Citizens Banking Co. v. Parsons

[Cite as Citizens Banking Co. v. Parsons, 2014-Ohio-2781.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The Citizens Banking Company, :
Plaintiff-Appellee, :
No. 11AP-480
v. : (C.P.C. No. 11CVH-02-1838)
Grant R. Parsons et al., : (REGULAR CALENDAR)
Defendants-Appellants. :
D E C I S I O N
Rendered on June 26, 2014
Means, Bichimer, Burkholder & Baker Co., LPA, Dennis J.
Morrison, Lisa Thomas Banal, and Jeffrey J. Madison, for
appellee.
Freud, Freeze & Arnold, and Wayne E. Waite, for appellants.
APPEAL from the Franklin County Court of Common Pleas
SADLER, P.J.
{¶ 1} Defendants-appellants, Grant R. Parsons ("G. Parsons") and Denise E.
Parsons, appeal from a judgment of the Franklin County Court of Common Pleas granting
summary judgment in favor of plaintiff-appellee, The Citizens Banking Company. For the
reasons that follow, we affirm the judgment of the trial court.
I. BACKGROUND
{¶ 2} This matter arises out of the execution of two promissory notes in favor of
appellee's predecessor in interest, Champaign National Bank ("Champaign"). On October
23, 2007, appellants executed a promissory note in the amount of $40,751.42 to finance
the purchase of a 2008 Saab 9-7x Aero SUV ("Note 1"). Appellants also executed a
No. 11AP-480 2
security agreement against the Saab in favor of Champaign and subsequently executed an
amendment to Note 1, which modified both the payment amount and maturity date of
Note 1. On October 2, 2007, G. Parsons executed a promissory note, individually, in the
amount of $27,870.44 to finance the purchase of a 2007 Chevrolet Equinox LT, which
included a security interest against the Chevrolet in favor of Champaign ("Note 2").
{¶ 3} On February 8, 2011, as the successor-in-interest to Champaign, appellee
filed a complaint in the Franklin County Court of Common Pleas seeking money
judgments on Notes 1 and 2, enforcement of its security agreements, and replevin of its
collateral, the Saab and Chevrolet. According to the complaint, appellants defaulted
under the terms of Note 1 by failing to make timely payments on Note 1, and G. Parsons
defaulted under the terms of Note 2 by failing to make timely payments on Note 2.
Attached to the complaint as exhibits were a certificate of merger between Champaign
and appellee, Notes 1 and 2, the amendment to Note 1, the aforementioned security
agreement for the Saab, and certificates of title for both the Saab and Chevrolet.
{¶ 4} On February 25, 2011, appellants filed an answer pro se.1 Thereafter,
appellee filed a motion for summary judgment alleging the notes had been accelerated,
remained unpaid, and were in default. In support of their motion for summary judgment,
appellee filed the certificate of merger between Champaign and appellee, appellants'
answer, G. Parsons' voluntary petition to the United States Bankruptcy Court, a
November 23, 2010 order of the United States Bankruptcy Court titled "Order Dismissing
Case," and the affidavit of Christopher S. Welch, a vice president with appellee, the
successor-in-interest to Champaign.
{¶ 5} Welch averred in his affidavit that appellee is the holder in due course of
Notes 1 and 2. Welch also averred that appellants defaulted under the terms of Note 1 and
that G. Parsons defaulted under the terms of Note 2 by failing to make payments as they
came due. According to Welch, because of the default, appellee accelerated the balance
due on each note. Welch testified that appellee is owed $30,078.26 on Note 1, together
1 We note that the record refers to the February 25, 2011 filing as a "letter"; however, appellee treated this
filing as an answer to appellee's complaint.
No. 11AP-480 3
with interest at the default rate of 18 percent per annum, late charges, and other sums as
provided in Note 1. Additionally, Welch testified that appellee is owed $14,556.51 on Note
2, together with interest at the default rate of 18 percent per annum, late charges, and
other sums as provided in Note 2. According to Welch, the copied exhibits attached to
appellee's complaint including Notes 1 and 2, the amendment to Note 1, and the security
agreement are true and accurate copies of the original documents executed by appellants.
Welch testified that all the testimony contained within his affidavit was based upon
personal knowledge. Appellants did not file a response to appellee's motion for summary
judgment but did file a pro se motion for lack of jurisdiction.
