Hubbard v. Charter One Bank

[Cite as Hubbard v. Charter One Bank, 2017-Ohio-1033.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 104146

LARRIE HUBBARD, ET AL.
PLAINTIFFS-APPELLANTS

vs.

CHARTER ONE BANK, ET AL.
DEFENDANTS-APPELLEES

JUDGMENT:
AFFIRMED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-14-833721

BEFORE: Celebrezze, J., Keough, A.J., and Kilbane, J.

RELEASED AND JOURNALIZED: March 23, 2017
ATTORNEY FOR APPELLANT

Jason Ralls
The Shaker W. Professional Building
11811 Shaker Blvd., Suite 420
Cleveland, Ohio 44120

ATTORNEYS FOR APPELLEE

William Joseph Baker
John J. Roszczyk
100 Park Place
Chagrin Falls, Ohio 44022

Kerin Lyn Kaminski
Melissa A. Laubenthal
Kathleen A. Nitschke
Lauren C. Tompkins
Giffen & Kaminski, L.L.C.
1300 East Ninth Street, Suite 1600
Cleveland, Ohio 44114

Also Listed

For Laticia Hubbard

Jason Ralls
The Shaker W. Professional Building
11811 Shaker Blvd., Suite 420
Cleveland, Ohio 44120
FRANK D. CELEBREZZE, JR., J.:

{¶1} Appellant, Larrie Hubbard, 1 appeals the grant of summary judgment in

favor of appellee, Charter One Bank, n.k.a. Citizens Bank, N.A. (“Charter One”). Larrie

argues that the trial court erred in granting summary judgment based on the grounds of

statute of limitations when that affirmative defense was not raised in the answer to the

complaint, and when no affirmative evidence of the statute of limitations was produced.

After a thorough review of the record and law, this court affirms.

I. Factual and Procedural History

{¶2} Laticia Hubbard, Larrie’s daughter, owned a number of homes that she held

as rental properties. She began to acquire these investment properties in 2004, and

leading up to 2008, she bought as many as nine properties. However, in late 2007 to

early 2008, the adjustable rates on the various loans on those properties were set to

increase, the housing market experienced a serious decline, and she was experiencing

financial difficulty. Laticia and her father sought help from a credit repair

specialist, Peru Barber, referred to them by an employee at Charter One, Elizabeth

Larrie’s wife, Gwendolyn Hubbard, and their daughter, Laticia Hubbard, joined in the
1

appellate brief, but they were not included in the notice of appeal, and are therefore, not parties to this
appeal. See App.R. 3(D). However, because the causes of actions are so intertwined with each
other, the decision in this appeal applies to them equally. Wigton v. Lavender, 9 Ohio St.3d 40, 42,
457 N.E.2d 1172 (1984), quoting 5B Corpus Juris Secundum 516, Section 1952 (1958) (“‘A reversal
is binding on the parties to the suit, but does not inure to the benefit of parties who did not join in the
appeal, unless their rights and liabilities and those of the parties appealing are so interwoven and
dependent as to be inseparable.’”).
Dillow. How they came to rely on Barber’s services and whether those services were

negligent or fraudulent is the subject of this lawsuit.

{¶3} In November 2007, Larrie, and later Laticia, approached Charter One in an

effort to obtain a loan to allow Laticia to avoid foreclosure suits filed or about to be filed

by several banks, for capital to fix up some of the properties so they could be rented, or to

refinance all of Laticia’s properties with a single lender to reduce payments and interest

rates. Larrie approached Dillow, a Charter One employee, seeking the above financing

options. Dillow sent Larrie and Laticia to a loan representative at Charter One through

which they applied for loans. After being turned down, Dillow recommended that

Laticia take steps to better qualify for a loan. Dillow recommended that Laticia contact

Barber, a credit repair specialist for help. According to their deposition testimony, Larrie

and Laticia assumed that Barber was a Charter One employee.

