[Cite as Chase Bank, USA v. Curren, 191 Ohio App.3d 507, 2010-Ohio-6596.]




                            IN THE COURT OF APPEALS OF OHIO
                               FOURTH APPELLATE DISTRICT
                                    HIGHLAND COUNTY


CHASE BANK, USA,                                    :           Case No. 10CA2
                                                    :
        Appellee,                                   :
                                                    :           DECISION AND
        v.                                          :           JUDGMENT ENTRY
                                                    :
CURREN,                                             :           RELEASED 12/21/10
                                                    :
        Appellant.                                  :

______________________________________________________________________
                            APPEARANCES:

Weltman, Weinberg & Reis Co., L.P.A., and Jon P. Clemons, for appellee.

Jon C. Hapner, for appellant.

______________________________________________________________________
Harsha, J.

        {¶ 1} Chase Bank, USA brought this action to recover a debt purportedly owed

to it by Conrad Curren on a credit card account. The trial court granted a summary

judgment in favor of Chase and ordered Curren to pay $10,385.53 along with various

amounts of interest and costs. On appeal, Curren contends that Chase failed to

properly support its motion for summary judgment. He also contends that even if Chase

had met its initial burden to demonstrate its entitlement to a summary judgment, he put

forward sufficient evidence to create genuine issues of material fact for trial.

        {¶ 2} To support its motion for summary judgment, Chase submitted an affidavit

from its “duly authorized agent” that had copies of account statements attached to it.

Curren contends that the trial court abused its discretion when it considered this
Highland App. No. 10CA2                                                                2


evidence. We agree. No evidence indicates that the agent made his averments based

on personal knowledge, as Civ.R. 56(E) requires. Moreover, the agent’s averments fail

to properly authenticate the account statements as business records under Evid.R.

803(6), so the documents constitute inadmissible hearsay. Because Chase failed to

support its motion with admissible evidence that would allow the trial court to

independently calculate the balance due, Chase was not entitled to judgment as a

matter of law. Therefore, we reverse the trial court’s judgment. This decision renders

moot Curren’s additional argument that he properly rebutted Chase’s summary-

judgment motion.

                                         I. Facts

       {¶ 3} Chase filed a complaint in the Highland County Court alleging that Curren

had applied for a credit-card account with Chase, that Chase had exercised its right

under the account agreement to “accelerate the time for payment of the entire balance

due,” that the amount then due was $10,385.53, and that Curren had failed to pay the

balance on demand. Chase sought a judgment for (1) the “principal sum” of

$10,385.53, (2) $1,160.91 in interest accrued “through November 18, 2008,” (3) interest

on the principal balance after November 18, 2008 “at the rate of 8.000% per annum,”

and (4) costs. Chase attached a copy of a “Cardmember Agreement” and an account

statement depicting a $10,385.53 balance to the complaint. In his answer, Curren

admitted that he applied for a credit-card account with Chase but denied the remaining

allegations. Curren also filed a counterclaim, which prompted the court to transfer the

matter to the Highland County Court of Common Pleas. However, Curren subsequently

dismissed the counterclaim under Civ.R. 41(A).
Highland App. No. 10CA2                                                                                     3


        {¶ 4} Following a number of motions not relevant here, Chase filed a motion for

summary judgment and attached the affidavit of Ruben A. Alcaraz to its motion. Alcaraz

made the following averments:

              Now comes Ruben A. Alcaraz, who first being duly sworn, deposes
        and states as follows:

               That s/he is the duly authorized agent of Chase Bank, the Plaintiff
        in the within matter.

                Affiant states that there is due from the Defendant, Conrad Curren,
        in this matter the principal sum of $10,385.53 plus accrued interest in the
        sum of $971.98 through August 28, 2008, plus interest thereafter on the
        principal balance at the rate of 8.000% per annum and costs.

              Attached hereto as Exhibit A are true and exact copies of Account
        Statements sent to Defendant. These Account Statement [sic] evidence
        Defendant’s acceptance of the credit card at issue, his use of the account,
        and numerous purchases and payments made by Defendant.

