[Cite as Wholesale Builders Supply, Inc. v. Green-Source Dev., L.L.C., 2013-Ohio-5129.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 99711



               WHOLESALE BUILDERS SUPPLY, INC.
                                                           PLAINTIFF-APPELLEE

                                                     vs.

     GREEN-SOURCE DEVELOPMENT, L.L.C., ET AL.
                                                           DEFENDANTS-APPELLANTS




                                           JUDGMENT:
                                            AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-778003


        BEFORE: E.T. Gallagher, J., Jones, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED: November 21, 2013
ATTORNEY FOR APPELLANTS

Robert N. Stein
1450 Rockefeller Building
614 Superior Avenue, NW
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

James D. Wilson
Aanchal Soni
James D. Wilson, L.L.C.
29225 Chagrin Boulevard, Suite 350
Cleveland, Ohio 44122
EILEEN T. GALLAGHER, J.:

       {¶1} Defendants-appellants Green Building Technology, L.L.C. 1 (“Green”) and

John A. Pumper (“Pumper”) (collectively referred to as “appellants”) appeal from an

order granting summary judgment in favor of plaintiff-appellee Wholesale Builders

Supply Inc. (“Wholesale”). We find no merit to the appeal and affirm.

       {¶2} In February 2008, Pumper executed a credit application on behalf of Green to

obtain credit for the purchase of goods from Wholesale. The credit application, which

Pumper signed as Green’s principal, stated in relevant part:

       CUSTOMER AGREES TO PAY FINANCE CHARGE AT THE RATE OF
       18% PER ANNUM ON PAST DUE INVOICES. CUSTOMER AGREES
       TO PAY FEE[S], INCLUDING ATTORNEY FEES, FOR COLLECTION
       OF DELINQUENT ACCOUNTS. BY SIGNING THIS AGREEMENT
       YOU ARE BOTH PERSONALLY AND CORPORATELY LIABLE FOR
       THE TOTAL OF PURCHASES BY YOU OR ANYONE DESIGNATED
       TO SIGN FOR YOUR PURCHASES ON YOUR ACCOUNT.

Pursuant to the credit agreement, Green Source ordered and received goods and

Wholesale issued invoices.

       {¶3} After Green failed to pay some of the invoices, Wholesale filed a complaint

for breach of contract against Green and Pumper to collect the unpaid balance on Green’s

account. The complaint included a separate claim against Pumper, individually, alleging

personal liability based on a guaranty.




        Green Building Technology was previously known as Green Source Products, L.L.C.
       1


Green Source Products, L.L.C. changed its name to Green Building Technology, L.L.C. in March
2012. For simplicity, we refer to both names as Green where appropriate.
       {¶4} Wholesale filed a motion for summary judgment on its claims. In support of

the motion, Wholesale submitted an affidavit from Lynne Bateson (“Bateson”),

Wholesale’s credit manager, in which she states that Green had an unpaid balance of

$28,534.85. Wholesale also submitted the transcript of Pumper’s deposition in which he

admits signing the credit application and identifies several invoices.

       {¶5} Appellants opposed Wholesale’s motion, arguing that Wholesale failed to

support its motion with the type of evidence required by Civ.R. 56(C). Nevertheless,

based on the evidence in the record, the trial court granted Wholesale’s motion and

entered judgment in favor of Wholesale and against Green and Pumper, jointly and

severally, in the principal amount of $28,534.85, plus interest and costs. Appellants now

appeal and raise two assignments of error.

                                   Standard of Review

       {¶6} We review an appeal from summary judgment under a de novo standard of

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

The party moving for summary judgment bears the burden of demonstrating the absence

of a genuine issue of material fact as to the essential element of the case with evidence of

the type listed in Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264

(1996). Once the moving party demonstrates it is entitled to summary judgment, the

burden shifts to the nonmoving party to produce evidence related to any issue on which

the party bears the burden of production at trial. See Civ.R. 56(E). Summary judgment

is appropriate when, after construing the evidence in a light most favorable to the party
against whom the motion is made, reasonable minds can only reach a conclusion that is

adverse to the nonmoving party. Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367,

369-370, 696 N.E.2d 201 (1998).

                     Evidence in Support of Summary Judgment

      {¶7} In the first assignment of error, appellants argue the trial court erred in

granting Wholesale’s motion for summary judgment because its motion was not

supported by the kind of evidence required under Civ.R. 56. They contend the court

improperly considered selected, unauthenticated pages from Pumper’s deposition

transcript and accompanying exhibits.       They also assert Bateson’s affidavit was

inadmissible.