{¶4} Laticia and Larrie met with Barber a few times at restaurants or other

non-Charter One locations. During these meetings Barber advised Laticia that most

people established corporations to hold title to rental property so that their personal credit

is not impacted. Barber recommended setting up a corporation to take ownership of the

properties in an effort to limit Laticia’s personal liability. Under the plan, Laticia would

also need to find a person with a high credit rating to associate with the company to make

it more favorable to lenders. According to Laticia, Barber told her that they would also

need to repair her credit by obtaining a “CPN number” and then attempt to renegotiate the
loans on the properties. Laticia also stated that Barber advised her to stop making

payments on her debts, including the rental properties.

{¶5} Larrie stated that he made two payments to Barber through Dillow, the first

between $10,000 and $15,000, and the second between $5,000 and $6,000. Laticia also

paid Barber $3,000 to supply her with a corporation. Those payments made by Larrie

were withdrawn directly from his account and deposited in Barber’s account at Charter

One with Dillow’s assistance.

{¶6} The Hubbards asserted that Barber did not do anything for the money they

paid. In early 2008, banks began to file foreclosure actions against Laticia, and she lost

most of her properties.

{¶7} Larrie, Gwendolyn, and Laticia filed a complaint on October 2, 2014,

asserting causes of action against Charter One, Dillow, and Barber. Charter One

responded with a motion to dismiss rather than an answer. Therein, it asserted that all of

the claims against it were barred by the applicable statute of limitations. It further

asserted that each claim failed on the merits. No response was filed by the Hubbards,

and the court granted the motion on November 25, 2014.

{¶8} The Hubbards filed a motion for reconsideration and for default judgment

against other defendants on February 5, 2015. Charter One filed a brief in opposition to

the motion for reconsideration. The trial court, on March 16, 2015, denied the motion.

After the court asked for briefing about the statute of limitations related to the remaining
defendants and considered that briefing, the court vacated its earlier dismissal on June 30,

2015.

{¶9} On July 29, 2015, Charter One filed an answer wherein it did not raise a

statute of limitations defense, but reserved the right to raise other defenses. Charter One

filed a motion for summary judgment. The Hubbards responded in opposition. The

court granted Charter One’s motion for summary judgment on January 22, 2016. In a

written opinion, the court found that the Hubbards’ claims were barred by the applicable

statute of limitations and that the discovery rule and the savings statute did not apply.

While the litigation commenced against Charter One, the trial court found that the

Hubbards did not obtain proper service on Dillow and Barber. The court eventually

found that no case was commenced against them as a result of a failure to obtain service

within one year, and removed the remainder of the case from its active docket.

{¶10} Larrie then filed the instant appeal, assigning three errors for review:

I. The trial court erred in granting summary judgment in favor of [Charter
One] because [Charter One] failed to raise the statute of limitations as an
affirmative defense in their answer.

II. The trial court erred in sua sponte granting summary judgment in favor
of [Charter One] on grounds which the moving party waived, and submitted
no arguments or Civ.R. 56(C) evidence in support of the court’s dismissal.

III. The trial court abused its discretion in denying the appellant’s motion

for default judgment and violated their rights to due process of law.

II. Law and Analysis

A. Notice of Appeal
 {¶11} Before addressing the appellant’s assignments of error, this court must

address Charter One’s argument that the appeal should be dismissed. Charter One

asserts that Larrie failed to include with his notice of appeal a copy of the journal entry

granting summary judgment in favor of Charter One. According to App.R. 3(D), the

decision being appealed must be designated in the notice of appeal, and Loc.App.R. 3(B)

requires attachment of that entry to the notice. This court has determined, en banc, that

this court has discretion to entertain an appeal that does not comply with these rules.

Midland Funding L.L.C. v. Hottenroth, 2014-Ohio-5680, 26 N.E.3d 269, ¶ 3 (8th Dist.).

The purpose of these rules is to appropriately notify other parties to the appeal of its

scope.