               Attached hereto as Exhibit B is a true and correct copy of the
        Platinum Visa Credit Card Application executed by Defendant. The
        Application bears Defendant’s signature and personal identification, and
        evidences his Application for the Credit Card Account at issue.

               Affiant further states that there have been no payments made nor
        are there any credits due the Defendant* [sic] which would reduce the
        above mentioned balance.

              Affiant further states that to the best of his/her knowledge, the
        Defendant Conrad Curren is not a minor, not in the military service and
        under no mental defect.

Apparently the following documents were attached to the affidavit: (1) a credit card

application purportedly signed by Curren and dated May 4, 2005, and (2) account

statements that show the progression of the account from a balance of $0 to $10,385.53

as of August 11, 2007.1


1
 These exhibits total 61 pages and immediately follow the affidavit in the record on appeal. The
documents appear to have once been physically attached to the affidavit (as evidenced by staple holes)
but currently are not. In addition, we note that the affidavit misidentifies the exhibits. The first page of the
Highland App. No. 10CA2                                                                                4


        {¶ 5} In his opposing memorandum, Curren argued that Alcaraz’s affidavit did

not comply with Civ.R. 56(E) because it “[did] not state the authority or the position of

the affiant in the matter, and clearly [did] not state any personal knowledge of the

affiant.” He claimed that the interest rate applied to his account was “usurious.” He

also argued that there were “discrepancies in the various charges set forth by [Chase]”

and that “it appears there are charges in this case that could not have been made by

[him] * * *.” Curren attached his own affidavit to support his arguments.

        {¶ 6} The trial court found that Alcaraz’s affidavit was admissible, that there

were no genuine issues of material fact, and that Chase was entitled to judgment as a

matter of law. The court awarded Chase “$10,385.53 plus interest accrued in the sum

$971.98 through August 28, 2008, plus interest at the rate of 8.0% per annum until

judgment.” The court found that after the judgment, interest would accrue at the

“judgment rate” and awarded Chase costs. This appeal followed.

                                      II. Assignments of Error

        {¶ 7} Curren assigns the following errors for our review:

                                FIRST ASSIGNMENT OF ERROR

              The Trial Court erred to the detriment of the defendant in granting
        summary judgment in favor of the plaintiff and against the defendant when
        genuine issues of material fact do exist, to wit:

                1.      Many of the charges claimed by the plaintiff were not
                        made by the defendant.

                2.      The plaintiff changed the terms of the contract without
                        notice or consent of the defendant.

                3.      The interest charges were usurious, against the

exhibits appears to be the card application Alcaraz designates as Exhibit B; however, it does not contain
an exhibit number. The remaining 60 pages of exhibits appear to be the account statements Alcaraz
refers to as Exhibit A, but the first page of the statements is marked “EXHIBIT B.”
Highland App. No. 10CA2                                                                     5


                     statutory limit and against public policy.

                           SECOND ASSIGNMENT OF ERROR

             The Trial Court erred to the detriment of the Defendant/Appellant as
       a genuine issue of material fact existed when the Defendant/Appellant
       submitted an affidavit denying charges on the credit card bills and the Trial
       Court awarded damages without a hearing on said account.

       {¶ 8} In between his first and second assignments of error, Curren states: “The

Trial Court erred to the detriment of the defendant when it granted summary judgment

on the basis of an improper affidavit and unauthenticated document.” Although Curren

characterizes this statement as an “Issue[ ] to be Decided” within the first assignment of

error, the subject matter of the statement bears no relation to any of the topics specified

in that assignment. Therefore, this “issue” should have been characterized as a

separate assignment of error, and we will treat it as Curren’s third assignment of error.

       {¶ 9} Chase contends that under App.R. 9(B), we should disregard this

assignment of error. App.R. 9(B) involves the record on appeal and provides:

       Unless the entire transcript is to be included [in the record on appeal], the
       appellant, with the notice of appeal, shall file with the clerk of the trial court
       and serve on the appellee a description of the parts of the transcript that
       the appellant intends to include in the record, a statement that no
       transcript is necessary, or a statement that a statement pursuant to either
       App.R. 9(C) or 9(D) will be submitted, and a statement of the assignments
       of error the appellant intends to present on the appeal. If the appellee
       considers a transcript of other parts of the proceedings necessary, the
       appellee, within ten days after the service of the statement of the
       appellant, shall file and serve on the appellant a designation of additional
       parts to be included. The clerk of the trial court shall forward a copy of this
       designation to the clerk of the court of appeals.

