Ohio Receivables, L.L.C. v. Purola ( 2013 )


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  • [Cite as Ohio Receivables, L.L.C. v. Purola, 2013-Ohio-5806.]
    IN THE COURT OF APPEALS
    ELEVENTH APPELLATE DISTRICT
    LAKE COUNTY, OHIO
    OHIO RECEIVABLES, LLC,                                  :       OPINION
    Plaintiff-Appellee,                    :
    CASE NO. 2012-L-092
    - vs -                                          :
    ALBERT L. PUROLA,                                       :
    Defendant-Appellant.                   :
    Civil Appeal from the Lake County Court of Common Pleas, Case No. 10CV002025.
    Judgment: Affirmed.
    Jackson T. Moyer, Parri J. Hockenberry, and Aaron J. Wilson, 471 East Broad Street,
    12th Floor, Columbus, OH 43215 (For Plaintiff-Appellee).
    Albert L. Purola, pro se, 38298 Ridge Road, Willoughby, OH                44094 (Defendant-
    Appellant).
    THOMAS R. WRIGHT, J.
    {¶1}     This accelerated calendar appeal is from the Lake County Common Pleas
    Court, which granted summary judgment in favor of appellee, Ohio Receivables, LLC,
    (“Ohio Receivables”) on the defaulted debt of appellant, Albert Purola’s, credit card
    account with appellee’s predecessors in interest, Chase Bank (“Chase”) and Turtle
    Creek Assets, Ltd. (“Turtle Creek”).
    {¶2}     The history of this case is set forth in a previous opinion issued by this
    court involving the parties, Ohio Receivables L.L.C. v. Purola, 11th Dist. No. 2011-L-
    099, 2012-Ohio-1452 (“Purola I”). Briefly, Ohio Receivables filed a complaint against
    Purola seeking money damages from a defaulted credit card account that Purola
    originally opened with Chase, was later sold by Chase to Turtle Creek, and that Turtle
    Creek subsequently sold to Ohio Receivables. In Purola I, Ohio Receivables alleged
    that it was the real party in interest and that it had acquired one of Purola’s accounts
    pursuant to the above-referenced chain of transfers.
    {¶3}   The matter was ultimately considered by the trial court on Ohio
    Receivables’ motion for summary judgment and Purola’s response.            Purola never
    disputed any charges on the account or that he owed the specified balance. The issue
    before the trial court was whether Ohio Receivables’ evidence demonstrated that
    Purola’s account was included in the transfer from Chase to Turtle Creek, and then
    from Turtle Creek to Ohio Receivables.
    {¶4}   The trial court awarded summary judgment in favor of Ohio Receivables
    and Purola appealed, asserting that Ohio Receivables’ evidential submissions failed to
    show that it was the owner of his account. This court agreed with Purola, reversed the
    matter, and remanded it to the trial court for further proceedings.     Specifically, we
    determined that “Exhibit 1,” a redacted copy of transferred accounts referenced in the
    bill of sale between Turtle Creek and Ohio Receivables, including Purola’s account,
    was not attached to Ohio Receivables’ motion for summary judgment, and therefore,
    not part of the record before the trial court. Purola I at ¶12. Thus, we concluded that a
    genuine issue of fact existed as to whether Purola’s account was ultimately acquired by
    Ohio Receivables, and whether Ohio Receivables was the real party in interest. 
    Id. at ¶18.
    2
    {¶5}   Upon remand, Ohio Receivables moved for leave to file another motion for
    summary judgment, and that motion was granted over Purola’s objection. In its second
    motion for summary judgment, Ohio Receivables presented additional evidence that
    was not before the trial court when it reviewed Ohio Receivables’ first motion for
    summary judgment; namely, “Exhibit D,” which is a redacted copy of the spreadsheet
    referenced as Exhibit 1 in the bill of sale between Turtle Creek and Ohio Receivables.
    As noted, that document, which listed Purola’s account as having been included in the
    transfers, was absent from the record when the first motion for summary judgment was
    under review.
    {¶6}   In addition to Exhibit D, Ohio Receivables attached an affidavit to its
    motion attested by its Custodian of Records and Vice President, Gabriel Cheek,
    averring to the sequence of events and documents involving the purchase and
    assignment of Purola’s account by Ohio Receivables. The affidavit further incorporates
    as exhibits the bills of sale between Chase and Turtle Creek, and between Turtle Creek
    and Ohio Receivables. Regarding Exhibit D, the affidavit incorporates it, states that it
    is a true and accurate copy of business records, and explains that it is a redacted copy
    of the spreadsheet referenced as Exhibit 1 in the bill of sale between Turtle Creek and
    Ohio Receivables. The affidavit further explains that the spreadsheet was redacted to
    reflect only the details of Purola’s account to protect the privacy of account holders not
    involved in this litigation. Purola filed a motion in opposition; however, he did not
    support his opposition with an affidavit or other Civ. R. 56 (C) evidence. The trial court
    once again granted summary judgment in favor of Ohio Receivables and against
    Purola.
    3
    {¶7}   Purola timely appeals and raises the following assignments of error for our
    review:
    {¶8}   “[1.] The trial court erred to the prejudice of the appellant by granting leave
    to file a second motion for summary judgment.”
    {¶9}   “[2.] The trial court’s granting summary judgment was error prejudicial to
    the defendant because the trial court’s treatment of Exhibit D falls short of what is
    needed to meet the rule 56 standard of excluding any reasonable factual dispute, and
    entitling the moving party to judgment as a matter of law.”
    {¶10} Under his first assignment, Purola argues that the trial court abused its
    discretion when it permitted Ohio Receivables to correct its previous omission because
    there was no evidence attached to Ohio Receivables’ second motion that could not
    have been included in its first motion. To that point, Purola relies on Dillon v. Dean,
    
