[Cite as Educap, Inc. v. Gingery, 2014-Ohio-4138.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                             CRAWFORD COUNTY




EDUCAP, INC.,

        PLAINTIFF-APPELLANT,                             CASE NO. 3-14-02

        v.

ABIGAIL GINGERY,                                         OPINION

        DEFENDANT-APPELLEE.




                Appeal from Crawford County Common Pleas Court
                            Trial Court No. 12CV0452

                                     Judgment Affirmed

                         Date of Decision: September 22, 2014




APPEARANCES:

        Megan J. Urban for Appellant

        Matthew M. Nee for Appellee
Case No. 3-14-02


SHAW, J.

           {¶1} Plaintiff-appellant Educap, Inc. (“Educap”) appeals the February 14,

2014 judgment of the Crawford County Common Pleas Court denying Educap’s

claims that it was owed money by defendant-appellee Abigail Gingery

(“Gingery”) after a bench trial on the matter and entering judgment on all issues in

favor of Gingery.

           {¶2} The facts relevant to this appeal are as follows. On December 20,

2012, Educap filed a complaint against Gingery alleging that Gingery owed

Educap $20,613.84 plus interest from the date of November 6, 2006, and late fees

in the amount of $236.68.1 (Doc. 1). Exhibits attached to the complaint alleged

that Educap was owed this money by Gingery on a promissory note Gingery

purportedly executed with Educap along with her father as co-signer, the now

deceased Teddy Gingery (“Teddy”), to finance her education.

           {¶3} On February 8, 2013, Gingery filed an answer denying that she owed

Educap money, claiming that she never signed a promissory note with Educap and

asserting a number of affirmative defenses. (Doc. 7).

           {¶4} The case proceeded to a bench trial, which was held January 6, 2014.

At trial, Educap called one witness, Susan Martin, a Legal Collections Coordinator

for Educap who handled delinquent accounts. Martin identified several exhibits



1
    According to Gingery, the litigation had previously been filed in 2008. (Doc. 15).

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that were ultimately entered into evidence, including a promissory note.

(Plaintiff’s Ex. 1). The promissory note listed Gingery as the “Student Borrower,”

and listed her father, Teddy, as “Co-Signer.” (Id.) The note indicated that the

total amount to be borrowed was $18,700, and of that borrowed amount, $9,000

was to be allocated to loan consolidation.2 (Id.) The note contained Teddy’s

signature, and a signature Educap contended was also Gingery’s. (Id.) Martin

testified that she believed that Gingery’s signature was genuine because, according

to Martin, someone had called Educap to check the status of the loan twice and a

note regarding those calls indicated that the person who called was Gingery. (Tr.

at 32). Martin was not the person who took that call, however.

           {¶5} Martin testified that the promissory note that was executed made

Gingery and Teddy jointly and severally liable. (Tr. at 7). Martin testified that no

payments were ever made on the note. (Tr. at 16).

           {¶6} On cross-examination Martin testified that no one witnessed Gingery

sign the promissory note and that it was not notarized. (Tr. at 41). Martin was

also asked to compare Gingery’s signature on the promissory note with another

signature of Gingery’s from 2004 (pre-dating the promissory note), which was on

a different bank document.                 This 2004 document was introduced as Defense




2
    The loan amount was later increased to $19,821. (Plaintiff’s Ex. 2).

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Exhibit “A.” Martin testified that the signatures “look different.” (Tr. at 55). At

the conclusion of Martin’s testimony Educap rested its case.

       {¶7} Gingery then took the stand as the sole witness in her case-in-chief.

Gingery testified that she did not sign the promissory note, that she had never seen

it before this case, that the signature on the note was not hers, and that the email

listed on the promissory note under her “student borrower” section,

tginger@columbus.rr.com, was not her email address.         (Tr. at 62).   Gingery

testified that the signature on the 2004 document labeled Defendant’s Exhibit A,

which had been shown to Martin during her testimony, was Gingery’s actual

signature. (Tr. at 71). Gingery testified that she always used her middle initial

when signing her name, which was not present in the promissory note, and that the

“A” in “Abigail” in her own signature was more triangular in shape than the one

used on the promissory note in question. (Tr. at 64). Gingery also testified that

she never called Educap regarding the loan. (Tr. at 76).

