[Cite as Am. Express Bank, F.S.B. v. Hooker, 2012-Ohio-2140.]


                                      COURT OF APPEALS
                                   FAIRFIELD COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT




AMERICAN EXPRESS BANK, FSB                       :              JUDGES:
                                                 :              Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                       :              Hon. Sheila G. Farmer, J.
                                                 :              Hon. Julie A. Edwards, J.
-vs-                                             :
                                                 :
ALAN HOOKER                                      :              Case No. 11-CA-40
                                                 :
        Defendant-Appellant                      :              OPINION




CHARACTER OF PROCEEDING:                                        Appeal from the Court of Common
                                                                Pleas, Case No. 10CV01498



JUDGMENT:                                                       Affirmed




DATE OF JUDGMENT:                                               May 11, 2012




APPEARANCES:

For Plaintiff-Appellee                                          For Defendant-Appellant

DEREK W. SCRANTON                                               JASON A. PRICE
DARLENE M. ROGERS                                               126 East Chestnut Street
2300 Litton Lane, Suite 200                                     Lancaster, OH 43130
Hebron, Kentucky 41048
Fairfield County, Case No. 11-CA-40                                                   2

Farmer, J.

      {¶1}   On December 3, 2010, appellee, American Express Bank, FSB, filed a

complaint against appellant, Alan Hooker, for money due and owing on a credit card

account. Both parties filed motions for summary judgment. By summary judgment

entry filed June 28, 2011, the trial court granted summary judgment in favor of appellee

and awarded appellee $29,909.30 plus interest and costs.

      {¶2}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶3}   "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO

THE PLAINTIFF-APPELLEE."

                                            I

      {¶4}   Appellant claims the trial court erred in granting summary judgment to

appellee. We disagree.

      {¶5}   Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:

      {¶6}   "Civ.R. 56(C) provides that before summary judgment may be granted, it

must be determined that (1) no genuine issue as to any material fact remains to be

litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it

appears from the evidence that reasonable minds can come to but one conclusion, and

viewing such evidence most strongly in favor of the nonmoving party, that conclusion is

adverse to the party against whom the motion for summary judgment is made. State
Fairfield County, Case No. 11-CA-40                                                       3

ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472,

364 N.E.2d 267, 274."

       {¶7}   As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30

Ohio St.3d 35.

       {¶8}   Specifically, appellant argues the matter should have been referred to

arbitration pursuant to the credit card agreement, and genuine issues of material fact

existed relative to the affidavit submitted by appellee.

       {¶9}   Attached as Plaintiff's Exhibit B to the December 3, 2010 complaint is the

Agreement Between Delta SkyMiles Credit Cardmember and American Express Bank

FSB.    The agreement contains an arbitration section which states the following in

pertinent part:

       {¶10} "Initiation of Arbitration Proceedings/Selection of Administrator: Any

Claim shall be resolved, upon the election by you or us, by arbitration pursuant to this

Arbitration Provision and the code of procedures of the national arbitration organization

to which the Claim is referred in effect at the time the Claim is filed (the 'Code'), except

to the extent the Code conflicts with this Agreement.

       {¶11} "Significance of Arbitration: IF ARBITRATION IS CHOSEN BY ANY

PARTY WITH RESPECT TO A CLAIM, NEITHER YOU NOR WE WILL HAVE THE

RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT

CLAIM."
Fairfield County, Case No. 11-CA-40                                                           4


       {¶12} The arbitration language gives either party the right to elect arbitration as

opposed to initiating a civil lawsuit. By filing its complaint, appellee chose civil litigation.

In his answer filed February 1, 2010, appellant failed to apply for the arbitration remedy

as an alternative cause for relief.

       {¶13} On April 5, 2011, the trial court filed a scheduling order containing specific

dates for discovery, summary judgment motions, mediation, pretrial conference, and

trial date. Appellee filed a motion for summary judgment on May 9, 2011 and appellant

filed a memorandum contra and cross-motion for summary judgment on May 20, 2011.

Within the memorandum contra, appellant requested arbitration for the first time. The

memorandum contra and accompanying affidavit did not request a stay.

       {¶14} "The general rule is said to be '***that either party to a contract of

arbitration may waive it.***'     [La Nacional Platanera v. North American Fruit and

Steamship Corp. (C.A. 5, 1936), 84 F.2d 881, 882] And a plaintiff's waiver may be

effected by filing suit. [Id.; Standard Roofing Co. v. Construction Co. (1977), 54 Ohio

App.2d 153, 157, 376 N.E.2d 610] When the opposite party, the potential defendant, is

confronted with a filed lawsuit, the right to arbitrate can be saved by seeking

enforcement of the arbitration clause. This is done under R.C. 2711.02***by application

to stay the legal proceedings pending the arbitration.          Failure to move for a stay,

coupled with responsive pleadings, will constitute a defendant's waiver.             [Standard

Roofing Co. v. Construction Co., supra, at 157-158, 376 N.E.2d 610]" Mills v. Jaguar-

Cleveland Motors, Inc. (1980), 69 Ohio App.2d 111, 113. (Footnote omitted.) See also,

Jones v. Honchell (1984), 14 Ohio App.3d 120.
Fairfield County, Case No. 11-CA-40                                                         5


       {¶15} Therefore, appellant's failure to raise the issue of arbitration in his answer

and failure to request a stay waived his right to arbitration contained in the agreement.

       {¶16} Appellant also challenges the accuracy or sufficiency of the affidavit filed

in support of appellee's summary judgment motion. However, appellant did not raise

this issue in his memorandum contra or affidavit.

       {¶17} Attached to appellee's motion for summary judgment is the affidavit of

Jennifer Hartje, Assistant Custodian of Records for appellee. Ms. Hartje affirmed that

she was familiar with and had knowledge of appellant's account, and the books and

records of the account "are kept and maintained by Plaintiff within the ordinary course of

its business." We conclude the affidavit qualifies under the business record exception

to the hearsay rule and remains unchallenged by appellant.

       {¶18} Upon review, we find the trial court did not err in granting summary

judgment to appellee.

       {¶19} The sole assignment of error is denied.
Fairfield County, Case No. 11-CA-40                                             6


      {¶20} The judgment of the Court of Common Pleas of Fairfield County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Edwards, J. concur.




                                        s/ Sheila G. Farmer______________



                                        s/ W. Scott Gwin      ___________



                                        _s/ Julie A. Edwards ____________

                                                     JUDGES


SGF/sg 425
[Cite as Am. Express Bank, F.S.B. v. Hooker, 2012-Ohio-2140.]


                 IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT




AMERICAN EXPRESS BANK, FSB                           :
                                                     :
        Plaintiff-Appellee                           :
                                                     :
-vs-                                                 :          JUDGMENT ENTRY
                                                     :
ALAN HOOKER                                          :
                                                     :
        Defendant-Appellant                          :          CASE NO. 11-CA-40




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Fairfield County, Ohio is affirmed. Costs to

appellant.




                                                     s/ Sheila G. Farmer______________



                                                     s/ W. Scott Gwin     ___________



                                                     _s/ Julie A. Edwards ____________

                                                                   JUDGES