    566 N.Y.S.2d 350
    1991, which held that multiple summary judgment motions in the
    same action are discouraged in the absence of a showing of newly discovered
    evidence or other sufficient cause. Purola contends that the omitted evidence that was
    in Ohio Receivables’ possession at the time of the first motion does not constitute
    “newly discovered evidence” or “other sufficient cause” with respect to the second
    motion. In addition, Purola directs our attention to Stemen v. Shibley, 
    11 Ohio App. 3d 263
    (6th Dist. 1982), which held as follows:
    {¶11} “The doctrine of the law of the case does not foreclose a party from filing,
    nor the court from considering, a new motion for summary judgment, notwithstanding
    that the trial court, in the same case, had previously granted summary judgment, which
    4
    judgment was subsequently reversed on appeal, where such new motion is based
    upon an expanded record.” (Emphasis added). 
    Id. at paragraph
    three of the syllabus.
    {¶12} Again, Purola contends that Ohio Receivables did not base its second
    motion for summary judgment on an “expanded record” when all that was added was a
    document that had been in its possession all along and could have been submitted with
    the first motion. In sum, Purola argues, without citation to any authority, that the term
    “expanded record” is used to mean an additional witness, not the replacement of what
    was negligently omitted. We disagree.
    {¶13} In Stemen, appellees’ second motion for summary judgment upon
    remand included “additional exhibits and affidavits.” Appellant in that case did not
    submit evidence contrary to appellees’ motion for summary judgment. The trial court
    once again granted appellees’ motion for summary judgment, and that judgment was
    affirmed on appeal based upon the “expanded record,” attached to appellees’ second
    motion. 
    Id. at 267.
    As noted, in Stemen, the “expanded record” contained “additional
    exhibits and affidavits” that were not before the appellate court on the first appeal.
    Thus, though not specifically defined, the “expanded record” in Stemen was simply a
    record that contained additional evidence that was not included in the previous record.
    {¶14} Additionally, the Stemen court made the specific point that in its original
    judgment remanding the case to the trial court “for further proceedings consistent with
    this decision,” it did not order that the matter be set for trial. 
    Id. at 265.
    Therefore, the
    Stemen court concluded that in entertaining appellees’ motion for summary judgment
    upon remand, the trial court was not running afoul of the appellate court’s decision. 
    Id. See also
    Cipriani v. Stephanoff, 8th Dist. Cuyahoga No. 56250, 1990 Ohio App. LEXIS
    5
    114, *7 (Jan.11, 1990) (on remand appellees’ second motion for summary judgment
    contained additional sworn statements that were deemed to constitute an “expanded
    record” and did not result in prejudicial error).
    {¶15} In the instant case, notably, Ohio Receivables’ merits brief filed in Purola I
    made specific references to the missing evidence, the redacted spreadsheet labeled as
    Exhibit 1. Thus, Ohio Receivables clearly assumed Exhibit 1 had been attached to its
    first motion for summary judgment and included in the court’s file. However, due to an
    error on the part of counsel or some other unknown source, Exhibit 1 was not attached
    to the motion as intended by Ohio Receivables.
    {¶16} Based on the foregoing, we conclude that this error constitutes “sufficient
    cause” under Stemen to justify introduction of the documents that did not make it into
    the record the first time. Moreover, as in Stemen, this court in Purola I reversed and
    remanded the matter “for further proceedings consistent with this opinion” and did not
    specify that a trial had to take place. Purola I at ¶19. Therefore, the trial court did not
    run afoul of any directive by this court that a trial was required to take place.
