[Cite as Discover Bank v. Peters, 2011-Ohio-3480.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT
DISCOVER BANK
                                                        JUDGES:
        Plaintiff-Appellee                              Hon. W. Scott Gwin, P.J.
                                                        Hon. William B. Hoffman, J.
-vs-                                                    Hon. Julie A. Edwards, J.

LINDA PETERS                                            Case No. 2010CA00309

        Defendant-Appellant
                                                        OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Canton Municipal Court,
                                                     Case No. 2010CVF03048


JUDGMENT:                                            Reversed and Remanded


DATE OF JUDGMENT ENTRY:                              July 11, 2011


APPEARANCES:


For Plaintiff-Appellee                               For Defendant-Appellant


MATTHEW G. BURG                                      MAUREEN FOLEY
Weltman, Weinberg & Reis Co., L.P.A.                 Community Legal Aid Services, Inc.
Lakeside Place, Suite 200                            50 South Main St., Suite 800
323 W. Lakeside Avenue                               Akron, Ohio 44308
Cleveland, Ohio 44113
Stark County, Case No. 2010CA00309                                                     2

Hoffman, J.


       {¶1}    Defendant-appellant Linda Peters appeals the September 29, 2010

Judgment Entry entered by the Canton Municipal Court, which granted summary

judgment in favor of plaintiff-appellee Discover Bank, and overruled Appellant’s motion

to strike affidavit.

                           STATEMENT OF THE CASE AND FACTS

       {¶2}    On May 10, 2010, Appellee filed a Complaint in the Canton Municipal

Court, alleging Appellant had defaulted on the terms of a credit card agreement, and

owed a principal balance of $11,483.78, plus interest at a rate of 24.990% per annum

and costs.     Appellee attached a copy of a Cardmember Agreement and a copy of

Appellant’s January 14, 2010 statement to the Complaint.

       {¶3}    Appellant filed a motion for definite statement on June 18, 2010. Therein,

Appellant asserted Appellee failed to satisfy Civ. R. 10(D) as it failed to attach to the

Complaint a copy of the account upon which its claim was founded. Via Judgment

Entry filed June 21, 2010, the trial court overruled Appellant’s motion and granted her

until July 12, 2010, to file an answer. Appellant filed a motion for leave to answer

instanter on July 13, 2010, which the trial court granted.

       {¶4}    Appellee filed a motion for summary judgment on September 7, 2010. In

support of the motion, Appellee attached copies of Appellant’s telephonic application;

Appellant’s credit card statements from September, 2007, until December, 2009; and

credit card agreement; as well as the Affidavit of Natasha Szczygiel, a Legal Placement

Account Manager for DFS Services LLC, the servicing agent of Discover Bank.

Appellant filed a brief in opposition. Therein, Appellant maintained summary judgment
Stark County, Case No. 2010CA00309                                                         3


was inappropriate and should be denied as Appellee failed to provide evidence

supported by an adequate affidavit as required by Civ. R. 56(C) and Civ. R. 56(E); the

affidavit in support of Appellee’s motion for summary judgment failed to comply with Civ.

R. 56(E); and a genuine issue of material fact existed as to whether Appellee was

entitled to an interest rate of 24.99%. Appellant also filed a motion to strike the Affidavit

of Natasha Szczygiel, arguing, inter alia, such was not based upon the affiant’s personal

knowledge and did not affirmatively show affiant was competent to testify to the matters.

Via Judgment Entry filed September 29, 2010, the trial court granted Appellee’s motion

for summary judgment, and denied Appellant’s motion to strike.

       {¶5}   It is from this judgment entry Appellant appeals, raising the following

assignments of error:

       {¶6}   “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

BECAUSE APPELLEE FAILED TO PRODUCE ANY EVIDENCE PERMITTED BY

CIV.R. 56(C) AND CIV.R. 56(E) TO SUPPORT ITS CLAIM.

       {¶7}   “II. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION

TO STRIKE APPELLEE’S AFFIDAVIT SUBMITTED IN SUPPORT OF APPELLEE’S

MOTION FOR SUMMARY JUDGMENT WHERE THE AFFIDAVIT DOES NOT

COMPLY WITH THE REQUIREMENTS OF CIV.R. 56(E).

       {¶8}   “III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

BECAUSE A GENUINE ISSUE OF FACT EXISTS AS TO WHETHER APPELLEE IS

ENTITLED TO POST JUDGMENT INTEREST OF 24.99%.”
Stark County, Case No. 2010CA00309                                                      4


                                   STANDARD OF REVIEW

      {¶9}   Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As

such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.

      {¶10} Civ.R. 56 provides summary judgment may be granted only after the trial

court determines: 1) no genuine issues as to any material fact remain to be litigated; 2)

the moving party is entitled to judgment as a matter of law; and 3) it appears from the

evidence that reasonable minds can come to but one conclusion and viewing such

evidence most strongly in favor of the party against whom the motion for summary

judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.

(1977), 50 Ohio St.2d 317, 364 N.E.2d 267.

      {¶11} It is well established the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.

Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for

granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280

at 293, 662 N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that

the nonmoving party cannot prove its case, bears the initial burden of informing the trial

court of the basis for the motion, and identifying those portions of the record that

demonstrate the absence of a genuine issue of material fact on the essential element(s)

of the nonmoving party's claims. The moving party cannot discharge its initial burden

under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no
Stark County, Case No. 2010CA00309                                                      5


evidence to prove its case. Rather, the moving party must be able to specifically point to

some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the

nonmoving party has no evidence to support the nonmoving party's claims. If the

moving party fails to satisfy its initial burden, the motion for summary judgment must be

denied. However, if the moving party has satisfied its initial burden, the nonmoving party

then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing

there is a genuine issue for trial and, if the nonmovant does not so respond, summary

judgment, if appropriate, shall be entered against the nonmoving party.” The record on

summary judgment must be viewed in the light most favorable to the opposing party.

