Dept. Stores Natl. Bank v. McGee , 2013 Ohio 894 ( 2013 )

[Cite as Dept. Stores Natl. Bank v. McGee, 2013-Ohio-894.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
DEPARTMENT STORES )
NATIONAL BANK, ) CASE NO. 12 MA 103
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
MAGGI McGEE, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Civil Appeal from County Court No. 5,
Case No. 11CVF344.
JUDGMENT: Reversed and Remanded.
APPEARANCES:
For Plaintiff-Appellee: Attorney Melissa Hager
1100 Superior Avenue, 19th Floor
Cleveland, Ohio 44114-2581
For Defendant-Appellant: Attorney Thomas Michaels
839 Southwestern Run
Youngstown, Ohio 44514
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: March 8, 2013
[Cite as Dept. Stores Natl. Bank v. McGee, 2013-Ohio-894.]
VUKOVICH, J.
{¶1} Defendant-appellant Maggi McGee appeals from the decision entered
in Mahoning County Court No. 5 granting summary judgment for plaintiff-appellee
Department Stores National Bank (DSNB). McGee assigns one assignment of error
in this appeal that raises two separate issues for this court’s consideration. The first
is whether the affidavit attached to DSNB’s motion for summary judgment properly
incorporated the exhibit that was attached to the summary judgment motion. The
second issue is if the evidence was properly incorporated, whether it establishs that
there is no genuine issue of material fact that McGee is in default and owes DSNB
the amount alleged in the complaint.
{¶2} For the reasons discussed below, the sole assignment of error is
meritorious because the affidavit attached to the motion for summary judgment did
not properly incorporate Exhibit A, credit card statements. Without consideration of
that exhibit, DSNB cannot establish its prima facie case for recovery of money owed
on an account. Thus, the trial court’s grant of summary judgment is hereby reversed
and the cause is remanded for further proceedings.
Statement of Facts and Case
{¶3} On October 29, 2011, DSNB filed a complaint against McGee for
money damages in Mahoning County Court No. 5. In the complaint, DSNB alleged
that McGee defaulted on her credit card and owed it $4,563.85 on account number
xxxx-xxxx-xxxx-4083. McGee filed an answer denying all allegations in the
complaint. 12/19/11 Answer.
{¶4} Thereafter, DSNB moved for summary judgment. 02/07/12 Motion.
Attached to the motion are two exhibits, Exhibit 1 and Exhibit A. Exhibit 1 is an
affidavit from Brenda Woolfork, a litigation support manager for Macy’s Credit
Operations, Inc. This affidavit explained that DSNB issues and owns credit card
accounts with the Macy’s label, which is the credit card that was issued to McGee.
The affidavit avers that McGee’s credit account shows a balance of $4.,562.85, and
that no part of the balance has been paid. Exhibit A consists of 41 credit card
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statements from Macy’s showing account balances, payments made, finance
charges, late fees and/or charges incurred for new purchases.
{¶5} McGee filed a motion in opposition asserting that the affidavit attached
to the motion for summary judgment did not properly incorporate Exhibit A and thus,
the credit card statements could not be considered when determining whether
summary judgment should be granted. 03/20/12 Motion. It was her position that
without considering Exhibit A, there remains a genuine issue of material fact as to
whether she owes DSNB the money it alleges she owes. In addition to her
argument, she attached to her motion in opposition an affidavit avowing that she
does not owe DSNB $4,5563.85 and that she did not receive a demand for payment.
{¶6} After considering the motions, the trial court granted summary judgment
in DSNB’s favor and ordered judgment against McGee in the amount of $4,563.85
plus statutory interest from the date of the judgment and costs. 05/04/12 J.E.
{¶7} McGee filed a timely notice of appeal from that decision. The trial court
stayed its judgment pending the appeal to this court.
Assignment of Error
{¶8} “The trial court erred in granting summary judgment when genuine
issues of material fact existed precluding summary judgment.”
