[Cite as Whichard v. Matthews, 2013-Ohio-1892.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 98689 

ANGELA WHICHARD

PLAINTIFF-APPELLEE 

vs. 

C. JAY MATTHEWS, ET AL.

DEFENDANTS-APPELLANTS 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-734501 

BEFORE: Boyle, P.J., Celebrezze, J., and S. Gallagher, J. 

RELEASED AND JOURNALIZED: May 9, 2013 
ATTORNEYS FOR APPELLANTS

T. Christopher O’Connell 

Michael R. Stavnicky 

Singerman, Mills, Desberg & Kauntz 

3333 Richmond Road 

Suite 370 

Beachwood, Ohio 44122 

ATTORNEY FOR APPELLEE

Michael K. Webster 

800 Standard Building 

1370 Ontario Street 

Cleveland, Ohio 44113 
MARY J. BOYLE, P.J.: 

{¶1} Defendants, C. Jay Matthews, James M. Talton, and Kingdom Resource 

Centers, L.L.C. (“Kingdom”) (collectively “defendants”), appeal from a trial court’s 

judgment granting summary judgment to plaintiff, Angela Whichard. Defendants raise 

three assignments of error for our review: 

1. The trial court erred when it granted summary judgment in favor of 

plaintiff despite the fact that plaintiff failed to meet her burden. 

2. The trial court erred when it found that past consideration was sufficient 

consideration to support a purported promissory note. 

3. The trial court erred when it found individual defendants James Talton 

and C. Jay Matthews personally liable on a purported promissory note. 

{¶2} Finding no merit to their appeal, we affirm. 

Procedural History and Factual Background

{¶3} In August 2010, Angela Whichard filed a complaint against defendants, 

alleging that they were in default on a promissory note (“Note”) that they executed on 

October 8, 2008. Angela Whichard alleged that in the Note, defendants jointly and 

severally promised to pay her $118,000, plus interest at 12 percent per annum, 

“compounded monthly,” in the event they failed to make timely payment on or before 

November 16, 2008. 

{¶4} Defendants answered, asserting lack of consideration, no meeting of the 

minds, mutual and unilateral mistake of the parties, the doctrine of impracticability, and 

failure of a condition precedent. 
{¶5} Angela Whichard moved for summary judgment. In her summary 

judgment motion, Angela Whichard attached Haywood Whichard’s affidavit. Haywood 

averred that he had “actual knowledge of the facts and statements made” in the affidavit. 

He stated that he was an agent of Randall Park Mall, L.L.C., and his duties included 

“management of the business and contract negotiations.” Haywood explained that he 

negotiated a sale of real property to Kingdom. The property was identified in the 

affidavit as “Randall Park Mall.” Randall Park Mall, L.L.C. owned the subject property, 

but Don Powers Investments, L.L.C., was the seller of the property. Haywood identified 

the purchase agreement for such sale as exhibit A, which was attached to his affidavit.1

 

{¶6} Haywood further explained that pursuant to addendum A of the purchase 

agreement, Kingdom took immediate possession of the property upon executing the 

purchase agreement. Further, the purchase agreement specified that “Kingdom was to 

close on the purchase of the property on or before September 16, 2008.” 

{¶7} Haywood averred that “[a]s the closing date approached, Kingdom, by and 

through its representative C. Jay Matthews, indicated” that it needed additional time to 

close, but that it wished to maintain possession of the property. According to Haywood, 

Randall Park, L.L.C. agreed to grant Kingdom additional time and permit it to maintain 

possession, “in return for executing a promissory note in favor of Angela Whichard as 

designated by Randall Park Mall, L.L.C.” Haywood further averred that C. Jay 

Matthews and James Talton agreed to be personally liable on the Note. 

 1

The purchase agreement also identifies Kenneth Whichard as a seller. 
{¶8} Haywood explained that “by way of verbal agreement, Kingdom’s granting 

of the promissory note to Angela Whichard provided Kingdom with the option to 

purchase the property according to the terms of the purchase agreement by November 16, 

2008.” Further, “per oral agreement among the contracting parties, Randall Park Mall, 

L.L.C., agreed not to enter into any agreement to sell the property to third parties while 

the Kingdom’s option was pending.” 

