}   Combs did not attach any evidence to his “PRO SE MOTION TO
OPPOSE SUMMARY JUDGEMENT [sic].”   Combs did, however, move to strike
Ferguson’s affidavit.   According to Combs, Ferguson’s affidavit does not comply with
Civ.R. 56(E).   But the trial court disagreed and granted summary judgment in favor of
Discover.   As a result, the trial court ordered Combs to pay “the principal amount of
$10,573.76, plus interest from December 3, 2010[,] on the principal balance at the rate
of 19.490% per annum and costs.”   Entry on Plaintiff’s Motion for Summary Judgment at
2.
{¶5}   Combs appeals and asserts the following four assignments of error: I.
“Civ.R. 56 provides summary judgment may be granted only after the trial court
determines: a. ‘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.”   II. “It is well established the moving
party bears the burden of proving that no issues of material fact exist for trial.   Celotex

Pickaway App. No. 11CA25                                                                       4
Corp. v. Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.E.2d 265.   The
standard for granting summary judgment is explained in Dresher v. Burt (1996), 75 Ohio
St.3d 280 at 293, 662 N.E.2d 264: i. ‘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
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.’”   III.
“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.   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.   Civ.R. 56(C) only allows the trial court to deliberate ‘pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence in the pending case, and written stipulations of fact.’   Generally, the failure to

Pickaway App. No. 11CA25                                                                         5
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.”   And IV. “Upon summary judgment consideration, the proper procedure for
introducing evidence authorized by the rule is to incorporate 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.   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 will also set forth facts
that would be admissible into evidence, and shall affirmatively show the affiant is
competent to testify to those matters.   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.
{¶6}   In his four assignments of error, Combs argues that the trial court should
not have granted summary judgment in favor of Discover.   Therefore, we will address
Combs’s assignments of error together.
{¶7}                                                                                             “Because this case was decided upon summary judgment, we review this
matter de novo, governed by the standard set forth in Civ.R. 56.”   Comer v. Risko, 106
Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8.   Summary judgment is
appropriate only when the following have been established: (1) that there is no genuine
issue as to any material fact; (2) that the moving party is entitled to judgment as a

Pickaway App. No. 11CA25                                                                      6
matter of law; and (3) that reasonable minds can come to only one conclusion, and that
conclusion is adverse to the nonmoving party.   Civ.R. 56(C).   Accord Bostic v. Connor,
37 Ohio St.3d 144, 146, 524 N.E.2d 881 (1988); Grimes v. Grimes, 4th Dist. No.
08CA35, 2009-Ohio-3126, ¶ 14.   In ruling on a motion for summary judgment, the court
must construe the record and all inferences therefrom in the opposing party’s favor.
Doe v. First United Methodist Church, 68 Ohio St.3d 531, 535, 629 N.E.2d 402 (1994).
{¶8}   The burden of showing that no genuine issue of material fact exists falls
upon the party who moves for summary judgment.   Dresher v. Burt, 75 Ohio St.3d 280,
294, 662 N.E.2d 264 (1996).   However, once the movant supports his or her motion with
appropriate evidentiary materials, the nonmoving party “may not rest upon the mere
allegations or denials of the party’s pleadings, but the party’s response, by affidavit or
as otherwise provided in [Civ.R. 56], must set forth specific facts showing that there is a
genuine issue for trial.”   Civ.R. 56(E).   Accord Grimes at ¶ 15.
{¶9}                                                                                          “In reviewing whether an entry of summary judgment is appropriate, an
appellate court must independently review the record and the inferences that can be
drawn from it to determine if the opposing party can possibly prevail.”   Grimes at ¶ 16.
“Accordingly, we afford no deference to the trial court’s decision in answering that legal
question.”   Morehead v. Conley, 75 Ohio App.3d 409, 412, 599 N.E.2d 786 (4th
Dist.1991).   Accord Grimes at ¶ 16.
{¶10}  Essentially, Combs raises two arguments on appeal.   First, Combs argues
that Discover “failed to produce any evidence permitted by” Civ.R. 56.   Appellant’s
Opening Brief and Excerpt of the Record at 6.   And second, Combs argues that he

