Monitor Bank v. Griffith
2017 Ohio 7785
| Ohio Ct. App. | 2017Background
- Monitor Bank obtained a judgment in March 2016 against GDG Properties, LLC on a promissory note and sued Chad Griffith in May 2016 on a guaranty for that judgment amount.
- Griffith denied the complaint; Monitor Bank moved for summary judgment and initially did not attach an affidavit to its motion.
- Five days after Griffith’s opposition, Monitor Bank filed an affidavit of Doug Akins attaching copies of the guaranty, the note signature page, account balance, prior complaint filings, and the judgment against GDG.
- Griffith moved to strike the late affidavit and exhibits as improper and untimely; the trial court granted Monitor Bank leave to file instanter, denied the motion to strike, and granted summary judgment to Monitor Bank.
- On appeal the Ninth District considered whether the Akins affidavit and attached documents met Civ.R. 56(E) requirements (personal knowledge, competence to testify, and sworn/certified copies of attachments).
- The appellate court reversed and remanded, concluding the affidavit lacked sufficient personal-knowledge and competence averments and the exhibits were not properly authenticated under Civ.R. 56(E), so no admissible evidence supported summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Akins affidavit satisfied Civ.R. 56(E) personal-knowledge requirement | Akins is a bank officer; presence at signing and officer status imply personal knowledge and competence | Affidavit contains only conclusory language, no description of duties, documents reviewed, or familiarity with records | Court: affidavit failed to show personal knowledge or competence; conclusory statement insufficient |
| Whether exhibits attached to the affidavit were admissible under Civ.R. 56(E) | Attached copies (guaranty, note, account balance, prior filings) established the claim when filed with the affidavit | Exhibits were not sworn, certified, or authenticated nor was personal knowledge of them averred | Court: exhibits were not properly authenticated or sworn and thus were not before the trial court |
| Whether summary judgment was proper without admissible evidence under Civ.R. 56 | Monitor Bank argued its filings and affidavit supported no genuine issue of material fact | Griffith argued lack of admissible evidence defeated summary judgment | Court: because admissible evidence per Civ.R. 56(E) was lacking, trial court erred in granting summary judgment |
| Timeliness and procedural propriety of filing affidavit instanter | Bank obtained leave to file affidavit instanter; trial court ruled on it | Griffith contested untimeliness and moved to strike; argued substance still deficient | Court: even with leave, substantive defects under Civ.R. 56(E) required reversal |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (de novo review standard for summary judgment)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (summary judgment test under Civ.R. 56)
- Murphy v. Reynoldsburg, 65 Ohio St.3d 356 (view facts most favorably to nonmoving party)
- Perez v. Scripps–Howard Broadcasting Co., 35 Ohio St.3d 215 (resolve credibility and competing inferences for nonmovant)
- Dresher v. Burt, 75 Ohio St.3d 280 (burden-shifting framework for summary judgment and evidentiary obligations)
- Skidmore & Assoc. Co. v. Southerland, 89 Ohio App.3d 177 (documents not authorized by Civ.R. 56(C) must be incorporated by affidavit and authenticated)