[Cite as TPI Asset Mgt., L.L.C. v. Baxter, 2011-Ohio-5584.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
TPI ASSET MANAGEMENT, L.L.C., : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee, : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
v. :
: Case No. 2011CA000007
EUGENE S. BAXTER, :
:
:
Defendant-Appellant. : OPINION
CHARACTER OF PROCEEDING: Appeal from the Knox County Court of
Common Pleas, Case No. 10 AC11-0713
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: October 25, 2011
APPEARANCES:
For Appellant: For Appellee:
BRYAN B. JOHNSON KENNETH E. LANE
5003 Horizons Dr., Suite 200 5 N. Gay St., Suite 220
Columbus, OH 43220 Mount Vernon, OH 43050
[Cite as TPI Asset Mgt., L.L.C. v. Baxter, 2011-Ohio-5584.]
Delaney, J.
{¶ 1} Defendant-Appellant Eugene S. Baxter appeals the April 6, 2011 decision
of the Knox County Court of Common Pleas granting summary judgment in favor of
Plaintiff-Appellee TPI Asset Management, LLC., in this credit card collection action.
STATEMENT OF THE FACTS AND CASE
{¶ 2} Appellant obtained a credit card account from Citibank South Dakota N.A.
on or about June 15, 1993. Appellant allegedly made his last payment on the account
on March 4, 2005, leaving a remaining balance on the account in the amount of
$5,610.25. Citibank assigned the account to Unifund CCR Partners, which assigned
the account to Appellee.
{¶ 3} Appellee originally filed its complaint for collection of the credit card debt
against Appellant on October 8, 2009. The case proceeded through discovery and on
June 29, 2010, Appellee filed a motion for summary judgment. The motion for summary
judgment was filed in contravention of the Knox County Court of Common Pleas Local
Rules, so Appellee dismissed its complaint without prejudice on August 31, 2010. At
that time, the case had been set for trial on September 2, 2010.
{¶ 4} On November 15, 2010, Appellee re-filed its complaint. Appellee alleged
breach of contract, account, and unjust enrichment, demanding $5,610.25, plus costs
and accrued interest and charges of $10,563.07 through July 31, 2009, plus costs and
interest at the rate of 31.74% per annum. Appellee served Appellant with discovery on
January 18, 2011. Appellant answered the complaint and responded to Appellee’s
discovery requests.
Knox County, Case No. 2011CA000007 3
{¶ 5} Appellee re-filed its motion for summary judgment on January 27, 2011.
Appellant filed a response to Appellant’s motion for summary judgment pursuant to
Civ.R. 56(F), requesting more time to respond to Appellee’s motion to permit Appellant
to conduct discovery. Appellant attached an affidavit to its Civ.R. 56(F) motion, stating
in pertinent part, Appellant “desired to take the deposition of counsel for plaintiff; take
the deposition of the Citi Bank employee that signed the affidavits relied upon by
plaintiff; and submit written interrogatories. [Counsel for Appellant] has not had the
opportunity to do so due to his efforts in responding to plaintiff’s pleadings, and the
heavy workload of the office.” Appellee responded to Appellant’s motion arguing that
Appellant had ample time to conduct discovery due to this case being a re-filing.
{¶ 6} The trial court did not rule on Appellant’s request for continuance of the
summary judgment proceedings pursuant to Civ.R. 56(F). Rather, the trial court
granted Appellee’s motion for summary judgment on April 6, 2011. The trial court found
there was no genuine issue of material fact that Appellant owed Appellee $5,610.25,
plus accrued interest and charges of $10,563.07 through July 31, 2009, plus interest at
the rate of 28.24% per annum thereafter, plus costs.
{¶ 7} It is from this decision Appellant now appeals.