{¶ 6} In granting appellee's motion for summary judgment and denying
appellants' motion for lack of jurisdiction, the trial court concluded that, because
appellants failed to make payments as they became due under Notes 1 and 2, said notes
were in default. As such, the trial court awarded appellee the amounts due under Notes 1
and 2 as denoted in Welch's affidavit and granted judgment in favor of appellee for
replevin of both the Saab and Chevrolet. This appeal followed.
II. ASSIGNMENTS OF ERROR
{¶ 7} Appellants bring the following assignments of error for our review:
[I.] THE TRIAL COURT ERRED IN GRANTING CBC'S
MOTION FOR SUMMARY JUDGMENT BECAUSE THE
AFFIDAVIT IN SUPPORT WAS IMPROPER AND NOT
BASED UPON PERSONAL KNOWLEDGE.
[II.] THE TRIAL COURT ERRED IN GRANTING CBC'S
MOTION FOR SUMMARY JUDGMENT BECAUSE THE
RECORDS THE TRIAL COURT RELIED UPON WERE
INADMISSIBLE HEARSAY.
[III.] THE TRIAL COURT ERRED IN GRANTING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
BECAUSE CBC FAILED TO PRODUCE PAYMENTS AND
PROPER ACCOUNT STATEMENTS, AND FAILED TO
PROVE DEFAULT.
III. STANDARD OF REVIEW
{¶ 8} Appellate review of summary judgments is de novo. Titenok v. Wal-Mart
Stores E., Inc., 10th Dist. No. 12AP-799, 2013-Ohio-2745, ¶ 6; Coventry Twp. v. Ecker,
No. 11AP-480 4
101 Ohio App.3d 38, 41 (9th Dist.1995). Summary judgment is proper only when the
party moving for summary judgment demonstrates: (1) no genuine issue of material fact
exists, (2) the moving parties are entitled to judgment as a matter of law, and
(3) reasonable minds could come to but one conclusion and that conclusion is adverse to
the party against whom the motion for summary judgment is made, that party being
entitled to have the evidence most strongly construed in its favor. Civ.R. 56; State ex rel.
Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181 (1997).
{¶ 9} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of
informing the trial court of the basis for the motion and identifying those portions of the
record demonstrating the absence of a genuine issue of material fact. Dresher v. Burt, 75
Ohio St.3d 280, 293 (1996). The moving party, however, cannot discharge its initial
burden under this rule with a conclusory assertion that the nonmoving party has no
evidence to prove its case; the moving party must specifically point to evidence of a type
listed in Civ.R. 56(C), affirmatively demonstrating that the nonmoving party has no
evidence to support the nonmoving party's claims. Id.; Vahila v. Hall, 77 Ohio St.3d 421(1997). Once the moving party discharges its initial burden, summary judgment is
appropriate if the nonmoving party does not respond, by affidavit or as otherwise
provided in Civ.R. 56, with specific facts showing that a genuine issue exists for trial.
Dresher at 293; Vahila at 430; Civ.R. 56(E).
IV. DISCUSSION
A. First and Second Assignments of Error
{¶ 10} Because appellants' first and second assignments of error are interrelated,
we address them together. In appellants' first assignment of error, they contend that the
trial court erred in granting summary judgment in favor of appellee because Welch's
affidavit does not comply with the requirements of Civ.R. 56(E). Specifically, appellants
assert that Welch's affidavit contains inadmissible hearsay and is not based on the
personal knowledge of the affiant. In appellants' second assignment of error, they argue
that the trial court erred in relying on the exhibits submitted by appellee in support of
their motion for summary judgment and referenced in Welch's affidavit because they
were inadmissible hearsay.
No. 11AP-480 5
{¶ 11} In response to appellants' first and second assignments of error, appellee
argues that appellants have waived these arguments for purposes of appeal because of
their failure to first raise these issues in the trial court. In support, appellee cites to our
decisions in Reasoner v. Columbus, 10th Dist. No. 04AP-800, 2005-Ohio-468, and New
Falls Corp. v. Russell-Seitz, 10th Dist. No. 08AP-397, 2008-Ohio-6514.