    {¶17} Finally, we point out that our decision in Purola I was confined to the issue
    of Ohio Receivables’ failure to demonstrate that it had acquired Purola’s account and
    was the real party in interest. 
    Id. at ¶18.
          Therefore, we remanded this matter to the
    trial court to address those specific issues. The evidence presented by Ohio
    Receivables in the form of Exhibit D, in fact, pertained solely to that issue. Therefore,
    the trial court properly applied the doctrine of the law of the case when it concluded
    Exhibit D was part of an “expanded record.” Stated another way, Exhibit D comported
    with the purpose of the remand with regard to the specific issue at hand. See, e.g.,
    6
    Capital City Financial Group, Inc. v. MAC Construction, Inc., 5th Dist. Delaware No. 03
    CA 29, 2003-Ohio-6291, ¶29-30.
    {¶18} We further emphasize that Purola’s argument fails from a procedural
    standpoint regarding the standard law governing summary judgment. It is axiomatic
    that once the moving party has met its burden of supporting its motion with sufficient
    admissible evidence, the nonmoving party has a reciprocal burden under Civ.R. 56(E)
    to set forth facts showing that there is a genuine issue for trial. Dresher v. Burt, 
    75 Ohio St. 3d 280
    , 293 (1996). If the nonmoving party does not satisfy this reciprocal
    burden, summary judgment, if appropriate, shall be granted against the nonmoving
    party. Civ.R. 56(E). Here, although Ohio Receivables met its burden by supporting its
    motion with admissible evidence demonstrating its ownership of Purola’s account,
    Purola failed to attach any Civ.R. 56(C) evidence in support of his motion in opposition
    that would have created an issue of material fact as to the ownership of his account.
    {¶19} Accordingly, for the foregoing reasons, Purola’s first assignment of error is
    without merit.
    {¶20} Under his second assignment of error, Purola essentially argues that there
    is no evidence as to the authenticity of Exhibit D. Specifically, he argues that Exhibit D
    and the affidavit incorporating Exhibit D are insufficient to establish the transfer of this
    account to Ohio Receivables because the affidavit does not identify its source or how it
    was created, and that neither of those items are discernible upon visual examination of
    Exhibit D. In sum, Purola argues that Exhibit D “exists in a vacuum” with no context or
    foundation, and that it does not fall within the “business records” exception to the
    hearsay rule. Again, we disagree.
    7
    {¶21} “Authentication is a matter of establishing that something is what its
    proponent claims it to be.     See Evid.R. 901(A).    According to Evid.R. 901(B)(10),
    authentication of business records, such as the documents at issue here, is governed
    by Evid. R. 803(6).” Great Seneca Financial v. Felty, 
    170 Ohio App. 3d 737
    , 2006-
    Ohio-6618, ¶9 (1st Dist.).
    {¶22} A party seeking to admit a business record into evidence under Evid.R.
    803(6) must establish three essential elements: (i) the record must be one regularly
    made in a regularly conducted business activity; (ii) the contents of the record must
    have been entered or transmitted by a person with knowledge of the act, event, or
    condition recorded therein; and (iii) the act, event, or condition must have been
    recorded at or near the time of the transaction. See Evid.R. 803(6). The custodian of
    the records or “other qualified witness” under Evid.R. 901(B)(10) must lay the requisite
    foundation for admissibility. 
    Id. {¶23} In
    other words, Evid.R. 803(6) excepts from the hearsay rule records kept
    in the course of a regularly conducted business activity if it was the regular practice of
    that business to make such records, and those records were made by or from
    information transmitted by a person with knowledge. See Charter One Mortgage Corp.
    v. Keselica, 9th Dist. Lorain No. 04CA008426, 2004-Ohio-4333, ¶19.
    {¶24} “Fed.R.Evid. 803(6) and Ohio’s version of the rule are substantially similar.
