HSBC Bank U.S.A., Natl. Assn. v. Gill , 2019 Ohio 2814 ( 2019 )

[Cite as HSBC Bank U.S.A., Natl. Assn. v. Gill, 2019-Ohio-2814.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
HSBC BANK USA, NATIONAL : APPEAL NO. C-180404
ASSOCIATION, TRIAL NO. A-1201799
:
Plaintiff-Appellee,
: O P I N I O N.
vs.
:
KULWINDER GILL,
:
and
:
AMARJIT S. GILL,
Defendants-Appellants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 10, 2019
Buchanan Ingersoll & Rooney PC and Timothy P. Palmer, for Plaintiff-Appellee,
Gary F. Franke, for Defendants-Appellants.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} While the defendants-appellants challenge sundry aspects of the
damage award in this case, at bottom, their appeal turns on the question of whether
the plaintiff-appellee laid a proper foundation for the evidence establishing its
award. The trial court admitted the evidence in question under the business-records
exception to the hearsay rule, and our review of the record confirms the propriety of
this decision. We therefore affirm the judgment of the trial court.
I.
{¶2} The history of this case traces to a foreclosure action on a commercial
loan for a hotel against two sets of guarantors; defendants Amarjit S. and Kulwinder
Gill are one set of the guarantors. The underlying note was in the principal amount
of $1,333,000 to Business Loan Center, LLC, f.k.a. Business Loan Center Inc.
(“BLC”), which plaintiff-appellee HSBC Bank USA, National Association (“HSBC”)
eventually acquired via assignment. Upon default, HSBC received $1,090,018.28
from a short sale of the collateral property in 2007.
{¶3} HSBC then commenced a collection action against the guarantors to
collect the balance owed on the loan, including interest and fees. In 2015, however,
the Gills exited from this litigation after reaching a tentative settlement with HSBC
pending Small Business Administration (“SBA”) approval. HSBC proceeded to trial
against the other guarantors, ultimately receiving a judgment in the amount of
$461,477.44 plus interest against the other set of guarantors, with whom it settled for
a $400,002 payment on the deficiency.
{¶4} The tentative settlement between the Gills and HSBC, however,
ultimately collapsed when the SBA did not approve the deal. This prompted HSBC to
sue the Gills to collect the balance of the deficiency from them, and when the dust
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OHIO FIRST DISTRICT COURT OF APPEALS
settled from this litigation, the trial court entered a judgment against the Gills in the
amount of $145,274.94.
{¶5} With no serious dispute about their liability or enforceability of their
guaranty, the Gills’ arguments revolve around the amount and propriety of the
damages award. The Gills frame a single assignment of error challenging the
damages award, with multiple separate issues for review. Ultimately, the predicate
for most of these issues concerns the admissibility of the relevant evidence, so we
begin our analysis there.
II.
A.
{¶1} Before undertaking the substantive analysis, we pause for a moment at
the standard of review, which appears to be a bit of a quagmire. Generally, “the trial
court enjoys broad discretion in admitting or excluding evidence. An appellate court
will not disturb the exercise of that discretion absent a showing that the [party
against whom the evidence was admitted] has suffered material prejudice.”
(Citations omitted.) State v. Sage, 31 Ohio St. 3d 173, 182, 510 N.E.2d 343 (1987).
