Ohio Receivables, L.L.C. v. Durunner ( 2013 )

[Cite as Ohio Receivables, L.L.C. v. Durunner, 2013-Ohio-5514.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
OHIO RECEIVABLES, LLC JUDGES:
Hon. Sheila G. Farmer, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 13 CAG 03 0017
GODWIN DURUNNER, a/k/a
CHUKWUKERE G. DURUNNA
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Municipal Court,
Case No. 11 CVF 00173
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 16, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JACKSON T. MOYER GODWIN DURUNNER
NICHOLAS J. CHEEK a/k/a CHUKWUKERE G. DURUNNA
CHEEK LAW OFFICES 8837 Juneberry Road
471 East Broad Street, 12th Floor Lewis Center, Ohio 43035
Columbus, Ohio 43215
Delaware County, Case No. 13 CAG 03 0017 2
Wise, J.
{¶1} Appellant Godwin Durunner, aka Chukwukere Durunna, appeals the
judgment of the Delaware County Municipal Court, which granted judgment in favor of
Appellee Ohio Receivables LLC in an action to collect on a delinquent credit card
account. The relevant facts leading to this appeal are as follows.
{¶2} In 2004, appellant opened a credit card account with Chase Bank USA,
N.A. and was issued account number xxxx-xxxx-xxxx-7652. Due to subsequent failures
by appellant to pay back certain credit obligations under the account terms, Chase
wrote off the account on or about April 30, 2007. Appellant nonetheless made some
payments on the account until October 21, 2008.
{¶3} On January 24, 2011, Appellee Ohio Receivables, having purchased the
charged-off account, filed a collection action against appellant, seeking repayment of
the sum of $2,385.25, plus interest at the rate of 24.00% per annum. On February 14,
2011, appellant filed an answer to the complaint, denying most of the allegations therein
for want of knowledge.
{¶4} Appellant also filed a motion to dismiss on February 14, 2011. Said motion
was denied four days later.
{¶5} On March 14, 2011, appellant filed a second motion to dismiss. Said
motion was also denied.
{¶6} On April 11, 2011, appellant filed a motion to strike the attachments to
appellee's complaint; contemporaneously, appellant filed an "opposition to court's denial
of defendant's second motion to dismiss." These motions were treated as an objection
to the magistrate's decisions, and were denied by the trial court.
Delaware County, Case No. 13 CAG 03 0017 3
{¶7} On April 28, 2011, with leave of the court, appellee filed a motion for
summary judgment. Appellant filed a motion to strike the attachments to appellee's
motion, followed by a "memorandum of opposition to court's denial of defendant's
second motion to dismiss" and a response to appellee's motion for summary judgment.
The magistrate found that there were genuine issues of material fact and subsequently
scheduled the matter for trial.
{¶8} Appellant then filed a third motion to dismiss, which the court scheduled to
be heard on the date of trial.
{¶9} On October 7, 2011, approximately five weeks before the date of the trial,
appellant filed a motion for summary judgment, which the court scheduled to be heard
on the date of trial.
{¶10} A bench trial before the magistrate took place on November 16, 2011.
{¶11} On February 14, 2013, the magistrate issued a five-page decision
recommending judgment in favor of appellee in the amount of $2,229.25 plus interest of
3% per annum from April 30, 2007. The magistrate, inter alia, specifically rejected any
claim that the account was connected to a person other than appellant with a slightly
different social security number. Neither party filed any objections to the decision of the
magistrate. The trial court approved and adopted the magistrate’s decision on February
18, 2013.
{¶12} Appellant filed a notice of appeal on March 14, 2013. He herein raises the
following seven Assignments of Error:
{¶13} “I. THE TRIAL COURT ERRED ON FEBRUARY 18, 2013, BY
ENTERING JUDGMENT IN FAVOR OF PLAINTIFF-APPELLEE (OHIO
Delaware County, Case No. 13 CAG 03 0017 4
RECEIVABLES) FOR NOT ATTACHING A COPY OF THE ASSIGNMENT
DOCUMENT TO THE INITIAL COMPLAINT WAS PROPER (SIC).
{¶14} “II. THE TRIAL COURT ERRED BY ENTERING JUDGMENT ON
FEBRUARY 18, 2013, BY DETERMINING THAT THE ASSIGNMENT OF ACCOUNT
AND CHAIN OF ASSIGNMENT WAS PROPER AND THAT OHIO RECEIVABLES
WAS THE REAL PARTY IN INTEREST IN THIS CASE.
