Bank of Am., N.A. v. Shailer

[Cite as Bank of Am., N.A. v. Shailer, 2021-Ohio-3939.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

BANK OF AMERICA, N.A. :
:
Plaintiff-Appellee : Appellate Case No. 29036
:
v. : Trial Court Case No. 2020-CVF-1096E
:
BOBBY M. SHAILER : (Civil Appeal from
: Municipal Court)
Defendant-Appellant :
:

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OPINION

Rendered on the 5th day of November, 2021.

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SEAN M. WINTERS, Atty. Reg. No. 0084612, 2489 Stelzer Road, Suite 100, Columbus,
Ohio 43219
Attorney for Plaintiff-Appellee

BOBBY M. SHAILER, 4880 Springfield Street, Apt. 6, Dayton, Ohio 45431
Defendant-Appellant, Pro Se

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EPLEY, J.

{¶ 1} Bobby M. Shailer, pro se, appeals from a judgment of the Municipal Court of

Montgomery County, Eastern Division, which granted summary judgment to Bank of

America, N.A., on its claims based on Shailer’s unpaid credit card balance. For the

following reasons, the trial court’s judgment will be reversed, and the matter will be

remanded for further proceedings.

I. Facts and Procedural History

{¶ 2} On October 2, 2020, Bank of America filed a complaint against Shailer in

municipal court, raising an action on account and unjust enrichment. The bank attached

two credit card statements for the periods of March 5 to April 4, 2017 (account ending

0132) and May 5 to June 4, 2019 (account ending 2133). The bank alleged that the June

2019 statement, with a balance of $2,315.36, was the last periodic statement provided to

Shailer before the debt was written off as uncollectible. Bank of America requested

judgment in that amount ($2,315.36), plus court costs.

{¶ 3} Shailer responded to the complaint, alleging that he was not responsible for

the debt due to violations of the Fair Debt Collection Practices Act (FDCPA) by the bank’s

attorneys and because he had no contract with the attorneys. A magistrate set a trial

date of February 10, 2021.

{¶ 4} On December 7, 2020, Bank of America filed a notice of service of its first set

of interrogatories, request for production of documents, and request for admissions. The

notice stated that Shailer had been served with those discovery requests by first class

mail on November 25, 2020. Consistent with Civ.R. 5(D), the first set of interrogatories,

request for production of documents, and request for admission were not filed with the
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court along with the notice of service.

{¶ 5} On January 5, 2021, Bank of America sought leave to file a motion for

summary judgment. The next day, the trial court granted the motion for leave and,

minutes later, the bank’s motion for summary judgment was filed. The bank’s motion

asserted that Shailer had failed to respond to the request for admissions, that those

matters must be deemed admitted, and that no genuine issues of fact, therefore, existed.

The bank further asserted that it was not required to produce a written contract between

the parties and that Shailer’s use of the credit card was sufficient to establish a contractual

relationship. In support of its motion, Bank of America attached a copy of its request for

admissions and copies of the same two billing statements that had been attached to its

complaint. In addition, one of the bank’s attorneys filed an affidavit that Shailer was not

on active duty in the United States military (and therefore not entitled to a range of

protections under the Servicemembers Civil Relief Act).

{¶ 6} Shailer responded to Bank of America’s summary judgment motion on

January 19, 2021. He asserted in his opposition memorandum that (1) he could not

respond to the bank’s request for admissions, because he never received the bank’s

discovery packet; (2) the bank did not timely file its notice of service and discovery

requests, (3) the court should not consider the bank’s motion for summary judgment; (4)

he “has not admitted to anything, and does not admit to anything,” (5) the bank had the

burden to prove Shailer’s financial responsibility for the alleged debt; and (6) the bank

had not provided proof of validation for the alleged debt and had violated the FDCPA.

Shailer also enumerated several items that he had requested from Bank of America, and

he claimed that the bank had yet to respond. Shailer attached copies of correspondence
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between the bank’s attorneys and him.

{¶ 7} A week later, Shailer timely filed an addendum to his response. He

emphasized that the only evidence from the bank that could be considered was the

“uncertified account statement pages, which also fail for not being certified.”

