Navy Fed. Credit Union v. Studmire

[Cite as Navy Fed. Credit Union v. Studmire, 2021-Ohio-1990.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
NAVY FEDERAL CREDIT UNION, CASE NO. 2020-T-0089
Plaintiff-Appellee,
Civil Appeal from the
-v- Court of Common Pleas
MARCUS STUDMIRE,
Trial Court No. 2019 CV 01915
Defendant-Appellant.
OPINION
Decided: June 14, 2021
Judgment: Affirmed
Daniel A. Friedlander, Weltman, Weinberg & Reis Co., LPA, 965 Keynote Circle,
Cleveland, OH 44131 (For Plaintiff-Appellee).
Marcus Studmire, pro se, 2064 Sheridan Avenue, N.E., Warren, OH 44483 (Defendant-
Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Marcus Studmire, has filed the instant appeal, pro se, from the
judgment of the Trumbull County Court of Common Pleas, granting summary judgment
in favor of appellee, Navy Federal Credit Union. We affirm.
{¶2} On December 11, 2019, appellee filed a complaint in the trial court alleging
appellant defaulted on certain credit card debt. Appellant filed an answer, denying the
allegation and asserted various affirmative defenses. Appellee subsequently filed a
motion for summary judgment. The motion was supported by various exhibits, including
appellant’s credit card application, a summary of appellant’s account activity, and an
affidavit from appellee’s records custodian, Sharon Nation. The affidavit authenticated
the records attached to appellee’s motion and Ms. Nation averred the records were
maintained in the ordinary course of appellee’s business.
{¶3} Appellant filed a memorandum in opposition to appellee’s motion. Appellant
asserted appellee lacked standing and was not the real party in interest. Appellant
additionally challenged the sufficiency of Ms. Nation’s affidavit as well as its alleged
hearsay nature. He also questioned the authenticity of the account records appended to
appellee’s motion. Appellee subsequently replied to appellant’s memorandum.
{¶4} On November 10, 2021, the trial court entered summary judgment in
appellee’s favor. Appellant now appeals and assigns three errors. His first provides:
{¶5} “The trial court erred in granting summary judgment to plaintiff because
defendant had no reasonable opportunity to cross-examine plaintiff’s witness.”
{¶6} Appellant’s first assignment of error asserts the trial court erred in granting
appellee summary judgment because he had no reasonable opportunity to cross-examine
the affiant, Ms. Nation. We do not agree.
{¶7} Civ.R. 56(F) provides:
{¶8} When affidavits unavailable. Should it appear from the affidavits
of a party opposing the motion for summary judgment that the party
cannot for sufficient reasons stated present by affidavit facts
essential to justify the party’s opposition, the court may refuse the
application for judgment or may order a continuance to permit
affidavits to be obtained or discovery to be had or may make such
other order as is just.
{¶9} “‘Courts, including this one, have held that the remedy for a party who must
respond to a summary judgment motion before he or she has completed adequate
2
Case No. 2020-T-0089
discovery is a motion under Civ.R. 56(F).’” (Emphasis original.) LG Mayfield LLC v.
United States Liab. Ins. Group, 11th Dist. Geauga No. 2016-G-0058, 2017-Ohio-1203,
¶17. quoting Reigles v. Urban, 11th Dist. Lake No. 2009-L-139, 2010-Ohio-4427, ¶12. “A
party who fails to seek relief pursuant to Civ.R. 56(F) does not preserve the issue for
appeal.” L.G. Mayfield, supra. Further, “Civ.R. 56(F) requires an opposing party to state,
by affidavit, why it cannot present, by affidavit, facts that justify its opposition to the
motion.” L.G. Mayfield, supra, at ¶20. Accordingly, an affidavit, is a necessary element
of a motion for a continuance to extend discovery under the rule.
{¶10} Appellant did not file a motion, let alone an affidavit, to obtain an extension
under Civ.R. 56(F). Appellant’s argument, therefore, regarding his inability to depose or
seek additional discovery to confront the affiant is waived.
{¶11} Appellant’s second assignment of error provides:
{¶12} “The trial court erred in granting summary judgment to plaintiff because
plaintiff’s witness failed to meet the hearsay exception rule.”
{¶13} Under this assigned error, appellant challenges Ms. Nation’s affidavit. He
first contends it is a hearsay document submitted without an exception to the rule against
hearsay. And, he contends, even if the business records exception were invoked, it does
not apply. Appellant asserts appellee failed to demonstrate Ms. Nation was sufficiently
familiar with the operation of its business and with the preparation, maintenance, and
retrieval of the records. In effect, appellant asserts the affidavit did not comply with Civ.R.
