Money due on a credit card account

Ohio Appellate Reports

Unpublished

GREAT SENECA FINANCIAL v. FELTY, Unpublished Decision
(12-15-2006) 2006-Ohio-6618 GREAT SENECA FINANCIAL,
Plaintiffs-Appellant, v. TERRY FELTY, Defendant-Appellee.
NO. C-050929 Court of Appeals of Ohio, First District,
Hamilton County. Date of Judgment Entry on Appeal: December
15, 2006

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Civil Appeal From Hamilton County Municipal
Court, TRIAL NO. 05-CV06618.

Judgment Is Reversed and Cause Remanded.

Weltman, Weinberg & Reis Co., LPA, and Charles L. Tate,
for Plaintiff-Appellee.

John K. Issenmann, for Defendant-Appellant.

SUNDERMANN and WINKLER, JJ., concur. RALPH WINKLER,
retired, from the First Appellate District, sitting by
assignment.

OPINION.

GORMAN, Presiding Judge.

{¶ 1} Terry Felty appeals from the trial court’s
entry of summary judgment in favor of Great Seneca
Financial (“GSF”) in the amount of $7,406.79 plus interest
in an action on a credit-card account. In two assignments
of error, Felty argues (1) that the trial court erred in
entering summary judgment because genuine issues of material
fact existed as to GSF’s claim; and (2) that the trial
court erred in awarding GSF interest on the account in an
amount different from that demanded in its complaint. For
the following reasons, we sustain Felty’s first assignment
of error in part, reverse the judgment of the lower court,
and remand this case for further proceedings.

Facts

{¶ 2} GSF sued Felty to collect money due on a
credit-card account that had originated with First USA
Visa. GSF moved for summary judgment and produced the
following in support of its motion: (1) a First USA Visa
credit-card application signed by Felty; (2) First USA
credit-card statements beginning with a balance of
$5,703.56 and detailing credits and debits on the account
from January 1998 to May 2000, for a total of $7,406.79;
and (3) documents purportedly showing that several
different entities had owned the Visa account at issue
before GSF acquired it. As to the first two sets of
documents, GSF submitted an affidavit from its custodian of
records stating that GSF was an assignee of the original
creditor, First USA Visa, that GSF had received the attached
records electronically, and that they were certified and
“were made either by a party having personal knowledge of
the information contained therein or based on information
conveyed by a person having personal knowledge of the
information contained therein.” GSF later filed the third
set of documents, but without an accompanying affidavit.

{¶ 3} Felty opposed the motion on the grounds that
GFS could not authenticate the First USA documents, could
not establish the accuracy of the beginning balance of
$5,703.56, and could not establish that the account
purchased by GSF was the First USA account that was the
subject matter of the lawsuit.

{¶ 4} The trial court entered summary judgment in
favor of GSF and awarded it $7,405.79 plus interest at the
statutory rate of 5% per year. This appeal followed.

Standard of Review

{¶ 5} We review a grant of summary judgment de novo.
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,
1996-Ohio-336, 671 N.E.2d 241. Summary judgment is
appropriate if (1) no genuine issue of any material fact
remains, (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 with
the evidence construed most strongly in favor of the
nonmoving party, that conclusion is adverse to the party
against whom the motion for summary judgment is made.
Civ.R. 56(C); Mitseff v. Wheeler (1988), 38 Ohio St.3d 112,
115, 576 N.E.2d 798; see, also, Dresher v. Burt, 75 Ohio
St.3d 280, 293, 1996-Ohio-107, 662 N.E.2d 264.