{¶ 8} Shortly after the addendum was filed, the trial court granted Bank of

America’s motion for summary judgment. The court concluded, in summary fashion, that

“upon the examination of the records and the uncontroverted Requests for Admissions in

the record, * * * there appears to be no genuine issue of fact.” The court entered

judgment in the bank’s favor in the amount of $2,315.36, plus court costs.

{¶ 9} Shailer appeals from the trial court’s judgment, raising nine assignments of

error. We will address his assignments of error in a manner that facilitates our analysis.

II. Summary Judgment Standard

{¶ 10} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no

genuine issue as to any material fact, (2) the moving party is entitled to judgment as a

matter of law, and (3) reasonable minds, after construing the evidence most strongly in

favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor

Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving

party carries the initial burden of affirmatively demonstrating that no genuine issue of

material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526

N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials

of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary

judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). The

substantive law of the claim or claims being litigated determines whether a fact is
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“material.” Perrin v. Cincinnati Ins. Co., 2020-Ohio-1405, 153 N.E.3d 832, ¶ 29 (2d

Dist.).

{¶ 11} Once the moving party satisfies its burden, the nonmoving party may not

rest upon the mere allegations or denials of the party’s pleadings. Dresher at 293; Civ.R.

56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits

or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is

a genuine issue of material fact for trial. Dresher at 293. Throughout, the evidence

must be construed in favor of the nonmoving party. Id.

{¶ 12} We review the trial court’s ruling on a motion for summary judgment de

novo. Schroeder v. Henness, 2d Dist. Miami No. 2012-CA-18, 2013-Ohio-2767, ¶ 42.

De novo review means that this court uses the same standard that the trial court should

have used, and we examine all the Civ.R. 56 evidence, without deference to the trial court,

to determine whether, as a matter of law, no genuine issues exist for trial. E.g., Ward v.

Bond, 2d Dist. Champaign No. 2015-CA-2, 2015-Ohio-4297, ¶ 8; Harris v. Dayton Power

& Light Co., 2d Dist. Montgomery No. 25636, 2013-Ohio-5234, ¶ 11.

III. Evidence for Summary Judgment Review

{¶ 13} In support of its motion for summary judgment, Bank of America relied upon

statements deemed admitted due to Shailer’s failure to respond to the bank’s request for

admissions, as well as two credit card statements. In response, Shailer attached copies

of correspondence to his opposition memorandum. On appeal, he presents additional

documents in appendices to his appellate brief.

{¶ 14} We begin with the documents attached to Shailer’s appellate brief. In

reviewing the judgment on appeal, we are limited to the record before the trial court. E.g.,
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Bajaj v. Green, 2d Dist. Darke No. 2021-CA-7, 2021-Ohio-3113, ¶ 10; Kahler v.

Eytcheson, 2d Dist. Montgomery No. 23523, 2012-Ohio-208, ¶ 23. “An exhibit merely

appended to an appellate brief is not part of the record, and we may not consider it in

determining the appeal.” Williams v. Pioneer Credit Recovery, Inc., 2d Dist. Montgomery

No. 28524, 2020-Ohio-397, ¶ 16, quoting State v. Grant, 10th Dist. Franklin No. 12AP-

650, 2013-Ohio-2981, ¶ 12. Accordingly, we cannot consider any new exhibits attached

to Shailer’s brief in resolving this appeal.

{¶ 15} Turning to the evidence presented in the trial court, Civ.R. 56(C) lists the

type of evidence that a court may consider in ruling on a motion for summary judgment.

That list includes “the pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence, and written stipulations of fact[.]” Civ.R.

56(C). Absent an exception, hearsay may not be considered in a motion for summary

judgment. E.g., Bledsoe-Baker v. Trotwood, 2d Dist. Montgomery No. 28052, 2019-

Ohio-45, ¶ 28.