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 309 N.E.2d 924.

      {¶12} Essentially, a motion for summary judgment forces the plaintiff to produce

probative evidence on all essential elements of the case for which the plaintiff has the

burden of production at trial. Celotex Corp. v. Catrett, supra. The plaintiff's evidence

must be such that a reasonable jury might return a verdict in the plaintiff's favor.

Seredick v. Karnok (1994), 99 Ohio App.3d 502, 651 N.E.2d 44.

      {¶13} In deciding a motion for summary judgment, Civ.R. 56(C) only allows the

trial court to consider “pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence in the pending case, and written

stipulations of fact.” Generally, the failure to authenticate a document submitted on

summary judgment renders the document void of evidentiary value. See Citizens Ins.

Co. v. Burkes (1978), 56 Ohio App.2d 88, 381 N.E.2d 963.

      {¶14} Upon summary judgment consideration, the proper procedure for

introducing evidentiary material not specifically authorized by the rule is to incorporate
Stark County, Case No. 2010CA00309                                                      6

such material by reference in a properly framed affidavit. See Biskupich v. Westbay

Manor Nursing Home (1986), 33 Ohio App.3d 220, 515 N.E.2d 632.

      {¶15} Civ.R. 56(E) mandates sworn or certified copies of all papers filed in

support of or in opposition to a motion for summary judgment must be accompanied by

an affidavit swearing the matters contained within the document were made on the

affiant's personal knowledge. The affidavit shall also set forth facts that would be

admissible into evidence, and shall affirmatively show the affiant is competent to testify

to those matters. Id. Thus, the proper procedure for introducing an evidentiary matter

not specifically authorized by Civ.R. 56(E) is to incorporate it by reference into a

properly framed affidavit. Biskupich, supra, citing State ex rel. Corrigan v. Seminatore

(1981), 66 Ohio St.2d 459, 467, 423 N.E.2d 105.

                                               II

      {¶16} Appellant’s second assignment of error is dispositive of this Appeal;

therefore, we address such first. In her second assignment of error, Appellant contends

the trial court erred in denying her motion to strike Natasha Szczygiel’s Affidavit

because said affidavit did not comply with Civ. R. 56(E). We agree.

      {¶17} As stated, supra, Civ.R. 56(E) mandates sworn or certified copies of all

papers filed in support of or in opposition to a motion for summary judgment must be

accompanied by an affidavit swearing the matters contained within the document were

made on the affiant's personal knowledge. Additionally, the affidavit must set forth facts

which would be admissible into evidence, and affirmatively show the affiant is

competent to testify to those matters.

      {¶18} In her Affidavit, Szczygiel averred:
Stark County, Case No. 2010CA00309                                                         7


       {¶19} “1. Affiant states that (s)he is a Legal Placement Accounts Manager for

DFS Services, LLC, the servicing agent of Discover Bank * * *

       {¶20} “2. Affiant further states that the within Affidavit is being made in support of

[Appellee’s] Motion for Summary Judgment * * * against [Appellant].

       {¶21} “3. Affiant further states that there is due from [Appellant] in this matter,

the principal sum of $11,483.78 plus accrued interest at 24.99 percent and court costs.

       {¶22} “4. Affiant further states that [Appellant] has defaulted under the terms and

condition of the Discover Credit Card * * * by failing to make the required payments as

they became due and owing.” Affidavit of Natasha Szczygiel, attached to motion for

summary judgment.

       {¶23} We find the Affidavit does not comply with Civ. R. 56(E). The Affidavit fails

to establish the affiant's personal knowledge and fails to affirmatively show the affiant is

competent to testify to those matters.1 Because the Affidavit did not comply with Civ. R.

56(E), we find the trial court should have granted Appellant’s motion to strike.

       {¶24} Appellant’s second assignment of error is sustained.

                                                I, III

       {¶25} Having concluded in our discussion of Appellant's second assignment of

error the trial court erred in granting of summary judgment in favor of Appellee, we find

any discussion of Appellant's first and third assignments of error premature.




1
 Affiant’s position as “Legal Placement Accounts Manager”, without further description,
does not establish the affiant has personal knowledge or is competent to testify as to
Appellant’s account.
Stark County, Case No. 2010CA00309                                                8


      {¶26} The judgment of the Canton Municipal Court is reversed and the matter is

remanded for further proceedings consistent with this Opinion and the law.

By: Hoffman, J.

Gwin, P.J. and

Edwards, J. concur

                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ W. Scott Gwin _____________________
                                           HON. W. SCOTT GWIN


                                           s/ Julie A. Edwards___________________
                                           HON. JULIE A. EDWARDS
Stark County, Case No. 2010CA00309                                                9


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


DISCOVER BANK                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
LINDA PETERS                               :
                                           :
       Defendant-Appellant                 :         Case No. 2010CA00309


       For the reason stated in our accompanying Opinion, the judgment of the Canton

Municipal Court is reversed and the matter is remanded for further proceedings

consistent with our Opinion and the law. Costs to Appellee.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ W. Scott Gwin _____________________
                                           HON. W. SCOTT GWIN


                                           s/ Julie A. Edwards___________________
                                           HON. JULIE A. EDWARDS