{¶12} Here, Larrie indicated in the docketing statement, included with his notice of

appeal, that he was appealing the trial court’s summary judgment decision as well as the

decision finding that Barber and Dillow were not properly served. However, Larrie did

not attach the summary judgment decision to his notice of appeal. Instead, he attached

the order striking his motion for summary judgment because it was not filed in

accordance with the trial court’s schedule. Therefore, Charter One was aware that Larrie

was appealing the summary judgment decision through the docketing statement as it was

designated therein, even though it was not designated in the notice of appeal or attached

thereto. In this case, this court chooses to exercise its discretion to entertain Larrie’s

assignments of error related to summary judgment because the matters have been fully

briefed by both parties and some notice was provided through the docketing statement.
 B. Waiver of Defenses

{¶13} Larrie argues that Charter One did not appropriately raise an affirmative

defense of the expiration of the statute of limitations, and therefore waived it. He goes

on to assert that the trial court erred in granting summary judgment on a waived defense.

{¶14} Civ.R. 8(C) provides in part, “[i]n pleading to a preceding pleading, a party

shall set forth affirmatively * * * statute of limitations * * * and any other matter

constituting an avoidance or affirmative defense.” The rule is designed to provide notice

of the defense to the plaintiff to have a fair adjudication of the action by avoiding

surprise. Comment to Civ.R. 8(C).

{¶15} In a Civ.R. 12(B) motion filed prior to filing an answer, Charter One argued

that the applicable statute of limitations barred recovery. This court has previously held

that this is insufficient to prevent waiver of a defense not raised in a pleading. Shury v.

Greenaway, 8th Dist. Cuyahoga No. 100344, 2014-Ohio-1629. There, this court

reasoned that a Civ.R. 12(B) motion was not a pleading because it was not defined as

such in the Civil Rules. Shury at ¶ 22. We went on to hold that the failure to raise the

defense of statute of limitations in a pleading, regardless of whether it was raised in a

motion to dismiss, waived the defense. Id. Contra Blevins v. Sorrell, 68 Ohio App.3d

665, 671-672, 589 N.E.2d 438 (12th Dist.1990). The Shury court reversed the grant of

summary judgment finding the statute of limitations defense had been waived. Id.

{¶16} The present situation is directly analogous, and leads this court to the

conclusion that the trial court erred in granting summary judgment based on the
expiration of the statute of limitations. However, that does not resolve the appeal.

Charter One moved for summary judgment on several grounds, and as discussed below, is

entitled to judgment as a matter of law.

C. Summary Judgment

{¶17} Summary judgment under Civ.R. 56 provides for the expedited adjudication

of matters where there is no material fact in dispute to be determined at trial. To obtain

summary judgment, the moving party must show that “(1) there is no genuine issue of

material fact; (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 when

viewing evidence in favor of the nonmoving party, and that conclusion is adverse to the

nonmoving party.” Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241

(1996), citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d

217, 219, 631 N.E.2d 150 (1994).

{¶18} The moving party has the initial responsibility of establishing its entitlement

to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264

(1996). “[I]f the moving party meets this burden, summary judgment is appropriate only if

the nonmoving party fails to establish the existence of a genuine issue of material fact.”

Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657,

¶ 16, citing Dresher at 293.

{¶19} Once a moving party demonstrates no material issue of fact exists for trial

and the party is entitled to judgment, it is the nonmoving party’s duty to come forth with
argument and evidence that demonstrates a material issue of fact does exist that would

preclude judgment as a matter of law. Id.

{¶20} Larrie asserts a confusing argument that the court sua sponte raised the

statute of limitations issue. The court did not. Charter One argued the defense in its

motion for summary judgment. However, in light of this court’s holding above, Larrie is

correct that the court erred in granting summary judgment based on the statute of

limitations. However, Charter One moved for summary judgment on other grounds as

well. Charter One argued that the statute of limitations precluded recovery, but it also

argued that the claims asserted by the Hubbards failed on the merits.

We are permitted to affirm a judgment based on incorrect reasoning if the

judgment is legally correct on other grounds. Reynolds v. Budzik (1999),

134 Ohio App.3d 844, 846, n.3, 732 N.E.2d 485. This approach is based on

the fact that error is not prejudicial when a court “‘achieves the right result

for the wrong reason.’” State v. Hutchinson (Mar. 10, 2000), Montgomery

App. No. 17852, 2000 Ohio App. LEXIS 894, 2000 WL 262650, 2 (citation

omitted).

GZK, Inc. v. Schumaker, 2d Dist. Montgomery No. 22172, 2008-Ohio-1980, ¶ 129. See

also Watch Tower Bible & Tract Soc. of Pennsylvania v. Fifth Third Bank, 8th Dist.