(Emphasis added).

       {¶ 10} Because Curren did not request a transcript, he served Chase with a

statement of the errors he intended to present on appeal under App.R. 9(B). This
Highland App. No. 10CA2                                                                     6


statement included only the first assignment of error listed above. Chase does not

complain about Curren’s addition of the second assignment of error to his brief,

presumably because Chase considers his first and second assignments of error to be

“interrelated.” However, Chase argues that Curren waived his third assignment of error

because he did not include it in the App.R. 9(B) statement. However, the purpose of

App.R. 9(B)’s notification rule is to give the appellee an opportunity to add portions of

the transcript to the record that he thinks might be necessary for resolution of the issues

the appellant intends to raise. See generally Painter and Pollis, Ohio Appellate Practice

(2010-2011 Ed.), Section 4:11. Chase does not complain that Curren’s failure to

include the third assignment of error in his App.R. 9(B) statement prejudiced it because

the record lacks pertinent portions of the transcript that Chase could have ordered with

sufficient notice. Moreover, all of Curren’s assignments of error address the propriety of

the court’s award of summary judgment. The court did not hold an oral hearing on the

summary-judgment motion, and the record does not indicate the existence of any other

transcript potentially relevant to this appeal. Therefore, we conclude that Curren did not

waive his third assignment of error by failing to include it in the App.R. 9(B) statement.

       {¶ 11} In addition, we note that due to Curren’s erroneous characterization of his

third assignment of error as an “Issue[ ] to be Decided,” Curren presented only one

argument for his first and third assignments of error. App.R. 16(A)(7) requires separate

arguments for each assignment of error. “While appellate courts may jointly consider

two or more assignments of error, the parties do not have the same option in presenting

their arguments.” Keffer v. Cent. Mut. Ins. Co., Vinton App. No. 06CA652, 2007-Ohio-

3984, at ¶ 8, fn. 2. Thus, we would be within our discretion to simply disregard Curren’s
Highland App. No. 10CA2                                                                          7


first and third assignments of error and summarily affirm the trial court’s judgment with

regard to them. App.R. 12(A)(2); Keffer at ¶ 8, fn. 2. Nonetheless, we will review all

Curren’s arguments. But for ease of analysis, we will address his assignments of error

out of order.

                                   III. Standard of Review

       {¶ 12} Curren contends that the trial court erred in granting Chase a summary

judgment. When reviewing a trial court’s decision on a motion for summary judgment,

we conduct a de novo review governed by the standard set forth in Civ.R. 56. Comer v.

Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, at ¶ 8. Summary

judgment is appropriate when the movant has established (1) that there is no genuine

issue of material fact, (2) that reasonable minds can come to but one conclusion, and

that conclusion is adverse to the nonmoving party, with the evidence against that party

being construed most strongly in its favor, and (3) that the moving party is entitled to

judgment as a matter of law. Bostic v. Connor (1988), 37 Ohio St.3d 144, 146, 524

N.E.2d 881, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66,

375 N.E.2d 46. See Civ.R. 56(C).

       {¶ 13} The burden of showing that no genuine issue of material fact exists falls

upon the party who moves for summary judgment. Dresher v. Burt (1996), 75 Ohio

St.3d 280, 294, 662 N.E.2d 264. To meet its burden, the moving party must specifically

refer to “the pleadings, depositions, answers to interrogatories, written admissions,

affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in

the action,” that affirmatively demonstrate that the nonmoving party has no evidence to

support the nonmoving party’s claims. Civ.R. 56(C); See also Hansen v. Wal-Mart
Highland App. No. 10CA2                                                                                8

Stores, Inc., Ross App. No. 07CA2990, 2008-Ohio-2477, at ¶ 8. Once the movant

supports the motion with appropriate evidentiary materials, the nonmoving party “may

not rest upon the 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.” Civ.R. 56(E). “If the party does not so

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

                                       IV. Proving an Account

        {¶ 14} “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.” Crown Asset Mgt., L.L.C. v. Gaul, Washington App. No. 08CA30, 2009-Ohio-