{¶9} Angela Whichard also attached her own affidavit to her summary judgment 

motion. She averred that she had “actual knowledge of the facts and statements” made 

in the affidavit. She stated that she was a member of Randall Park Mall, L.L.C., which 

owned the property that was the subject of a purchase agreement dated June 18, 2008. 

She explained that she holds a mortgage on the property, in the amount of $2 million. 

She attached a copy of the mortgage to her affidavit, identifying it as exhibit B-1. 

{¶10} Angela averred that when Kingdom indicated it needed more time to close 

on the purchase agreement, Don Powers Investments, L.L.C. and Randall Park Mall, 

L.L.C. agreed to grant Kingdom additional time, “in return for a promissory note in the 

amount of $118,000 dated October 8, 2008, (the ‘Note’) and guaranteed individually by 

C. Jay Matthews and James Talton.” Angela identified the Note as exhibit B-2, and 

attached it to her affidavit. 

{¶11} Angela explained that “the Note secured an option for Kingdom to close on 

the property on or before November 16, 2008,” and “as additional consideration for the 

Note, Kingdom was permitted to continue its possession of the Mall.” Further, she 
averred that “Randall Park Mall, L.L.C. agreed not to enter into any contracts with third 

parties for the sale of the property on or before November 16, 2008.” Angela stated that 

“neither Kingdom, nor C. Jay Matthews or James Talton,” made any payment toward the 

Note. 

{¶12} Pursuant to the Note, C. Jay Matthews, James Talton, and Kingdom 

(collectively referred to as “Makers” in the Note) “jointly and severally promised to pay 

Angela Whichard $118,000 on or before November 16, 2008.” The Note further 

specifies that “[p]ayment on this Note shall be applied, at closing, to the purchase price of 

certain real property known as Randall Park Mall * * *, which [Kingdom] has agreed to 

purchase as represented in a Sales Agreement dated June 18, 2008.” 

{¶13} The Note further states that if Kingdom failed to close on the purchase of 

the property, “Makers shall remain obligated to make payment on this Note.” Pursuant 

to the Note, “in the event Makers fail to make timely payment, then interest shall accrue 

at a rate of twelve percent (12%) per annum, compounded monthly.” The Note further 

specified that “in the event of commencement of an action, Makers agree to pay 

attorney’s fees as the court may adjudge reasonable.” James Talton signed for Kingdom 

on one line, and “individually” on another line. C. Jay Matthews signed “individually.” 

{¶14} Defendants opposed Angela Whichard’s motion and filed a cross- motion 

for summary judgment. Defendants did not attach any affidavits to their opposition brief 

or their cross-motion for summary judgment. They did attach unsworn email 
communications, an unsworn copy of the purchase agreement, and unsworn documents 

from the Ohio secretary of state. 

{¶15} The trial court granted summary judgment in favor of Angela Whichard and 

denied defendants’ summary judgment motion. Defendants appealed. 

Standard of Review

{¶16} We review an appeal from summary judgment under a de novo standard. 

Baiko v. Mays, 140 Ohio App.3d 1, 10, 746 N.E.2d 618 (8th Dist.2000). Accordingly, 

we afford no deference to the trial court’s decision and independently review the record to 

determine whether summary judgment is appropriate. N.E. Ohio Apt. Assn. v. Cuyahoga 

Cty. Bd. of Cty. Commrs., 121 Ohio App.3d 188, 192, 699 N.E.2d 534 (8th Dist.1997). 

{¶17} Civ.R. 56(C) provides that before summary judgment may be granted, a 

court must determine 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 the evidence most strongly in favor of the 

nonmoving party, that conclusion is adverse to the nonmoving party. 

State ex rel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190, 191, 672 N.E.2d 

654 (1996). 

