[Cite as RBC, Inc. v. McClintock, 2016-Ohio-5800.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


RBC, INC.                                            :   JUDGES:
                                                     :   Hon. John W. Wise, P.J.
        Plaintiff - Appellee                         :   Hon. Patricia A. Delaney, J.
                                                     :   Hon. Craig R. Baldwin, J.
-vs-                                                 :
                                                     :
DOUGLAS P. MCCLINTOCK                                :   Case No. 2016CA00045
                                                     :
        Defendant - Appellant                        :   OPINION



CHARACTER OF PROCEEDING:                                 Appeal from the Canton Municipal
                                                         Court, Case No. 2015-CVF-5577




JUDGMENT:                                                Reversed and Remanded




DATE OF JUDGMENT:                                        September 12, 2016




APPEARANCES:

For Plaintiff-Appellee                                   For Defendant-Appellant

ROELIFF E. HARPER                                        DOUGLAS P. MCCLINTOCK, pro se
The Harper Law Office, LLC                               9754 Brown Ave.
3 North Main Street, Suite 606                           Greentown, Ohio 44685
Mansfield, Ohio 44902
Stark County, Case No. 2016CA00045                                                    2



Baldwin, J.

       {¶1}   Defendant-appellant Douglas P. McClintock appeals from the February 3,

2016 Judgment Entry of the Canton Municipal Court granting appellee RBC, Inc.’s Motion

for Summary Judgment and granting appellee judgment against appellant in the amount

of $1,781.42 plus interest.

                              STATEMENT OF THE FACTS AND CASE

       {¶2}   CMPM Radiology Services of Canton, Stark County Emergency Physicians,

Inc. and Modernpath, Inc. assigned their claims against appellant Douglas P. McClintock

to appellee RBC, Inc. On November 3, 2015, appellee filed a complaint against appellant,

seeking a judgment against appellant in the amount of $1,781.42 plus interest. Appellant

filed an answer to the complaint on December 14, 2015.

       {¶3}   Appellee, on January 15, 2016, filed a Motion for Summary Judgment

against appellant. The motion was supported by the affidavit of appellee’s President.

Appellee’s President, in the affidavit, stated as follows:

       {¶4}   Now comes RBC, Inc., through its agent, being first duly sworn, and states

that the following facts are true:

       {¶5}   1.    That Stark County Emergency Physicians, Inc. CMPM Radiology

Services of Canton, and Modernpath, Inc., did provide medical services for Defendant,

Douglas McClintock.

       {¶6}   2. That said services were necessary and costs were reasonable.

       {¶7}   3. In accordance with information received by Plaintiff, Defendant appears

to be neither a minor nor incompetent.
Stark County, Case No. 2016CA00045                                                          3


       {¶8}   Appellant, on January 29, 2016, filed an Objection to/Motion to Strike the

affidavit, arguing that the same was not based on the personal knowledge of the affiant

and that the affiant was not competent to testify as to the matters stated in the affidavit.

On the same date, appellant filed a memorandum in opposition to the Motion for Summary

Judgment. Appellant, in his memorandum, argued that the motion must be denied

because it “is not based upon evidence or stipulations cognizable in a summary judgment

proceeding.” Appellant argued again that the affidavit was not competent evidence.

       {¶9}   Pursuant to a Judgment Entry filed on February 3, 2016, the trial court

granted appellee’s Motion for Summary Judgment and granted appellee judgment against

appellant in the amount of $1,781.42 plus interest.

       {¶10} Appellant now raises the following assignments of error on appeal:

       {¶11} I.    THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT’S

OBJECTION TO/AND MOTION TO STRIKE APPELLEES’ (SIC) AFFIDAVIT IN

SUPPORT OF SUMMARY JUDGMENT.

       {¶12} II.    THE TRIAL COURT ERRED IN GRANTING APPELLEES’ (SIC)

MOTION FOR SUMMARY JUDGMENT.

                                                I, II

       {¶13} Appellant, in his first assignment of error, argues that the trial court erred in

denying his Motion to Strike appellee’s affidavit.1      Appellant argues, in his second




1
 We note that the trial court did not expressly rule on appellant’s Motion to Strike. “A
motion not expressly decided by a trial court when the case is concluded is ordinarily
presumed to have been overruled.” Kostelnik v. Helper, 96 Ohio St.3d 1, 2002–Ohio–
2985, 770 N.E.2d 58, ¶ 13, citing State ex rel. The V. Cos. v. Marshall, 81 Ohio St.3d
467, 469, 1998–Ohio–329, 692 N.E.2d 198.
Stark County, Case No. 2016CA00045                                                         4


assignment of error, that the trial court erred in granting appellee’s Motion for Summary

Judgment.

      {¶14} Both of appellant’s assignments of error relate to appellee’s Motion for

Summary Judgment.

      {¶15} Civil Rule 56(C) states, in pertinent part, as follows:

             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 of 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 mostly strongly in the

      party's favor. A summary judgment, interlocutory in character, may be

      rendered on the issue of liability alone although there is a genuine issue as

      to the amount of damages.

