Capital One Bank (USA), NA v. Gordon , 2013 Ohio 2095 ( 2013 )

[Cite as Capital One Bank (USA), NA v. Gordon, 2013-Ohio-2095.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98953
CAPITAL ONE BANK (USA), NA
PLAINTIFF-APPELLEE
vs.
DANIELLE GORDON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Shaker Heights Municipal Court
Case No. 11 CVF 01287
BEFORE: Rocco, J., Jones, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: May 23, 2013
FOR APPELLANT
Danielle Gordon, pro se
3572 Lytle Road
Shaker Heights, OH 44122
ATTORNEY FOR APPELLEE
Deborah A. Winslow
Shermeta, Adams & Von Allmen, P.C.
P.O. Box 5016
Rochester, MI 48308
KENNETH A. ROCCO, J.:
{¶1} Defendant-appellant Danielle Gordon (“Gordon”) appeals from the trial
court’s final judgment granting summary judgment in favor of plaintiff-appellee Capital
One Bank (USA), NA (“Capital One”). Finding no error, we affirm.
{¶2} On October 11, 2011, Capital One filed a complaint against Gordon alleging
that Gordon breached a credit card agreement and that Capital One was entitled to
damages as a result of that breach. Capital One later filed a motion for summary
judgment that the trial court granted on August 14, 2012. It is from this judgment that
Gordon now appeals, setting forth one assignment of error for our review:
I. The trial court erred when in granted the plaintiff’s motion for summary
judgment, because there were genuine issues of material fact.
{¶3} We disagree. Summary judgment rulings are reviewed de novo. Grafton
v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary
judgment is appropriate when (1) there is no genuine issue as to any material fact; (2) the
moving party is entitled to judgment as a matter of law; and (3) 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, who is entitled to have the evidence construed
most strongly in his favor. Civ.R. 56(C); Gilbert v. Summit Cty., 104 Ohio St.3d 660,
2004-Ohio-7108, 821 N.E.2d 564, ¶ 6.
{¶4} The evidentiary materials attached to Capital One’s motion for summary
judgment, which included copies of monthly statements of the account, established the
existence of the credit card account, the balance owed on the account, and that Gordon
defaulted on that account. The evidentiary materials were sufficient to carry Capital One’s
burden of showing that there were no genuine issues of material fact, and that it was
entitled to judgment as a matter of law. See Capital One Bank USA, N.A. v. Calhoun, 8th
Dist. No. 98743, 2013-Ohio-274, ¶ 9 (finding summary judgment was warranted on
similar facts).
{¶5} Gordon does not point to any evidentiary materials demonstrating that a
genuine issue of material fact exists. She argues that the certificate of service on the
motion for leave to file summary judgment bore the wrong date. But assuming that
Gordon is right, it is unclear how this circumstance would create a genuine issue of
material fact as to whether she breached the credit card agreement. Gordon also argues
that certain documents that Capital One used in support of its motion for summary
judgment were not authenticated, but she does not put forth any evidence to support this
allegation.
{¶6} Importantly, Gordon does not dispute that the credit card was in her name,
that the monthly bills were sent to her residence, that the debts attached to the card were
hers or that she failed to make the required payments on the account. Gordon failed to
submit any evidence at all disputing these claims.
{¶7} To the extent that Gordon’s brief can be read to make additional points, we
decline to address them, because she has failed to conform her arguments with the Rules
of Appellate Procedure. Under App.R. 12(A)(2), we “may disregard an assignment of
error presented for review if the party raising it * * * fails to identify in the record the
error on which the assignment of error is based or fails to argue the assignment separately
in the brief, as required under App.R. 16(A).” See also Capital One Bank,
2013-Ohio-274, at ¶ 4. App.R. 16(A)(7) requires that appellant include in her brief:
An argument containing the contentions of the appellant with respect to
each assignment of error presented for review and the reasons in support of
the contentions, with citations to the authorities, statutes, and parts of the
record on which appellant relies. The argument may be preceded by a
summary.
{¶8} None of Gordon’s arguments in her opening brief are supported by any legal
authority. In other words, even if everything that Gordon alleged in the brief were true,
she does not demonstrate how these allegations would require us, under the law, to
reverse the trial court’s grant of summary judgment. We decline to address those
arguments made by Gordon that are unsupported by legal authority. See Capital One
Bank at ¶ 7 (declining to address assignments of error unsupported by citation to legal
authority).
{¶9} We similarly decline to address an argument regarding state and federal debt
collection law that Gordon raises for the first time in her reply brief. Gordon did not
raise this issue as an assignment of error or argue it in her initial brief. Reply briefs are
to be used only to rebut arguments raised in an appellee’s brief, and an appellant may not
use a reply brief to raise new issues or assignments of error. Midwest Curtainwalls, Inc.
v. Pinnacle, 701, LLC, 8th Dist. No. 92269, 2009-Ohio-3740, ¶ 77, citing App.R. 16(C).
{¶10} For the foregoing reasons we overrule the sole assignment of error and we
affirm the trial court’s final judgment.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
____________________________________
KENNETH A. ROCCO, JUDGE
LARRY A. JONES, SR., P.J., CONCURS;
SEAN C. GALLAGHER, J.,
CONCURS IN JUDGMENT ONLY