[Cite as Capital One Bank v. Truss, 2019-Ohio-3290.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                     CLARK COUNTY

 CAPITAL ONE BANK (USA)                                :
                                                       :
         Plaintiff-Appellee                            :   Appellate Case No. 2018-CA-122
                                                       :
 v.                                                    :   Trial Court Case No. 2017-CVF-3207
                                                       :
 GARY TRUSS                                            :   (Civil Appeal from
                                                       :    Municipal Court)
         Defendant-Appellant                           :
                                                       :

                                              ...........

                                              OPINION

                           Rendered on the 16th day of August, 2019.

                                              ...........

ABBEY GUDOWSKI-DEMARAIS, Atty. Reg. No. 0097458 and GREGORY DYE, Atty.
Reg. No. 0069642, P.O. Box 5016, Rochester, Michigan 48308
      Attorneys for Plaintiff-Appellee

WILLIAM D. BELL, SR., Atty. Reg. No. 0027596, 830 Main Street, Suite 604, Cincinnati,
Ohio 45202
      Attorney for Defendant-Appellant

                                            .............

HALL, J.
                                                                                      -2-


       {¶ 1} Gary Truss appeals the Clark County Municipal Court’s entry of summary

judgment for Capital One Bank (USA), N.A. on the bank’s claim on an account. Finding

no error, we affirm.

                              I. Facts and Procedural History

       {¶ 2} On October 6, 2017, Capital One filed suit against Truss to collect the

outstanding balance that he owed on his credit card.

       {¶ 3} The bank moved for summary judgment on its claim on account. In support,

the bank presented a credit-card application signed by Truss, dated November 20, 2008;

Capital One’s Customer Agreement, containing the terms of the credit-card account;

every account statement sent to Truss, from January 2009 through November 2015,

when the account was charged-off; the affidavits of two of the bank’s litigation-support

specialists; and Truss’s post-charge-off payment history. The final account statement

showed a balance of $1,831.49, and the post-charge-off payment history showed that

Truss made payments totaling $1,058.49, for an outstanding balance of $773.00.

       {¶ 4} Truss filed a brief in opposition to summary judgment as well as his own

motion for summary judgment arguing that the bank’s evidence failed to establish the

existence of an account. Truss presented no affidavit or other evidence of his own.

       {¶ 5} On November 2, 2018, the trial court granted the bank’s motion and entered

summary judgment for the bank. The court concluded that the bank’s evidence plainly

establishes that Truss owed the bank $773 and that Truss did not present any evidence

that created a genuine issue as to that fact.

       {¶ 6} Truss appeals.

                                       II. Analysis
                                                                                          -3-


       {¶ 7} Truss presents two assignments of error for our review.

                         A. The bank established an account.

       {¶ 8} The first assignment of error alleges:

              THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY

       JUDGMENT TO THE PLAINTIFF ON AN ACCOUNT FOR WHICH THE

       BALANCE OWED WAS NOT ESTABLISHED.

       {¶ 9} “Because an action on an account is founded upon contract, the plaintiff must

prove the necessary elements of a contract action, and, in addition, must prove that the

contract involves a transaction that usually forms the subject of a book account. In order

to adequately plead and prove an account, ‘[a]n account must show the name of the party

charged. It begins with a balance, preferably at zero, or with a sum recited that can qualify

as an account stated, but at least the balance should be a provable sum. Following the

balance, the item or items, dated and identifiable by number or otherwise, representing

charges, or debits, and credits, should appear. Summarization is necessary showing a

running or developing balance or an arrangement which permits the calculation of the

balance claimed to be due.’ ” (Citation omitted.) Asset Acceptance Corp. v. Proctor, 156

Ohio App.3d 60, 2004-Ohio-623, 804 N.E.2d 975, ¶ 12 (4th Dist.), quoting Brown v.

Columbus Stamping & Mfg. Co., 9 Ohio App.2d 123, 126, 223 N.E.2d 373 (10th

Dist.1967).

       {¶ 10} Truss argues that the bank did not provide a full and complete accounting

for the debt that it claimed he owed. Truss is simply incorrect. The account statements

showed a beginning balance of zero and listed each debit and credit to the account from

the date the account was opened through the charge-off date. Each statement contained
                                                                                         -4-


the previous balance due and the current balance due and listed all debits and credits to

form a running balance from the previous amount to the current amount. This

arrangement permitted the calculation of the balance that the bank claimed was due.

Truss did not present any evidence that conflicted with the information in the account

statements.

         {¶ 11} The first assignment of error is overruled.

                  B. Summary judgment for the bank was appropriate.

         {¶ 12} The second assignment of error alleges:

                THE     TRIAL     COURT       ERRED       WHEN     IT    GRANTED

         SUMMARY JUDGMENT TO THE PLAINTIFF.

         {¶ 13} “Summary judgment will be granted only when there remains no genuine

issue of material fact and, when construing the evidence most strongly in favor of the

nonmoving party, reasonable minds can only conclude that the moving party is entitled to

judgment as a matter of law.” Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850

N.E.2d 47, ¶ 10, citing Civ.R. 56(C). “The burden of showing that no genuine issue of

material fact exists falls upon the party who files for summary judgment. Dresher v.

Burt (1996), 75 Ohio St.3d 280, 294, 662 N.E.2d 264. Once the movant supports his or

her motion with appropriate evidentiary materials, the nonmoving party ‘may not rest upon

mere allegations or denials of the party’s pleadings, but the party’s response, by affidavit

or as otherwise provided in this rule, must set forth specific facts showing that there is a

genuine issue for trial.’ ” Byrd at ¶ 10, quoting Civ.R. 56(E). “If the party does not so

respond, summary judgment, if appropriate, shall be entered against the party.” Civ.R.

56(E).
                                                                                       -5-


       {¶ 14} Truss argues that the bank’s failure to provide a complete accounting

created genuine issues of material facts. But we have concluded that the bank did provide

an accounting, which established an account that satisfied the bank’s initial burden to

show that no genuine issue existed. Truss failed to present any evidence setting forth

specific facts showing that there was a genuine issue for trial, supporting his opposition

with only conclusory allegations. Because Truss failed to satisfy his reciprocal burden,

and because summary judgment was appropriate, the trial court properly granted the

bank summary judgment.

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

                                          III. Conclusion

       {¶ 16} We have overruled both of the assignments of error presented. Therefore

the trial court’s judgment is affirmed.

                                      .............



DONOVAN, J. and TUCKER, J., concur.


Copies sent to:

Abbey Gudowski-DeMarais
Gregory Dye
William D. Bell, Sr.
Hon. Denise L. Moody