While that proposition is familiar enough, when it comes to hearsay and its
exceptions, Ohio courts have proven less-than-precise at times in terms of the
standard of review, generating conflicting precedent. We see this even in our own
district. Several years ago, in Meyers v. Hot Bagels Factory, Inc., 131 Ohio App. 3d
82, 100, 721 N.E.2d 1068 (1st Dist.1999), this court held that the abuse-of-discretion
standard is not appropriate relative to the admissibility of hearsay in the civil
context. We squarely addressed this question and determined that deferential
review should not govern because the admissibility of hearsay is not optional: “ ‘This
rule does not provide the trial court with discretion to admit hearsay; rather, the rule
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OHIO FIRST DISTRICT COURT OF APPEALS
mandates its exclusion unless the exceptions found at Evid.R. 803, 804,
or 807 apply.’ ” Id. at 100, quoting Smith v. Seitz, 4th Dist. Vinton No. 97CA515,
1998 WL 393880, *1 (July 9, 1998). Given the distinction between hearsay and
garden-variety evidentiary decisions, we accordingly held: “ ‘Unlike those evidentiary
rulings which relate to matters either explicitly or implicitly within the trial court’s
discretion, the admissibility of hearsay should be reviewed with little deference to the
trial court’s decision.’ ” Id., quoting Smith at *1.
{¶2} Since that time, a split developed amongst the appellate districts
between those that view the admission of hearsay as question of law for which de
novo review is appropriate, and those that treat hearsay as falling within the general
abuse-of-discretion standard. Compare, e.g., John Soliday Fin. Group, L.L.C. v.
Pittenger, 190 Ohio App. 3d 145, 2010-Ohio-4861, 940 N.E.2d 1035, ¶ 28 (5th Dist.)
(“[W]hile the trial court has discretion to admit or exclude relevant evidence, it has
no discretion to admit hearsay. * * * Thus, we review de novo the trial court’s
decision * * *.”); Monroe v. Steen, 9th Dist. Summit No. 24342, 2009-Ohio-5163, ¶
11 (“Whether evidence is admissible because it falls within an exception to the
hearsay rule is a question of law, thus, our review is de novo.”); with Abrams v.
Abrams, 2017-Ohio-4319, 92 N.E.3d 368, ¶ 31 (2d Dist.) (“We review rulings
regarding hearsay under an abuse-of-discretion standard.”); Bishop v. Munson
Transp., Inc., 109 Ohio App. 3d 573, 579, 672 N.E.2d 749 (7th Dist.1996) (“The
decision to admit a business record into evidence pursuant to Evid.R. 803(6) * * *
will not be disturbed on appeal absent a clear showing of an abuse of discretion.”).
{¶3} In recent years, without discussion of Meyers or of this split of
authority, this court began applying an abuse-of-discretion standard of review to
hearsay and hearsay exception determinations by invoking this quote from State v.
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OHIO FIRST DISTRICT COURT OF APPEALS
Issa, 93 Ohio St. 3d 49, 64, 752 N.E.2d 904 (2001): “The trial court has broad
discretion in the admission of evidence, and unless it has clearly abused its discretion
and the defendant has been materially prejudiced thereby, an appellate court should
not disturb the decision of the trial court.” See State v. Barnes, 1st Dist. Hamilton
Nos. C-170355 and C-170356, 2018-Ohio-3894, ¶ 4 (citing Issa and applying to
hearsay determination); State v. Beck, 2016-Ohio-8122, 75 N.E.3d 899, ¶ 27-28 (1st
Dist.) (quoting Issa and applying to business-records exception). But the problem
with this is that in Issa, the Supreme Court discussed the standard of review in the
context of relevance and not hearsay. So we appropriated the general relevance
standard for hearsay, at odds with our analysis in Meyers.
{¶4} But we appear to be in good company here, because the Supreme
Court of Ohio did the exact same thing. Recently, in State v. McKelton, 148 Ohio
St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 97, the court held: “Ordinarily, we
review a trial court’s hearsay rulings for an abuse of discretion.” The case that
McKelton cited for that proposition (State v. Hymore, 9 Ohio St. 2d 122, 128, 224
N.E.2d 126 (1967)), however, like Issa, addressed a relevance determination—
suggesting that the court did not thoroughly consider the policy issues raised by the
appellate district split (nor did the court acknowledge the split). See State v.
Fambro, 11th Dist. Trumbull No. 2016-T-0063, 2017-Ohio-5646, ¶ 74 (Cannon, J.,
concurring) (arguing that McKelton should not be read to apply discretionary review
to hearsay since it relied on a relevance case).
