[Cite as Citibank, N.A. v. Ebbing,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

CITIBANK (SOUTH DAKOTA), N.A., :

Plaintiff-Appellee, : CASE NO. CA2012-12-252

: OPINION - vs - 10/28/2013 :

JOSEPH P. EBBING, :

Defendant-Appellant. :

CIVIL APPEAL FROM BUTLER COUNTY AREA II COURT Case No. 10 CVF 01180

Javitch, Block & Rathbone, LLC, James Y. Oh, Megan J. Linder, 700 Walnut Street, Suite 300, Cincinnati, Ohio 45202, for plaintiff-appellee

Joseph P. Ebbing, 3800 Princeton Road, Hamilton, Ohio 45011, defendant-appellant, pro se

RINGLAND, P.J.

{¶ 1} Defendant-appellant, Joseph P. Ebbing, appeals from a decision in the Butler

County Court of Common Pleas granting judgment in favor of plaintiff-appellee, Citibank,

N.A., in the amount of $5,334.71 following a jury trial. For the reasons outlined below, we

affirm the decision of the trial court.

{¶ 2} On October 26, 2010, Citibank filed a complaint against Ebbing seeking

recovery in the amount of $5,334.71 upon an unpaid credit card account number ending in Butler CA2012-12-252

4312. Ebbing moved to dismiss on November 12, 2010, alleging that Citibank had failed to

state a claim upon which relief could be granted. Following the trial court's overruling of

Ebbing's motion to dismiss, Ebbing filed an answer and a jury demand.

{¶ 3} On March 4, 2011, Ebbing moved for summary judgment, alleging that Citibank

could not bring the action because it did not have a signed writing establishing a loan

agreement. Additionally, Ebbing alleged that he never requested nor used such a card and

Citibank failed to attach a credit card agreement to the pleading as required by Civ.R.

10(D)(1). Attached to Citibank's response in opposition to Ebbing's motion for summary

judgment was an affidavit of a custodian of records for Citibank, Abbie Motley. Motley

averred that attached was a true and correct copy of the statement transaction detail on the

last periodic billing statement, Exhibit A. Also attached were numerous credit card billing

statements for a "Citi Platinum Select Card" sent to Joseph P. Ebbing at a Princeton Road,

Hamilton, Ohio, address for an account ending in 4312. Additionally, Citibank attached two

checks made out to "Citicards" drawn from a PNC Bank account with Ebbing's name and

address in the top left-hand corner of the checks with the account number ending in 4312 in

the memo lines. Finally, Citibank attached a standard credit card agreement that was not

actually signed by Ebbing.

{¶ 4} The trial court overruled Ebbing's motion for summary judgment, stating that the

evidence presented by Citibank attached to its response in opposition established some

genuine issues of material fact. Ebbing objected. All of Ebbing's objections were overruled.

Prior to the case proceeding to a jury trial, both parties submitted proposed jury instructions.

Ebbing objected to Citibank's proposed jury instructions, which the trial court overruled.

{¶ 5} At trial, Citibank presented testimony from a custodian of records and also

called Ebbing as a witness. Citibank presented six exhibits, including credit card statements

beginning in 2005 that span approximately five years sent to a "Joseph P. Ebbing" on -2- Butler CA2012-12-252

Princeton Road in Hamilton, Ohio,1 a credit card agreement that was not signed by the

cardholder, three checks made out to "Citicard" that included Ebbing's name and address, a

convenience check written to Ebbing's ex-wife signed by a "Joseph P. Ebbing," a letter

signed by Ebbing and his ex-wife that was sent to Citibank asking for a reduction in monthly

payments, and an affidavit signed by Ebbing. In Ebbing's affidavit, he denied ever applying

for a credit card with Citibank, authorizing transactions on a Citibank credit card, or receiving

credit card statements at his home address, despite averring that he had lived at 3800

Princeton Road in Hamilton since the end of 2006. At the conclusion of the trial, eight jurors

found Ebbing responsible to Citibank in the amount of $5,334.71.

{¶ 6} Ebbing now appeals and asserts four assignments of error for review.

{¶ 7} Assignment of Error No. 1:

{¶ 8} THE TRIAL COURT COMMITTED UNLAWFUL AND REVERSIBLE ERROR

TO THE PREJUDICE OF [EBBING] IN OVERRULING [HIS] SUMMARY JUDGMENT

MOTION CONTRARY TO OHIO LAW.