ASSIGNMENTS OF ERROR
{¶ 8} Appellant raises three Assignments of Error:
{¶ 9} “I. A TRIAL COURT ABUSES ITS DISCRETION WHERE, AS HERE, IT
GRANTS A MOTION FOR SUMMARY JUDGMENT WHEN THE CASE HAS BEEN
PENDING FOR A TOTAL OF SEVENTY-ONE (71) DAYS AT THE TIME THE MOTION
IN FILED; NO DISCOVERY CUTOFF HAS BEEN SET; NO PRE-TRIAL OR TRIAL
Knox County, Case No. 2011CA000007 4
DATES HAVE BEEN SET; A MOTION IS FILED PURSUANT TO CIV.R. 56(F) OF THE
OHIO RULES OF CIVIL PROCEDURE AND SUPPORTED BY AN AFFIDAVIT OF
COUNSEL STATING THAT THE MOTION FOR SUMMARY JUDGMENT IS
PREMATURE AND ADDITIONAL TIME IS REQUIRED TO OBTAIN DISCOVERY; AND
NO FURTHER OPPORTUNITY TO RESPOND TO THE MOTION FOR SUMMARY
JUDGMENT IS PROVIDED.
{¶ 10} “II. A TRIAL COURT COMMITS ERROR AS A MATTER OF LAW
WHERE, AS HERE, IT GRANTS A MOTION FOR SUMMARY JUDGMENT ON AN
ASSIGNED CREDIT CARD ACCOUNT, AND THE ACCOUNT SUED UPON DOES
NOT BEGIN WITH A ZERO BALANCE.
{¶ 11} “III. A TRIAL COURT COMMITS ERROR AS A MATTER OF LAW
WHERE, AS HERE, IT GRANTS A MOTION FOR SUMMARY JUDGMENT ON AN
ASSIGNED CREDIT CARD ACCOUNT, AND THE RECORDS RELIED UPON TO
PROVE THE CASE ARE FROM THE ORIGINAL CREDITOR; AND THE AFFIDAVIT
SUPPORTING THE RECORDS IS FROM AN INTERMEDIATE ASSIGNEE OF THE
ACCOUNT; AND THE PERSON SIGNING THE ACCOUNT HAS NO PERSONAL
KNOWLEDGE OF THE ACCOUNT IN QUESTION.”
I.
{¶ 12} Appellant argues in his first Assignment of Error the trial court abused its
discretion in denying his Civ.R. 56(F) motion for additional time for discovery. The trial
court did not explicitly rule on Appellant’s Civ.R. 56(F), but instead granted Appellee’s
motion for summary judgment. “If a trial court fails to mention or rule on a pending
Knox County, Case No. 2011CA000007 5
motion, the appellate court presumes that the motion was implicitly overruled.”
Swinehart v. Swinehart, 5th Dist. No. 06-COA-020, 2007-Ohio-6174, ¶ 26.
{¶ 13} Civ.R. 56(F) provides:
{¶ 14} “(F) When affidavits unavailable
{¶ 15} “Should it appear from the affidavits of a party opposing the motion for
summary judgment that the party cannot for sufficient reasons stated present by
affidavit facts essential to justify the party's opposition, the court may refuse the
application for judgment or may order a continuance to permit affidavits to be obtained
or discovery to be had or may make such other order as is just.”
{¶ 16} Civ.R. 56(F) provides the remedy for a party who seeks a continuance on
a motion for summary judgment in order to conduct discovery relevant to the motion.
Jacobs v. Jones, 10th Dist. No. 10AP-930, 2011-Ohio-3313, ¶58 citing Hahn v.
Groveport, 10th Dist. No. 07AP–27, 2007–Ohio–5559, ¶ 30, citing Gates Mills Invest.
Co. v. Pepper Pike (1978), 59 Ohio App.2d 155, 168, 392 N.E.2d 1316. Just as this
Court reviews the resolution of discovery matters under an abuse of discretion standard,
the decision whether to grant a motion for extension of time in order to conduct further
discovery lies within the broad discretion of the trial court and will be reversed on appeal
only for an abuse of discretion. McCord v. Ron Laymon Trucking Co., Knox App. No.