{¶15} “III. THE TRIAL COURT ERRED IN THE FEBRUARY 18, 2013, (SIC)
FOR ACCEPTING THE AFFIDAVITS SUPPLIED BY OHIO RECEIVABLES
(PLAINTIFF-APPELLEE) IN SUPPORT OF THEIR CLAIM.
{¶16} “IV. THE TRIAL COURT ERRED BY ENTERING A JUDGMENT
FEBRUARY 18, 2013 IN FAVOR OF OHIO RECEIVABLES THAT THE
DISCREPANCY IN THE NAMES AND SOCIAL SECURITY NUMBER WERE PROPER
IN THE CASE.
{¶17} “V. THE TRIAL COURT ERRED IN ENTERING JUDGMENT FEBRUARY
18, 2013, IN FAVOR OF OHIO RECEIVABLES THAT NEGLECTING THE ALLEGED
DEFENDANT'S MOTION TO STRIKE DOCUMENTS WAS PROPER.
{¶18} “VI. THE TRIAL COURT ERRED IN ENTERING JUDGMENT
FEBRUARY 18, 2013, IN FAVOR OF OHIO RECEIVABLES THAT NEGLECTING THE
ALLEGED DEFENDANT'S MOTION FOR SUMMARY JUDGMENT WAS PROPER.
{¶19} “VII. THE TRIAL COURT ERRED IN ENTERING JUDGMENT
FEBRUARY 18, 2013, IN FAVOR OF OHIO RECEIVABLES THAT NEGLECTING TO
MAKE DECISION ON THIS CASE WAY PAST THE STATUTE OF LIMITATION (SIC)
WAS PROPER.”
Delaware County, Case No. 13 CAG 03 0017 5
I.
{¶20} In his First Assignment of Error, appellant appears to argue that the trial
court should have dismissed appellee’s complaint for the alleged failure to attach a copy
of the proper account assignment document to the complaint. We disagree.
{¶21} Civ.R. 10(D)(1) states as follows: “When any claim or defense is founded
on an account or other written instrument, a copy of the account or written instrument
must be attached to the pleading. If the account or written instrument is not attached,
the reason for the omission must be stated in the pleading.”
{¶22} This Court has recognized that a defendant who fails to file a motion for a
more definite statement under Civ.R. 12(E) before filing an answer has waived his or
her right to assert Civ.R. 10(D) as a basis for dismissing the plaintiff's complaint. See
State Farm Mutual Auto Ins. Co. v. Loken, 5th Dist. Fairfield No. 04–CA–40, 2004–
Ohio–5074, ¶ 21. Furthermore, for pleading purposes, it is generally sufficient for the
complaint to allege that the account has been assigned, and the non-attachment of the
assignment documents does not implicate Civ.R. 10(D)(1). See Hudson & Keyse LLC v.
Carson, 10th Dist. Franklin No. 07AP–936, 2008–Ohio–2570, ¶ 11.
{¶23} Upon review, we find Loken and Carson to be on point in the case sub
judice, and appellant’s First Assignment of Error is therefore overruled.
II., III., IV., V.
{¶24} In his Second, Third, Fourth, and Fifth Assignments of Error, appellant
raises various evidentiary challenges to the trial court’s judgment in favor of appellee.
{¶25} We first note appellant herein did not object to the magistrate's decision.
Civ.R. 53(D)(3)(b)(iv) provides that “* * * [a] party shall not assign as error on appeal the
Delaware County, Case No. 13 CAG 03 0017 6
court's adoption of any factual findings or legal conclusion * * * unless the party has
objected to that finding or conclusion * * *.” See, e.g., Stamatakis v. Robinson (January
27, 1997), Stark App.No. 96CA303, 1997 WL 115878. We nonetheless recognize that
an appellant's failure to specifically object to a magistrate's decision does not bar
appellate review of “plain error.” See, e.g., Tormaschy v. Weiss (July 6, 2000), Richland
App. No. 00 CA 01, 2000 WL 968685, citing R.G. Real Estate Holding, Inc. v. Wagner
(April 24, 1998), Montgomery App. No. 16737, 1998 WL 199628.