{¶ 12} In Reasoner, the plaintiff argued for the first time on appeal that the
defendants improperly attached two documents to their motion for summary judgment,
and, as such, the trial court erred in considering the documents in granting summary
judgment in favor of the defendant. Specifically, the plaintiff asserted that the trial court
improperly considered a copy of a judgment filed in a previous action, as well as a copy of
case law cited from another jurisdiction. We determined that, because the plaintiff failed
to raise these issues in the trial court, the plaintiff had waived these arguments on appeal.
{¶ 13} Similarly, in New Falls, the defendant asserted for the first time on appeal
that the affidavit in support of the plaintiff's motion for summary judgment contained
defects in violation of Civ.R. 56(E). Specifically, the defendant argued that "the trial court
erred in granting summary judgment against [the defendant] when the affidavits
submitted by [the plaintiff] in support of its motion were based on hearsay and the affiant
had no personal knowledge regarding any material facts to which he had sworn." Id. at
¶ 1. This court disagreed and affirmed the trial court's grant of summary judgment in
favor of the plaintiff on two related grounds.
{¶ 14} First, we determined " '[i]f a party does not object in the trial court to the
introduction of evidence submitted in support of * * * a motion for summary judgment,
that party waives any error and, thus, cannot raise such error on appeal.' " Id. at ¶ 10,
quoting Timberlake v. Jennings, 10th Dist. No. 04AP-462, 2005-Ohio-2634, ¶ 14.
Accordingly, we concluded that the defendant had "waived, or forfeited, any error by
failing to object to the * * * affidavit * * * submitted * * * to the trial court." Id. Relatedly,
we concluded that "[a] trial court * * * can consider non-complying documents in
adjudicating a summary judgment motion when no objection to the documents is raised."
Id. at ¶ 12. Thus, we determined because the defendant did not raise any objection to the
affidavit with the trial court, he waived that argument for purposes of appeal. Moreover,
No. 11AP-480 6
we concluded that, even if the affidavit included information that was not admissible, the
trial court can consider non-complying documents in adjudicating a summary judgment
motion when no objection to the documents was raised.
{¶ 15} Such principles have been reaffirmed by this court in Wolfe v. AmeriCheer,
Inc., 10th Dist. No. 11AP-550, 2012-Ohio-941, and Columbus v. Abe Bahgat, 10th Dist.
No. 10AP-943, 2011-Ohio-3315, ¶ 16, wherein we determined that a trial court can
consider non-complying documents in adjudicating a summary judgment motion when
no objection to the documents was raised in the trial court. See also Timberlake at ¶ 14
("If a party does not object in the trial court to the introduction of evidence submitted in
support of, or in opposition to, a motion for summary judgment, that party waives any
error and, thus, cannot raise such error on appeal.").
{¶ 16} Here, appellee filed a motion for summary judgment and, in support of its
motion, attached several exhibits including the affidavit of Welch, which incorporated
several exhibits attached to appellee's complaint. In its decision granting appellee's
motion for summary judgment, the trial court relied upon the affidavit of Welch and the
aforementioned documents. The trial court's decision noted that appellee's motion was
unopposed and that appellants did not offer any evidentiary opposition to the motion.
The trial court issued its final order and entry granting summary judgment in favor of
appellee on May 17, 2011.
{¶ 17} Now, for the first time on appeal, appellants argue both that the affidavit of
Welch does not comply with Civ.R. 56(E) and that the documents referenced by Welch's
affidavit and attached to appellee's complaint constitute inadmissible hearsay. Because
appellants failed to raise these issues in the trial court, they have waived these arguments
on appeal. Moreover, even if appellants are correct in their assertion that the exhibits in
support of appellee's motion for summary judgment included inadmissible evidence,
because no objection was raised in the trial court, the trial court did not err in considering
the same.
{¶ 18} Appellants assert they raised these arguments in their pro se motion to stay
and motion for relief from judgment. These motions, however, were both filed after the
trial court granted summary judgment and after appellants filed their notice of appeal.
No. 11AP-480 7
Because these filings were not before the trial court when it granted summary judgment,
they are not a part of the record on appeal, and they may not be considered. Franks v.
Rankin, 10th Dist. No. 11AP-962, 2012-Ohio-1920, ¶ 73 (it is well-settled that "[a]ppellate
review is limited to the record as it existed at the time the trial court rendered its
judgment").