04CA000033, 2005-Ohio-4399, ¶14. 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 (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.
Knox County, Case No. 2011CA000007 6
{¶ 17} Civ.R. 56(F) requires a party opposing summary judgment to submit
affidavits with sufficient reasons stating why he cannot present by affidavit facts
sufficient to justify its opposition. “Mere allegations requesting a continuance or deferral
of action for the purpose of discovery are not sufficient reasons why a party cannot
present affidavits in opposition to the motion for summary judgment. There must be a
factual basis stated and the reasons given why it cannot present facts essential to its
opposition of the motion.” McCord, supra at ¶15 citing Gates Mills Invest. Co., supra.
{¶ 18} A trial court does not abuse its discretion in denying a request for a
continuance in order to respond to a motion for summary judgment where the party
seeking the continuance “did not sustain [its] burden of demonstrating that a
continuance was warranted for further discovery.” Gates Mills Invest. Co., supra.
{¶ 19} A review of Appellant’s Civ.R. 56(F) motion demonstrates the trial court
did not abuse its discretion in implicitly denying Appellant’s motion. Appellant’s affidavit
in support of his Civ.R. 56(F) motion states in relevant part:
{¶ 20} “2. That he desires to take the deposition of counsel for plaintiff; take the
deposition of the Citi Bank employee that signed the affidavits relied upon by plaintiff;
and submit written interrogatories.
{¶ 21} “3. That he has not had the opportunity to do so due to his efforts in
responding to plaintiff’s pleadings, and the heavy workload of the office.”
{¶ 22} In Appellant’s Civ.R. 56(F) motion, Appellant stated that he needed more
time for discovery so that he could address his affirmative defenses of laches, unjust
enrichment, public policy violations, and a denial that the original terms of the credit
card agreement sued upon allowed increases in interest rates. Appellant also noted
Knox County, Case No. 2011CA000007 7
that Appellee’s Civ.R. 56 evidence included the affidavit of a Citibank employee.
Appellant argued that he wished to take the deposition of that employee, who resided in
South Dakota.
{¶ 23} Upon review, we note this dispute was originally pending in the trial court
for almost a year, and was only voluntarily dismissed on the eve of the September 2,
2010 trial date. Accordingly, it would be proper for this Court to assume that all relevant
discovery was necessarily completed in the first action by the parties. The dispute was
re-filed within 3 months. The same motion for summary judgment was subsequently re-
filed by Appellee with the same supporting affidavits. The record simply does not
indicate Appellant could not adequately respond to the summary judgment motion.
Further, it would be within the trial court’s discretion to allow Appellee any additional
time to respond after implicitly overruling the request for continuance.
{¶ 24} Accordingly, we find no abuse of discretion in denying Appellant’s Civ.R.
56(F) motion.
{¶ 25} Appellant’s first Assignment of Error is overruled.
II.
{¶ 26} Appellant argues in his second Assignment of Error Appellant it was error
for the trial court to grant a motion for summary judgment on an assigned credit card
account where the account sued upon does not begin with a zero balance. In
Appellant’s appellate brief, he simply re-states the Assignment of Error. There is no
argument, citations to authorities, or reference to the record in support of Appellant’s
assigned error.
{¶ 27} App.R. 16 states as follows:
Knox County, Case No. 2011CA000007 8
{¶ 28} “The appellant shall include in its brief, under the headings and in the
order indicated, all of the following:
{¶ 29} “* * *
{¶ 30} “(A)(7) An argument containing the contentions of the appellant with
respect to each assignment of error presented for review and the reasons in support of
the contentions, with citations to the authorities, statutes, and parts of the record on
which appellant relies. The argument may be preceded by a summary.”
{¶ 31} Appellant’s second Assignment of Error does not comply with App.R.