{¶26} However, even under a plain error standard, our review is effectively
impeded because appellant has failed to provide this Court with a written transcript of
the trial to the magistrate. Pursuant to App.R. 9(B)(1), “[i]t is the obligation of the
appellant to ensure that the proceedings the appellant considers necessary for inclusion
in the record, however those proceedings were recorded, are transcribed in a form that
meets the specifications of App. R. 9(B)(6).” Although a video disc of the trial in this
case has been provided, this is insufficient for appellate review under these
circumstances pursuant to App.R. 9. See State v. Lisac, 11th Dist. Geauga No. 2012–
G–3056, 2012-Ohio-5224, ¶ 2. We therefore will presume the regularity of the
proceedings below and affirm. See, e.g., State v. Myers, Richland App.No.
2003CA0062, 2004-Ohio-3715, ¶ 14, citing Knapp v. Edwards Laboratories. (1980), 61
Ohio St. 2d 197, 400 N.E.2d 384.
{¶27} Appellant’s Second, Third, Fourth, and Fifth Assignments of Error are
overruled.
Delaware County, Case No. 13 CAG 03 0017 7
VI.
{¶28} In his Sixth Assignment of Error, appellant maintains the trial court erred in
granting judgment in favor of appellee despite a pending motion for summary judgment
previously filed by appellant. We disagree.
{¶29} Generally, “when a trial court fails to rule upon a pretrial motion, it may be
presumed that the court overruled it.” State ex rel. Cassels v. Dayton City School Dist.
Bd. of Edn., 69 Ohio St. 3d 217, 223, 631 N.E.2d 150, 1994-Ohio-92. Furthermore, any
error by a trial court in denying a motion for summary judgment is rendered moot or
harmless if a subsequent trial on the same issues raised in the motion demonstrates
that there were genuine issues of material fact supporting a judgment in favor of the
party against whom the motion was made. Harraman v. Howlett, 5th Dist. Morrow No.
03CA0023, 2004-Ohio-5566, ¶ 23, citing Continental Ins. Co. v. Whittington (1994), 71
Ohio St. 3d 150, 156, 642 N.E.2d 615. See, also, True Light Christian Ministries Church
v. Clear Channel Outdoor, Inc., 157 Ohio App. 3d 198, 2004-Ohio-2539, ¶ 23.
{¶30} In the case sub judice, the magistrate issued a pretrial order on October
12, 2011 stating that “[a]ll motions properly before the court on the day of trial will be
considered by the court at that time.” See Trial Court Docket No. 52. However, because
the trial transcript in this matter has not been provided, we are compelled to apply the
presumption of regularity to the magistrate’s subsequent decision, thereafter approved
by the trial court, to hear the case on the merits on the day of trial.
{¶31} Appellant’s Sixth Assignment of Error is therefore overruled.
VII.
Delaware County, Case No. 13 CAG 03 0017 8
{¶32} In his Seventh Assignment of Error, appellant contends the trial court
violated the pertinent statute of limitations by delaying the issuance of the magistrate’s
decision and judgment entry for more than a year after the trial to the magistrate. We
disagree.
{¶33} It has long been recognized that “[t]he purpose of statutes of limitations is
to prevent delay in asserting claims and to prevent the asserting of stale claims.”
Stauffer v. Isaly Dairy Co. (1965), 4 Ohio App. 2d 15, 28, 211 N.E.2d 72. We note R.C.
2305.07 states in pertinent part that “*** an action upon a contract not in writing,
express or implied, or upon a liability created by statute other than a forfeiture or
penalty, shall be brought within six years after the cause thereof accrued.” (Emphases
added). Appellant’s argument confuses the concept of a delay in entry of judgment with
a delay in commencement of an action, and is thus without merit.
{¶34} Appellant’s Seventh Assignment of Error is overruled.
{¶35} For the reasons stated in the foregoing opinion, the judgment of the
Municipal Court of Delaware County, Ohio, is hereby affirmed.
By: Wise, J.
Farmer, P. J., and
Delaney, J., concur.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. SHEILA G. FARMER
___________________________________
HON. PATRICIA A. DELANEY
JWW/d 1119
Delaware County, Case No. 13 CAG 03 0017 9
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
OHIO RECEIVABLES, LLC :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
GODWIN DURUNNER, :
a/k/a CHUKWUKERE G. DURUNNA :
:
Defendant-Appellant : Case No. 13 CAG 03 0017
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Municipal Court of Delaware County, Ohio, is affirmed.
Costs assessed to appellant.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. SHEILA G. FARMER
___________________________________
HON. PATRICIA A. DELANEY