{¶ 9} Ebbing argues the trial court erred by overruling his summary judgment motion.

This court's review of a trial court's ruling on a summary judgment motion is de novo, which

means that we review the judgment independently and without deference to the trial court's

determination. Simmons v. Yingling, 12th Dist. Warren No. CA2010-11-117, 2011-Ohio-

4041, ¶ 18. We utilize the same standard in our review that the trial court uses in its

evaluation of the motion.

{¶ 10} Summary judgment is appropriate when there are no genuine issues of

material fact to be litigated, the moving party is entitled to judgment as a matter of law,

1. The attached credit card statements were sent to Joseph P. Ebbing at 3800 Hamilton Princeton Road in Hamilton beginning in February 2005. The credit card statements were sent to another address on Princeton Road between July 2005 and December 2006. Beginning January 2007, the credit card statements were sent to 3800 Princeton Road, Hamilton, Ohio 45011. This is consistent with Ebbing averring he moved to his current address at 3800 Princeton Road, Hamilton, Ohio 45011, the end of 2006. -3- Butler CA2012-12-252

reasonable minds can come to only one conclusion, and that conclusion is adverse to the

nonmoving party. Civ.R. 56(C); Williams v. McFarland Properties, L.L.C.,

,

(12th Dist.). To prevail on a motion for summary judgment, the

moving party must be able to point to evidentiary materials that show there is no genuine

issue as to any material fact and that the moving party is entitled to judgment as a matter of

law. Dresher v. Burt,

(1996). The nonmoving party must then

present evidence that some issue of material fact remains to be resolved; it may not rest on

the mere allegations or denials in its pleadings.

All evidence submitted in connection with

a motion for summary judgment must be construed most strongly in favor of the party against

whom the motion is made. Morris v. First Natl. Bank & Trust Co.,

(1970).

{¶ 11} We point out that the denial of Ebbing's summary judgment motion occurred

prior to a jury trial. The United States Supreme Court and one Ohio appellate court have

stated that a party may not "appeal an order denying summary judgment after a full trial on

the merits" because that "order retains its interlocutory character as simply a step along the

route to final judgment." Ortiz v. Jordan, ___ U.S. ___,

(2011);

Calvary S.P.V. I., L.L.C. v. Krantz, 8th Dist. Cuyahoga No. 97422,

.

Once a case proceeds to trial, the full record is developed and this record supersedes the

limited record existing at the time of the summary judgment motion.

;

Calvary at ¶ 9. However, even considering Ebbing's arguments, none of the issues raised

would entitle him to summary judgment. Ebbing raises five arguments within his first

assignment of error, which we address in turn.

{¶ 12} First, Ebbing argues that the trial court "unlawfully ignored or unlawfully

modified Civ.R. 10(D)(1)" in order to consider Citibank's "final period statement" as a

substitute for a written contract. Civ.R. 10(D)(1) states: -4- Butler CA2012-12-252

When any claim or defense is founded on an account or other written instrument, a copy of the account or written instrument must be attached to the pleading. If the account or written instrument is not attached, the reason for the omission must be stated in the pleading.

In this case, Citibank attached a copy of the last periodic billing statement for the credit card

account. Citibank's complaint set forth allegations that additional documents were not

attached because they were sent to Ebbing as monthly statements and were archived.

Citibank also stated that the records are voluminous. Thus, Citibank complied with Civ.R.

10(D)(1) by attaching the last periodic billing statement and stating why other documents

were not attached. Additionally, the remedy for failing to comply with Civ.R. 10(D)(1) is not a

dismissal. Fletcher v. Univ. Hosps. of Cleveland,

,

, ¶ 11.

Rather, the burden is on the opposing party to move for a more definitive statement pursuant

to Civ.R. 12(E).

Ebbing did not move for a more definitive statement in this case.

Consequently, even if Citibank failed to comply with Civ.R. 10(D)(1), Ebbing waived this

argument. See Ohio Receivables, L.L.C. v. Dallariva, 10th Dist. Franklin No. 11AP-951,

, ¶ 36. 2 {¶ 13} Second, Ebbing argues that the trial court failed to apply R.C. 1335.02. R.C.

