[Cite as Discover Bank v. Combs, 2012-Ohio-3150.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

PICKAWAY COUNTY 

DISCOVER BANK, : 

 : 

 Plaintiff-Appellee, : Case No: 11CA25 

 : 

 v. : 

 : DECISION AND

BURNIS COMBS II, : JUDGMENT ENTRY

 : 

 Defendant-Appellant. : Filed: July 9, 2012 

APPEARANCES:

Burnis Combs II, Commercial Point, Ohio, pro se, Appellant. 

Raymond F. Moats, III, Weltman, Weinberg & Reis Co., L.P.A., Columbus, Ohio, for 

Appellee. 

Kline, J.: 

{¶1} Burnis Combs II (hereinafter “Combs”) appeals the judgment of the 

Circleville Municipal Court, which granted summary judgment in favor of Discover Bank 

(hereinafter “Discover”). Initially, Combs argues that Discover’s summary-judgment 

evidence does not satisfy Civ.R. 56. Because Discover’s evidence complies with Civ.R. 

56, we disagree. Furthermore, we find the following: (1) there are no genuine issues of 

material fact; (2) Discover is entitled to judgment as a matter of law; and (3) reasonable 

minds can come to just one conclusion, and that conclusion is adverse to Combs. 

Accordingly, we overrule Combs’s assignments of error and affirm the judgment of the 

trial court. 

I. 
Pickaway App. No. 11CA25 2 

{¶2} On April 1, 2011, Discover filed its complaint against Combs. Discover 

alleged that Combs owed them $10,573.76 after defaulting on a credit card account. 

{¶3} On October 17, 2011, Discover moved for summary judgment. As part of 

its summary-judgment motion, Discover attached the affidavit of Barbara Ferguson 

(hereinafter “Ferguson”), a record of Combs’s credit card application, the cardmember 

agreement, and copies of Comb’s monthly account statements. Ferguson’s affidavit 

states the following: 

I am a Legal Placement Account Manager for DB Servicing 

Corporation the servicing agent of Discover Bank, an FDIC 

insured Delaware State Bank. 

THAT this affidavit is made on the basis of my personal 

knowledge and in support of the Plaintiff’s suit on account 

against the Debtor(s). 

THAT, in my capacity as Legal Placement Account Manager, 

I have access to records regarding the Discover Card 

Account of the above referenced Debtor(s), further, that I 

have personally inspected said Account and statements 

regarding the balance due on said account. DB Servicing 

Corporation maintains these records in the ordinary course 

of business. 

THAT the account is in default. 
Pickaway App. No. 11CA25 3 

THAT [Combs’s monthly account statements are] a true and 

accurate statement of what is now due and owing Discover 

Bank on the account. 

* * * 

I declare under penalty of perjury that the foregoing is true 

and correct to the best of my knowledge. 

{¶4} Combs did not attach any evidence to his “PRO SE MOTION TO 

OPPOSE SUMMARY JUDGEMENT [sic].” Combs did, however, move to strike 

Ferguson’s affidavit. According to Combs, Ferguson’s affidavit does not comply with 

Civ.R. 56(E). But the trial court disagreed and granted summary judgment in favor of 

Discover. As a result, the trial court ordered Combs to pay “the principal amount of 

$10,573.76, plus interest from December 3, 2010[,] on the principal balance at the rate 

of 19.490% per annum and costs.” Entry on Plaintiff’s Motion for Summary Judgment at 

2. 

{¶5} Combs appeals and asserts the following four assignments of error: I. 

“Civ.R. 56 provides summary judgment may be granted only after the trial court 

determines: a. ‘no genuine issues as to any material fact remain 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 party against whom the motion for summary 

judgment is made, that conclusion is adverse to that party.’ Temple v. Wean United, 

Inc. (1977), 50 Ohio St.2d 317, 364 N.E.2d 267.” II. “It is well established the moving 

party bears the burden of proving that no issues of material fact exist for trial. Celotex 
Pickaway App. No. 11CA25 4 

Corp. v. Catrett (1987), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.E.2d 265. The 

standard for granting summary judgment is explained in Dresher v. Burt (1996), 75 Ohio 

St.3d 280 at 293, 662 N.E.2d 264: i. ‘a party seeking summary judgment, on the ground 

that the nonmoving party cannot prove its case, bears the initial burden of informing the 

trial court of the basis for the motion, and identifying those portions of the record that 

demonstrate the absence of a genuine issue of material fact on the essential element(s) 

of the nonmoving party’s claims. The moving party cannot discharge its initial burden 

under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no 

evidence to prove its case. Rather, the moving party must be able to specifically point 

to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the 

nonmoving party has no evidence to support the nonmoving party’s claims. If the 

moving party fails to satisfy its initial burden, the motion for summary judgment must be 

denied. However, if the moving party has satisfied its initial burden, the nonmoving 

party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts 

showing there is a genuine issue for trial and, if the nonmovant does not so respond, 

summary judgment, if appropriate, shall be entered against the nonmoving party.’” III. 

