Dodeka, L.L.C. v. Keith
2017 Ohio 7449
Ohio Ct. App.2017Background
- Cindy Keith was listed on a U.S. Bank credit-card account opened by her then-husband Andrew in 1991; the couple divorced in 2000 but her name remained on statements and on the account.
- The card’s terms were periodically amended; the last amendment at issue was mailed in July 2002 and included a North Dakota choice-of-law clause and an attorney-fee provision.
- Andrew stopped paying in April 2003; his debt was later discharged in bankruptcy and U.S. Bank removed his name; U.S. Bank’s interest was sold to Dodeka, LLC in 2007.
- Dodeka sued Cindy in municipal court to collect the balance and sought attorney fees; Cindy counterclaimed and filed a third-party complaint against Dodeka’s former counsel, alleging FDCPA and Ohio consumer protection violations (including improper attorney-fee demand, statute-of-limitations bar, and fraudulent documentation).
- This Court previously reversed a trial-court order compelling arbitration because Dodeka/Welt failed to prove Cindy was a party to the 2002 agreement; on remand the trial court granted summary judgment to Dodeka and Welt on Cindy’s counterclaims based largely on applying the agreement’s North Dakota choice-of-law clause.
- The appellate court reversed and remanded, concluding the trial court erred by applying the choice-of-law clause without first determining whether Cindy was bound by the credit-card agreement and by failing to address other counterclaims and defenses.
Issues
| Issue | Plaintiff's Argument (Dodeka/Welt) | Defendant's Argument (Keith) | Held |
|---|---|---|---|
| Whether North Dakota law (via card agreement) governs recoverability of attorney fees | Choice-of-law clause in the 2002 amendment binds Keith, so N.D. law permits attorney-fee recovery | Clause cannot bind Keith unless she was a party or accepted the 2002 terms; Ohio law (American rule) bars contractual attorney fees in consumer debt cases | Reversed: trial court erred to apply N.D. law without first determining whether Keith was a party to the agreement |
| Whether Keith was a party to the credit-card agreement (acceptance by use or execution) | Circumstantial evidence (name on statements; card used before/after divorce) shows Keith was an account holder | Keith denies signing the application, denies using the U.S. Bank card, and submitted affidavit denying purchases/payments | Not finally decided; appellate court held trial court failed to resolve this factual/legal threshold and remanded for determination |
| Whether summary judgment for Dodeka/Welt on Keith’s counterclaims was appropriate | Submitted evidence argued clause applies and statute of limitations/statutory defenses fail | Argued prior appellate opinion and her affidavit favor her; trial court did not fairly adjudicate factual disputes or address all defenses | Reversed: summary judgment improper because material issues (party status, merits of counterclaims) unresolved |
| Whether Dodeka’s underlying account claim against Keith was barred by statute of limitations | Argued Keith was bound so claim timely or otherwise supported | Keith argued the trial court granted her summary judgment on the account claim due to lack of evidence she made charges within limitations period | Trial court had granted summary judgment to Keith on the account claim, but appellate decision focused on erroneous resolution of counterclaims and choice-of-law; remand required for proper determinations |
Key Cases Cited
- Leibreich v. A.J. Refrigeration, Inc., 67 Ohio St.3d 266 (summary judgment standard in Ohio)
- Dresher v. Burt, 75 Ohio St.3d 280 (moving party burden on summary judgment)
- Wise v. Zwicker & Associates, P.C., 780 F.3d 710 (6th Cir.) (discussion of Ohio’s American rule re: attorney fees)
- Wilborn v. Bank One Corp., 121 Ohio St.3d 546 (Ohio Supreme Court on contractual attorney-fee shift and consumer debt context)
- Miller v. Kyle, 85 Ohio St. 186 (historical Ohio common-law rule disfavoring contractual attorney-fee shifts)
- Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7 (appellate discussion of summary judgment standard)