Discover Bank v. Tudor ( 2022 )

[Cite as Discover Bank v. Tudor, 2022-Ohio-1134.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
DISCOVER BANK,
CASE NO. 6-21-09
PLAINTIFF-APPELLEE,
v.
JOHN M. TUDOR, OPINION
DEFENDANT-APPELLANT.
Appeal from Hardin County Municipal Court
Trial Court No. CVF2000488
Judgment Affirmed
Date of Decision: April 4, 2022
APPEARANCES:
John M. Tudor Appellant
Kirsten R. Armstrong for Appellee
Case No. 6-21-09
WILLAMOWSKI, J.
{¶1} Defendant-appellant John M. Tudor (“Tudor”) brings this appeal from the
judgment of the Hardin County Municipal Court in favor of plaintiff-appellee Discover
Bank (“Discover”) and ordering Tudor to pay Discover $3,982.05. Tudor argues on appeal
that the trial court 1) lacked jurisdiction, 2) erred in denying the motion to dismiss, and 3)
failed to consider the affirmative defense of accord and satisfaction. For the reasons set
forth below, the judgment is affirmed.
{¶2} On October 15, 2020, Discover filed a complaint alleging that credit was
extended to Tudor and that Tudor had failed to repay the money when due. Doc. 4.
Discover claimed that Tudor owed it $3,982.05 and requested that amount plus interest.
Doc. 4. Tudor filed his answer on November 12, 2020, denying the allegations and
claiming the affirmative defense of accord and satisfaction. Doc. 20. Tudor alleged that
the parties had agreed on a settlement of $1,592.82 and that he had fully paid that amount.
Doc. 20.
{¶3} On March 4, 2021, Tudor filed a motion to dismiss alleging that Discover had
previously filed a case, case number CVS190042, against him to collect this account. Doc.
211. The motion states that both Discover and Tudor filed motions for summary judgment
and both were overruled. Doc. 211. Discover then filed a motion to dismiss without
prejudice on June 10, 2019. Doc. 211. Tudor claims that since Discover did not file its
second complaint within one year, it was barred from doing so. Doc. 211. Discover filed
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a response to the motion claiming that it was not barred from refiling because the applicable
statute of limitations had not run. Doc. 214.
{¶4} A trial was held on June 22, 2021. The trial court entered judgment for
Discover on July 15, 2021. Doc. 402. Tudor filed a notice of appeal from this judgment.
On appeal, Tudor raises the following assignments of error.
First Assignment of Error
The trial court lacks jurisdiction over [Discover’s] claim because it was
not filed within one year of the prior voluntary dismissal of the same
case.
Second Assignment of Error
The court failed to grant [Tudor’s] motion to dismiss upon close of
[Discover’s] case which was based on a single witness whose total
testimony was hearsay.
Third Assignment of Error
The trial court failed to consider or comment on [Tudor’s] evidence of
his allegation of the affirmative defense of accord and satisfaction.
{¶5} In the first assignment of error, Tudor claims that Discover’s claim should
have been barred for not being refiled within one year of the prior voluntary dismissal of
the same matter. Civil Rule 41(A) provides that a plaintiff may voluntarily dismiss a
claim against a defendant at any time prior to trial. Civ.R. 41(A)(1). This dismissal is
without prejudice. Civ.R. 41(A)(1). This is deemed to be a failure of the claim other
than on the merits. Hancock v. Kroger Co., 103 Ohio App.3d 266, 659 N.E.2d 336 (10th
Dist. 1995).
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Case No. 6-21-09
In any action that is commenced or attempted to be commenced, if in
due time * * * if the plaintiff fails otherwise than upon the merits, the
plaintiff * * * may commence a new action within one year after the date
of the reversal of the judgment or the plaintiff's failure otherwise than
upon the merits or within the period of the original applicable statute of
limitations, whichever occurs later. This division applies to any claim
asserted in any pleading by a defendant.
R.C. 2305.19(A) (emphasis added). The applicable statute of limitations in this case was
six years. R.C. 2305.06. “[T]he statute of limitations for [a credit card] account begins
to run on the date of the last activity on the account.” Taylor v. First Resolution Invest.
Corp., 148 Ohio St.3d 627, 2016-Ohio-3444, ¶ 119, 72 N.E.3d 573. The record shows that
as late as August 1, 2018, Tudor was still making payments. Thus, the statute of
limitations, at its earliest, would begin running on August 1, 2018. The complaint in this
case was therefore filed within the applicable six year statute of limitations. The first
assignment of error is overruled.
{¶6} Tudor claims in the second assignment of error that the testimony of
Discover’s witness, Asha Davis (“Davis”), should have been excluded as her testimony
was based upon hearsay. However, evidence of regularly collected business records are
not excluded by the hearsay rule. Evid.R. 803(6). Davis testified that she is one of the
keepers of records for Discover and that she was familiar with the records. Tr. 3. As part
of her regular duties, she reviewed accounts and retrieved documentation for Discover’s
attorneys. Tr. 10-14. She authenticated Exhibits 1 and 2 as records regularly kept in the
course of Discover’s business. Tr. 4-7. The trial court determined that Davis had personal
knowledge of the account through the regular business practices of Discover and her
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Case No. 6-21-09
testimony was thus not hearsay pursuant to Evidence Rule 803. Tr. 16. This finding is
supported by the evidence. The second assignment of error is overruled.
{¶7} Finally, Tudor claims in the third assignment of error that the trial court failed
to consider his evidence regarding the accord and satisfaction. At trial, Tudor testified that
he had reached an accord and satisfaction with Discover to pay 40% of the debt. However,
he was unable to provide any documentation regarding the agreement or that the payment
for that amount was ever received by Discover. The record shows that the trial court did
consider the evidence presented. Following the trial, the trial court ruled from the bench
and made the following statements.
[You’re] arguing at that point in time, as a Defendant, that your Exhibit
B shows that you paid [Discover] off but you don’t have any proof of
that. I mean I understand you might not have your check, but your bank
records if you wanted to subpoena that check or bring it in, could’ve
shown that that [sic] you have made a payment that you weren’t credited
for on this. You have no records of that. Honestly you have no records
wherein you reached an agreement with them, either that you could pay
a portion of what was owed to wipe out this debt.
Tr. 43. The trial court reiterated this in its judgment entry when it stated that “Defendant
stated that he thought he had paid this account off but he failed to introduce any credible
evidence to this fact.” Doc. 402. The trial court did consider the evidence and found it
lacked credibility. This court must give due deference to the credibility determinations of
the trier of fact, which is the trial court in this case. State v. Dailey, 3d Dist. Crawford No.
3-07-23, 2008-Ohio-274. The third assignment of error is overruled.
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Case No. 6-21-09
{¶8} Having found no error prejudicial to the appellant in the particulars assigned
and argued, the judgment of the Hardin County Municipal Court is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and MILLER, J., concur.
/hls
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