{¶ 16} “Although Civ.R. 56 does not directly refer to evidentiary exhibits, such

evidence may be considered when it is incorporated by reference into a properly framed

affidavit pursuant to Civ.R. 56(E).” Natl. Collegiate Student Loan Tr. 2005-3 v. Demers,

2d Dist. Clark No. 2018-CA-93, 2019-Ohio-1475, ¶ 15, quoting Citibank (South Dakota)

N.A. v. Ogunduyile, 2d Dist. Montgomery No. 21794, 2007-Ohio-5166, ¶ 10. Civ.R.

56(E) requires affidavits to be “made on personal knowledge,” to “set forth such facts as

would be admissible in evidence,” and to “show affirmatively that the affiant is competent

to testify to the matters stated in the affidavit.”

{¶ 17} Civ.R. 56(E) further requires that “[s]worn or certified copies of all papers or
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parts of papers referred to in an affidavit” be attached to or served with the affidavit.

Civ.R. 56(E). To properly incorporate attached evidentiary exhibits, an affidavit merely

needs to state that “the attached materials are true copies and reproductions of the

original documents.” Demers at ¶ 16, citing Citibank at ¶ 10 and State ex rel. Corrigan

v. Seminatore, 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (1981).

{¶ 18} A trial court may consider evidence that has not been authenticated if the

non-moving party fails to object. Id.; see Credit Invests., Inc. v. Obanion, 2d Dist.

Montgomery No. 26129, 2014-Ohio-5799, ¶ 15 (failure to raise a hearsay or

authentication challenge in a memorandum in opposition to summary judgment waived

that issue for appeal).

A. Credit Card Statements

{¶ 19} In his ninth assignment of error, Shailer claims that “[n]on-public record

documents, without a supporting witness, should be properly authenticated before being

accepted into evidence.” Shailer specifically argues that the credit card statements were

not properly authenticated and should not have been considered by the trial court in ruling

on Bank of America’s summary judgment motion.

{¶ 20} Bank of America submitted two credit card statements in support of its

summary judgment motion. As noted by Shailer, however, Bank of America failed to

provide a properly framed affidavit to authenticate them. Although Shailer did not

expressly object to consideration of the bank’s credit card statements in his initial

opposition memorandum, he stated in his addendum that “the uncertified account

statement pages * * * also fail for not being certified.” He repeatedly referred to the

FDCPA as a basis for why the statements were not proper evidence, and we construe
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Shailer’s opposition memoranda as raising an authentication challenge.

{¶ 21} In its appellate brief, Bank of America comments that “[t]here is no evidence

in the record to suggest, however, that the trial court considered those documents [the

credit card statements] when granting Bank of America’s Motion for Summary Judgment.”

The bank emphasizes that Shailer failed to provide evidence to rebut the facts

“conclusively established” by his failure to respond to the request for admissions.

{¶ 22} In ruling on the summary judgment motion, the trial court indicated that it

had conducted an “examination of the records.” It is unclear whether that means that

the trial court considered the bank’s credit card statements. Regardless, for purposes of

our review, we conclude that, in light of Shailer’s objection to the court’s consideration of

the unauthenticated credit card statements, the trial court should not have considered

them in ruling on the summary judgment motion.

B. Request for Admissions

{¶ 23} In his first and fourth assignments of error, Shailer argues that Bank of

America’s discovery packet, which included its request for admissions, was not properly

served and, therefore, the trial court erred in deeming Bank of America’s request for

admissions admitted due to his failure to respond. Shailer’s fifth assignment of error

specifically addresses the bank’s alleged failure to properly serve “interrogatories” by

electronic means, and he argues that “any granting of Summary Judgment, on the basis

of unanswered interrogatories, [was] invalid.” Because Bank of America did not rely on

interrogatories, it appears that Shailer has confused the terms interrogatories and

requests for admission or conflated them.