       {¶8} Moreover, Gingery testified that her father had told her he would be

responsible for financing her college education, except for specific government

Stafford loans that Gingery took out herself. (Tr. at 72-73). Gingery testified that

she did not know if her father was taking out loans in order to accomplish the

financing of her education, only that her father had told her that he would finance

it. (Tr. at 73).


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      {¶9} Gingery did testify that she used $9,700 of the money from the

Educap loan her father obtained for her to pay for her education expenses while

she was at the University of Mount Union, though at the time she did not know

where her father got the money. (Tr. at 72). Gingery also testified that she

learned through the course of this case that her father used the remaining amount

of the loan obtained from Educap to pay off his “Parent Plus” loan, which was a

loan Teddy had taken out previously to finance Gingery’s education on which

Gingery was specifically not liable. (Tr. at 69). Exhibits supplied by Educap

corroborated Gingery’s testimony on this issue, that over half of the loan money

from Educap was used by Teddy to pay off a prior loan of his.

      {¶10} At the conclusion of Gingery’s testimony, the defense rested its case.

The parties then submitted written closing arguments to the court. (Docs. 19, 20).

      {¶11} On February 14, 2014, the trial court issued its decision on the

matter, which stated as follows.

           Plaintiff’s complaint alleges that the Defendant owes it
      $20,613.84 plus interest and late fees on an account. Defendant’s
      answer to the complaint denied all of Plaintiff’s claims and set
      forth several affirmative defenses to Plaintiff’s claims.

           Whereupon, the Court heard testimony from Susan Martin
      the Legal Collection Coordinator at Plaintiff, Educap. She
      identified Plaintiff’s exhibits 1-9 as business records related to
      the account at issue. It was established that the Defendant was
      indicated as the student borrower on the agreement (Plaintiff’s
      exhibit 1) and her father, Teddy Gingery, was indicated as the
      co-signer on the loan. The amount of the loan, interest, etc. was

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      brought forth by this witness. She testified that the Educap
      records (processing records) indicate that on October 26, 2006
      “Abigail called” presumably to check on the status of the loan.
      After the admission of Plaintiff’s exhibits 1-9 the Plaintiff rested
      its case.

           Whereupon, the Court heard testimony of the Defendant,
      Abigail Gingery, who stated she did not sign Plaintiff’s exhibit 1
      and never saw it before the litigation. She further testified that
      the e-mail address on the document is not hers. Defendant
      identified Defense exhibit A as a bank document with a
      signature she stated was her actual signature. She identified
      Defense exhibits A-D which were admitted into evidence before
      the defense rested.

           Whereupon, the Court finds from the evidence, exhibits and
      the law presented to it, that the Plaintiff has failed to prove by a
      preponderance of the evidence that it is entitled to judgment for
      the disputed amounts against Defendant. Further, the Court
      finds that the evidence herein does not prove by a
      preponderance of the evidence that the note (Plaintiff’s exhibit
      1) was signed by the Defendant nor has the Court been provided
      any legal authority upon which to find the Defendant legally
      obligated on the note and account simply because she received
      some benefits from the proceeds.

(Doc. 21). The court thus entered judgment in favor of Gingery on all issues in the

matter.

      {¶12} It is from this judgment that Educap appeals, asserting the following

assignments of error for our review.

                  ASSIGNMENT OF ERROR 1
      THE TRIAL COURT’S FINDING THAT GINGERY DID NOT
      SIGN THE PROMISSORY NOTE IS CONTRARY TO LAW
      AND AGAINST THE MANIFEST WEIGHT OF THE
      EVIDENCE PRESENTED AT TRIAL.


