Sec. Natl. Bank & Trust Co. v. Reynolds,Sec. Natl. Bank & Trust Co. v. Reynolds,
DONOVAN, J.
{¶ 1} This matter is before the Court on the notice of appeal of Security National Bank and Trust Co. (“SNB“), filed August 13, 2007. On July 10, 2006, SNB filed a complaint against Charles and Carol Reynolds (“Reynolds“), seeking to recover
{¶ 2} In March 2004, the Reynolds secured a loan from SNB, executing to SNB a promissory note for $21,838.57. The collateral for that note was a 2001 Pontiac Montana minivan. At some time after the promissory note was еxecuted, the Reynolds defaulted and voluntarily surrendered the Pontiac to SNB.
{¶ 3} In June 2006, SNB sold the Pontiac at auction for $5,200. This amount was applied to the loan, leaving an unpaid balance. Apparently, the Pontiac sold for less than the reserve amount and may have been sold in contravention of Ohio laws governing the sale of such collateral, however, that matter is not addressed on this appeal.
{¶ 4} The matter proceeded to bench trial before a magistrate on March 22, 2007. SNB called Pam Burnett, its collection manager, as its first witness.1 SNB intended to question Ms. Burnett regarding her opinion of the value of the Pontiac. Establishing the value of the vehicle was important because it would establish the alleged deficiency owed by the Reynolds. Ms. Burnett testified that she worked at SNB
{¶ 5} SNB unsuccessfully attempted to elicit from Ms. Burnеtt details about a “black book.” Ostensibly, the black book is a reference guide for used or new car values. SNB repeatedly attempted to elicit testimony regarding the black book through Ms. Burnett. On each of these occasions, counsel for the Reynolds objected on the basis of a lack of foundation. The court sustаined each of these objections. The following exchanges are representative of SNB‘s attempts to elicit testimony about the black book:
“Q Okay. And you had indicated that you used the black book?
“A Correct.
“Q For values. Could you give us a little bit more information on what the black book is?
“A Well, that‘s --
“MR.THOMPSON: I‘ll object, Your Honor.
“THE COURT: (Unintelligible.)
“MR. THOMPSON: I can‘t see how she would know what it is or – I mean, she sаys she uses the book. I don‘t think there‘s enough background here.
“THE COURT: I agree. I‘m not even sure she said she used the book. She said the bank did.
“MS. MARLOW: Okay.
“THE COURT: So I‘m going to sustain the objection. You need to
lay a better foundation.”
Transcript, p. 9. And then again later, the following exchange was had:
“Q: When the Reynolds brought their vehicle in, what did you do specifically with respect to that?
“A: Okay. We did a condition report in which we went out and inspected the vehicle for any damage. They have a storage lot that we take our vehicles to, if, you know, they are brought in to us and not picked up by an outside company. So we, you know, took the vehicle to the storage lot. At that point then we scheduled it for sale at the auction in Columbus and they – we fax them so that they will come and pick the vehicle up.
“Q: Okay. When you did all of this, what value did you place on the vehicle?
“MR. THOMPSON: I object, Your Honor. There‘s been no foundation laid that she has any knowledge whatsoever of how to value an automobile.
“THE COURT: I think you‘ve got the same problem. Same objection. . .”
Transcript, p. 12-13.
{¶ 6} SNB attempted several more times to elicit testimony regarding valuation of the Pontiac, all of which were met with sustained objections. SNB then announced it had no further questions for Ms. Burnett. The Reynolds moved for a directed verdict. Responding, SNB told the Court that it would call Ms. Reynolds as a witness in an attempt to elicit a value for the car. The court allowed this and Ms. Reynolds was
{¶ 7} Immediately thereafter, the Reynolds voluntarily moved to dismiss their Fair Debt Collection Act counterclaim without prejudice. SNB argued that the counterclaim was compulsory, and as such, if the dismissal was granted, it should be with prejudice. The Reynolds countered that their claim was not compulsory because “it would only be an action if something shows up on the client‘s credit report. Subsequent to this point in time when the debt is deemed owed – now that it‘s been determined they don‘t owe it, that‘s where the cause of action would lie.” Transcript, p. 25. The court held that it would dismiss the counterclaim without prejudice and that if the Reynolds re-filed, SNB could address whether the counterclaim was compulsory at that timе.
{¶ 8} SNB asserts two assignments of error. The first assignment is as follows:
{¶ 9} “THE TRIAL COURT ERRED IN DETERMINING PLAINTIFF FAILED TO PRODUCE PROPER FOUNDATION FOR LAY TESTIMONY.”
{¶ 10} SNB contends that, in accordance with
{¶ 11} We review the decision whether to excludе or admit testimony of a lay
{¶ 12}
{¶ 13} “If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.”
{¶ 14} In the common law, the rule developed that lay witnesses could only testify to facts they observed. Over time, exceptions to this rule were developed.