Cuyahoga No. 96403, 2011-Ohio-5180 (Keough, J., dissenting).

{¶21} In the complaint, the Hubbards alleged causes of action for consumer fraud,

negligence, and breach of fiduciary duty. The fraud claim is argued as a claim under
Ohio’s Consumer Sales Practices Act (“CSPA”), R.C. Chapter 1345, in the Hubbards’

motion opposing Charter One’s motion for summary judgment and the Hubbards’ own

summary judgment motion. If the claim that Barber was represented to be a Charter One

employee is correct, then the transaction at issue is not a consumer transaction under the

CSPA. Transactions with a financial institution, defined in R.C. 5725.01(A), are exempt

from the definition of a consumer transactions, except for limited circumstances. R.C.

1345.01(A) sets forth that transactions with financial institutions are not consumer

transaction “except for transactions involving a loan made pursuant to sections 1321.35 to

1321.48 of the Revised Code and transactions in connection with residential mortgages

between loan officers, mortgage brokers, or nonbank mortgage lenders and their

customers[.]” R.C. 1345.01(A). Here, Larrie has not argued that Dillow or Barber were

mortgage brokers or loan officers. Larrie did speak with a loan officer at Charter One,

but has not alleged any impropriety in connection with that transaction where Larrie and

Laticia were turned down for loans. Further, the complaint failed to allege violations of

the CSPA relating to a home mortgage transaction. It only alleged violations related to

credit repair services. Larrie and Laticia both testified that after the credit repair services

were completed, they would then meet with a loan officer at Charter One and reapply for

loans. That did not occur. Therefore, Larrie’s claim for violation of the CSPA asserted

against Charter One fails as a matter of law, and Charter One was entitled to summary

judgment.
 {¶22} If, on the other hand, Barber was not represented to be an employee of

Charter One, then Charter One has no liability for her actions and any alleged violation of

the CSPA. In either case, the claim asserted against Charter One for violations of the

CSPA fails as a matter of law.

{¶23} The Hubbards also asserted claims for breach of fiduciary duty and

negligence. These claims all rely on assertions that Barber was represented to be a

Charter One employee. However, Larrie did not produce any evidence to support this

necessary element for recovery for negligence and breach of fiduciary duty. Larrie and

Laticia acknowledged in their depositions that Barber was not represented to be a Charter

One employee. Both acknowledged that it was their belief that she was a Charter One

employee and that this belief was based on assumption rather than affirmative

representations.

{¶24} Generally, an employer is responsible for the acts of its employees within

the course and scope of employment through the doctrine of respondeat superior.

Councell v. Douglas, 163 Ohio St. 292, 295, 126 N.E.2d 597 (1955). That liability does

not extend beyond an employee. For instance, it does not extend to independent

contractors. Clark v. Southview Hosp. & Family Health Ctr., 68 Ohio St.3d 435, 438,

628 N.E.2d 46 (1994), citing Councell. In their complaint, the Hubbards asserted that

defendants collectively failed to process loan applications, credit repair applications, and

form a corporation. However, the deposition testimony makes clear that these actions

were all alleged to have been done by Barber. Therefore, Larrie is left to show that
Charter One is liable through agency principles or negligent supervision or hiring. “In

order to establish a claim under the doctrine of respondeat superior, it must be

demonstrated that a principal-agent relationship existed, and that tortious conduct was

committed by the agent while in the scope of his agency.” Hanson v. Kynast, 24 Ohio

St.3d 171, 173, 494 N.E.2d 1091 (1986), fn. 4, citing Baird v. Sickler, 69 Ohio St.2d 652,

433 N.E.2d 593 (1982).

{¶25} “An agency relationship is created ‘if, but only if, there is an understanding

between the parties which, as interpreted by the court, creates a fiduciary relation in

which the fiduciary is subject to the directions of the one on whose account he acts.’” Id.

at 178, quoting Restatement of the Law 2d, Agency, Section 1, Comment b (1958).