“The record on summary judgment must be viewed in the light most favorable to the 

opposing party. Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 

309 N.E.2d 924. The plaintiff’s evidence must be such that a reasonable jury might 

return a verdict in the plaintiff’s favor. Seredick v. Karnok (1994), 99 Ohio App.3d 502, 

651 N.E.2d 44. Civ.R. 56(C) only allows the trial court to deliberate ‘pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, transcripts of 

evidence in the pending case, and written stipulations of fact.’ Generally, the failure to 
Pickaway App. No. 11CA25 5 

authenticate a document submitted on summary judgment renders the document void of 

evidentiary value. See Citizens Ins. Co. v. Burkes (1978), 56 Ohio App.2d 88, 381 

N.E.2d 963.” And IV. “Upon summary judgment consideration, the proper procedure for 

introducing evidence authorized by the rule is to incorporate such material by reference 

in a properly framed affidavit. See Biskupich v. Westbay Manor Nursing Home (1986), 

33 Ohio App.3d 220, 515 N.E.2d 632. Civ.R. 56(E) mandates sworn or certified copies 

of all papers filed in support of or in opposition to a motion for summary judgment must 

be accompanied by an affidavit swearing the matters contained within the document 

were made on the affiant’s personal knowledge. The affidavit will also set forth facts 

that would be admissible into evidence, and shall affirmatively show the affiant is 

competent to testify to those matters. Thus, the proper procedure for introducing an 

evidentiary matter not specifically authorized by Civ.R. 56(E) is to ‘incorporate it by 

reference into a properly framed affidavit.’ Biskupich, supra, citing State ex rel. Corrigan 

v. Seminatore (1981), 66 Ohio St.2d 459, 467, 423 N.E.2d 105.” 

II. 

{¶6} In his four assignments of error, Combs argues that the trial court should 

not have granted summary judgment in favor of Discover. Therefore, we will address 

Combs’s assignments of error together. 

{¶7} “Because this case was decided upon summary judgment, we review this 

matter de novo, governed by the standard set forth in Civ.R. 56.” Comer v. Risko, 106 

Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Summary judgment is 

appropriate only when the following have been established: (1) that there is no genuine 

issue as to any material fact; (2) that the moving party is entitled to judgment as a 
Pickaway App. No. 11CA25 6 

matter of law; and (3) that reasonable minds can come to only one conclusion, and that 

conclusion is adverse to the nonmoving party. Civ.R. 56(C). Accord Bostic v. Connor, 

37 Ohio St.3d 144, 146, 524 N.E.2d 881 (1988); Grimes v. Grimes, 4th Dist. No. 

08CA35, 2009-Ohio-3126, ¶ 14. In ruling on a motion for summary judgment, the court 

must construe the record and all inferences therefrom in the opposing party’s favor. 

Doe v. First United Methodist Church, 68 Ohio St.3d 531, 535, 629 N.E.2d 402 (1994). 

{¶8} The burden of showing that no genuine issue of material fact exists falls 

upon the party who moves for summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 

294, 662 N.E.2d 264 (1996). However, once the movant supports his or her motion with 

appropriate evidentiary materials, the nonmoving party “may not rest upon the mere 

allegations or denials of the party’s pleadings, but the party’s response, by affidavit or 

as otherwise provided in [Civ.R. 56], must set forth specific facts showing that there is a 

genuine issue for trial.” Civ.R. 56(E). Accord Grimes at ¶ 15. 

{¶9} “In reviewing whether an entry of summary judgment is appropriate, an 

appellate court must independently review the record and the inferences that can be 

drawn from it to determine if the opposing party can possibly prevail.” Grimes at ¶ 16. 

“Accordingly, we afford no deference to the trial court’s decision in answering that legal 

question.” Morehead v. Conley, 75 Ohio App.3d 409, 412, 599 N.E.2d 786 (4th 

Dist.1991). Accord Grimes at ¶ 16. 

{¶10} Essentially, Combs raises two arguments on appeal. First, Combs argues 

that Discover “failed to produce any evidence permitted by” Civ.R. 56. Appellant’s 

Opening Brief and Excerpt of the Record at 6. And second, Combs argues that he 
Pickaway App. No. 11CA25 7 

“clearly raised genuine issues of fact regarding the case[.]” Id. at 7. We reject both of 

these arguments and find that Discover is entitled to summary judgment. 

A. 

{¶11} First, we find that Ferguson’s affidavit complies with Civ.R. 56(E), which 

states that “[s]upporting 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.” 