Pickaway App. No. 11CA25                                                                          7
“clearly raised genuine issues of fact regarding the case[.]”   Id. at 7.   We reject both of
these arguments and find that Discover is entitled to summary judgment.
A.
{¶11}  First, we find that Ferguson’s affidavit complies with Civ.R. 56(E), which
states that “[s]upporting 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.”
{¶12}  To support his argument that Ferguson’s affidavit is invalid, Combs relies
upon Discover Bank v. Peters, 5th Dist. No. 2010CA00309, 2011-Ohio-3480.   In Peters,
Discover “filed a Complaint in the Canton Municipal Court, alleging Appellant had
defaulted on the terms of a credit card agreement[.]”   Id. at ¶ 2.   Eventually, Discover
filed a motion for summary judgment.   “In support of the motion, Appellee attached * * *
the Affidavit of Natasha Szczygiel, a Legal Placement Account Manager for DFS
Services LLC, the servicing agent of Discover Bank.”   Id. at ¶ 4.   Szczygiel’s affidavit
stated the following:
1. Affiant states that (s)he is a Legal Placement Accounts
Manager for DFS Services, LLC, the servicing agent of
Discover Bank * * *
2. Affiant further states that the within Affidavit is being made
in support of [Appellee’s] Motion for Summary Judgment * * *
against [Appellant].

Pickaway App. No. 11CA25                                                                         8
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.
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.   (Alterations and omissions sic.)   Peters at ¶ 19-
22.
The cardholder filed a motion to strike Szczygiel’s affidavit, but the trial court denied that
motion and granted summary judgment in favor of Discover.
{¶13}  On appeal, the Fifth Appellate District found that Szczygiel’s affidavit
“fail[ed] to establish the affiant’s personal knowledge and fail[ed] to affirmatively show
the affiant is competent to testify to those matters.”   Peters at ¶ 23.   Specifically, the
court explained that “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.”   Id. at fn. 1.
{¶14}  Because Ferguson’s affidavit discusses her job duties, we find that
Combs’s reliance on Peters is misplaced.   Unlike the affiant in Peters, Ferguson
explained that she has access to Combs’s account records.   Furthermore, Ferguson
stated that she personally inspected Combs’s “[a]ccount and statements regarding the
balance due on said account.”   Therefore, we find that Ferguson’s affidavit (1)
establishes her personal knowledge and (2) affirmatively shows that she is competent to

Pickaway App. No. 11CA25                                                                   9
testify about Combs’s account.   As a result, we find that Ferguson’s affidavit complies
with Civ.R. 56(E).
B.
{¶15}  Next, we find that Discover’s summary-judgment evidence satisfies Civ.R.
56(C).   Under Civ.R. 56(C),
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
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
{¶16}  The Second Appellate District addressed a similar situation in Citibank
(South Dakota) N.A. v. Ogunduyile, 2d Dist. No. 21794, 2007-Ohio-5166.   In
Ogunduyile, Citibank “commenced an action in municipal court against Ogunduyile,
seeking $13,560.48 allegedly due on a credit card account.”   Id. at ¶ 2.   Later,
Citibank presented an affidavit of [a Citibank employee] in
support of its motion for summary judgment.   Attached to the
affidavit [we]re computer printouts of monthly account
statements that were sent to Ogunduyile.   The statements
showed purchases made by Ogunduyile and finance
charges that were applied to the account during the billing
cycles.   Id. at ¶ 8.
Based on this evidence, the trial court awarded summary judgment in favor of Citibank.