{¶18} The moving party carries an initial burden of setting forth specific facts that 

demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 

280, 292-293, 662 N.E.2d 264 (1996). If the movant fails to meet this burden, summary 
judgment is not appropriate, but if the movant does meet this burden, summary judgment 

will be appropriate only if the nonmovant fails to establish the existence of a genuine 

issue of material fact. Id. at 293. 

{¶19} Once the moving party satisfies its burden, the nonmoving party may not 

rest upon the mere allegations or denials of the party’s pleadings. Id.; Civ.R. 56(E). 

Rather, the burden then shifts to the nonmoving party to respond, with affidavits or as 

otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is a 

genuine issue of material fact for trial. Id. Throughout, the evidence must be construed 

in favor of the nonmoving party. Id.

Moving Party’s Burden under Civ.R. 56(C)

{¶20} In their first assignment of error, defendants argue that the trial court erred 

by granting summary judgment to Angela Whichard because she failed to meet her 

burden under Civ.R. 56(C). Defendants first contend that Whichard “failed to present a 

properly authenticated promissory note which forms the basis of her entire claim.” 

{¶21} A party moving for summary judgment meets its initial burden by presenting 

or identifying appropriate evidentiary materials in support of the essential elements of its 

own claim. See Todd Dev. Co., Inc. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, 880 

N.E.2d 88, ¶ 13, 18. 

{¶22} Civ.R. 56(C) provides an exclusive list of materials that a trial court may 

consider when deciding a motion for summary judgment. Those materials are 

“pleadings, depositions, answers to interrogatories, written admissions, affidavits, 
transcripts of evidence, and written stipulations of fact.” Civ.R. 56(C). The court may 

consider documents that are not expressly mentioned in Civ.R. 56(C) provided that such 

documents are accompanied by a personal certification that it is genuine and incorporated 

by reference in a properly framed affidavit pursuant to Civ.R. 56(E). Drawl v. 

Cornicelli, 124 Ohio App.3d 562, 569, 706 N.E.2d 849 (11th Dist.1997), citing Martin v. 

Cent. Ohio Trans. Auth., 70 Ohio App.3d 83, 89, 590 N.E.2d 411 (10th Dist.1990). Such 

authentication is a condition precedent to admissibility. Evid.R. 901. 

{¶23} Specifically, Civ.R. 56(E) provides that “supporting and opposing affidavits 

shall be made on personal knowledge, shall set forth such facts as would be admissible in 

evidence, and shall show affirmatively that the affiant is competent to testify to the 

matters stated in the affidavit.” 

{¶24} “Personal knowledge” has been defined as “‘[k]nowledge gained through 

firsthand observation or experience, as distinguished from a belief based on what 

someone else has said.’” Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 

314, 2002-Ohio-2220, 767 N.E.2d 707, ¶ 26, quoting Black’s Law Dictionary (7th 

Ed.1999). In Target Natl. Bank v. Enos, 9th Dist. No. 25268, 2010-Ohio-6307, ¶ 10, the 

court explained: 

[The] mere assertion of personal knowledge satisfies the personal 

knowledge requirement of Civ.R. 56(E) if the nature of the facts in the 

affidavit combined with the identity of the affiant creates a reasonable 

inference that the affiant has personal knowledge of the facts in the 

affidavit. If particular averments contained in an affidavit suggest that it is 

unlikely that the affiant has personal knowledge of those facts, [however,] 

then * * * something more than a conclusory averment that the affiant has 

knowledge of the facts would be required. 
(Citations omitted.) 

{¶25} After review, we conclude that in her affidavit, Angela Whichard properly 

authenticated the Note based on her personal knowledge. She averred that she had 

“actual knowledge of the facts and statements” in her affidavit. She explained that she 

was a “member” of Randall Park Mall, L.L.C., and that Randall Park Mall, L.L.C. owned 

the property at issue. She explained that she holds a mortgage on the subject property in 

the amount of $2 million. Further, she attached the Note to her affidavit and 

incorporated it into her affidavit by reference, identifying the Note by its exhibit number. 

Thus, we conclude that Angela Whichard attached a properly authenticated affidavit and 

promissory note to her summary judgment motion. 