1335.02(B) provides: "No party to a loan agreement may bring an action on a loan

agreement unless the agreement is in writing and is signed by the party against whom the

action is brought * * *." However, R.C. 1335.02(A)(3) excludes any "promise, promissory

note, agreement, undertaking, or other document or commitment relating to a credit card * *

*." Rather than needing a signed written agreement, the use of a credit card results in the

person using the card being bound by the card member agreement. Ohio Receivables at ¶

2. Ebbing asserts that the trial court erred in not addressing R.C. 1317.11. However, R.C. 1317.11 addresses revolving budget agreements and the disputed account in this case relates to a credit card agreement. Consequently, R.C. 1317.11 does not apply. -5- Butler CA2012-12-252

33. In this case, Citibank produced a copy of the last periodic billing statement for the credit

card account, which lists "Joseph P. Ebbing" as the account member for the account number

ending in 4312. The last periodic billing statement also shows a balance of $5,334.71 and

Joseph P. Ebbing's address as 3800 Princeton Road, Hamilton, OH 45011-5144.

Consequently, there is a question of fact as to whether Ebbing used the credit card.

{¶ 14} Third, Ebbing argues that the trial court failed to apply R.C. 1335.05 because it

ignored language requiring a writing for an agreement that is not to be performed within one

year. Ebbing contends that that the absence of a writing signed by him was fatal to

Citibank's claim. R.C. 1335.05 provides:

No action shall be brought whereby to charge the defendant * * * upon an agreement that is not to be performed within one year from the making thereof; unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith * * *.

Essentially, the statute prohibits actions based on oral agreements that cannot be performed

within one year. In the case of a credit card, the balance can be paid in full each month and

is not "an agreement that is not to be performed within one year from the making thereof."

As a matter of law, R.C. 1335.05 does not apply to credit cards. See Harvest Credit Mgt. VII

v. Ryan, 10th Dist. Franklin No. 09AP-1163,

, ¶ 11-12. Consequently,

Ebbing is not entitled to judgment as a matter of law on the basis that Citibank did not comply

with R.C. 1335.05.

{¶ 15} Fourth, Ebbing argues that the trial court unlawfully ignored and failed to apply

R.C. 1319.01 because Citibank failed to argue or adduce any Civ.R. 56 evidentiary

documentation that Ebbing either requested the credit card, used the credit card, and/or

authorized any charges to the credit card. R.C. 1319.01 provides:

A cardholder who receives a credit card from an issuer, which such cardholder has not requested nor used, shall not be liable for any use made of such credit card which has not been -6- Butler CA2012-12-252

authorized by such cardholder * * *.

However, Citibank averred through a custodian of records that Ebbing used the credit card

and attached the last periodic billing statement containing the alleged credit card number with

Ebbing's name and address in support, creating a question of fact as to whether R.C.

1319.01 applies to Ebbing.

{¶ 16} Fifth, Ebbing argues that the trial court erred by unlawfully considering material

not presented as required in Civ.R. 56. Specifically, Ebbing asserts that Citibank did not

establish any foundation to support the existence of a credit card account. When a motion

for summary judgment is made and supported as provided in Civ.R. 56, the nonmoving party

may not rest on the mere allegations of the pleading, but the response, by affidavit or as

otherwise provided in Civ.R. 56, must set forth specific facts showing the existence of a

genuine triable issue. Mootispaw v. Eckstein,

(1996); Civ.R. 56(E).

"Evidentiary material not specifically authorized by Civ.R. 56(C) may be considered by the

trial court if it is properly incorporated into an affidavit by reference." Truett v. Community

Mut. Ins. Co., Blue Cross/Blue Shield,

(12th Dist. 1993); Civ.R.

56(E). Such a requirement is satisfied by a statement in the affidavit declaring that the

copies of the documents submitted are true and accurate reproductions of the originals.

HSBC Mtge. Servs., Inc. v. Edmon, 6th Dist. Erie No. E-11-046,

, ¶ 11.

Credit card statements only constitute proper summary judgment evidence if they are

incorporated through a properly framed affidavit. Dept. Stores Natl. Bank v. McGee, 7th Dist.

Mahoning No. 12 MA 103,

.

