Unifund CCR, L.L.C. v. Johnson ( 2014 )

[Cite as Unifund CCR, L.L.C. v. Johnson, 2014-Ohio-4376.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100600
UNIFUND CCR, L.L.C.
PLAINTIFF-APPELLEE
vs.
EVELYN G. JOHNSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from
East Cleveland Municipal Court
Case No. 13-CVF-00131
BEFORE: Blackmon, P.J., McCormack, J., and Stewart, J.
RELEASED AND JOURNALIZED: October 2, 2014
FOR APPELLANT
Evelyn G. Johnson, pro se
3681 East 142nd Street
Cleveland, Ohio 44120
ATTORNEYS FOR APPELLEE
David A. Bader
P.O. Box 42348
Cincinnati, Ohio 45242
Elizabeth M. Shaffer
Dinsmore & Shohl, L.L.P.
255 East Fifth Street
Suite 1900
Cincinnati, Ohio 45202
PATRICIA ANN BLACKMON, P.J.:
{¶1} Appellant Evelyn Johnson appeals the trial court’s decision granting
judgment in favor of Unifund CCR, L.L.C. (“Unifund”) after a trial in the East Cleveland
Municipal Court. Johnson assigns the following errors for our review:
I. The municipal court incorrectly granted a judgment to Unifund where
Unifund sued for breach of contract not in writing.
II. The municipal court incorrectly granted judgment to Unifund after I
argued to the municipal court that Unifund violated the FDCPA.
{¶2} After reviewing the record and pertinent law, we affirm the trial court’s
decision. The apposite facts follow.
{¶3} On February 7, 2013, Unifund filed a complaint for breach of a contract not
in writing, promissory estoppel, unjust enrichment, and action on an account. The
complaint alleged that Johnson had defaulted on an account with Citibank, the original
creditor, that Unifund had obtained Johnson’s account by assignment from Citibank, and
that Johnson owed a total of $7,965.29.
{¶4} On May 28, 2013, Johnson filed a motion to dismiss, arguing among other
things that Unifund failed to attach the alleged contract and failed to attach a copy of the
alleged assignment. On May 30, 2013, the trial court denied the motion. On July 9,
2013, with Johnson having failed to file an answer to the complaint, Unifund filed a
motion for default judgment.
{¶5} On September 5, 2013, the magistrate assigned to the case conducted a trial
and determined that Unifund had presented sufficient evidence that Johnson owed the sum
alleged. The magistrate issued a decision that judgment be granted in favor of Unifund.
On October 3, 2013, with Johnson having failed to file any objections to the magistrate’s
decision, the trial court adopted the decision and granted judgment against Johnson in the
amount of $7,965.29.
Breach of Contract
{¶6} In the first assigned error, Johnson argues the trial court erred when it
granted judgment in favor of Unifund.
{¶7} The standard of review in an action for breach of contract is whether the trial
court erred as a matter of law. Arrow Unif. Rental LP v. Wills, Inc., 6th Dist. Wood No.
WD-12-057, 2013-Ohio-1829, citing Lee’s Granite, L.L.C. v. Lavelle, 6th Dist. Erie No.
E-08-039, 2009-Ohio-1532, ¶ 13. Accordingly, we “must determine whether the trial
court’s order is based on an erroneous standard or a misconstruction of the law.” Id.
{¶8} We must nonetheless keep in mind that “an appellate court gives due
deference to the trial court’s findings of fact, so long as they are supported by competent,
credible evidence.” The Four Howards, Ltd. v. J & F Wenz Road Invest., L.L.C., 179 Ohio
App.3d 399, 2008-Ohio-6174, 902 N.E.2d 63, ¶ 63 (6th Dist.), citing State v. Clements,
5th Dist. Licking No. 08 CA 31, 2008-Ohio-5549, ¶ 11.
{¶9} A contract is a promise, or a set of promises, actionable upon breach. Hinsch
v. Root Learning, Inc., 6th Dist. Lucas No. L-12-1192, 2013-Ohio-3371, citing Cleveland
Builders Supply Co. v. Farmers Ins. Group of Cos., 102 Ohio App. 3d 708, 712, 657 N.E.2d
851 (8th Dist.1995). The essential elements of a contract include an offer, acceptance,
contractual capacity, consideration (the bargained for legal benefit and/or detriment), a
manifestation of mutual assent, and legality of object and of consideration. Jackson Tube
Serv. v. Camaco L.L.C., 2d Dist. Miami Nos. 2012 CA 19, 2012 CA 25, 2013-Ohio-2344, ¶
10, citing Minster Farmers Coop. Exchange Co., Inc. v. Meyer, 117 Ohio St. 3d 459,
2008-Ohio-1259, 884 N.E.2d 1056, ¶ 28.
{¶10} In the instant case, Johnson argues the trial court erred by granting judgment
in Unifund’s favor because it failed to present a written contract establishing that she was
the owner of the credit card account.
{¶11} Preliminarily, we note, the credit card relationship is an offer by the issuer for
a series of unilateral contracts that are actually formed when the holder uses the credit card
to buy goods or services or to obtain cash. Cavalry SPV I, L.L.C. v. Krantz, 8th Dist.
Cuyahoga No. 97422, 2012-Ohio-2202, citing In re Ward, 857 F.2d 1082, 1086-1087 (6th
Cir.1988). Thus, rather than needing a signed written agreement, the use of a credit card
results in the person using the card being bound by the card member agreement. Citibank
v. Ebbing, 12th Dist. Butler No. CA2012-12-252, 2013-Ohio-4761, citing Ohio
Receivables, L.L.C. v. Dallariva, 10th Dist. Franklin No. 11AP-951, 2012-Ohio-3165, ¶
33.
{¶12} Attached to Unifund’s complaint was an affidavit from the custodian of
records, who averred that Johnson owed $7,382.20, plus accumulated interest from the
charge-off date of May 27, 2010 to the present, at the rate of 3% per annum, $583.09, for a
total of $7,965.29, plus court cost. At trial, Unifund presented copies of billing
statements dating from June 2009 through June 2010, sent to Johnson’s address, where she
admitted that she had been residing alone.
The statements reflect purchases and cash advances made on the account. In addition, the
statements reflect payments made by mail on the accounts, and at least three times when
payments were made over the phone. Johnson presented no evidence to the contrary.
{¶13} Based on the foregoing, we conclude there is substantial competent evidence
to support Unifund’s claim. Consequently, the trial court did not err in granting
judgment in Unifund’s favor. Accordingly, we overrule the first assigned error.
Fair Debt Collection Practices Act
{¶14} In the second assigned error, Johnson argues that the trial court should not
have granted judgment in Unifund’s favor because it violated the Fair Debt Collection
Practices Act (“FDCPA”). However, the record reveals that Johnson never raised this
issue below. Issues that could have been raised and resolved in the trial court cannot be
raised for the first time on appeal. Miller v. Romanauski, 8th Dist. Cuyahoga No. 100120,
2014-Ohio-1517; Hous. Advocates, Inc. v. Am. Fire & Cas. Co., 8th Dist. Cuyahoga Nos.
86444 and 87305, 2006-Ohio-4880, ¶ 33. Therefore, issues not raised in the trial court are
forfeited on appeal. Id., citing State v. Payne, 114 Ohio St. 3d 502, 2007-Ohio-4642, 873
N.E.2d 306, ¶ 21-23. Accordingly, we overrule the second assigned error.
{¶15} Judgment affirmed.
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.
__________________________________________________
PATRICIA ANN BLACKMON, PRESIDING JUDGE
TIM McCORMACK, J., and
MELODY J. STEWART, J., CONCUR