[Cite as Am. Express Bank, F.S.B. v. Hooker, 2012-Ohio-2140.]

COURT OF APPEALS 

FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

AMERICAN EXPRESS BANK, FSB : JUDGES: 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff-Appellee : Hon. Sheila G. Farmer, J. 

 : Hon. Julie A. Edwards, J. 

-vs- : 

 : 

ALAN HOOKER : Case No. 11-CA-40 

 : 

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. 10CV01498 

JUDGMENT: Affirmed 

 

DATE OF JUDGMENT: May 11, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

DEREK W. SCRANTON JASON A. PRICE 

DARLENE M. ROGERS 126 East Chestnut Street 

2300 Litton Lane, Suite 200 Lancaster, OH 43130 

Hebron, Kentucky 41048 
Fairfield County, Case No. 11-CA-40 2 

Farmer, J. 

{¶1} On December 3, 2010, appellee, American Express Bank, FSB, filed a 

complaint against appellant, Alan Hooker, for money due and owing on a credit card 

account. Both parties filed motions for summary judgment. By summary judgment 

entry filed June 28, 2011, the trial court granted summary judgment in favor of appellee 

and awarded appellee $29,909.30 plus interest and costs. 

{¶2} Appellant filed an appeal and this matter is now before this court for 

consideration. Assignment of error is as follows: 

I 

{¶3} "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO 

THE PLAINTIFF-APPELLEE." 

I 

{¶4} Appellant claims the trial court erred in granting summary judgment to 

appellee. We disagree. 

{¶5} Summary Judgment motions are to be resolved in light of the dictates of 

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. 

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211: 

{¶6} "Civ.R. 56(C) provides that before summary judgment may be granted, it 

must be determined that (1) no genuine issue as to any material fact remains to be 

litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it 

appears from the evidence that reasonable minds can come to but one conclusion, and 

viewing such evidence most strongly in favor of the nonmoving party, that conclusion is 

adverse to the party against whom the motion for summary judgment is made. State 
Fairfield County, Case No. 11-CA-40 3 

ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, 

citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472, 

364 N.E.2d 267, 274." 

{¶7} As an appellate court reviewing summary judgment motions, we must 

stand in the shoes of the trial court and review summary judgments on the same 

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 

Ohio St.3d 35. 

{¶8} Specifically, appellant argues the matter should have been referred to 

arbitration pursuant to the credit card agreement, and genuine issues of material fact 

existed relative to the affidavit submitted by appellee. 

{¶9} Attached as Plaintiff's Exhibit B to the December 3, 2010 complaint is the 

Agreement Between Delta SkyMiles Credit Cardmember and American Express Bank 

FSB. The agreement contains an arbitration section which states the following in 

pertinent part: 

{¶10} "Initiation of Arbitration Proceedings/Selection of Administrator: Any 

Claim shall be resolved, upon the election by you or us, by arbitration pursuant to this 

Arbitration Provision and the code of procedures of the national arbitration organization 

to which the Claim is referred in effect at the time the Claim is filed (the 'Code'), except 

to the extent the Code conflicts with this Agreement. 

{¶11} "Significance of Arbitration: IF ARBITRATION IS CHOSEN BY ANY 

PARTY WITH RESPECT TO A CLAIM, NEITHER YOU NOR WE WILL HAVE THE 

RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT 

CLAIM." 
Fairfield County, Case No. 11-CA-40 4 

{¶12} The arbitration language gives either party the right to elect arbitration as 

opposed to initiating a civil lawsuit. By filing its complaint, appellee chose civil litigation. 

In his answer filed February 1, 2010, appellant failed to apply for the arbitration remedy 

as an alternative cause for relief. 

{¶13} On April 5, 2011, the trial court filed a scheduling order containing specific 

dates for discovery, summary judgment motions, mediation, pretrial conference, and 

trial date. Appellee filed a motion for summary judgment on May 9, 2011 and appellant 

filed a memorandum contra and cross-motion for summary judgment on May 20, 2011. 

Within the memorandum contra, appellant requested arbitration for the first time. The 

memorandum contra and accompanying affidavit did not request a stay. 

{¶14} "The general rule is said to be '***that either party to a contract of 

arbitration may waive it.***' [La Nacional Platanera v. North American Fruit and 

Steamship Corp. (C.A. 5, 1936), 84 F.2d 881, 882] And a plaintiff's waiver may be 

effected by filing suit. [Id.; Standard Roofing Co. v. Construction Co. (1977), 54 Ohio 

App.2d 153, 157, 376 N.E.2d 610] When the opposite party, the potential defendant, is 

confronted with a filed lawsuit, the right to arbitrate can be saved by seeking 

enforcement of the arbitration clause. This is done under R.C. 2711.02***by application 

to stay the legal proceedings pending the arbitration. Failure to move for a stay, 

coupled with responsive pleadings, will constitute a defendant's waiver. [Standard 

Roofing Co. v. Construction Co., supra, at 157-158, 376 N.E.2d 610]" Mills v. JaguarCleveland Motors, Inc. (1980), 69 Ohio App.2d 111, 113. (Footnote omitted.) See also, 

Jones v. Honchell (1984), 14 Ohio App.3d 120. 
Fairfield County, Case No. 11-CA-40 5 

{¶15} Therefore, appellant's failure to raise the issue of arbitration in his answer 

and failure to request a stay waived his right to arbitration contained in the agreement. 

{¶16} Appellant also challenges the accuracy or sufficiency of the affidavit filed 

in support of appellee's summary judgment motion. However, appellant did not raise 

this issue in his memorandum contra or affidavit. 

{¶17} Attached to appellee's motion for summary judgment is the affidavit of 

Jennifer Hartje, Assistant Custodian of Records for appellee. Ms. Hartje affirmed that 

she was familiar with and had knowledge of appellant's account, and the books and 

records of the account "are kept and maintained by Plaintiff within the ordinary course of 

its business." We conclude the affidavit qualifies under the business record exception 

to the hearsay rule and remains unchallenged by appellant. 

{¶18} Upon review, we find the trial court did not err in granting summary 

judgment to appellee. 

{¶19} The sole assignment of error is denied. 

 
Fairfield County, Case No. 11-CA-40 6 

{¶20} The judgment of the Court of Common Pleas of Fairfield County, Ohio is 

hereby affirmed. 

By Farmer, J. 

Gwin, P.J. and 

Edwards, J. concur. 

 

 

 

 s/ Sheila G. Farmer______________ 

 

 s/ W. Scott Gwin ___________ 

 _s/ Julie A. Edwards ____________ 

 JUDGES 

SGF/sg 425
[Cite as Am. Express Bank, F.S.B. v. Hooker, 2012-Ohio-2140.]

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

AMERICAN EXPRESS BANK, FSB : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

ALAN HOOKER : 

 : 

 Defendant-Appellant : CASE NO. 11-CA-40 

For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Fairfield County, Ohio is affirmed. Costs to 

appellant. 

 s/ Sheila G. Farmer______________ 

 

 s/ W. Scott Gwin ___________ 

 _s/ Julie A. Edwards ____________ 

 JUDGES