    See Staff Notes to Evid.R. 803(6). We find federal case law to be instructive on the
    issue of authentication of business records. A number of circuit courts have held that
    exhibits can be admitted as business records of an entity, even when that entity was
    not the maker of those records; provided that the other requirements of Rule 803(6) are
    8
    met, and the circumstances indicate that the records are trustworthy.” (Emphasis
    added.) Great Seneca Financial at ¶14 (citations omitted).
    {¶25} Furthermore, “[r]ecords need not be actually prepared by the business
    offering them if they are received, maintained, and relied upon in the ordinary course of
    business. If the document is originally created by another entity, the creator need not
    testify if the document is incorporated into the business records of the testifying entity.”
    Shawnee Associates, LP v. Village of Shawnee Hills, 5th Dist. Delaware No. 09-CAE-
    05 0051, 2010-Ohio-1183, ¶50.
    {¶26} In the instant case, as noted above, the affidavit submitted by Ohio
    Receivables indicates that the testimony of the affiant is based on “information and
    records submitted and provided as a result of the purchase of [Purola’s] debt and
    warranted and represented to be true and accurate.” The affidavit describes in detail
    how Ohio Receivables received the documents, incorporated them into its business
    records, and relied on them in conducting its business.             Thus, although Ohio
    Receivables did not actually prepare the records being offered, they were “received,
    maintained, and relied upon in the ordinary course of business.” Shawnee at ¶50.
    {¶27} Accordingly, Ohio Receivables’ affidavit is sufficient under Evid.R. 803(6)
    to authenticate the business records attached to its motion for summary judgment as
    well as demonstrate its ownership of Purola’s account, and is not inadmissible hearsay.
    Furthermore, again, Purola has submitted no Civ. R. 56 evidence to refute those facts.
    Therefore, the evidence submitted by Ohio Receivables was properly considered by
    the trial court. Purola’s second assignment of error is without merit.
    9
    {¶28} For the foregoing reasons, the trial court correctly determined that no
    genuine issues of material fact exist and that Ohio Receivables is entitled to judgment
    as a matter of law. It is therefore the judgment and order of this court that the judgment
    of the Lake County Court of Common Pleas is affirmed.
    DIANE V. GRENDELL, J., concurs,
    COLLEEN MARY O’TOOLE, J., concurs in judgment only with a Concurring Opinion.
    ____________________
    COLLEEN MARY O’TOOLE, J., concurs in judgment only with a Concurring Opinion.
    {¶29} In Purola I this court held that the affidavit and excel spreadsheet
    submitted by Ohio Receivables was sufficient to document the transfer of Mr. Purola’s
    debt from Chase Bank to Turtle Creek. However, in Purola I Ohio Receivables failed to
    include such a spreadsheet to establish the transfer from Turtle Creek to it. As such
    this court reversed the trial court’s grant of summary judgment.
    {¶30} In the present case, Ohio Receivables has documented its claim that
    Purola’s debt was transferred from Turtle Creek to them by attaching a similar excel
    spreadsheet as provided in Purola I. Because this court held in Purola I that this type
    of excel spreadsheet was sufficient to document the transfer of the debt, under the
    doctrine of law of the case, we are now bound to accept this second spreadsheet.
    However, I am concerned that an excel document, which can be created on virtually
    any computer, lacks the indicia of trustworthiness necessary for purposes of granting
    10
    summary judgment. Great Seneca Fin. v. Felty, 
    170 Ohio App. 3d 737
    , 2006-Ohio-
    6618, ¶14 (1st. Dist.2006).
    {¶31} Thus, I concur in judgment only.
    11
    

Document Info

Docket Number: 2012-L-092

Judges: Wright

Filed Date: 12/31/2013

Precedential Status: Precedential

Modified Date: 10/30/2014