56 because Ms. Nation did not provide any basis as to how she gained personal
knowledge of appellee’s records. We do not agree.
3
Case No. 2020-T-0089
{¶14} Civ.R. 56(E) provides in pertinent 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.”
{¶15} “[I]t is well settled that personal knowledge may be inferred from the
contents of an affidavit.” Bank of America, N.A. v. Merlo, 11th Dist. Trumbull No. 2012-T-
0103, 2013-Ohio-5266, ¶26. “‘Further, * * * an officer of the lender could authenticate
copies of the loan documents in her affidavit in support of summary judgment based on
her review of the lender’s loan documents.” CACH, LLC v. Potts, 11th Dist. Trumbull No.
2015-T-0106, 2016-Ohio-4742, ¶23, quoting Merlo, supra. Moreover, an affiant providing
the foundation for a recorded business activity is not required to have firsthand knowledge
of the transaction at issue. Id. at ¶27. See also Greenwood Rehabilitation, Inc. v.
Thacker, 6th Dist. Lucas No. L-03-1213, 2004-Ohio-1643, ¶15 (“[t]he witness whose
testimony establishes the foundation for a business record need not have personal
knowledge of the exact circumstances of preparation and production of the
document.”) A proponent must establish, however, that “the witness is sufficiently familiar
with the operation of the business and with the circumstances of the record’s preparation
and maintenance so that he can testify the record is what it purports to be and was made
in the ordinary course of business.” Potts, supra.
{¶16} Recognizing the hearsay character of the affidavit, we conclude its contents
were sufficient to fall within Evid.R. 803(6), the business-records exception to hearsay
exclusion. Evid.R. 803(6) provides, in pertinent part:
{¶17} Records of Regularly Conducted Activity. A memorandum,
report, record, or data compilation, in any form, of acts, events, or
4
Case No. 2020-T-0089
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 the memorandum, report,
record, or data compilation, all as shown by the testimony of the
custodian or other qualified witness or as provided by Rule
901(B)(10), unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness.
{¶18} The affidavit in this case states that Ms. Nation has “the custody and control
of the records herein” and she made the averments based upon her review of said records
maintained in the ordinary course of business. These points permit the reasonable
inference that Ms. Nation is employed by appellee as a records custodian. Ms. Nation
further averred she personally reviewed the credit-card application between the parties,
the account’s statements, and the cardmember agreement, all of which were attached to
appellee’s motion, and asserted, to the best of her knowledge, they are accurate copies
and records maintained and relied upon in the ordinary course of appellee’s business.
These points establish that, to the best of Ms. Nation’s knowledge, the records which
provide a basis for the suit, were kept in the course of appellee’s regular business activity.
We accordingly conclude the affidavit was sufficient to establish the facts to which Ms.
Nation averred. And there is nothing to suggest, other than appellant’s conclusory
allegations, that its content was untrustworthy. We hold the affidavit was therefore
appropriate and admissible under Civ.R. 56(E) and Evid.R. 803(6).
{¶19} Appellant’s third and final assignment of error asserts:
{¶20} “The trial court erred in granting summary judgment to plaintiff because the
evidence introduced by plaintiff is insufficient to support the purported witness has
personal knowledge of the matter.”
5
Case No. 2020-T-0089
{¶21} Under this assignment, appellant takes issue with the authenticity of the
account records attached to appellee’s motion for summary judgment as well as their
validity. He essentially reiterates his previous argument that appellee failed to
demonstrate Ms. Nation had personal knowledge of the matters to which she averred in
the affidavit. We do not agree.
{¶22} Appellant’s argument is premised upon a conspiratorial assertion: That is,
there’s no evidence that Ms. Nation’s averments were not false, therefore there’s a
possibility they are. Appellant, however, fails to provide any affirmative basis for his
allegation that the records at the center of this suit, or Ms. Nation’s affidavit, are inaccurate
or invalid. Appellant produced no evidence to contradict Ms. Nation’s representations or
even throw them into question. Similarly, he failed to provide any basis for the trial court
to conclude the documents setting forth his debt were questionable, let alone apocryphal.
In order to create a genuine issue of material fact, appellant was required to provide more
than his own conclusory or unsubstantiated statements regarding the quality of appellee’s
evidence. He failed to do so.
{¶23} Appellant’s third assignment of error lacks merit.
{¶24} For the reasons discussed in this opinion, the judgment of the Trumbull
County Court of Common Pleas is affirmed.
MARY JANE TRAPP, P.J.,
THOMAS R. WRIGHT, J.,
concur.
6
Case No. 2020-T-0089