{¶ 17} In this case, Citibank attached an affidavit in support of its memorandum in

opposition to Ebbing's motion for summary judgment. In addition to an affidavit, Citibank also

attached a copy of a standard credit card agreement, a copy of a payment allegedly made

from Ebbing's checking account to "Citicard," several years' worth of account statements with -7- Butler CA2012-12-252

Ebbing's alleged account number and Princeton Road, Hamilton, address, and a statement

transaction detail on the last periodic billing statement for Ebbing's alleged account. Despite

the attachments, only the last periodic billing statement was referred to in the affidavit. The

affiant stated: "Exhibit A attached hereto is a true and correct copy of the statement

transaction detail on the last periodic billing statement for the Account that was sent to

defendant(s), which reflects the balance due and owing on the Account as of closing date on

such statement." The last periodic billing statement lists "Joseph P. Ebbing" as the account

member for the account number ending in 4312. The last periodic billing statement also

shows a balance of $5,334.71 and Joseph P. Ebbing's address as "3800 Princeton Rd,

Hamilton, OH 45011-5144." The attached affidavit with its incorporation of the last periodic

billing statement by reference and the information contained therein is enough to create a

question of fact as to whether Ebbing is responsible to Citibank for a $5,334.71 debt whether

or not the additional items attached to the affidavit could properly be considered.

{¶ 18} Ebbing also asserts that the affiant, Abbie Motley, has no personal knowledge

of any transaction contained in the attached records and thus her statements are

inadmissible hearsay. Ebbing argues that the last periodic billing statement has no probative

value because it does not "include actual charges of the account."

{¶ 19} To be considered in a summary judgment motion, Civ.R. 56(E) requires an

affidavit to be made on personal knowledge, set forth such facts as would be admissible in

evidence, and affirmatively show that the affiant is competent to testify to the matters stated

in the affidavit. Civ.R. 56(E). "Absent evidence to the contrary, an affiant's statement that his

affidavit is based on personal knowledge will suffice to meet the requirement of Civ.R. 56(E)."

Wells Fargo Bank v. Smith, 12th Dist. Brown No. CA2012-04-006,

.

{¶ 20} Evid.R. 803(6), the business records exception to the hearsay rule, provides

that the hearsay rule does not exclude a document, "made at or near the time by, or from -8- Butler CA2012-12-252

information transmitted by, a person with knowledge," if the document is "kept in the course

of a regularly conducted business activity, and if it was the regular practice of that business

activity to make the" document, "all as shown by the testimony of the custodian or other

qualified witness * * *."

{¶ 21} In order to properly authenticate business records, a witness must "testify as to

the regularity and reliability of the business activity involved in the creation of the record."

State v. Glenn, 12th Dist. Butler No. CA2009-01-008,

, ¶ 19. Firsthand

knowledge of the transaction is not required by the witness providing the foundation.

However, the witness must be

sufficiently familiar with the operation of the business and with the circumstances of the record's preparation, maintenance and retrieval, that he can reasonably testify on the basis of this knowledge that the record is what it purports to be, and that it was made in the ordinary course of business consistent with the elements of Rule 803(6).

Id.; see also Cent. Mtge. Co. v. Bonner, 12th Dist. Butler No. CA2012-10-204, 2013-Ohio-

3876, ¶ 16.

{¶ 22} In this case, Motley averred that she is a custodian of the records for Citibank

and has personal knowledge of and access to the relevant information regarding the account

number ending in 4312. Motley further averred that Ebbing used or authorized the use of the

account number ending in 4312 for the purpose of obtaining an extension of credit and that

Ebbing was provided with periodic billing statements. Finally, Motley averred that the last

periodic billing statement attached as Exhibit A is a "true and correct business record

reflecting information created and maintained by Citibank * * * in the course of regularly

conducted business activity" and that it "was made at the time of the act, transaction,

occurrence or event or within a reasonable time thereafter." Motley's description of her

position in relation to Citibank and description of the relevant business records sufficiently

-9- Butler CA2012-12-252

established her competency to testify to these matters and fall under the hearsay exception

in Evid.R. 803(6). See Fifth Third Mtge. Co. v. Bell, 12th Dist. Madison No. CA2013-02-003,

; Ohio Receivables, 10th Dist. Franklin No. 11AP-951, 2012-Ohio-

3165, at ¶ 26. A proper foundation was laid for the attached affidavit and incorporation of the

last periodic billing statement was proper Civ.R. 56 evidence. Consequently, a question of

fact was created as to whether Ebbing is responsible to Citibank for a $5,334.71 debt.