Action on an Account

{¶ 6} An action on an account, such as the one
before this court, is appropriate where the parties have
conducted a series of transactions for which a balance
remains to be paid. See Booth v. Bob Caldwell Dodge
Country, Inc. (Apr. 30, 1996), 10th Dist. No. 95APE10-1367.
It is founded in contract and exists “to avoid the
multiplicity of suits that would be necessary if each
transaction between the parties would be construed as
constituting a separate action.” American Security Serv. v.
Baumann (1972), 32 Ohio App.2d 237, 242, 289 N.E.2d 373. To
establish a prima facie case for money owed on an account,
a plaintiff must demonstrate the existence of an account,
including that the account is in the name of the party
charged, and it must also establish (1) a beginning balance
of zero, or a sum that can qualify as an account stated, or
some other provable sum; (2) listed items, or an item,
dated and identifiable by number or otherwise, representing
charges, or debits, and credits; and (3) summarization by
means of a running or developing balance, or an arrangement
of beginning balance and items that permits the calculation
of the amount claimed to be due. Brown v. Columbus Stamping
& Mfg. Co. (1967), 9 Ohio App.2d 123, 223 N.E.2d 373; Asset
Acceptance Corp. v. Proctor, 156 Ohio App.3d 60,
2004-Ohio-623, 804 N.E.2d 975, ¶ 12, citing Brown,
supra; see, also, Citibank v. Lesnick, 11th Dist. No.
2005-L-013, 2006-Ohio-1448, ¶ 9; Mercy Franciscan
Hosp. v. Willis, 1st Dist. No. 030914, 2004-Ohio-5058.

Authentication of Business Records

{¶ 7} In his first assignment of error, Felty
contends that the First USA creditcard application, the
First USA statements, and the documents purporting to
transfer ownership of the account at issue to GSF were not
properly authenticated and therefore should not have been
considered by the trial court.

{¶ 8} When ruling on a summary-judgment motion, a
court may consider documents attached to an affidavit only
if certain requirements are met. Specifically, the
affidavit accompanying the documents “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.” Civ.R. 56(E); see, also, Dresher v.
Burt, supra.

{¶ 9} Felty argues that GSF failed to authenticate
the records as required by Evid.R. 901. Authentication is a
matter of establishing that something is what its proponent
claims it to be. See Evid.R. 901(A). According to Evid.R.
901(B)(10), authentication of business records, such as the
documents at issue here, is governed by Evid.R. 803(6).

{¶ 10} A party seeking to admit a business record
into evidence under Evid.R. 803(6) must establish three
essential elements: (i) the record must be one regularly
made in a regularly conducted activity; (ii) the contents
of the record must have been entered or transmitted by a
person with knowledge of the act, event, or condition
recorded therein; and (iii) the act, event, or condition
must have been recorded at or near the time of the
transaction. See Evid.R. 803(6). The “custodian of the
records” or other qualified witness under Evid.R. 901(B)(10)
must lay the requisite foundation for admissibility. Even
after these elements are established, however, a business
record may be excluded from evidence if “the source of
information or the method or circumstances of preparation
indicate lack of trustworthiness.” Evid.R. 803(6).

{¶ 11} We find merit in Felty’s argument that the
documents purporting to assign Felty’s credit-card account
to GSF should not have been considered by the trial court
because GSF had failed to authenticate these records. GSF
did not file these documents with an accompanying affidavit
setting forth a proper foundation under Evid.R. 803(6) for
their admissibility into evidence. See Civ.R. 56(C); Ebbets
Partners Limited v. Day, 2d Dist. No. 19748,
2003-Ohio-4425, ¶ 15. This argument is sustained.

{¶ 12} GSF did, however, properly authenticate the
First USA Visa credit-card application and the First USA
statements. GSF’s “custodian of records,” Cheryl Ann
Kavanagh, indicated by way of affidavit that GSF had
acquired the application and the statements as an assignee
of the account, and that the documents were “kept in the
course of a regularly conducted business activity and * * *
were made at or near the time of the transactions reflected
therein. * * * [S]aid records were made either by a party
having personal knowledge of the information contained
therein or based on information conveyed by a person having
personal knowledge of the information contained therein.
GSF is an assignee, receiving certified information
electronically from an intermediary for the original
creditor, First USA Visa.” Consequently, we hold that these
documents were properly authenticated, i.e., that GSF
established that the records were what GFS claimed them to
be. See Evid.R. 901.

Reliability of the Records

{¶ 13} The problematic issue in this case, however,
is not whether the documents were what GSF claimed them to
be, but rather whether the documents could be otherwise
admitted under Evid.R. 803(6), because GSF was not the
maker of the records: In other words, whether “the source
of information or the method or circumstances of
preparation indicate[d] lack of trustworthiness.” See
Evid.R. 803(6).