2167, at ¶ 10, quoting Asset Acceptance Corp. v. Proctor, 156 Ohio App.3d 60, 2004-

Ohio-623, 804 N.E.2d 975, at ¶ 12. For a creditor to adequately plead and prove an

account, the account “must show the name of the party charged.” Id., quoting Asset

Acceptance Corp. at ¶ 12, quoting Brown v. Columbus Stamping & Mfg. Co. (1967), 9

Ohio App.2d 123, 126, 223 N.E.2d 373. Moreover, the account must “begin[ ] 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.2 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


2
  “An ‘account stated’ exists where the account has been examined and the balance admitted as the true
balance between the parties. It is based upon an assent to its correctness and can be implied when an
account is rendered by the creditor to the debtor and the debtor fails to object within a reasonable amount
of time.” Crown Asset Mgt., L.L.C. at ¶ 10, fn. 1, citing Capital One Bank v. Nolan, Washington App. No.
06CA77, 2008-Ohio-1850, at ¶ 9.
Highland App. No. 10CA2                                                                   9


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

claimed to be due.” Id.

                      V. Chase’s Initial Summary-Judgment Burden

       {¶ 15} In his third assignment of error, Curren complains that Chase failed to

meet its initial burden to demonstrate its entitlement to a summary judgment. Chase

filed Alcaraz’s affidavit to support its summary-judgment motion. Curren complains that

the court erred when it considered the affidavit and attached account statements

because Alcaraz’s averments were not based on personal knowledge and failed to lay

the proper foundation for admission of the attached documents. He also contends that

Alcaraz failed to properly sign the affidavit because it is “initialed[,] not signed.”

       {¶ 16} “For evidentiary material attached to a summary judgment motion to be

considered, the evidence must be admissible at trial.” See Civ.R. 56(E) and Pennisten

v. Noel (Feb. 8, 2002), Pike App. No. 01CA669, 2002 WL 254021, at *2. Although we

conduct a de novo review of the trial court’s decision to grant summary judgment, we

review the court’s rulings on the admissibility of evidence for an abuse of discretion.

Lawson v. Y.D. Song, M.D., Inc. (Sept. 23, 1997), Scioto App. No. 97 CA 2480, 1997

WL 596293, at *3. See State v. Sage (1987), 31 Ohio St.3d 173, 510 N.E.2d 343, at

paragraph two of the syllabus. The term “abuse of discretion” implies that the court’s

attitude is unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio

St.2d 151, 157, 404 N.E.2d 144. When applying the abuse-of-discretion standard, a

reviewing court may not substitute its judgment for that of the trial court. Berk v.

Matthews (1990), 53 Ohio St.3d 161, 169, 559 N.E.2d 1301.

       {¶ 17} Civ.R. 56(E) states: “Supporting and opposing affidavits shall be made on
Highland App. No. 10CA2                                                                   10


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.” “Personal knowledge” is “

‘[k]nowledge gained through firsthand observation or experience, as distinguished from

a belief based on what someone else has said.’ ” Bonacorsi v. Wheeling & Lake Erie

Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, at ¶ 26, quoting Black’s

Law Dictionary (7th Ed.Rev.1999) 875. It is “ ‘knowledge of factual truth which does not

depend on outside information or hearsay.’ ” Residential Funding Co., L.L.C. v. Thorne,

Lucas App. No. L-09-1324, 2010-Ohio-4271, at ¶ 64, quoting Modon v. Cleveland (Dec.

22, 1999), Medina App. No. 2945-M, 1999 WL 1260318, at *2.

       {¶ 18} Here, Alcaraz did not explicitly state that his averments were made on

“personal knowledge.” Contrary to Curren’s assertion, this omission is not fatal to the

affidavit’s admissibility. “[P]ersonal knowledge may be inferred from the contents of an

affidavit * * *.” Carter v. U-Haul Internatl., Franklin App. No. 09AP-310, 2009-Ohio-

5358, at ¶ 10; Flagstar Bank F.S.B. v. Diehl, Ashland App. No. 09 COA 034, 2010-Ohio-

2860, at ¶ 25.