{¶26} Defendants next argue that Angela Whichard failed to meet her burden 

because Haywood Whichard’s affidavit, attached to Angela Whichard’s summary 

judgment motion, contained inadmissible hearsay. Specifically, defendants contend that 

the following averments in Haywood Whichard’s affidavit were hearsay as either 

statements or nonverbal conduct: 

7. As the closing date approached, Kingdom, by and through its 

representative C. Jay Matthews, indicated that it would need additional time 

to close on the purchase agreement, but that it desired to proceed to closing 

at a later date while maintaining possession of the property. 

* * * 

9. By way of verbal agreement, Kingdom’s granting of the promissory note 

to Angela Whichard provided Kingdom with an option to purchase the 

property according to the terms of the purchase agreement by November 16, 
2008. The promissory note acted as consideration for Randall Park Mall, 

L.L.C. granting Kingdom the option. 

10. Per oral agreement among the contracting parties, Randall Park Mall, 

L.L.C. agreed not to enter into any agreements to sell the property to third 

parties while the Kingdom’s option was pending. 

{¶27} Absent an exception, hearsay may not be considered in a motion for 

summary judgment. Johnson v. Southview Hosp., 2d Dist. No, 25049, 2012-Ohio-4974, 

¶ 20, citing Knoth v. Prime Time Marketing Mgt., Inc., 2d Dist No. 20021, 

2004-Ohio-2426, ¶ 13 (“It is fundamental that the evidence offered by affidavit in support 

of or in opposition to a motion for summary judgment must also be admissible at trial, 

albeit in different form, in order for the court to rely on it.”). 

{¶28} Evid.R. 801(C) defines hearsay as a “statement, other than one made by the 

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of 

the matter asserted.” A “statement,” as included in the definition of hearsay, is an oral or 

written assertion or nonverbal conduct of a person if that conduct is intended by him as an 

assertion. Evid.R. 801(A). 

{¶29} Haywood’s statements in paragraphs nine and ten are not hearsay as there is 

no statement or nonverbal conduct that amounts to hearsay. The averments are simply 

Haywood’s memory of the events surrounding the Note from his personal knowledge. 

To the extent that paragraph seven may contain hearsay, we find any consideration of it 

by the trial court to be harmless. Although paragraph seven provides background 

information, the Note itself references the June 18, 2008 purchase agreement that 
Haywood Whichard avers in his affidavit that C. Jay Matthews was purportedly referring 

to (“C. Jay Matthews “indicated * * *”). 

{¶30} Accordingly, defendants’ first assignment of error is overruled. 

Consideration

{¶31} In their second assignment of error, defendants argue that the trial court 

erred by granting summary judgment to Angela Whichard because “there was absolutely 

no consideration to support the Note.” 

{¶32} Consideration need not “necessarily be recited or expressed in writing; 

instead, the consideration may be proved by parol evidence or may be inferred from the 

terms and obvious import of the contract.” Harvest Land Co-op, Inc. v. Hora, 2d Dist. 

No. 25068, 2012-Ohio-5915, ¶ 14, citing 17 Ohio Jurisprudence 3d, Contracts, Section 

40. For promissory notes, consideration is presumed and “continues until it is shown that 

there was none; and the burden of showing this is on the party attacking the note for want 

of consideration.” Id. at ¶ 16, citing Dalrymple v. Wyker, 60 Ohio St. 108, 53 N.E. 713 

(1899). Thus, the burden was on defendants to show that the note lacked sufficient 

consideration. 

{¶33} Here, Angela Whichard provided an authenticated copy of the Note attached 

to her summary judgment motion. She did not have to prove consideration as it is 

presumed. Defendants had the burden to rebut the presumption of consideration. They 

failed to meet that burden. 
{¶34} Defendants did not attach any evidence that meets the requirements of 

Civ.R. 56(C) and (E) to their opposition brief and cross-motion for summary judgment. 

Although they attached unsworn copies of emails, an unsworn document from the Ohio 

secretary of state, and unsworn copies of unsigned purchase agreements, these were not 

sufficient to overcome their burden for summary judgment or rebutting the presumption 

of consideration. 