      {¶16} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311
Stark County, Case No. 2016CA00045                                                           5


(1981). When reviewing a trial court's decision to grant summary judgment, an appellate

court applies the same standard used by the trial court. Smiddy v. The Wedding Party,

Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter de novo.

Doe v. Shaffer, 90 Ohio St.3d 388, 2000–Ohio–186, 738 N.E.2d 1243.

       {¶17} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the record

which demonstrate the absence of a genuine issue of fact on a material element of the

non-moving party's claim. Drescher v. Burt, 75 Ohio St.3d 280, 1996–Ohio–107, 662

N.E.2d 264. Once the moving party meets its initial burden, the burden shifts to the

nonmoving party to set forth specific facts demonstrating a genuine issue of material fact

does exist. Id. The non-moving party may not rest upon the allegations and denials in the

pleadings, but instead must submit some evidentiary materials showing a genuine dispute

over material facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (12th

Dist.1991).

       {¶18} In the case sub judice, appellee supported its Motion for Summary

Judgment with the affidavit of its President. Appellant now argues that the trial court

should have stricken such affidavit because it was not made on personal knowledge.

       {¶19} Civ.R. 56(E), which sets forth the requirements for affidavits submitted on

summary judgment, provides, in relevant part, as follows:

              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
Stark County, Case No. 2016CA00045                                                      6


      of papers referred to in an affidavit shall be attached to or served with the

      affidavit.

      {¶20} In Wachovia Bank v. Jackson, 5th Dist. Stark No.2010–CA–00291, 2011–

Ohio–3203, this Court cited Lasalle Bank Nat'l. Assoc. v. Street, 5th Dist. Licking No.

08CA60, 2009–Ohio–1855:

              Ohio courts have defined ‘personal knowledge’ as ‘knowledge

      gained through firsthand observation or experience, as distinguished from

      a belief based upon what someone else has said.’ Zeedyk v. Agricultural

      Soc. of Defiance County, Defiance App. No. 4–04–08, 2004–Ohio–6187, at

      paragraph 16, quoting Bonacorsi v. Wheeling & Lake Erie Railway Co.

      (2002), 95 Ohio St.3d 314, 320, 767 N.E.2d; Black's Law Dictionary (7th Ed.

      Rev.1999) 875. Affidavits, which merely set forth legal conclusions or

      opinions without stating supporting facts, are insufficient to meet the

      requirements of Civ.R. 56(E). Tolson v. Triangle Real Estate, Franklin App.

      No. 03AP–715, 2004–Ohio–2640, paragraph 12. However, self-serving

      affidavits may be offered relative to a disputed fact, rather than a conclusion

      of law. CitiMortgage, Inc. v. Ferguson, Fairfield App. No.2006CA00051,

      2008–Ohio–556, paragraph 29. Ohio law recognizes that personal

      knowledge may be inferred from the contents of an affidavit. See Bush v.

      Dictaphone Corp., Franklin App. No. 00AP1117, 2003–Ohio–883,

      paragraph 73, citing Beneficial Mortgage Co. v. Grover (June 2, 1983),

      Seneca App. No. 13–82–41. Lasalle at paragraphs 21–22.
Stark County, Case No. 2016CA00045                                                         7


              ‘Personal knowledge’ has been defined as knowledge of factual truth

       which does not depend on outside information or hearsay.” * * * Further, “An

       affiant's mere assertion that he has personal knowledge of the facts

       asserted in an affidavit can satisfy the personal knowledge requirement of

       Civ.R. 56(E). See Bank One, N.A. v. Swartz, 9th Dist. No. 03CA008308,

       2004–Ohio–1986, paragraph 14. A mere assertion of personal knowledge

       satisfies Civ.R. 56(E) if the nature of the facts in the affidavit combined with

       the identity of the affiant creates a reasonable inference that the affiant has

       personal knowledge of the facts in the affidavit. Id.” Id. at para 26 and 27

       (Citations omitted).

       {¶21} Upon our review of the affidavit that appellee submitted in support of its

Motion for Summary Judgment, we find that it does not comply with Civ. R. 56(E). The

affidavit fails to establish the affiant's personal knowledge and fails to affirmatively show

the affiant is competent to testify to those matters. Because the affidavit did not comply

with Civ. R. 56(E), we find the trial court should have granted appellant's Motion to Strike.

       {¶22} Appellant’s first assignment of error is, therefore, sustained.

       {¶23} As is stated above, appellant also argues that the trial court erred in granting

appellee’s Motion for Summary Judgment. Because the motion was supported by the

affidavit of appellee’s President, based on our disposition of appellant’s first assignment

of error, appellant’s second assignment of error is sustained.
Stark County, Case No. 2016CA00045                                               8


      {¶24} Accordingly, the judgment of the Canton Municipal Court is reversed and

this matter is remanded for further proceedings.

By: Baldwin, J.

Wise, P.J. and

Delaney, J. concur.