{¶ 23} Ebbing's first assignment of error is overruled.

{¶ 24} Assignment of Error No. 2:

{¶ 25} THE TRIAL COURT COMMITTED UNLAWFUL AND REVERSIBLE ERROR

TO THE PREJUDICE OF [EBBING] IN CHARGING THE JURY WITH INCOMPLETE,

INAPPOSITE, AND MISLEADING INSTRUCTIONS.

{¶ 26} Ebbing argues that the trial court's jury instructions were "misleadingly

incomplete or misdirecting and inapposite to the simple contract case before the jury."

Specifically, Ebbing does not state how the jury instructions were incomplete, misdirecting, or

inapposite. Rather, Ebbing refers us to the jury instructions he proposed to the trial court.

{¶ 27} "When considering the appropriateness of a jury instruction, or when a specific

jury instruction is in dispute, a reviewing court must examine the instructions as a whole."

Enderle v. Zettler, 12th Dist. Butler No. CA2005-11-484,

. "If, taken in

their entirety, the instructions fairly and correctly state the law applicable to the evidence

presented at trial, reversible error will not be found merely on the possibility that the jury may

have been misled." Withers v. Mercy Hosp. of Fairfield, 12th Dist. Butler No. CA2010-02-

033,

, ¶ 17, citing Ohio Farmers Ins. Co. v. Cochran,

(1922). "Moreover, misstatements and ambiguity in a portion of the instructions will not

constitute reversible error unless the instructions are so misleading that they prejudicially

affect a substantial right of the complaining party."

. - 10 - Butler CA2012-12-252

{¶ 28} An appellate court will reverse a trial court's refusal to give a proposed jury

instruction only if (1) the trial court abused its discretion by failing to give the requested

instruction and (2) the complaining party was prejudiced as a result.

. A trial

court is not required to give a proposed jury instruction merely because counsel submitted it.

Silver v. Jewish Home of Cincinnati,

,

, ¶ 90 (12th

Dist.).

{¶ 29} In this case, Ebbing's proposed jury instructions contained misstatements of

the law. Ebbing's requested instructions included a defense that a signed writing was

required in order for the defendant to be liable. As discussed in the first assignment of error,

for a credit card agreement to exist, there does not have to be a signed writing. R.C.

1335.02(A)(3). Rather, use of the credit card is sufficient to create an agreement. Ohio

Receivables, 10th Dist. Franklin No. 11AP-951,

, at ¶ 33; see Assett

Acceptance LLC v. Davis, 5th Dist. Fairfield No. 2004CA00054,

.

Consequently, the trial court did not abuse its discretion in failing to utilize Ebbing's proposed

jury instructions.

{¶ 30} Furthermore, when looking at the jury instructions as a whole, we do not see

how Ebbing was materially prejudiced. In providing jury instructions, the trial court explained

the different roles of judge and jurors, the definition of evidence and how it may be direct or

indirect, witness credibility, and the burden of proof in civil cases. The trial court addressed

the applicable law. The trial court went through the pleadings, the elements of a contract,

and addressed the statute of frauds. The trial court read the exception for credit cards under

R.C. 1335.02(A)(3) almost verbatim. After reviewing the record, we find that the trial court

did not abuse its discretion in submitting instructions to the jury.

{¶ 31} Ebbing's second assignment of error is overruled.

{¶ 32} Assignment of Error No. 3: - 11 - Butler CA2012-12-252

{¶ 33} THE TRIAL COURT COMMITTED UNLAWFUL AND REVERSIBLE ERROR

TO THE PREJUDICE OF [EBBING] IN ALLOWING THE JURY TO SEE, HEAR, AND

CONSIDER INADMISSIBLE EVIDENCE.

{¶ 34} Ebbing argues that five of Citibank's exhibits admitted by the trial court were

improper based on various rules of evidence. We address the exhibits in turn.

{¶ 35} In general, the admission of relevant evidence lies within the sound discretion

of the trial court. State v. Sage,

(1987), paragraph two of the syllabus. "In

order for appellant to succeed on this proposition, he must show that the trial court abused its

discretion in the admission * * * and that the appellant has been materially prejudiced

thereby." State v. Martin,

(1985). An abuse of discretion is more

than just an error of law or judgment; it implies the trial court's decision in admitting the

evidence was unreasonable, arbitrary, or unconscionable. State v. Hancock,

,

, ¶ 130.