{¶35} The trial court, in its discretion, elected to consider the unsworn document 

from the Ohio secretary of state (showing that Don Powers Investment, L.L.C. was not 

incorporated at the time Kingdom executed the purchase agreement). But the trial court 

elected not to consider the other evidence because they were not “authenticated as 

genuine copies of what they said they [were] and even if identified and authenticated, no 

hearsay exception [was] apparent to convert them into substantive evidence.” Regarding 

the fact that Don Powers Investment, L.L.C. was not yet incorporated, this did not affect 

the validity of the purchase agreement. We note, however, that the purchase agreement 

is not at issue in this case. Whichard is attempting to enforce the Note, not the purchase 

agreement. 

{¶36} Through her affidavit, Angela Whichard explained that “the Note secured an 

option for Kingdom to close on the property on or before November 16, 2008,” as 

specified in the previous purchase agreement. She further averred “[a]s additional 

consideration for the Note, Kingdom was permitted to continue its possession of the 

Mall.” 
{¶37} Defendants argue that “any right to possession” had already been provided 

to Kingdom in the original purchase agreement. We disagree. Any right to possession 

that Kingdom had pursuant to the purchase agreement would have expired upon their 

breach of the purchase agreement. Thus, this was not “past consideration.” 

{¶38} Defendant further argues that the “option agreement” does not comply with 

the statute of frauds because it is not written. We need not address this issue, however, 

because defendants did not raise this issue with the trial court. See Gilchrist v. Saxon 

Mtge. Servs., 10th Dist. No. 12AP-556, 2013-Ohio-949, ¶ 22 (an issue not raised in the 

trial court is waived for purposes of appeal); Ratcliff v. Darby, 4th Dist. No. 02CA2832, 

2002-Ohio-6626, ¶ 18 (issues raised for the first time on appeal will not be considered). 

In their brief in opposition and cross-motion for summary judgment, they did argue that 

the purchase agreement was not valid because it did not satisfy the statute of frauds. But 

as we stated previously, the purchase agreement is not at issue in this case; it is the Note 

that is at issue. 

{¶39} Accordingly, defendants’ second assignment of error is overruled. 

Personal Liability

{¶40} In their third assignment of error, defendants maintain that the trial court 

erred by finding Talton and Matthews personally liable on the Note. 

{¶41} It is well established in Ohio law that a guarantor is only bound by the 

precise words of his contract. Heritage Bank, Inc., v. Barclay, 1st Dist. No. C-950476, 

1996 Ohio App. LEXIS 1597 (Apr. 24, 1996), citing Yearling Properties, Inc. v. Tedder, 
53 Ohio App.3d 52, 557 N.E.2d 1231 (10th Dist.1988). Officers of a corporation will 

not be held individually liable on contracts entered into on behalf of the corporation 

unless they bind themselves individually. Hommel v. Micco, 76 Ohio App.3d 690, 602 

N.E.2d 1259 (11th Dist.1991); Centennial Ins. Co. of N.Y. v. Vic Tanny Internatl. of 

Toledo, Inc., 46 Ohio App.2d 137, 346 N.E.2d 330 (6th Dist.1975). 

{¶42} In this case, the Note specifies that Kingdom, Talton, and Matthews are 

“jointly and severally” liable on the Note. Further, Talton signed “for Kingdom 

Resource Centers, L.L.C.,” on one line, and signed below that on another line as “James 

M. Talton, Individually.” Matthews signed as “C. Jay Matthews, Individually.” Thus, 

there is no genuine issue of material fact regarding whether Matthews and Talton were 

personally liable; they clearly were. 

{¶43} Accordingly, defendants’ third assignment of error is overruled. 

{¶44} Judgment affirmed. 

It is ordered that appellee recover from appellants costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

_______________________________________ 

MARY J. BOYLE, PRESIDING JUDGE 
FRANK D. CELEBREZZE, JR., J., and 

SEAN C. GALLAGHER, J., CONCUR