[Cite as TPI Asset Mgt. v. Conrad-Eiford, 193 Ohio App.3d 38, 2011-Ohio-1405.]




              IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO

TPI ASSET MANAGEMENT, L.L.C.,                      :

        Appellee,                                  :      C.A. CASE NO. 10CA0044

v.                                                 :      T.C. CASE NO. 09CV1387

CONRAD-EIFORD,                                     :      (Civil Appeal from
                                                           Common Pleas Court)
        Appellant.                                 :

                                      . . . . . . . . .

                                         O P I N I O N

                   Rendered on the 25th day of March, 2011.

                                      . . . . . . . . .

Bryan Johnson, for appellee.

Jeremiah E. Heck and Michelle Pierro, for appellant.

                                      . . . . . . . . .

        GRADY, Presiding Judge.

        {¶ 1} This is an appeal from a summary judgment for a plaintiff

in an action on a claim on an account.                          The action was commenced by

appellee, TPI Asset Management, L.L.C. (“TPI”), against appellant,

Debra Conrad-Eiford.                TPI alleged that Conrad-Eiford owed a balance

of $14,325.04 plus interest on a Visa credit card account that was

due, and that TPI succeeded the rights of the creditor by assignment.

Attached to TPI’s complaint were copies of documents purporting to
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be an agreement governing the Visa account and statements sent to

Conrad-Eiford.

       {¶ 2} Following Conrad-Eiford’s responsive pleading, TPI filed

a motion for summary judgment.         Attached to the motion were copies

of additional documents purporting to demonstrate the debt and the

amount due.    Two affidavits of authentication relating to the copies

were   also   attached,    as   well   as   answers     by   Conrad-Eiford       to

interrogatories propounded by TPI.          Conrad-Eiford filed memoranda

contra the motion, to which TPI replied.

       {¶ 3} On March 17, 2010, the trial court granted TPI’s motion

for summary judgment, awarding a judgment against Conrad-Eiford in

the amount of $14,325.04 plus interest and accrued charges of

$2,027.69 and costs.      Conrad-Eiford filed a timely notice of appeal.

       FIRST ASSIGNMENT OF ERROR

       {¶ 4} “The trial court erred in granting summary judgment where

appellee included no affidavit or otherwise authenticating the

attached business record.”

       {¶ 5} Motions for summary judgment are governed by Civ.R. 56.

Subsection (C) of that rule states:

       {¶ 6} “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
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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. A summary

judgment shall not be rendered unless it appears from the evidence

or stipulation, and only from the evidence or stipulation, that

reasonable minds can 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 or stipulation

construed most strongly in the party's favor.”       (Emphasis added.)

     {¶ 7} TPI’s motion relied on the copies of documents attached

to its motion for summary judgment to demonstrate that there is no

genuine issue of material fact with respect to its claim against

Conrad-Eiford and that TPI is entitled to judgment on its claim as

a matter of law.   Being out-of-court declarations, the substance of

those documents is hearsay evidence, Evid.R. 801, and inadmissible

pursuant to Evid.R. 802, absent one of the exceptions in Evid.R. 803

or 804.

     {¶ 8} The   relevant   exception   to   inadmissibility,   and   the

exception on which TPI relies, is the “business records” exception

in Evid.R. 803(6), which provides that the following evidence is not

excluded by the rule against hearsay:

     {¶ 9} “Records of regularly conducted activity. A memorandum,

report, record, or data compilation, in any form, of acts, events,
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or 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. The

term ‘business’ as used in this paragraph includes business,

institution, association, profession, occupation, and calling of

every kind, whether or not conducted for profit.”         (Emphasis added.)

      {¶ 10} Evid.R. 901 states:

      {¶ 11} “Requirement of Authentication or Identification

      {¶ 12} “(A)    General    provision.          The   requirement           of

authentication      or   identification   as   a   condition    precedent       to

admissibility is satisfied by evidence sufficient to support a

finding that the matter in question is what its proponent claims.”

      {¶ 13} “Authentication and identification are terms which apply

to the process of laying a foundation for the admissibility of such

nontestimonial evidence as documents and objects.”             Weissenberger,

Ohio Evidence Treatise (2010), Section 901.1.         It is actually a rule

of relevance connecting the evidence offered to the facts of the case.

Id.
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      {¶ 14} Evid.R. 901(B) sets out a number of illustrative examples

of identification or identification conforming with the requirements

of the rule.    The most commonly employed is at Evid.R. 901(B)(1):

“Testimony of a witness with knowledge.        Testimony that a matter is

what it is claimed to be.”

      {¶ 15} Evid.R. 901(B)(1) provides that “any competent witness who

has knowledge that a matter is what its proponent claims may testify

to such pertinent facts, thereby establishing, in whole or in part,

the   foundation   for    identification.”      Ohio   Evidence   Treatise,

Section 901.2.         Conclusive evidence is not required, but the

witness’s testimony must be sufficient to satisfy the requirement

of Evid.R. 602 that “[a] witness may not testify to a matter unless

evidence is introduced sufficient to support a finding that the

witness has personal knowledge of the matter.”             Id.