{¶5} Even if McKelton stands on a shaky foundation, other Supreme Court
decisions have applied the abuse-of-discretion standard of review to hearsay
determinations in both the civil and criminal context. See Beard v. Meridia Huron
Hosp., 106 Ohio St. 3d 237, 2005-Ohio-4787, 834 N.E.2d 323, ¶ 20-22; State v.
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OHIO FIRST DISTRICT COURT OF APPEALS
Dever, 64 Ohio St. 3d 401, 410, 596 N.E.2d 436 (1992). To be fair, none of these
cases actually engage in an analysis between the two dueling standards of review,
and that debate is one that should probably warrant some attention by the high
court. Until that time, however, we consider ourselves bound to follow the extant
guidance from the Supreme Court, and we clarify that hearsay determinations are
reviewed for an abuse of discretion.
B.
{¶6} With the standard of review in mind, we turn to the substance of the
hearsay objection at hand. Hearsay may be admissible if subject to an enumerated
exception—here, the business-records exception found in Evid.R. 803(6). This
excepts “Records of Regularly Conducted Activity” from the general prohibition
against hearsay, which covers:
A memorandum, report, record, or data compilation, in any form, of
acts, events, 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 [such records], all as
shown by the testimony of the custodian or other qualified witness
* * *.
Id. Put differently, the proponent must lay a foundation “demonstrating that the
[record] was prepared at or near the time of the recorded event or that it was the
regular custom to make such a [record].” Meyers, 131 Ohio App. 3d 82 at 101, 721
N.E.2d 106. See Great Seneca Fin. v. Felty, 170 Ohio App. 3d 737, 2006-Ohio-6618,
869 N.E.2d 30, ¶ 10 (1st Dist.) (for purposes of Evid.R. 803(6), the proponent must
show that “(i) the record [was] regularly made in a regularly conducted activity; (ii)
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OHIO FIRST DISTRICT COURT OF APPEALS
the contents * * * [were] entered or transmitted by a person with knowledge of the
act, event, or condition recorded therein; and (iii) the act, event, or condition [was]
recorded at or near the time of the transaction.”).
{¶7} The lone witness to testify at trial was Susan Branch, and the Gills
focus their attack on her, insisting that she lacked the competence to testify as to
damages and could not properly authenticate pertinent documents. Ms. Branch
testified that she was a licensed attorney, and a vice president and asset manager in
the Special Services Department at Ciena Capital, LLC. She testified that she was
also an officer with BLC, a subsidiary of Ciena Capital and the entity that originated
the loan in issue. BLC (for which Ciena Capital is the parent company) assigned the
loan to a pool; the pool was then sold and put into a trust for which HSBC ultimately
became the trustee. She explained that Ciena’s Special Services Department handles
defaulted loans and described her role with respect to the loan in issue as that of an
administrator and a day-to-day manager. She had access to the loan transcript,
accounting, payoff statements, and loan file.
{¶8} Exhibit 12 emerges as perhaps the key document in this case because it
is a loan history, which captures the loan payoff statement and transcript—including
all payments made during the life of the loan, how the payments were applied, any
BLC advanced expenses, and fees. HSBC’s counsel, after establishing Ms. Branch’s
general credentials, laid a foundation for the admission of Exhibit 12 on her redirect
examination:
Q. Now, with regard to the payoff, the loan history in Exhibit 12,
can you tell the Court what department at BLC prepares the
accounting statements or the history statements and payoff
statements?
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OHIO FIRST DISTRICT COURT OF APPEALS
A. That’s the loan accounting department. Asset managers need
loan payoff statements for motions in litigation. And so asset manager
directs the – sends a request to the loan accounting department and
they use the software to – that tracks all the payments and fees to
generate the payoff statement.