{¶ 36} First, Ebbing argues that the trial court erred in admitting Citibank's Exhibit 1,

consisting of numerous monthly credit card statements spanning approximately five years for

the credit card account number ending in 4312, and Exhibit 2, a credit card agreement

consisting of the terms and conditions of an account, because they constitute inadmissible

hearsay. We disagree.

{¶ 37} "Hearsay is generally inadmissible, unless it falls within the scope of an

exception within the Rules of Evidence." State v. Sims, 12th Dist. Butler No. CA2007-11-300,

, citing State v. DeMarco,

(1987); Evid.R. 802.

One such exception is the "records of regular conducted activity," more commonly known as

the business records exception. Evid.R. 803(6); R.C. 2317.40.

{¶ 38} As discussed earlier,

[t]o qualify for admission under Rule 803(6), a business record - 12 - Butler CA2012-12-252

must manifest four essential elements: (i) the record must be one regularly recorded in a regularly conducted activity; (ii) it must have been entered by a person with knowledge of the act, event or condition; (iii) it must have been recorded at or near the time of the transaction; and (iv) a foundation must be laid by the "custodian" of the record or by some "other qualified witness."

State v. Glenn, 12th Dist. Butler No. CA2009-01-008,

, ¶ 17, quoting State v.

Davis,

,

, ¶ 171. "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.'" Davis at ¶ 171,

quoting Evid.R. 803(6).

{¶ 39} In order to properly authenticate business records, a witness must "testify as to

the regularity and reliability of the business activity involved in the creation of the record."

Glenn at ¶ 19. Firsthand knowledge of the transaction is not required by the witness

providing the foundation. Id. However, the witness must be

sufficiently familiar with the operation of the business and with the circumstances of the record's preparation, maintenance and retrieval, that he can reasonably testify on the basis of this knowledge that the record is what it purports to be, and that it was made in the ordinary course of business consistent with the elements of Rule 803(6).

Id.; see also Cent. Mtge. Co. v. Bonner, 12th Dist. Butler No. CA2012-10-204, 2013-Ohio-

3876, ¶ 16.

{¶ 40} In this case, Steve Sabo, an assistant vice president for Citibank authenticated

Exhibits 1 and 2. In regard to Exhibit 1, the credit card statements, Sabo testified that the

record is a type that Citibank maintains in its regularly conducted business activity, that it is

Citibank's regular business to maintain these records, and that the records were maintained

pre-transaction. Regarding Exhibit 2, the credit card agreement, Sabo testified that the

record is a type of record Citibank maintains in its regular course of business, it is Citibank's

business to maintain such records, and the record was created at the time the credit card - 13 - Butler CA2012-12-252

account was established. Furthermore, Sabo testified that he is a custodian of Citibank's

records and is familiar with Citibank's record keeping activities. As such, the trial court did

not abuse its discretion in admitting Exhibits 1 and 2 as they are not hearsay because they

fall within the business records exception.

{¶ 41} Next, Ebbing argues that Exhibits 3 and 4 are not relevant under Evid.R. 402.

Exhibit 3 consists of three checks and Exhibit 4 is a convenience check. Specifically, Ebbing

argued below that Exhibit 3, consisting of three checks, is not relevant because the checks

"clearly were not from [Ebbing]." Ebbing also argued below that Exhibit 4, the convenience

check, was not relevant because the check that he wrote against Citibank had nothing to do

with a credit card charge.

{¶ 42} "Relevant evidence" is evidence which has any tendency to make the

existence of any fact more or less probable. Evid.R. 401. All relevant evidence is

admissible, unless specifically excluded. Evid.R. 402. According to Evid.R. 403(A),

"[a]lthough relevant, evidence is not admissible if its probative value is substantially

outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the

jury."

{¶ 43} Exhibit 3 consists of three checks all made out to "Citicards" with an account

number ending in 4312 in the memo lines. One check is drawn from Emery Federal Credit

Union, which has "Erin & Joseph Ebbing" in the top left-hand corner with a Princeton Road,

Hamilton, address. The other two checks are drawn from PNC Bank, and have the name

"Joseph P. Ebbing" in the top left-hand corner with a Princeton Road, Hamilton, address.