{¶ 19} Accordingly, appellants' first and second assignments of error are overruled.
B. Third Assignment of Error
{¶ 20} In appellants' third assignment of error, they assert that the trial court erred
in granting summary judgment in favor of appellee because appellee failed to
demonstrate appellants defaulted on Notes 1 and 2. Specifically, appellants argue that the
affidavit of Welch was insufficient to support appellee's motion for summary judgment
and that appellee was required to file account statements which demonstrated the amount
due on the notes had been accelerated, that the notes were in default, and all the
payments made by appellants.
{¶ 21} Appellants cite to Chase Bank, USA v. Curren, 191 Ohio App.3d 507, 2010-
Ohio-6596 (4th Dist.), for the proposition that appellee was required to provide account
statements demonstrating that they defaulted on the notes. In Chase, the trial court
granted summary judgment in favor of the plaintiff on its claim for monies owed on a
credit card account. In reversing, the Chase court concluded, in part, that the plaintiff
was not entitled to judgment as a matter of law because they did not support their motion
for summary judgment with admissible evidence that would allow the trial court to
independently calculate the balance owed on the credit card account. Specifically, the
Chase court stated there was no admissible evidence, such as account statements, which
listed the charges or debits and credits made on the account and permitted the calculation
of the balance claimed to be due. Appellants argue that, in light of Chase, appellee was
required to provide the trial court with account statements that demonstrated they
defaulted on the notes.
{¶ 22} Initially, we note that Chase is devoid of any discussion regarding a
promissory note. Indeed, at issue in Chase was monies owed on a credit card account, not
a promissory note. Unlike credit card accounts where the monies owed necessarily
fluctuate, a promissory note is defined as " 'a written promise to pay a certain sum of
No. 11AP-480 8
money at a future time, unconditionally.' " (Emphasis added.) Morgan v. Mikhail, 10th
Dist. No. 08AP-87, 2008-Ohio-4598, ¶ 66, quoting Burke v. State, 104 Ohio St. 220, 222
(1922). Thus, we find Chase unpersuasive.
{¶ 23} Instructive on this issue, however, is our decision in Regions Bank v.
Seimer, 10th Dist. No. 13AP-542, 2014-Ohio-95. In Seimer, the defendants executed a
promissory note and mortgage in favor of the plaintiff in the amount of $245,000 to
finance the purchase of a home. The defendants defaulted on the promissory note, and
the trial court granted summary judgment in favor of the plaintiff. On appeal, we stated
that "the affidavit of a loan servicing agent employee with personal knowledge, provides
sufficient evidentiary support for summary judgment in favor of the mortgagee" as long as
it contains all the averments necessary to support the motion for summary judgment. Id.
at ¶ 19. Thus, contrary to appellants' assertions otherwise, we find that the evidence
submitted by appellee was sufficient, and appellee was not required to submit account
statements in support of its motion for summary judgment.
{¶ 24} "As a matter of law, a promissory note is considered a contract." Morgan at
¶ 66. As stated above, a promissory note is defined as a written promise to pay a certain
sum of money at a future time, unconditionally. Id. The court's primary objective in
construing a contract is to ascertain and give effect to the parties' intent, which is
presumed to reside in the contractual language used. Alternative Unlimited-Special, Inc.
v. Ohio Dept. of Edn., 168 Ohio App.3d 592, 2006-Ohio-4779, ¶ 20 (10th Dist.).
{¶ 25} Here, the terms and meanings of Notes 1 and 2 and the relevant security
agreements are uncontested. Indeed, appellants do not challenge that, under Notes 1 and
2 and the respective security agreements, a failure to make timely payments would put the
notes in default and subject appellants to money damages and forfeiture of the
automobiles. After review of Notes 1 and 2, as well as the respective security agreements,
we find that appellee is entitled to judgment as a matter of law and that Welch's affidavit
and the attached documents demonstrate the absence of a genuine issue of material fact
such that the trial court did not err in granting appellee's motion for summary judgment.
{¶ 26} Accordingly, appellants' third assignment of error is overruled.
No. 11AP-480 9
V. CONCLUSION
{¶ 27} Having overruled appellants' three assignments of error, the judgment of
the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
TYACK and BROWN, JJ., concur.
_____________________________