{¶9} The sole assignment of error addresses the propriety of the trial court's
grant of summary judgment for DSNB. In reviewing a summary judgment award, we
apply a de novo standard of review. Cole v. Am. Industries & Resources Corp., 128
Ohio App.3d 546, 552, 715 N.E.2d 1179 (7th Dist.1998). Thus, we use the same test
the trial court did, Civ.R. 56(C). That rule provides that the trial court shall render
summary judgment if no genuine issue of material fact exists and when construing
the evidence most strongly in favor of the nonmoving party, reasonable minds can
only conclude that the moving party is entitled to judgment as a matter of law. State
ex rel. Parsons v. Fleming, 68 Ohio St.3d 509, 511, 628 N.E.2d 1377 (1994). A
“material fact” depends on the substantive law of the claim being litigated. Hoyt, Inc.
v. Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th
-3-
Dist.1995), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct.
2505 (1986).
{¶10} As aforementioned, two issues are presented under this assignment of
error. The one that will be dealt with first is whether the exhibits attached to DSNB’s
motion for summary judgment are proper summary judgment evidence as defined by
Civ.R. 56(C) and (E). Pursuant to Civ.R. 56(C):
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely
filed in the action, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a
matter of law. No evidence or stipulation may be considered except as
stated in this rule.
Civ.R. 56(E) provides in part:
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated in the affidavit. Sworn or certified copies of
all papers or parts of papers referred to in an affidavit shall be attached
to or served with the affidavit.
{¶11} McGee acknowledges that Exhibit 1, the Woolfork affidavit, is proper
summary judgment evidence under Civ.R. 56(C). However, she asserts that Exhibit
A, the 41 credit card statements from Macy’s, is not proper summary judgment
evidence under Civ.R. 56(C).
{¶12} We agree with that assertion. The Macy’s credit card statements are
not pleadings, depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, or written stipulations of fact. That said, the credit card
statements could only constitute proper summary judgment evidence if they were
incorporated through a properly framed affidavit. Citibank v. McGee, 7th Dist. No. 11
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MA 158, 2012-Ohio-5364, ¶ 14, citing Martin v. Central Ohio Transit Auth., 70 Ohio
App.3d 83, 89, 590 N.E.2d 411 (1990). This requirement is met “by attaching the
papers to the affidavit with a statement in the affidavit that the copies are true and
accurate reproductions.” McGee, ¶ 14, citing State ex rel. Corrigan v. Seminatore, 66
Ohio St.2d 459, 467, 423 N.E.2d 105 (1981).
{¶13} While DSNB’s motion for summary judgment refers to Exhibit A, the
credit card statements, Woolfork’s affidavit does not identify or even remotely attempt
to incorporate the credit card statements. Furthermore, the affidavit does not attest
that the copies of the credit card statements attached to the affidavit are true and
accurate reproductions. This case is remarkably similar to one of McGee’s prior
appeals against another credit card company where the affidavit of the litigation
support manager did not properly incorporate the credit card statements that were
attached to the credit card company’s motion for summary judgment. Applied Bank
v. McGee, 7th Dist. No. 11MA157, 2012-Ohio-5359. In that case, we explained that
when an affidavit fails to indicate in any manner that the account records are being
attached to the affidavit and fails to authenticate the account records, those records
do not comply with Civ.R. 56(E)’s requirement for sworn or certified copies of
records. Id. at ¶ 16-17. Consequently, those account records do not constitute
proper summary judgment evidence as listed in Civ.R. 56(C):
But despite these averments, Episcopo's affidavit fails in one
significant regard. It does not identify the account records as being
attached to the affidavit. Nor does it purport to authenticate any records,
attached or otherwise, as a “hard copy printout of the financial
information contained in the account” as did the Lesnick affidavit. And
the affidavit does not make any statements that the account records are
true and accurate reproductions of the originals.
Without some sort of acknowledgement or identification of the
account records attached to the summary judgment motion, the trial
court abused its discretion in failing to strike the account records on
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appellant's motion. They do not comply with Civ.R. 56(E)'s requirement
for sworn or certified copies of documents. And they are not otherwise
proper summary judgment evidence as listed in Civ.R. 56(C).