Exhibit 4 is a convenience check in the amount of $4,800 paid to the order of Erin Ebbing

and signed by a Joseph P. Ebbing. In the top left-hand corner of the convenience check is

the name "Joseph P. Ebbing" with a Princeton Road, Hamilton, address. Sabo testified that

a convenience check is a check that is inserted in the monthly billing statement that can be - 14 - Butler CA2012-12-252

used by the account holder at his or her discretion. Sabo also testified that the convenience

check was reflected in a credit card statement admitted in Exhibit 1. Both exhibits are

relevant to the case at hand as to whether Ebbing was the holder of an account number

ending in 4312 at Citibank. Both exhibits contained Ebbing's name and address, the checks

in Exhibit 3 held a memo line of an account number ending in 4312, and Sabo testified that

the convenience check is reflected in the credit card statements in Exhibit 1. The trial court

did not abuse its discretion in finding Exhibits 3 and 4 relevant and admitting them into

evidence.

{¶ 44} Last, Ebbing argues that Exhibit 5, a letter signed by him and his ex-wife to

Citibank, is an offer to compromise and should have been excluded by the trial court as an

offer to compromise. Citibank asserts that Exhibit 5 was not an offer to compromise because

the existence of the claim was not in dispute, but rather the amount of the claim was in

dispute.

{¶ 45} Evid.R. 408 provides:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.

{¶ 46} In this case, Exhibit 5 was signed by Joseph P. Ebbing and Erin M. Ebbing,

contained an account number ending in 4312 in the memo line, and asked for Citibank to

accept a monthly payment of $25. While the memo line in this letter stated "settlement offer,"

there was not yet pending litigation as of the date of the letter and thus Exhibit 5 falls outside

of the scope of Evid.R. 408. Because the letter predated the litigation initiated by Citibank,

the trial court did not abuse its discretion in admitting Exhibit 5. See Harman Group

Corporate Fin., Inc. v. Academy of Medicine of Columbus & Franklin Cty., 94 Ohio App.3d

- 15 - Butler CA2012-12-252

712, 726 (10th Dist. 1994); Atkinson v. Internatl. Technegroup, Inc.,

(1st Dist. 1995).

{¶ 47} Even if we were to construe Exhibit 5 as an offer to compromise prohibited by

Evid.R. 408, given the ample evidence concerning the claim other than the alleged

settlement negotiations, including volumes of credit card statements with Ebbing's name and

address and checks made out to "Citicard" with Ebbing's name and address, any error in the

admission of Exhibit 5 cannot be viewed as affecting Ebbing's substantial rights, and is

harmless. Evid.R. 103; Civ.R. 61; Silver,

,

, at ¶ 99.

{¶ 48} Ebbing's third assignment of error is overruled.

{¶ 49} Assignment of Error No. 4:

{¶ 50} THE TRIAL COURT COMMITTED UNLAWFUL AND REVERSIBLE ERROR

TO THE PREJUDICE OF [EBBING] IN OVERRULING [EBBING'S] MOTION FOR A

DIRECTED VERDICT WHERE SUFFICIENT AND UNCONTROVERTED EVIDENCE

DEMONSTRATED THE ABSENCE OF ANY WRITTEN OR VERBAL CONTRACT OF

WHICH DEFENDANT COULD POSSIBLY BE IN DEFAULT THEREOF.

{¶ 51} Ebbing argues that the "trial court unlawfully allowed [Citibank] and the jury to

ignore Ohio laws mandating a written contract." Further, Ebbing argues that because

Citibank's evidence was inadmissible, it did not prove any element of the matter before the

jury. Ebbing contends that the only lawful evidence showed that Ebbing was entitled by law

to judgment in his favor. However, as stated in the third assignment of error, the majority of

Citibank's evidence was admissible.

{¶ 52} We review a trial court's decision on a motion for directed verdict or judgment

notwithstanding the verdict de novo. Phipps v. Internatl. Paper Co., 12th Dist. Clinton No.

CA2013-02-003,

. A favorable ruling on either motion is not easily

obtained. Osler v. Lorain,

(1986). The standard for granting a - 16 - Butler CA2012-12-252

motion for judgment notwithstanding the verdict is the same as that for granting a motion for

directed verdict. Choate v. Tranet, Inc., 12th Dist. Warren No. CA2005-09-105, 2006-Ohio-

4565, ¶ 48.