{¶26} Here, Barber was not held out as an employee of Charter One. Larrie and

Laticia both admitted that it was their assumption that Barber was a Charter One

employee. Barber did not use any document, business card, or invoice indicating an

affiliation with Charter One. Further, the Hubbards admitted that Barber never indicated

an affiliation with Charter One. Charter One has come forward with evidence of a lack

of liability for the actions of Barber. In response, Larrie has not produced any evidence

to establish that a material question of fact remains for trial. Therefore, Charter One is

entitled to summary judgment, albeit for different reasons than those relied on by the trial

court.

D. Proper Evidence
 {¶27} Larrie also argues that the trial court relied on evidence that was improperly

submitted by Charter One.

{¶28} Civ.R. 56(C) provides for a limited scope of evidence that may be

considered on summary judgment: “Summary judgment shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, and written stipulations of fact, if any, timely filed in the action,

show that there is no genuine issue as to any material fact * * *.” The rule goes on to

state, “[n]o evidence or stipulation may be considered except as stated in this rule.”

{¶29} Larrie complains that Charter One attached unauthenticated emails, court

filings, and other evidence to its motion for summary judgment that should not have been

considered by the trial court. However, deposition testimony was used to authenticate

each piece of evidence attached to Charter One’s motion for summary judgment. Laticia,

during her deposition, authenticated every item attached to Charter One’s motion.

Therefore, the trial court did not consider improper evidence as alleged.

{¶30} The trial court properly found that Charter One was entitled to judgment as a

matter of law based on arguments that were properly supported by evidence. Larrie’s

second assignment of error is overruled.

E. Default Judgment

{¶31} Larrie also claims the court erred when it denied the Hubbards’ motions for

default judgment against Barber and Dillow. He claims they obtained service on Barber

and Dillow, and the court erred when it determined otherwise.
 {¶32} The trial court issued an order on August 31, 2015, that notified the

Hubbards that their attempts to serve Barber and Dillow at a Charter One business

address did not constitute proper service. The court provided them with an opportunity

to properly serve Barber and Dillow and then would allow them to refile their motion for

default. It appears from the record that the Hubbards did not attempt to serve them after

the court’s order. Instead, they filed the same motion they previously filed seeking

default judgment, again claiming that Barber and Dillow were served at a Charter One

address on October 4, 2014. This occurred despite the fact that the court issued a journal

entry quashing that service.

{¶33} Civ.R. 4 provides for the method of service of a complaint. It states in part

“[u]pon the filing of the complaint the clerk shall forthwith issue a summons for service

upon each defendant listed in the caption.” Civ.R. 4(A). “A trial court lacks such

jurisdiction if effective service of process has not been made on the defendant and the

defendant has not voluntarily appeared in the case or waived service.” Erin Capital Mgt.

L.L.C. v. Fournier, 10th Dist. Franklin No. 11AP-483, 2012-Ohio-939, ¶ 16, citing State

ex rel. Ballard v. O’Donnell, 50 Ohio St.3d 182, 553 N.E.2d 650 (1990), paragraph one

of the syllabus.

{¶34} In the present case, the Hubbards instructed the clerk to serve Dillow and

Barber at Charter One’s business address. Certified mail service was inadvertently

accepted by someone at that address, and Charter One notified the court of the error. The

court then quashed service. Following the court’s ruling, no other attempts at service
through the clerk’s office appear on the docket. Therefore, the Hubbards did not

properly attempt to serve Dillow or Barber.

{¶35} Larrie’s assertion that the Hubbards obtained proper service of process is

incorrect. The Hubbards never attempted certified mail service of these defendants at

another address.

A failure of service of process, despite compliance with the civil rules,

exists in two different scenarios. First, service is not accomplished if the

plaintiff fails to direct the summons and complaint to the defendant’s

residence or to an address where the plaintiff could reasonably expect that

the summons and complaint would be delivered to the defendant. Grant v.