Q. Okay. Now, the payments and fees that get generated on the
payoff statement and the loan history, can you tell the Court how the
transactions are entered into the system in the first place? Are they
done contemporaneously as things happen?
A. So when a payment is received, usually between 24, 48 hours,
it’s entered into a system called Loan Manager.
Q. And do the people at BLC who enter the information, are they
under an obligation to record the information accurately?
A. Yes, they are.
Q. And are they under an obligation to record the information
timely?
A. Yes.
{¶9} We find this testimony sufficient to lay a proper foundation to admit
the loan history upon which the trial court based its damages determination. Ms.
Branch worked for BLC’s parent company, served as an officer of BLC, and was
familiar with the Loan Manager system used to create the loan history, knew which
department generated it, and relied on its contents in her role as the administrator
and day-to-day manager of the loan in issue. She established that the employees of
BLC entering the loan information were under an obligation to do so regularly,
timely, and accurately. Authentication for purposes of the business-records
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OHIO FIRST DISTRICT COURT OF APPEALS
exception “ ‘does not require the witness whose testimony establishes the foundation
for a business record to have personal knowledge of the exact circumstances of
preparation and production of the document.’ ” Jefferson v. CareWorks of Ohio,
Ltd., 193 Ohio App. 3d 615, 2011-Ohio-1940, 953 N.E.2d 353, ¶ 11 (10th Dist.),
quoting State v. Myers, 153 Ohio App. 3d 547, 2003-Ohio-4135, 795 N.E.2d 77, ¶ 60
(10th Dist.). “[A] court may admit a document as a business record even when the
proffering party is not the maker of the document, if the other requirements of
Evid.R. 803(6) are met and the circumstances suggest that the record is trustworthy.
* * * Trustworthiness of a record is suggested by the profferer’s incorporation into its
own records and reliance on it.” (Citations omitted.) U.S. Bank, N.A. v. Christmas,
2d Dist. Montgomery No. 26695, 2016-Ohio-236, ¶ 18, vacated on other grounds,
146 Ohio St. 3d 1468, 2016-Ohio-5108, 54 N.E.3d 1267. And the Gills have done
nothing to cast doubt on the trustworthiness of this document. Consistent with
Evid.R. 803(6) and the above authority, we hold that the trial court did not abuse its
discretion in admitting the loan history in Exhibit 12 (or the related testimony of Ms.
Branch).
{¶10} Having determined that the evidence establishing HSBC’s damages
was properly admitted, it fell to the Gills to present contrary evidence, which they did
not do. Their effort to poke holes in HSBC’s evidence thus comes up short in the
absence of any contrary evidence. For instance, while they quibble with the
calculation of interest (claiming improper compounding), they point to no evidence
substantiating that assertion. Nor did they cross-examine Ms. Branch on this point
in an effort to establish an inappropriate rate.1 It is incumbent upon a party to
1 The Gills take issue with the fact that HSBC “charged 11% despite the loan contract rate that
called for the rate to be prime plus 2.75%.” The note does set the interest rate at prime plus 2.75
percent. The Gills do not identify the applicable prime rate. HSBC counters that the prime rate
as of the default was 8.25 percent, which would explain the 11 percent.
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OHIO FIRST DISTRICT COURT OF APPEALS
introduce contrary evidence into the record or risk being saddled with the evidence
that they do not like. Therefore, we see nothing in the record to disturb the trial
court’s upholding of HSBC’s calculations.
C.
{¶11} The remaining issues raised by the Gills are easily dismissed. They
cite an outdated version of Civ.R. 54(C) for the proposition that a plaintiff is limited
to the sum claimed in the complaint (the ad damnum clause) absent amendment
prior to trial. The current version of the rule dispels this concern: “[E]very final
judgment shall grant the relief to which the party in whose favor it is rendered is
entitled, even if the party has not demanded the relief in the pleadings.”
Civ.R. 54(C). (Emphasis added.) The Gills fail to respond to the current version of
the rule, for good reason.