       {¶ 19} However, in this case, the contents of Alcaraz’s affidavit were insufficient

for the trial court to make such an inference. Alcaraz vaguely avers that he is a “duly

authorized agent of Chase Bank” and that “there is due” from Curren various amounts

of money. But none of Alcaraz’s averments demonstrate that he has any personal

knowledge about Curren’s account. The basis for Alcaraz’s knowledge of the balance

due appears to be his review of the account statements attached to the affidavit, which
Highland App. No. 10CA2                                                                  11


as we explain below, constitute inadmissible hearsay. Moreover, we note that Alcaraz’s

averments standing alone would be insufficient to prove the claimed account balance of

$10,385.53 because the court could not independently calculate the balance from those

averments. See Crown Asset Mgt., L.L.C., 2009-Ohio-2167, at ¶ 11.

       {¶ 20} The account statements attached to Alcaraz’s affidavit constitute the only

evidence Chase submitted from which the court could independently calculate the

alleged $10,385.53 balance. However, they constitute inadmissible hearsay. Hearsay

is an out-of-court statement offered for the truth of the matter asserted. Proctor v. Hall,

Lawrence App. Nos. 05CA3 and 05CA8, 2006-Ohio-2228, at ¶ 37, citing Evid.R.

801(C). Chase submitted the account statements to prove the truth of the matters those

documents asserted, i.e., that Curren made various purchases and payments on the

account, resulting in a $10,385.53 balance. These records might have qualified for the

business-records exception to the hearsay rule, see Evid.R. 803(6), but Alcaraz’s

affidavit failed to lay the proper foundation for their admissibility.

       {¶ 21} Evid.R. 803(6) provides:

       The following are not excluded by the hearsay rule, even though the
       declarant is available as a witness:

       ***

       (6) Records of regularly conducted activity. A memorandum, report,
       record, or data compilation, in any form, of acts, events, 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
Highland App. No. 10CA2                                                                  12


       not conducted for profit.

       {¶ 22} “While the witness need not have personal knowledge of the creation of

the particular record in question, and need not have been in the employ of the company

at the time the record was made[,]* * * he must be able to vouch from personal

knowledge of the record-keeping system that such records were kept in the regular

course of business.” State v. Davis (1991), 62 Ohio St.3d 326, 342, 581 N.E.2d 1362,

quoting Dell Publishing Co. v. Whedon (S.D.N.Y.1984), 577 F.Supp. 1459, 1464, fn. 5.

But here, Alcaraz did not aver that he had personal knowledge of the creation of these

records or of Chase’s record-keeping system, and that knowledge cannot be inferred

from the affidavit. Thus, Alcaraz’s affidavit did not authenticate the attached documents

under Evid.R. 803(6). Therefore, the trial court abused its discretion when it considered

the affidavit and account statements to decide the summary-judgment motion. See

generally Great Seneca Fin. v. Felty, 170 Ohio App.3d 737, 2006-Ohio-6618, 869

N.E.2d 30, at ¶ 11 (in deciding summary-judgment motion, trial court erred by

considering documents that purported to assign a credit-card account when the

documents were not filed “with an accompanying affidavit setting forth a proper

foundation under Evid.R. 803(6) for their admissibility into evidence”).

       {¶ 23} Curren did not admit that he owed Chase the $10,385.53 balance alleged

due. And without the account statements, Chase had no other evidence that would

permit the court to independently calculate the claimed balance. Accordingly, Chase

was not entitled to judgment as a matter of law. See Crown Asset Mgt., L.L.C., 2009-

Ohio-2167, at ¶ 16.

       {¶ 24} We sustain Curren’s third assignment of error in part, reverse the trial
Highland App. No. 10CA2                                                               13


court’s judgment, and remand for further proceedings consistent with this opinion. This

decision renders moot Curren’s argument that Alcaraz did not properly sign the affidavit.

It also renders moot Curren’s first and second assignments of error, in which he

contends that he properly rebutted Chase’s summary-judgment motion, so we need not

address them. App.R. 12(A)(1)(c).

                                                                     Judgment reversed
                                                                   and cause remanded.

      MCFARLAND, P.J., and ABELE, J., concur.