{¶ 53} That is, when considering either motion, the evidence adduced at trial and the

facts established by admissions in the pleadings and in the record must be construed most

strongly in favor of the party against whom the motion is made.

. If the court

finds that reasonable minds could not differ as to any determinative issue, then the court

must sustain the motion.

If, on the other hand, there is substantial competent evidence

to support the nonmoving party, upon which reasonable minds might reach different

conclusions, the motion must be denied.

{¶ 54} "To prove a breach of contract claim, a plaintiff must show 'the existence of a

contract, performance by the plaintiff, breach by the defendant, and damage or loss to the

plaintiff.'" Discover Bank v. Poling, 10th Dist. Franklin No. 04AP-1117,

, quoting Nilavar v. Osborn,

(2d Dist. 2000). "[C]redit card

agreements are contracts whereby the issuance and use of a credit card creates a legally

binding agreement." Poling at ¶ 17; Bank One, Columbus, N.A. v. Palmer,

(10th Dist. 1989); Asset Acceptance, 5th Dist. Fairfield No. 2004-CA-00054, 2004-

Ohio-6967, at ¶ 48. Consequently, a written contract is not needed in order for a credit card

agreement to be binding.

{¶ 55} In this case, Sabo authenticated numerous years' worth of credit card

statements with Ebbing's name and address. Sabo also authenticated the general credit

card agreement, checks made to "Citicards" from accounts with Ebbing's name on them, and

a convenience check made out to Ebbing's ex-wife and signed by Ebbing, which Sabo

testified is drawn against the credit card itself and is reflected in the credit card statements in

Exhibit 1. The credit card agreement provides that the card holder must pay all amounts due - 17 - Butler CA2012-12-252

on the account. Ebbing denied ever having a PNC account or a Citibank credit card number

ending in 4312. Ebbing also stated he could not recall writing the convenience check to his

ex-wife, though he was 90 percent sure that it was his signature on the convenience check.

However, construing the evidence presented in Citibank's favor, there is substantial

competent evidence to support Citibank's claim. Consequently, the trial court did not err in

failing to grant Ebbing's motion for judgment notwithstanding the verdict.

{¶ 56} With regard to Ebbing's argument that the trial court erred denying his motion

for a new trial, Civ.R. 59(A) sets forth nine grounds under which a party may seek a new trial

and permits a court to grant a new trial for "good cause shown."3 On appeal, Ebbing appears

to argue that the judgment was not sustained by the weight of the evidence as he asserts

that the only lawful evidence showed that he was entitled to judgment as a matter of law.

{¶ 57} The decision to grant or deny a motion for a new trial is reviewed on appeal

under an abuse of discretion standard of review. Kranz v. Kranz, 12th Dist. Warren No.

CA2008-04-054,

, ¶ 38; Sharp v. Norfolk & W. Ry. Co.,

(1995). As the Ohio Supreme Court has stated that the manifest weight standard is the

same in both criminal and civil contexts, the weight of the evidence concerns "the inclination

of the greater amount of credible evidence, offered in a trial, to support one side of the issue

rather than the other." Eastley v. Volkman,

,

.

Reviewing courts must oblige every reasonable presumption in favor of the lower court's

judgment and finding of facts. Harris v. Summers, 7th Dist. Columbiana No. 10-CO-27,

, quoting Gerijo, Inc. v. Fairfield,

(1994). In the

event the evidence is susceptible to more than one interpretation, we must construe it

3. Ebbing argued below that there were irregularities in the proceedings, was an error of law that occurred during trial that was brought to the attention of the trial court, and the judgment was not supported by the weight of the evidence. - 18 - Butler CA2012-12-252

consistently with the lower court's judgment.

, quoting Gerijo at 226. In

addition, the weight to be given the evidence and the credibility of the witnesses are primarily

for the trier of fact to decide. Kalain v. Smith,

(1986).

{¶ 58} As discussed above, while Ebbing continually denied having a credit card

account with Citibank, Citibank produced numerous exhibits tying Ebbing to the delinquent

credit card account. As the weight to be given the evidence and the credibility of the

witnesses are primarily for the trier of fact, the trial court did not err in finding the verdict

supported by the manifest weight of the evidence and denying Ebbing's motion for a new

trial.

{¶ 59} Ebbing's fourth assignment of error is overruled.

{¶ 60} Judgment affirmed.

PIPER and M. POWELL, JJ., concur.

- 19 -