[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
Am. Express Bank, F.S.B. v. Hooker
Combined Opinion