Pickaway App. No. 11CA25                                                      10
{¶17}  On appeal, the Second District Court of Appeals discussed Citibank’s
summary-judgment evidence.   As the court explained,
Although Civ.R. 56 does not directly refer to evidentiary
exhibits, such evidence may be considered when it is
incorporated by reference into a properly framed affidavit
pursuant to Civ.R. 56(E).   Skidmore & Assoc. Co. v.
Southerland (1993), 89 Ohio App.3d 177, 179.   In order to
properly incorporate attached evidentiary exhibits, the
affidavit needs merely to state that the attached materials
are true copies and reproductions of the original documents.
State ex rel. Corrigan v. Seminatore (1981), 66 Ohio St.2d
459, 467, 423 N.E.2d 105.
The monthly account statements detailing the activity
in Ogunduyile’s Citibank account were properly before the
trial court for consideration under Civ.R. 56(C) and (E).                     [The
Citibank employee’s] affidavit stated that, by virtue of her
position with Citibank, she had access to all information
regarding delinquent credit card accounts and had personal
knowledge of all relevant financial and account information
regarding Ogunduyile’s account number.   Her affidavit also
stated that the monthly account statements attached to her
affidavit were a hard copy printout of the financial information
contained in Ogunduyile’s account.   This language is

Pickaway App. No. 11CA25                                                                 11
sufficient to authenticate the attached account statements.
Citibank (South Dakota), N.A. v. Lesnick, Lake App.
No.2005-L-013, 2006-Ohio-1448, [¶] 14.
Ogunduyile, 2007-Ohio-5166, at ¶ 10-11.
{¶18}  We agree with the analysis in Ogunduyile and apply that reasoning to the
present case.   As we noted above, Ferguson’s affidavit states that she has access to
Combs’s account records. The affidavit also states that the monthly account statements
are “a true and accurate statement of what is now due and owing Discover Bank[.]”
Therefore, in accordance with Ogunduyile, we find that Citibank’s summary-judgment
evidence complies with Civ.R. 56(C).
C.
{¶19}  Finally, we find (1) that there are no genuine issues of material fact and (2)
that Discover is entitled to judgment as a matter of law.   As part of its summary-
judgment motion, Discover submitted all of Combs’s monthly account statements.   The
first statement shows a balance of zero, and the last statement shows a balance of
$10,573.76.   This is significant because
[i]n order to recover money due, “[a]n account must show the
name of the party charged and contain: (1) a beginning
balance (zero, or a sum that can qualify as an account
stated, or some other provable sum); (2) listed items, or an
item, dated and identifiable by number or otherwise,
representing charges, or debits, and credits; and (3)
summarization by means of a running or developing

Pickaway App. No. 11CA25                                                                      12
balance, or an arrangement of beginning balance and items
which permits the calculation of the amount claimed to be
due.”   Ogunduyile, at ¶ 7, quoting Gabriele v. Reagan, 57
Ohio App.3d 84, 87, 566 N.E.2d 684 (12th Dist.1988).
{¶20}  We find that Ferguson’s “affidavit and the account statements are
sufficient to establish a prima facie case for money owned on an account.”   Ogunduyile
at ¶ 12.   And here, Combs failed to present sufficient rebuttal evidence.   In responding
to an interrogatory, Combs claimed that he “does not remember applying for nor using
this card.”   But this statement “is nothing more than a general denial of [Discover’s]
claim, which is insufficient to satisfy [Combs’s] reciprocal burden under Dresher[, 75
Ohio St.3d 280, 662 N.E.2d 264,] and Civ.R. 56(E).”   Id. at ¶ 15.   To meet his burden,
Combs “was required to set forth specific facts that would permit a trier of fact to find
that the amount of debt claimed by [Discover] was incorrect.”   Id.   Combs, however,
failed to do so.
C.
{¶21}  In conclusion, after construing the record and all inferences therefrom in
Combs’s favor, we find the following: (1) there are no genuine issues of material fact; (2)
Discover is entitled to judgment as a matter of law; and (3) reasonable minds can come
to just one conclusion, and that conclusion is adverse to Combs.   Accordingly, we affirm
the judgment of the trial court.
JUDGMENT AFFIRMED.

Pickaway App. No. 11CA25                                                         13
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED.   Appellant shall pay the costs
herein taxed.
The Court finds that there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Circleville Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.   Exceptions.
Abele, P.J., and McFarland, J.:   Concur in Judgment & Opinion.
For the Court
BY:_____________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.

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