Id., at ¶ 16-17.
{¶14} Therefore, while the trial court could properly consider the Woolfork
affidavit, it was not permitted to consider the credit card statements when it was
determining whether to grant summary judgment. As such, our analysis must now
determine whether there is sufficient support for summary judgment absent those
credit card statements.
{¶15} This brings us to the second issue raised for our consideration –
whether the evidence attached to DSNB’s motion for summary judgment established
that there is no genuine issue of material fact that McGee is in default and owes
DSNB $4,563.85. In deciding this issue we cannot consider Exhibit A, the credit
card statements, because they are not proper summary judgment evidence. Id. at ¶
23. Thus, we must determine whether Woolfork’s affidavit alone is sufficient to
support the summary judgment award in DSNB’s favor.
{¶16} An action on an account is appropriate where the parties have
conducted a series of transactions for which a balance remains to be paid. Great
Seneca Fin. v. Felty, 170 Ohio App. 3d 737, 2006-Ohio-6618, 869 N.E.2d 30, ¶ 6 (1st
Dist.). Actions to collect on a credit card balance constitute actions “on an account.”
Capital One Bank v. Toney, 7th Dist. No. 06-JE-28, 2007-Ohio-1571, ¶ 34. To
establish a prima facie case for money owed on an account, a plaintiff must
demonstrate the existence of an account, including that the account is in the name of
the party charged, and it must also establish (1) a beginning balance of zero, or a
sum that can qualify as an account stated, or some other provable sum; (2) listed
items, or an item, dated and identifiable by number or otherwise, representing
charges, or debits, and credits; and (3) summarization by means of a running or
developing balance, or an arrangement of beginning balance and items that permits
the calculation of the amount claimed to be due. Id. citing Brown v. Columbus
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Stamping & Mfg. Co., 9 Ohio App.2d 123, 223 N.E.2d 373 (10th Dist.1967); see also
Citibank v. McGee, 7th Dist. No. 11MA158, 2012-Ohio-5364, ¶ 25.
{¶17} The Woolfork affidavit does not establish these requirements. While
the affidavit does include McGee’s name, the account number and the ending
balance that DSNB is seeking to recover, it does not meet the other requirements for
establishing a prima facie case for money owed on an account. Specifically, the
affidavit does not establish a beginning balance, a listing of charges and credits, or a
running balance showing the amount claimed as due.1 Applied Bank v. McGee,
2012-Ohio-5359, at ¶ 24. Thus, similar to McGee’s prior appeal against Applied
Bank, here summary judgment was also not proper. Id.{¶18} Therefore, based upon the above reasoning, we find merit with
McGee’s sole assignment of error. The judgment of the trial court granting summary
judgment in DSNB’s favor is hereby reversed and the case is remanded for further
proceedings.
Donofrio, J., concurs.
Waite, J., concurs.
1
If the Macy’s credit card statements had been properly incorporated summary judgment
evidence, those statements could have established a prima facie case of money owed. The 41 credit
card statements attached to the motion for summary judgment show a prima facie case for money
owed on an account because those statements show account balances, payments made, finance
charges, late fees and/or charges incurred for new purchases. Admittedly, not every credit card
statement that McGee received from Macy’s is attached to the motion. However, “it is not necessary
that every transaction that has transpired between the parties be included during the entire existence
of their business relationship.” Ohio Receivables, L.L.C. v. Dallariva, 10th Dist. No. 11AP-951, 2012-
Ohio-3165, ¶ 30, quoting Wolf Automotive v. Rally Auto Parts, Inc., 95 Ohio App.3d 130, 134 (10th
Dist.1994). See Am. Express Travel Related Servs. v. Silverman, 10th Dist. No. 06AP338, 2006–
Ohio–6374, ¶ 9–10 (concluding four years worth of credit card statements and copy of the
cardmember agreement constituted sufficient evidence of an account, as requiring American Express
to produce 30 years worth of statements constituted “an unreasonable burden”).