{¶ 14} Fed.R.Evid. 803(6) and Ohio’s version of the
rule are substantially similar. See Staff Notes to Evid.R.
803(6). We find federal case law to be instructive on this
issue. A number of circuit courts have held that exhibits
can be admitted as business records of an entity, even when
that entity was not the maker of those records, provided
that the other requirements of Evid.R. 803(6) are met, and
the circumstances indicate that the records are
trustworthy. See United States v. Childs (C.A.9, 1993), 5
F.3d 1328, 1333, certiorari denied sub nom. Childs v.
United States (1994), 511 U.S. 1011, 114 S.Ct. 1385; see,
also, United States v. Travers (C.A.9, 2004), 92 Fed.Appx.
489, 494, citing Childs, supra (“Records need not actually
be prepared by the business to constitute business records,
so long as they are received, maintained, and relied upon
in the ordinary course of business.”); United States v.
Jakobetz (C.A.2, 1992), 955 F.2d 786, 801 (“Even if the
document is originally created by another entity, its
creator need not testify when the document has been
incorporated into the business records of the testifying
entity.”); Saks Internatl. Inc. v. M/V Export Champion
(C.A.2, 1987), 817 F.2d 1011, 1013-14 (Documents may
properly be admitted as business records even though they
are the records of an entity other than one of the parties,
and even though the foundation for their receipt is laid by
a witness who is not an employee of the entity that owned
and prepared them, provided that there is sufficient
indicia of the records’ reliability and trustworthiness.).

{¶ 15} In this case, as to the documents’
reliability, Kavanagh stated that the records at issue had
been assigned to GSF, that they were kept in its regular
course of business, that they had been “certified” by an
intermediary of First USA Visa, and that GSF was relying on
the documents to arrive at the sum of $7,405.79. We hold
that Kavanagh’s affidavit contained enough information to
establish that the First USA documents were trustworthy.
Consequently, the credit-card application and credit-card
statements were properly before the trial court. But
resolution of this issue does not end our analysis.

Itemization of Debits and Credits

{¶ 16} Felty next contends that summary judgment was
improper because a genuine issue of material fact existed
as to the amount due on the account as a result of the
starting balance of $5,703.56. We agree. GSF failed to
provide documentation of the credits and debits leading to
the $5,703.56 balance that would have permitted a proper
calculation of the total amount due. See Brown v. Columbus
Stamping & Mfg. Co. (1967), 9 Ohio App.2d 123, 223 N.E.2d
373; Harvest Land Co-op v. Wolter, 2d. Dist. No. 1654,
2005-Ohio-6258, ¶¶ 14-16; Asset Acceptance
Corp. v. Proctor, 156 Ohio App.3d 60, 2004-Ohio-623, 804
N.E.2d 975. Therefore, we conclude that the evidence
presented to the trial court did not permit a reliable
determination as to the beginning balance on Felty’s
credit-card account, and that therefore a genuine issue of
material fact remained. See Brown, supra.

{¶ 17} In sum, Felty’s first assignment of error is
sustained to the extent that we hold (1) that the trial
court erred in considering the documents filed by GSF
purportedly demonstrating that GSF had purchased Felty’s
First USA Visa account, and (2) that the trial court erred
in entering summary judgment in favor of GSF because a
genuine issue of material fact remained as to the balance
due on the account. We overrule Felty’s first assignment of
error as it pertains to the admissibility of the business
records created by First USA but offered as business
records of GSF, because we conclude, under the circumstances
of this case, that the records were properly considered by
the trial court under Evid.R. 803(6).

Interest Award

{¶ 18} In his second assignment of error, Felty
contends that the trial court erred in awarding interest in
an amount other than that demanded in GSF’s complaint. We
find no error. Civ.R. 54(C) provides that “every final
judgment shall grant the relief to which the party in whose
favor it is rendered is entitled, even if the party has not
demanded the relief in the pleadings.” GSF was not
foreclosed from recovering an amount other than the amount
requested in its complaint. This assignment of error is
overruled.

{¶ 19} But due to our ruling on the first assignment
of error, the trial court’s judgment is reversed, and this
cause is remanded for further proceedings in accordance
with law.

Judgment reversed and cause remanded.