{¶12} The Gills next assert that damages should have been capped at the
amount awarded against the other guarantors ($461,477.44) less the proceeds
collected from those other guarantors ($400,002.00), or $61,475.44 plus statutory
interest of $14,033.66 (calculated at the postjudgment rate of 3 percent for 2015 and
2016 and 4 percent for 2017). While no one disputes that the Gills should receive
credit for payments made by other guarantors (which the trial court ensured), we see
several flaws in their math exercise here. The Gills declined to participate in the
prior proceeding against the other guarantors, and thus they cannot now try to reap
the benefits of that. For instance, they invite us to impose the (much lower) Ohio
postjudgment interest rate rather than the prevailing rate under their guaranty. But
they cite no authority for the notion that nonparties can benefit from the
postjudgment interest rate when they were not parties to the underlying judgment.
The plain language of R.C. 1343.03(B) militates against that interpretation,
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OHIO FIRST DISTRICT COURT OF APPEALS
describing postjudgment interest in terms of it being in effect after a “judgment,
decree, or order for the payment of money rendered in a civil action based on * * * a
contract * * *.” There is no reason to conclude that nonparties to a judgment, decree,
or order would be bound by this statute. The Gills were liable to HSBC on an
independent guaranty, and we are not persuaded that they are entitled to enjoy the
reduced rate of interest tied to a separate judgment.
{¶13} Charging a failure to mitigate damages, the Gills also take issue with
HSBC accepting a settlement of less than the full amount of the judgment from the
other guarantors. In addition to being facially untenable (the Gills benefitted from
payment of any part of the remaining deficiency from another party), this
proposition also lacks any supporting authority. Moreover, to the extent that it
would be applicable in this context, “[m]itigation is an affirmative defense in Ohio.”
Young v. Frank’s Nursey & Crafts, Inc., 58 Ohio St. 3d 242, 244, 569 N.E.2d 1034
(1991). The Gills did not present any evidence demonstrating HSBC’s failure to take
reasonable affirmative action to mitigate damages. “[S]tatements of counsel are not
evidence[,]” and the Gills’s counsel’s statements comprise the entirety of this
argument. Corporate Exchange Bldgs. IV & V, L.P. v. Franklin Cty. Bd. of Revision,
82 Ohio St. 3d 297, 299, 695 N.E.2d 743 (1998). It appears to us that HSBC
diligently sold the underlying property and pursued collection actions against the
other guarantors first. The Gills were the final stop in that journey, and they
benefited from these other efforts.
{¶14} As a last ditch effort to set aside this judgment, the Gills turn to
promissory estoppel—in particular, they argue that they dismissed cross-claims
against the other guarantors on the belief that they had a settlement with HSBC. The
Gills’ counsel argues that they relied on the settlement, but the record is barren as to
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OHIO FIRST DISTRICT COURT OF APPEALS
any evidence to that effect. See Corporate Exchange Bldgs. IV & V, L.P. The Gills
characterize Ms. Branch’s testimony as conclusive that SBA approval was not
actually required to complete the settlement. In fact, however, she testified on cross-
examination that she only had authority to resolve a defaulted loan if it is given to
her by the people that own the loan, and that they needed SBA approval “if [they
were] not going to get the full principal back.” The principal on this loan was not
satisfied until August 2017, well after the Gills tentatively settled and released their
cross-claims in 2015. The record lacks any evidence that the Gills relied on the
tentative settlement in releasing their cross-claims; even if there were, the evidence
presently within the four corners of the record suggests that any such reliance may
not have been reasonable given the tentative nature of the settlement.
III.
{¶15} Upon consideration of the issues raised by the Gills, we find that none
demonstrates a valid reason to reverse the judgment below. Accordingly, their sole
assignment of error is overruled, and we affirm the trial court’s judgment.
Judgment affirmed.
ZAYAS, P. J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry this date.
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