      {¶8} Civ.R. 56(C) specifies the types of evidence a party may use to support a

motion for summary judgment and states:

      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 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.
      {¶9} Thus, Civ.R. 56(C) authorizes the use of depositions to support or oppose a

motion for summary judgment. However, before a deposition may be considered as

“legally acceptable evidence for summary judgment purposes”, (1) the deposition must be

filed with the court or otherwise authenticated, (2) the deponent must sign the deposition

or waive signature, and (3) there must be a certification by the officer before whom the
deposition is taken. Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No.

98502, 2013-Ohio-1657, ¶ 35.

       {¶10} In support of its motion for summary judgment, Wholesale submitted

Bateson’s affidavit and copies of certain pages from Pumper’s deposition transcript along

with copies of the exhibits.     Wholesale subsequently filed a complete copy of the

deposition transcript, which was certified by the court reporter. The court reporter also

marked the credit application and invoice statements as exhibits.

       {¶11} Although Pumper did not sign the deposition transcript, Civ.R. 30(E)

provides that when the deponent fails to read, sign, or makes changes to a deposition

transcript within 30 days from the date the court reporter notifies the deponent that a party

has requested a copy, the deponent is deemed to have waived signature. Civ.R. 30(E).

Therefore, the filed deposition transcript and exhibits are admissible under Civ.R. 56(C).

       {¶12} Appellants also argue the documents referenced in Bateson’s affidavit are

inadmissible because she failed to authenticate them in any fashion. However, Bateson

did not attach copies of these documents to the affidavit but mentions facts related to

them. She also testifies that all the statements in her affidavit are based on personal

knowledge.

       {¶13} Civ.R. 56(E) requires that affidavits supporting motions for summary

judgment be made on personal knowledge. Bonacorsi v. Wheeling & Lake Erie Ry. Co.,

95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707.               “‘Personal knowledge’ is

‘knowledge gained through firsthand observation or experience, as distinguished from a
belief based on what someone else has said.’” Id., quoting Black’s Law Dictionary 875

(7th Ed.Rev.1999), citing Weissenberger, Evidence, Section 602.1, at 213 (2002). A trial

court has wide discretion to determine whether a witness has sufficient personal

knowledge to testify competently.         Starinchak v. Sapp, 10th Dist. Franklin No.

04AP-484, 2005-Ohio-2715, ¶ 27.

         {¶14} Here, Bateson not only identifies herself as Wholesale’s credit manager, she

also states that her responsibilities include managing credit transactions. These facts

support the basis for her claim that she has personal knowledge of Green’s account,

including the terms of the parties’ agreement, unpaid invoices, and the amount of Green’s

outstanding balance. It is reasonable to conclude that the statements in her affidavit are

based upon her personal knowledge of Green Source’s account.

         {¶15} The trial court properly relied on Bateson’s affidavit and the certified copy

of Pumper’s deposition and exhibits when it granted summary judgment in Wholesale’s

favor.

         {¶16} Accordingly, we overrule the first assignment of error.

                                    Personal Guaranty

         {¶17} In the second assignment of error, appellants argue there was no evidence

establishing that Pumper was a personal guarantor on Green’s account with Wholesale.

They also contend Pumper never agreed to personally guarantee Green’s debt to

Wholesale.
      {¶18} However, Pumper admitted at his deposition that he signed the credit

application and that it contained personal guaranty language. When asked if he signed

the credit agreement, the following dialogue ensued:

      A: I did sign it.

      Q: You didn’t mean it when you signed it?

      A: It’s a typical thing just sign the doggone form there because they wanted
      a credit app.

      *      *     *

      Q: So you don’t –

      A: I signed it.

      *      *     *

      Q: Do you see the sentence just down from the same sentence, if you follow
      me, says, “By signing this agreement you are both personally and
      corporately liable for the total purchases you and anyone designated to sign
      for your purchases on your account?” Do you see that?

      A: Yes.

Pumper admitted at his deposition that he signed the credit application and thereby agreed

to be personally liable for Green’s purchases.         As previously explained, Pumper’s

deposition was properly authenticated and filed with the court as required by the civil

rules and was admissible.     Therefore, we concur with the trial court’s finding that

Pumper agreed to be personally liable for Green’s purchases.

      {¶19} The second assignment of error is overruled.

      {¶20} Judgment affirmed.
      It is ordered that appellee recover from appellants costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to the common pleas court to carry this

judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
TIM McCORMACK, J., CONCUR