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                  ASSIGNMENT OF ERROR 2
       THE TRIAL COURT ABUSED ITS DISCRETION BY
       ADMITTING THE BANK DOCUMENT AND PERMITTING
       LAY TESTIMONY OF THE SIGNATURE THEREON.

                             First Assignment of Error

       {¶13} In its first assignment of error, Educap contends that the trial court’s

decision was against the manifest weight of the evidence. Specifically, Educap

contends that the trial court did not need proof of a signed agreement “based upon

an account theory,” that the trial court applied the wrong burden of proof on

Gingery’s “fraud defense,” that Teddy was acting as Gingery’s agent and thus

Gingery should be bound by Teddy’s agreement, and that Gingery subsequently

ratified the note through acceptance of the benefits.

       {¶14} In reviewing manifest weight of the evidence claims in civil cases,

the appellate court must review the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses and determine

whether in resolving conflicts in the evidence, the factfinder clearly lost its way

and created such a manifest miscarriage of justice that the judgment must be

reversed and a new trial ordered. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-

Ohio-2179, ¶ 17; See also State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).

       {¶15} In defining weight of the evidence review in civil cases, the Ohio

Supreme Court has held that,



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       [w]eight of the evidence concerns “the inclination of the greater
       amount of credible evidence, offered in a trial, to support one side
       of the issue rather than the other. It indicates clearly to the jury
       that the party having the burden of proof will be entitled to their
       verdict, if, on weighing the evidence in their minds, they shall
       find the greater amount of credible evidence sustains the issue
       which is to be established before them. Weight is not a question
       of mathematics, but depends on its effect in inducing belief.”

(Emphasis sic.) Eastley at ¶ 12, citing Thompkins at 387.

       {¶16} When determining a weight of the evidence argument, a court of

appeals “must always be mindful of the presumption in favor of the finder of fact.”

Eastley at ¶ 21. The discretionary power to grant a new trial should be exercised

only in the exceptional case in which the evidence weighs heavily against the

judgment. See Thompkins at 387 citing State v. Martin, 20 Ohio App.3d 172, 175

(1st Dist. 1983).

       {¶17} In this case, evidence was presented that Gingery’s name was on

Educap’s promissory note as the student borrower along with her father who was

the co-signer on the note.      Testimony was presented, albeit indirectly, that

someone purporting to be Gingery called Educap to check the status of the loan.

On the other hand, Gingery testified that she had no knowledge of the note in

question, that her father took care of financing her education, that the signature on

the promissory note was not hers, and that she never called Educap regarding the

loan. Gingery also presented a signature on a bank document she stated was her



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actual signature, which both she and Educap’s witness testified looked different

from Gingery’s signature on the promissory note.

       {¶18} The trial court found that based on the evidence Educap failed to

establish that it was entitled to judgment against Gingery or that Gingery signed

the note. The trial court also stated that Educap failed to provide any authority for

which to find Gingery obligated on the note and account.

       {¶19} On appeal, Educap makes a number of arguments to contend that the

trial court’s decision was against the weight of the evidence.         Educap first

contends that Gingery should have been held liable under an “Account Theory,”

which according to Educap does not require a signed agreement like the

promissory note in order to be enforced. Under Educap’s “Account Theory,”

“[a]n account rendered by a person to another not objected to by the latter within a

reasonable time becomes an account stated.” Barclays Am./Commercial, Inc. v.

ROYP Marketing Group, Inc., 61 Ohio App.3d 701, 708 (10th Dist.1988) citing

Nello L. Teer Co. v. Dickerson, Inc., 257 N.C. 522, 126 S.E.2d 500 (1962). An

account stated is an agreed balance of accounts expressed or implied, after

admission of certain sums due or an adjustment of the accounts between the

parties. Id.