16(A)(7). Appellant provides no citations to authority, statutes, or parts of the record
upon which he relies to support his argument. Accordingly, it is within this Court's
discretion to decline to address Appellant's argument. Abele v. McHugh Dodge Jeep,
5th Dist. No. CT2010-0008, 2010-Ohio-6417, ¶12 citing In re Estate of Poling, 4th Dist.
No. 04CA18, 2005-Ohio-5147.
{¶ 32} Appellant’s second Assignment of Error is overruled.
III.
{¶ 33} Appellant argues in his third Assignment of Error the trial court erred when
it granted summary judgment in favor of Appellee.
{¶ 34} We will first address the standard of review applicable to Appellant’s
Assignment of Error. This matter comes before us upon the trial court’s granting of
summary judgment in favor of Appellee. Summary judgment motions are to be resolved
in light of the dictates of Civ.R. 56. This 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:
Knox County, Case No. 2011CA000007 9
{¶ 35} “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 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.”
{¶ 36} The burden of showing that no genuine issue of material fact exists falls
upon the party who moves for summary judgment. Dresher v. Burt (1996), 75 Ohio
St.3d 280, 294, 1996-Ohio-107, 662 N.E.2d 264. Once the movant supports the motion
with appropriate evidentiary materials, the nonmoving party “may not rest upon the
mere allegations or denials of the party’s pleadings, but the party’s response, by
affidavit or as otherwise provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial.” Civ.R. 56(E). “If the party does not so respond,
summary judgment, if appropriate, shall be entered against the party.” Id.
{¶ 37} 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.
{¶ 38} To prevail in an action on an account, an eligible plaintiff must establish
the existence of an account in the name of the party charged, as well as (1) a beginning
Knox County, Case No. 2011CA000007 10
balance of zero, or a sum that can qualify as an account stated, or some other provable
sum, (2) listed items, dated and identifiable by number or otherwise, representing
charges, or debits, and credits, and (3) a 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. Worldwide Asset Purchasing, LLC v.
Sandoval, 5th Dist. No. 2007CA00159, 2008-Ohio-6343, ¶27.
{¶ 39} In support of Appellee’s motion for summary judgment, Appellee
submitted evidence of the assignment of the credit card debt from Citibank South
Dakota N.A. to Unifund CCR Partners to Appellee. Appellee attached the affidavit of
Jennifer Duncan, employee of Unifund CCR Partners stating that as of November 2,
2005, there was a due and payable balance in the amount of $5,610.25 and interest
accruing at the rate of 31.74 percent per annum on the balance. In support of the
affidavit, Appellee attached statements of Appellant’s account from July 2003 to
November 2005. Appellee also provided Appellant’s discovery responses where
Appellant did not dispute the charges to the account, but the determination and accrual
of the interest on the account.
{¶ 40} Appellant’s response to Appellee’s motion for summary judgment was
Appellant’s Civ.R. 56(F), which this Court has determined did not meet Appellant’s
burden under Civ.R. 56(F). As stated above, Appellant stated in his motion he needed
more time for discovery so that he could address his affirmative defenses of laches,
unjust enrichment, public policy violations, and a denial that the original terms of the
credit card agreement sued upon allowed increases in interest rates.
Knox County, Case No. 2011CA000007 11
{¶ 41} We find upon our de novo review of the motions before the Court,
Appellee has met its burden under Civ.R. 56 to demonstrate there is no genuine issue
of material fact as to Appellee’s action on account. Appellant has not met his reciprocal
burden.
{¶ 42} Appellant’s third Assignment of Error is overruled.
{¶ 43} The judgment of the Knox County Court of Common Pleas is affirmed.
By: Delaney, J.
Gwin, P.J. and Hoffman, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
[Cite as TPI Asset Mgt., L.L.C. v. Baxter, 2011-Ohio-5584.]
IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
TPI ASSET MANAGEMENT, L.L.C., :
:
:
Plaintiff-Appellee, :
:
v. : JUDGMENT ENTRY
:
EUGENE S. BAXTER, :
:
: Case No. 2011CA000007
Defendant-Appellant. :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Knox County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN