Whichard v. Matthews
2013 Ohio 1892
Ohio Ct. App.2013Background
- Whichard sued for $118,000 promissory note with 12% interest, alleged to be executed Oct. 8, 2008 for Kingdom’s postponement of closing on Randall Park Mall.
- Note purportedly made by Kingdom, Talton, and Matthews, with Matthews and Talton signing personally on the note.
- Note provided options to Kingdom to close by Nov. 16, 2008 and allowed continued possession of the Mall; Randall Park Mall, L.L.C. allegedly granted time in exchange for the note.
- Whichard attached an authenticated note and affidavits to a summary-judgment motion; Haywood Whichard (agent) asserted Kingdom’s possession and negotiations; Kingdom’s agreements were tied to a purchase agreement dated June 18, 2008.
- Defendants opposed with unsworn emails/documents; the trial court granted summary judgment for Whichard; defendants appealed on three arguments: lack of proper authentication, lack of consideration, and personal liability of Talton and Matthews.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Whichard met Civ.R. 56 burden with authenticated note. | Whichard’s note was properly authenticated via her affidavit and attached exhibit. | Haywood’s affidavit contained hearsay; unsworn documents insufficient. | Yes; note properly authenticated; hearsay issue resolved; summary judgment proper. |
| Whether past consideration suffices to support the Note. | Consideration presumed for promissory notes; defendant bears burden to rebut. | No valid consideration; past consideration insufficient. | Presumption of consideration applied; defendants failed to rebut. |
| Whether Talton and Matthews were personally liable on the Note. | Note obligates joint and several liability; signatures show individual liability. | Officers/guarantors uncertain; personal liability not established. | Talton and Matthews personally liable; note language supports individual liability. |
Key Cases Cited
- Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996) (summary-judgment standard; Civ.R. 56 burden shifting)
- Dalrymple v. Wyker, 60 Ohio St. 108, 53 N.E. 713 (1899) (consideration burden on party challenging note; presumption of consideration)
- Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220 (2002) (personal knowledge and admissibility in affidavits)
- Target Natl. Bank v. Enos, 2010-Ohio-6307 (9th Dist. No. 25268) (personal knowledge sufficiency in affidavits for summary judgment)
- Knoth v. Prime Time Marketing Mgt., Inc., 2004-Ohio-2426 (2d Dist.) (hearsay in affidavits and admissibility for summary judgment)