{¶ 24} Civ.R. 36 governs requests for admissions. It provides, in relevant part:
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(A) Availability; procedures for use. A party may serve upon any

other party a written request for the admission, for purposes of the pending

action only, of the truth of any matters within the scope of Civ.R. 26(B) set

forth in the request, that relate to statements or opinions of fact or of the

application of law to fact, including the genuineness of any documents

described in the request. * * * The party serving the request for admission

shall serve an electronic copy of the request on a shareable medium and in

an editable format, by electronic mail, or by other means agreed to by the

parties. A party who is unable to provide an electronic copy of a request

for admission may seek leave of court to be relieved of this requirement

***

(B) Effect of admission. Any matter admitted under this rule is

conclusively established unless the court on motion permits withdrawal or

amendment of the admission. * * *

Civ.R. 36(A), (B).

{¶ 25} “When a party fails to timely respond to requests for admissions, the

admissions become facts of record that the court must recognize.” Martin v. Martin, 179

Ohio App.3d 805, 2008-Ohio-6336, 903 N.E.2d 1243, ¶ 13 (2d Dist.), citing Cleveland

Trust Co. v. Willis, 20 Ohio St.3d 66, 67, 485 N.E.2d 1052 (1985). “[A]ny matter admitted

under Civ.R. 36 ‘is conclusively established unless the court on motion permits withdrawal

or amendment of the admission.’ ” Union Sav. Bank v. Litteral, 2d Dist. Montgomery No.

25106, 2012-Ohio-5108, ¶ 12, quoting Civ.R. 36(B).

{¶ 26} We have repeatedly held that Civ.R. 36 is “self-enforcing” and that the “trial
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court has no discretion whether to deem the matters admitted. If the requests are not

answered, they are admitted and conclusively established, and the trial court must

recognize them as so.” Ohio Bell Tel. Co. v. C-5 Constr., Inc., 2d Dist. Montgomery No.

23792, 2010-Ohio-4762, ¶ 41; Litteral at ¶ 12; Demers, 2d Dist. Clark No. 2018-CA-93,

2019-Ohio-1475, at ¶ 19. “Because Civ.R. 36 is self-enforcing, absent a timely answer

or objection, a matter is admitted without the necessity of a court order.” Demers at ¶ 19.

{¶ 27} However, the self-enforcing nature of Civ.R. 36 presupposes that the

request for admissions has been properly served. See Spy v. Arbor Park Phase One

Assoc., 8th Dist. Cuyahoga No. 108819, 2020-Ohio-2944, ¶ 33 (the trial court abused its

discretion in deeming the requests for admissions admitted when the record

demonstrated that the requests had not been properly served). In 2004, Civ.R. 36 was

amended to require service of a printed copy and the provision of an electronic copy of a

request for admissions. As of 2012, however, service of a request for admissions must

be made by electronic means. As noted in the Staff Notes to the 2012 amendment,

The 2012 amendment [to Civ.R. 36] simply requires that an

electronic copy be served, which can be accomplished electronically under

the 2012 amendment to Civ.R. 5(B), or by any other method provided under

Civ.R. 5(B). Although service of a paper copy is no longer necessary, it is

not prohibited and would be appropriate, for example, when a party who is

unable to provide an electronic copy is relieved of that requirement by the

court.

The 2012 amendments were intended to make separate service of a printed copy

“unnecessary except for unusual circumstances.” Staff Notes to 2014 amendments to
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Civ.R. 36.

{¶ 28} In this case, Bank of America failed to comply with Civ.R. 36(A) when it

served its request for admissions. Bank of America’s notice of service of its discovery

requests, filed on December 7, 2020, indicated that the bank’s first set of interrogatories,

request for production of documents, and request for admissions were served on Shailer

by first class mail on November 25, 2020. There is no indication in the record that Bank

of America served Shailer an electronic copy of the request for admissions, as required

by Civ.R. 36(A), or requested leave to be relieved of that requirement. In addition, in his

memorandum in opposition to Bank of America’s motion for summary judgment, Shailer

told the court that he had not received the bank’s mailed discovery requests, including

the request for admissions, and that he was not admitting anything. Although not

specifically raised by Shailer, we also note that Bank of America failed to authenticate the

request for admissions that it submitted as evidence.

{¶ 29} On this record, we conclude that the trial court erred in deeming the facts in

Bank of America’s request for admission admitted. Accordingly, the trial court should not

have considered those purported admitted facts in ruling on Bank of America’s motion for

summary judgment. Shailer’s challenge to the trial court’s consideration of Bank of

America’s request for admissions is sustained.