Ivy (1980), 69 Ohio App.2d 40, 42, 429 N.E.2d 1188. See also Cent. Ohio

Sheet Metal, Inc. v. Walker, 10th Dist. No. 03AP-951, 2004-Ohio-2816, ¶

10 (“The rebuttable presumption of proper service * * * may be rebutted by

evidence that [the defendant] never resided nor received mail at the address

to which such ordinary mail service was addressed.”). Second, service fails

where the defendant does not receive the summons and complaint, even

though the plaintiff complied with the civil rules and service was made at

an address where the plaintiff could reasonably anticipate that the defendant

would receive it. Rafalski v. Oates (1984), 17 Ohio App.3d 65, 66-67, 477

N.E.2d 1212.

Erin Capital Mgt. at ¶ 19.
 {¶36} Here, serving Barber and Dillow at a Charter One address was not

reasonably calculated to reach either individual. According to information obtained in

discovery and before, the Hubbards were aware that Barber was not officially an

employee of Charter One, contrary to the claims in their complaint. Further, Dillow was

no longer employed by Charter One at the time of the filing of the complaint. Even if

Barber and Dillow were at some point in the past employees, Charter One provided notice

that they were not employees at the time the complaint was filed. The Hubbards did not

properly attempt service at residential addresses or other addresses that were reasonably

calculated to apprise Dillow and Barber of the action. Therefore, the court did not err in

quashing service.

{¶37} Larrie asserts that the Hubbards did serve these two defendants at their

residential addresses and provided proof of that service to the court at a default hearing.

He goes on to claim the court erred when it did not record the hearing or issue a journal

entry at the appropriate time. These matters that allegedly occurred outside the record

presently before this court do not establish any error below. The Hubbards were required

to initiate service in compliance with Civ.R. 4 and failed to do so. If they had, the clerk’s

office would have docketed such service and there would be no ambiguity in what

occurred below.

{¶38} The Hubbards never obtained valid service on Dillow and Barber.

Therefore, the court did not err in denying their motion for default judgment, and in
dismissing the action as to these defendants where service was not perfected within one

year. Larrie’s third assignment of error is overruled.

III. Conclusion

{¶39} The Hubbards’ claims against Charter One were not barred by the applicable

statute of limitations where that defense was waived when it was not raised in a pleading.

However, summary judgment was still appropriate as to the claims against Charter One

because there was no agency relationship between Barber and Charter One. Charter One

is not liable for Barber’s actions. The trial court also properly considered evidence

submitted by Charter One that was authenticated through deposition testimony. Finally,

the Hubbards never obtained proper service on Dillow or Barber, and therefore, the court

did not err in denying their motion for default judgment.

{¶40} Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE

KATHLEEN ANN KEOUGH, A.J., CONCURS;
MARY EILEEN KILBANE, J., DISSENTS (WITH SEPARATE OPINION
ATTACHED)

MARY EILEEN KILBANE, J., DISSENTING:

{¶41} I respectfully dissent. The trial court granted summary judgment to Charter

One solely for the reason that it found the claims were barred by the statute of limitations.

I agree with the majority’s analysis that the trial court erred in granting summary

judgment based on the statute of limitations. However, I do not join the majority in

affirming the trial court’s summary judgment order on the merits of the Hubbards’ claims

that were not addressed by the trial court.

{¶42} I believe that the record contains genuine issues of material fact regarding

the Hubbards’ claims against Charter One. Dillow, a Charter One employee, provided

the Hubbards with Barber’s name, indicating it was a service the bank had for

nontraditional loans. Reasonable minds could conclude that Charter One was liable

under the doctrine of respondeat superior if Charter One held Barber out as being an

employee. Although there was no express agency in this case, Charter One could still be

liable under the theory of apparent agency or the doctrine of agency by estoppel. See

Mtge. Electronic Registration Sys. v. Mosley, 8th Dist. Cuyahoga No. 93170,

2010-Ohio-2886, ¶ 41-44. An employer can be held vicariously liable under the apparent

agency or agency by estoppel theories based on the representations or manifestations of

the employer. Id.

{¶43} I find that the alleged actions of Dillow, in the course and scope of her

employment with Charter One, could be construed as representing Barber as a Charter
One agent or employee. Whether the Hubbards reasonably believed that Barber was an

agent of Charter One is an issue of fact to be resolved by the trier of fact. For purposes

of summary judgment, the evidence must be construed in favor of the nonmoving party.

For these reasons, I would remand the case to the trial court for further proceedings.