       {¶20} As is plainly evident, the “Account Theory” that Educap proposes to

apply in this case requires “an agreed balance of accounts [between the parties],


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expressed or implied.” (Emphasis added.) Barclays at 708. Here, there was

testimony from Gingery that Gingery never “agreed” to any account between her

and Educap, and that Gingery relied on the assumption that her father was

financing her education. Thus if Gingery’s testimony is believed, there was never

any “agreed balance” between Gingery and Educap, rather merely an agreement

between Teddy and Educap, and Educap’s “Account Theory” argument fails. The

trial court believed Gingery’s testimony and found her credible, and there is some

competent credible evidence to support Gingery’s claims in the record. Thus we

cannot find Educap’s argument well-taken on this issue.

       {¶21} Educap next argues that the trial court applied the wrong burden of

proof in this case. Educap contends that it provided sufficient proof that Gingery

signed the note, and therefore it became Gingery’s burden to prove the affirmative

defense of fraud regarding her signature. Despite Educap’s arguments, the trial

court found that Educap had not, in fact, provided sufficient proof that Gingery

signed the note and thus the burden never switched to Gingery to prove her

affirmative defense of fraud. There is evidence to support the trial court’s decision

in the record on this matter. Educap called no witnesses who purportedly saw

Gingery sign the note. Educap did not require the note to be notarized. Educap

did not call any witnesses who testified that whoever called to check the status of

the loan was, in fact, Gingery. The signature on the promissory note, according to


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the only two testifying witnesses, looked different from a signature Gingery

testified was genuinely hers. Thus based on the evidence we cannot find that the

factfinder “clearly lost its way” in finding that Educap failed to prove Gingery

signed the promissory note. Therefore, Educap’s argument on this issue is not

well-taken.

       {¶22} Educap next argues that Gingery should be held liable for her

father’s actions in signing the note because Teddy was acting as her “agent.”

However, Gingery’s testimony indicated that she did not know how her father was

financing her education, only that he was financing her education.          Gingery

testified that her father was “authorized” to handle the financial aspects of her

schooling, but she did not testify that Teddy was authorized to obligate her

personally for loans. In fact, she testified just the opposite, that her father would

be the one taking care of the finances. Thus Educap did not establish that even if

Teddy was acting in furtherance of Gingery’s interests, that he was acting as her

agent with the authority to obligate Gingery in such a manner.

       {¶23} Finally, Educap argues that Gingery “ratified” the signature on the

promissory note by accepting the benefits from the loan.          Educap bases its

argument on the premise that Gingery knew of the loan acquired by Teddy, and

the fact that Gingery admittedly used $9,700 of the loan for her education. Again,

Gingery specifically testified that she did not know about the loan. The trial court


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found Gingery’s testimony credible on that issue, and was in a far better position

to judge her credibility than an appellate court. On the record before us, we

cannot find that the factfinder clearly lost its way on this issue.

       {¶24} Accordingly, Educap’s first assignment of error is overruled.

                             Second Assignment of Error

       {¶25} In Educap’s second assignment of error, Educap argues that the trial

court abused its discretion by admitting Defendant’s Exhibit A, the Farmers

Citizens Bank document containing Gingery’s signature for the purposes of

comparison, and permitting lay testimony as to the authenticity of the signature.

       {¶26} Decisions regarding the admissibility of evidence are within the

sound discretion of the trial court and will not be reversed absent a showing of an

abuse of discretion. Wasinski v. PECO II, Inc., 3d Dist. Crawford No. 3-08-14,

2009-Ohio-2615, ¶18. An abuse of discretion “connotes more than an error of law

or judgment; it implies that the court's attitude is unreasonable, arbitrary, or

unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶27} On appeal, Educap contends that Defendant’s Exhibit A, which

contained Gingery’s signature on a Farmers Citizens Bank document, was not

properly authenticated as a business record. However, Defendant’s Exhibit A was

not admitted to show the contents of the document as a business record, but rather




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merely for the signature, which was identified by Gingery as being her own. The

contents of the document were otherwise irrelevant to the trial.

       {¶28} As to identification and authentication of the signature on the

Farmer’s Bank document (Defendant’s Exhibit A), Gingery identified the

signature specifically as her own, and all that is required for authentication or

identification “is * * * evidence sufficient to support a finding that the matter in

question is what its proponent claims.” Evid.R. 901. Gingery’s testimony as to

her own signature certainly meets that bar for admissibility.          See Evid.R.