C. Shailer’s Correspondence

{¶ 30} Shailer attached two pieces of correspondence to his memorandum

opposing Bank of America’s motion for summary judgment: (1) a letter from him to Levy

& Associates, counsel for Bank of America, dated July 17, 2020 but apparently sent on

August 17, 2020, along with facsimile and mailing information, and (2) correspondence
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from Levy & Associates to Shailer, dated November 10, 2020. Bank of America did not

file a reply memorandum in the trial court or move to strike Shailer’s exhibits. It therefore

was within the trial court’s discretion whether to consider Shailer’s exhibits.

IV. Review of Summary Judgment

{¶ 31} In his first assignment of error, Shailer claims that the trial court erred in

granting the bank’s motion for summary judgment on its claims, because genuine issues

of material fact existed.

A. Action on Account

{¶ 32} An action on account is really one for breach of contract. Kwikcolor Sand

v. Fairmount Minerals Ltd., 8th Dist. Cuyahoga No. 96717, 2011-Ohio-6646, ¶ 13. To

prove a breach of contract claim, a plaintiff must establish the existence of a contract,

performance by the plaintiff, breach by the defendant, and resulting damage to the

plaintiff. E.g., Discover Bank v. Pierce, 2d Dist. Montgomery No. 25755, 2014-Ohio-625,

¶ 14. “Ohio recognizes that the issuance and use of a credit card can create a legally

binding agreement.” Unifund CCR Partners Assignee of Palisades Collection, LLC v.

Childs, 2d Dist. Montgomery No. 23161, 2010-Ohio-746, ¶ 17; see also, e.g., Discover

Bank c/o DFS Servs. L.L.C. v. Lammers, 2d Dist. Greene No. 2008-CA-85, 2009-Ohio-

3516. No written agreement is required. Pierce at ¶ 14.

{¶ 33} An action on account “simplifies pleadings by allowing a party to advance,

as one claim, claims for separate breaches of contract based on a series of transactions

by providing a summary of accounting for the transactions.” Kwikcolor Sand at ¶ 13.

“The cause of action exists only as to the balance that may [be] due one of the parties as

a result of the parties’ transactions, and not as to each item of the account.” (Citation
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omitted.) Rumpke v. Acme Sheet and Roofing, Inc., 2d Dist. Montgomery No. 17654,

1999 WL 1034455, *4 (Nov. 12, 1999).

{¶ 34} To establish the amount due on the account, a plaintiff must prove “(1) a

beginning balance (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) a summarization by means of a

running or developing balance, or an arrangement of beginning balance and items which

permits the calculation of the amount claimed to be due.” (Citation omitted.) Lammers

at ¶ 20; Pierce at ¶ 17. “Absolute certainty of proof is not required, but there must be

something upon which the court can form its judgment.” Rumpke at *4; see also R.H.

Donnelley Pub. & Advertising v. Armstrong, 2d Dist. Miami No. 2012-CA-15, 2013-Ohio-

1927, ¶ 19.

{¶ 35} Construing the evidence in the light most favorable to Shailer, Bank of

America has failed to present evidence to support its claim. In the absence of statements

deemed admitted by the trial court, Bank of America provided no evidence to establish

that Shailer made purchases with a Bank of America credit card (account ending 2133),

that the account had a final balance of $2,315.36, that Shailer was not entitled to any

credits, offsets, or deductions from that amount, or that he owed $2,315.36 to Bank of

America. Bank of America did not present an affidavit from any employee regarding

Shailer’s account, and it did not provide any evidence showing a beginning credit account

balance, a list of charges to the account, or any means to ascertain the balance due.

{¶ 36} Even if we were to consider the two credit card statements, the June 2019

credit card statement for account ending 2133 shows that the statement was sent to
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Shailer and had a balance due of $2,315.36. The only transactions noted on that

statement were a $45 payment made on May 28, 2019, and a charge of $45 on May 30,

2019 due to payment’s being returned. The June 2019 statement, alone, was insufficient

to establish the amount due on the account.