{¶ 15} Generally speaking, testimony regarding opinion of value is confined to expert witnesses. Tokles & Son, Inc. v. Midwestern Indemnity Co. (1992), 65 Ohio St.3d 621, 625, 605 N.E.2d 936. Indeed, it seems SNB would have had a much easier time had they introduced evidence of the value of the Pontiac through expert testimony. In fact, Ms. Burnett may have been qualified to render an expert opinion,
{¶ 16} “Some items are complex and their value is intermingled with fact and opinion. In addition, the item may not be available for appraisal. So out of necessity, non-experts are often permitted to enlighten the jury with their own opinions concerning the value of items.” 65 Ohio St.3d 621, 625, 605 N.E.2d 936.
{¶ 17} However, non-expert opinion testimony must still comply with
{¶ 18} “[T]he witness must show that he is familiar with the property itself and that he has current sufficient knowledge of the value of the item by, for example, demonstrating a firsthand knowledge of the characteristics of the property, its actual and potential uses and its condition or by showing other meaningful experience in
{¶ 19} The line between expert testimony under
{¶ 20} SNB also repeatedly and unsuccessfully attempted to introduce testimony from Ms. Burnett regarding thе black book. However, and again, prior to asking Ms. Burnett about the black book, SNB elicited scant foundational evidence
{¶ 21} Accordingly, SNB‘s first assignment of error is overruled.
{¶ 22} SNB‘s second assignment of error is as follows:
{¶ 23} “THE TRIAL COURT ERRED IN DISMISSING DEFENDANTS’ COUNTERCLAIM WITHOUT PREJUDICE.”
{¶ 24} SNB argues that the Reynolds’ counterclaim was compulsory pursuant to
{¶ 25}
{¶ 26}
{¶ 27}
{¶ 28} The staff notes to
{¶ 29} “[The] rule provides that voluntary or involuntary dismissal, depending upon the particular circumstances, may be with or without prejudice. If the dismissal is with prejudice, the dismissed action in effect has been adjudicatеd upon the merits, and an action based on or including the same claim may not be retried. In many circumstances in granting a dismissal with or without prejudice under Rule 41, the court must exercise its sound discretion.”
{¶ 30} 1970 Staff Notes to
{¶ 31} Indeed, a dismissal pursuant to
{¶ 32} Here we have a situation аppearing to fall within the ambit of
{¶ 33}
{¶ 34} “(A) Compulsory counterclaims. A pleading shall state as a counterсlaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party‘s claim and does not require for its adjudication the presence of third parties of whom the court cannоt acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13.”
{¶ 35} In Geagu Truck & Implement Co. v. Juskiewicz (1984), 9 Ohio St.3d 12, 457 N.E.2d 827, the Ohio Supreme Court set forth a two-pronged test for applying
{¶ 36} The Reynolds’ counterclaim alleged that SNB violated the Fair Debt Collection Practices Act by suing them for an amount greater than what they could possibly owe. The Reynolds served their answer with counterclaim subsequent to being sued, thus there is no question that the Reynolds’ claim existed at the time they served their answer on SNB. The only question that remains to be resolved is whether the Reynolds’ claim arises out of the “transaction or occurrence that is the subject matter of the opposing claim.”
{¶ 37} Courts use the “logical relation” test to determine whether a claim meets
{¶ 38} We conclude that the Reynolds’ claim is logically related to SNB‘s original action to recover a deficiency. Many of the same facts and evidence that would be required to prove SNB‘s claim to recover a deficiency would be useful to the Reynolds in proving that SNB violated the Fair Debt Collections Practices Act in attempting to collect that deficiency. SNB used its collections manager as a witness in an attempt to prove its claim for a deficiency. It seems likely that the Reynolds might also call Ms. Burnett in order to prove their claim regarding alleged illegality in collections procedures. Thus, having satisfied both prongs of the
{¶ 39} Because the Reynolds’ counterclaim was compulsory, it was an abuse of discretion for the trial court to dismiss it without prejudice. The Supreme Court of Ohio has repeatedly voiced its desire to avoid piecemeal litigation in our court system. See Denham v. New Carlise (1999), 86 Ohio St.3d 594, 597, 716 N.E.2d 184 (citing Gen. Elec. Supply Co. v. Warden Elec., Inc. (1988), 38 Ohio St.3d 378, 380, 381-382, 528 N.E.2d 195, 197-198.) We share this desire to avoid a multiplicity of lawsuits. Allowing the Reynolds to reassert their claim would run afoul of this important principle and would circumvent the clear requirements of
{¶ 40} In conclusion, the trial court committеd no abuse of discretion in refusing
BROGAN, J. and GRADY, J., concur.
Copies mailed to:
W. D. Shane Latham
Brandin D. Marlow
Lester R. Thompson
Hon. Stephen A. Wolaver