      {¶ 16} Evid.R.    901(B)(10)   states   that   the    requirements       of

authentication or identification may include the following:

      {¶ 17} “Any method of authentication or identification provided

by statute enacted by the General Assembly not in conflict with a

rule of the Supreme Court of Ohio or by other rules prescribed by

the Supreme Court.”

      {¶ 18} The foregoing requirement likewise applies to motions for

summary judgment.       Civ.R. 56(E) provides:

      {¶ 19} “Form of affidavits; further testimony; defense required.
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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.”

       {¶ 20} TPI presented two affidavits in support of its motion for

summary judgment.    An affidavit of Eric Hunter, identified as a “Team

Leader” at Chase Bank USA, N.A., states: “I am authorized on behalf

of Chase Bank USA, N.A., to make this affidavit.”   The affidavit then

states that Conrad-Eiford had a Visa credit card account with Chase

Bank USA, N.A., that the account was sold to Unifund Portfolio A,

L.L.C., on or about March 28, 2008, and that at that time, the balance

Conrad-Eiford owed on the account was $14,325.04.

       {¶ 21} The other affidavit was made by Bryan Johnson, identified

as “Vice-President of TPI Asset Management, LLC,” who states, “[F]rom

my own personal knowledge the following facts are true as I verily

believe, and * * * I am competent to testify to same.”   The affidavit

then states that Conrad-Eiford’s Visa account was sold by Unifund

Portfolio A to Unifund CCR Partners, which assigned the account to

TPI.    The affidavit further states that Conrad-Eiford failed to pay

and refused TPI’s demand to pay the balance due on the account in

the amount of $14,325.02, plus accrued interest and charges of
                                                                  7

$2,027.69, plus additional interest and charges.

     {¶ 22} The affiant Hunter’s statement that “I am authorized on

behalf of Chase Bank USA, N.A. to make this affidavit” is insufficient

to demonstrate that he has any personal knowledge of the facts that

the affidavit contains.    Hunter’s identification as a “Team Leader”

at that bank, standing alone, fails to portray a basis to find that

through that position he gained the required personal knowledge.

     {¶ 23} The affiant Johnson’s assertion that from his own personal

knowledge the facts contained in the affidavit were true as he “verily

believe[d],” and that he was “competent to testify to same,” likewise

fails to portray any basis other than Johnson’s own assertion, that

he has the required personal knowledge.     Johnson’s bare assertion

that the facts related in his affidavit are true does not support

a finding that they are.

     {¶ 24} The standard that Civ.R. 56(C) imposes for granting a

motion for summary judgment requires the court to find 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” on the claim or defense

the motion concerns.   To make the required finding, the court must

have before it more than an assertion that an affiant knows of the

fact or facts related in an affidavit.    In addition, the affidavit

must demonstrate the particular basis on which the affiant gained

his understanding of the fact or facts, and that basis must be
                                                                   8

sufficient to support a finding of fact by the court that the affiant

“has personal knowledge of the matter” concerned.        Evid.R. 602;

Civ.R. 56(C).    Hearsay knowledge based on the affiant’s review of

hearsay business records, for example, is insufficient.        St Paul

Fire & Marine Ins. Co. v. Ohio Fast Freight, Inc. (1982), 8 Ohio App.3d

155.

       {¶ 25} Even if the Hunter and Johnson affidavits did portray the

necessary personal knowledge of the facts contained in their

affidavits, that would not permit the court to rely on the copies

of the documents TPI submitted in support of its motion for summary

judgment.     The affidavits make no specific reference to those

documents.


       {¶ 26} TPI also relies on Conrad-Eiford’s responses to certain

requests for documents and admissions with which she was presented.

Conrad-Eiford admitted that she has no documents showing that the

amount due on the account is other than what TPI alleged in its

complaint.    She also admitted that she or someone authorized by her

made purchases on the Visa account, and that she did not recall ever

disputing those charges.     TPI argues that these matters show that

Conrad-Eiford “lacked any evidence regarding the subject matter of

this lawsuit,” and therefore that “it was impossible for Eiford to

produce sufficient competent, credible evidence to meet the burden

Civ.R. 56 imposes on a non-moving party.”
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     {¶ 27} TPI’s   assertions   regarding   Conrad-Eiford’s   lack       of

evidence may be correct, but TPI’s conclusion is not.   Before a party

against whom summary judgment is sought must bear any evidentiary

burden, the movant must demonstrate the absence of any genuine issue

of material fact regarding the claim or defense on which the movant

relies.   Dresher v. Burt (1996), 75 Ohio St.3d 280.     TPI’s motion

failed to do that, for the reasons we explained.

     {¶ 28} The trial court erred when it granted TPI’s motion for

summary judgment.     The first assignment of error is sustained.

     SECOND ASSIGNMENT OF ERROR

     {¶ 29} “The trial court erred in granting plaintiff’s motion for

summary judgment when plaintiff failed to prove an account or an

account stated.”

     {¶ 30} This assignment of error is rendered moot by our decision

sustaining the first assignment of error.     Accordingly, we exercise

the discretion conferred by App.R. 12(A)(1)(c) and decline to decide

the error assigned.

     {¶ 31} Having sustained the first assignment of error, we reverse

the summary judgment from which this appeal was taken and remand the

case to the trial court for further proceedings.

                                                    Judgment reversed

                                                  and cause remanded.

     FAIN and DONOVAN, JJ., concur.