{¶ 37} The relevance of the April 2017 statement to Bank of America’s claim is not

apparent. Although the statement was sent to someone named “Bobby M. Shailer,” the

statement was mailed to an address in Sunland, California and concerned a different

account number (account ending 0132) than shown on the 2019 statement. In addition,

the April 2017 statement merely reflected a beginning balance of $1,515.03 and showed

various purchases which were reversed as fraudulent charges. Bank of America has

provided no evidence under Civ.R. 56 to explain the relationship, if any, of the April 2017

statement to the June 2019 statement.

{¶ 38} With the record before us, the trial court erred in granting summary

judgment to Bank of America on its action on account.

B. Unjust Enrichment

{¶ 39} Bank of America also brought a claim for unjust enrichment. In its

appellate brief, Bank of America focuses on its contract claim (as it did in the trial court)

and does not separately address the unjust enrichment claim. Upon review of the

evidence, we conclude that the trial court could not have properly granted summary

judgment to Bank of America based on unjust enrichment.

{¶ 40} “Unjust enrichment occurs when a person ‘has and retains money or

benefits which in justice and equity belong to another.’ ” Johnson v. Microsoft Corp., 106

Ohio St.3d 278, 2005-Ohio-4985, 834 N.E.2d 791, ¶ 20, quoting Hummel v. Hummel, 133
 -15-

Ohio St. 520, 528, 14 N.E.2d 923 (1938); Bakhshi v. Baarlaer, 2d Dist. Montgomery No.

28767, 2021-Ohio-13, ¶ 101. Unjust enrichment requires “ ‘(1) a benefit conferred by a

plaintiff upon a defendant; (2) knowledge by the defendant of the benefit; and (3) retention

of the benefit by the defendant under circumstances where it would be unjust to do so

without payment (“unjust enrichment”).’ ” Hambleton v. R.G. Barry Corp., 12 Ohio St.3d

179, 183, 465 N.E.2d 1298 (1984), quoting Hummel at 525; Dart v. Katz, 2d Dist.

Montgomery No. 28913, 2021-Ohio-1429, ¶ 55.

{¶ 41} Claims for breach of contract and unjust enrichment are mutually exclusive.

TruLogic, Inc. v. Gen. Elec. Co., 2d Dist. Greene No. 2021-CA-3, 2021-Ohio-2860, ¶ 3;

Booher Carpet Sales, Inc. v. Erickson, 2d Dist. Greene No. 98-CA-0007, 1998 WL

677159, *6 (Oct. 2, 1998); see also Wiggins v. Safeco Ins. Co. of Indiana, 2d Dist.

Montgomery No. 29034, 2021-Ohio-3526, ¶ 19. “Unjust enrichment involves a contract

implied in law. Where an express agreement exists, there can be no implied agreement.”

TruLogic. at ¶ 3.

{¶ 42} As with its action on account, Bank of America failed to present evidence of

the benefit conferred by the bank on Shailer and the retention of that benefit by Shailer

under circumstances that would be unjust. Accordingly, Bank of America did not

establish that it was entitled to summary judgment on its unjust enrichment claim.

{¶ 43} Shailer’s first assignment of error is sustained.

V. Shailer’s Additional Assignments of Error

{¶ 44} Shailer raises several additional assignments of error, which generally

assert that he had a right to jury trial, that Bank of America and its attorneys were

prohibited from attempting to collect the alleged debt from him due to violations of the
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FDCPA, and that Bank of America failed to comply with the Ohio Rules of Civil Procedure

regarding the filing and service of documents and discovery. In light of our conclusion

that the trial court erred in granting summary judgment to Bank of America, Shailer’s

additional assignments of error are overruled as moot.

VI. Conclusion

{¶ 45} The trial court’s judgment will be reversed, and the matter will be remanded

for further proceedings.

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TUCKER, P. J. and WELBAUM, J., concur.

Copies sent to:

Sean M. Winters
Bobby M. Shailer
Hon. William C. Cox