901(B)(1). Thus Educap’s argument on this issue is not well-taken.

       {¶29} Next, Educap argues that its own witness should not have been able

to give testimony comparing Gingery’s signature on the promissory note to the

signature on Defendant’s Exhibit A. Educap specifically objects to the following

testimony, which occurred while Educap’s witness, Martin, was on the stand.

       Q[Defense Counsel to Martin on the stand]: Okay. Is that the
       same signature that’s on Plaintiff’s Exhibit 1?

       [Plaintiff’s Counsel]: Objection.

       The Court: Yeah. I mean, I’m going to – she’s not the – not a
       handwriting expert, but I’ll let her – I – I don’t know.

       Q: On Second thought –

       The Court: Your objection is that she’s not qualified to –

       Ms. Gwin: Correct, Your Honor.


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      The Court: Yeah.

      Ms. Gwin: That would be the province –

      The Court: I mean, anybody can look at them and see they’re –
      they’re not, you know, similar, but that do – do you have any
      idea whether someone – the same person signed these or not?

      A[Martin]: I – I don’t know what this is. I – I wouldn’t know.

      The Court: Right.

      Mr. Nee [Defense Counsel]: Your Honor, If I may.

      The Court: Well, you – you may what? What do you want to
      do?

      Mr. Nee: Ex—Explain why I’m asking these ques –

      The Court: No, I don’t want an explanation, I want you to ask
      the right questions. You got her on the stand with a document
      she’s never seen before and you’re asking her to authenticate a
      signature, so I – you can’t do that.

      Mr. Nee: I – I’m asking her if she recogni – I’m sorry, Your
      Honor.

      Q: Do You – do you recognize the signature on that document?

      A: I’m sorry.

      The Court:      When you say recognize it, see, what does that
      mean?

      Mr. Nee: Well –

      The Court: ‘Cause, you know, she can’t –

      Mr. Nee: The – the critical point in this is whether Abby signed
      it.

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        The Court: I know what your point is, but you can’t do it with
        her ‘cause she’s not a handwriting expert, she’s never seen her
        signature before, other than on her documents.

        Mr. Nee: Okay.

        The Court: You can say does this signature that purports to be
        Abigail Gingery’s look like the signature on your documents?

        Q: Miss Martin, does – does the signature on that document
        look like the signature on the promissory note?

        The Court: No. Right?

        A: To me they look different.

        The Court: (inaudible) does that look like the one on your
        documents?

        A: Uh-uh. No, sir.

(Tr. at 53-55).

        {¶30} Educap contends that prior testimony should not have been

permissible under Evid.R. 901 to authenticate the Farmers Citizens Bank

document. However, the trial court made it clear in the preceding portion that

Martin could not, in fact, authenticate the document. Nevertheless, the trial court

did allow Martin to be questioned briefly to compare the two signatures, which

could be admissible as lay testimony pursuant to Evid.R. 701.3 Regardless, as has


3
 Evidence Rule 701 reads, “If the witness is not testifying as an expert, the witness' testimony in the form
of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the
perception of the witness and (2) helpful to a clear understanding of the witness' testimony or the
determination of a fact in issue.”

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been stated previously, the signature was later properly identified and

authenticated by Gingery in her own testimony.

       {¶31} However, even if Martin’s testimony should not have been admitted,

it was merely cumulative to the testimony presented by Gingery regarding her

signature. Furthermore, the trier of fact in this case, which was the court, was free

to look at the signatures just as Martin was asked to do and determine whether the

signature on Educap’s note was authentic in light of Gingery’s testimony. Thus

Educap’s argument is not well-taken. Accordingly, Educap’s second assignment

of error is overruled.

       {¶32} For the foregoing reasons Educap’s assignments of error are

overruled and the judgment of the Crawford County Common Pleas Court is

affirmed.

                                                                Judgment Affirmed

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr




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