{¶12} To support his argument that Ferguson’s affidavit is invalid, Combs relies 

upon Discover Bank v. Peters, 5th Dist. No. 2010CA00309, 2011-Ohio-3480. In Peters, 

Discover “filed a Complaint in the Canton Municipal Court, alleging Appellant had 

defaulted on the terms of a credit card agreement[.]” Id. at ¶ 2. Eventually, Discover 

filed a motion for summary judgment. “In support of the motion, Appellee attached * * * 

the Affidavit of Natasha Szczygiel, a Legal Placement Account Manager for DFS 

Services LLC, the servicing agent of Discover Bank.” Id. at ¶ 4. Szczygiel’s affidavit 

stated the following: 

1. Affiant states that (s)he is a Legal Placement Accounts 

Manager for DFS Services, LLC, the servicing agent of 

Discover Bank * * * 

2. Affiant further states that the within Affidavit is being made 

in support of [Appellee’s] Motion for Summary Judgment * * * 

against [Appellant]. 
Pickaway App. No. 11CA25 8 

3. Affiant further states that there is due from [Appellant] in 

this matter, the principal sum of $11,483.78 plus accrued 

interest at 24.99 percent and court costs. 

4. Affiant further states that [Appellant] has defaulted under 

the terms and condition of the Discover Credit Card * * * by 

failing to make the required payments as they became due 

and owing. (Alterations and omissions sic.) Peters at ¶ 19-

22. 

The cardholder filed a motion to strike Szczygiel’s affidavit, but the trial court denied that 

motion and granted summary judgment in favor of Discover. 

{¶13} On appeal, the Fifth Appellate District found that Szczygiel’s affidavit 

“fail[ed] to establish the affiant’s personal knowledge and fail[ed] to affirmatively show 

the affiant is competent to testify to those matters.” Peters at ¶ 23. Specifically, the 

court explained that “Affiant’s position as ‘Legal Placement Accounts Manager’, without 

further description, does not establish the affiant has personal knowledge or is 

competent to testify as to Appellant’s account.” Id. at fn. 1. 

{¶14} Because Ferguson’s affidavit discusses her job duties, we find that 

Combs’s reliance on Peters is misplaced. Unlike the affiant in Peters, Ferguson 

explained that she has access to Combs’s account records. Furthermore, Ferguson 

stated that she personally inspected Combs’s “[a]ccount and statements regarding the 

balance due on said account.” Therefore, we find that Ferguson’s affidavit (1) 

establishes her personal knowledge and (2) affirmatively shows that she is competent to 
Pickaway App. No. 11CA25 9 

testify about Combs’s account. As a result, we find that Ferguson’s affidavit complies 

with Civ.R. 56(E). 

B. 

{¶15} Next, we find that Discover’s summary-judgment evidence satisfies Civ.R. 

56(C). Under Civ.R. 56(C), 

Summary judgment shall be rendered forthwith if the 

pleadings, depositions, answers to interrogatories, written 

admissions, affidavits, transcripts of evidence, and written 

stipulations of fact, if any, timely filed in the action, show that 

there is no genuine issue as to any material fact and that the 

moving party is entitled to judgment as a matter of law. 

{¶16} The Second Appellate District addressed a similar situation in Citibank 

(South Dakota) N.A. v. Ogunduyile, 2d Dist. No. 21794, 2007-Ohio-5166. In 

Ogunduyile, Citibank “commenced an action in municipal court against Ogunduyile, 

seeking $13,560.48 allegedly due on a credit card account.” Id. at ¶ 2. Later, 

Citibank presented an affidavit of [a Citibank employee] in 

support of its motion for summary judgment. Attached to the 

affidavit [we]re computer printouts of monthly account 

statements that were sent to Ogunduyile. The statements 

showed purchases made by Ogunduyile and finance 

charges that were applied to the account during the billing 

cycles. Id. at ¶ 8. 

Based on this evidence, the trial court awarded summary judgment in favor of Citibank. 
Pickaway App. No. 11CA25 10 

{¶17} On appeal, the Second District Court of Appeals discussed Citibank’s 

summary-judgment evidence. As the court explained, 

Although Civ.R. 56 does not directly refer to evidentiary 

exhibits, such evidence may be considered when it is 

incorporated by reference into a properly framed affidavit 

pursuant to Civ.R. 56(E). Skidmore & Assoc. Co. v. 

Southerland (1993), 89 Ohio App.3d 177, 179. In order to 

properly incorporate attached evidentiary exhibits, the 

affidavit needs merely to state that the attached materials 

are true copies and reproductions of the original documents. 

State ex rel. Corrigan v. Seminatore (1981), 66 Ohio St.2d 

459, 467, 423 N.E.2d 105. 

The monthly account statements detailing the activity 

in Ogunduyile’s Citibank account were properly before the 

trial court for consideration under Civ.R. 56(C) and (E). [The 

Citibank employee’s] affidavit stated that, by virtue of her 

position with Citibank, she had access to all information 

regarding delinquent credit card accounts and had personal 

knowledge of all relevant financial and account information 

regarding Ogunduyile’s account number. Her affidavit also 

stated that the monthly account statements attached to her 

affidavit were a hard copy printout of the financial information 

contained in Ogunduyile’s account. This language is 
Pickaway App. No. 11CA25 11 

sufficient to authenticate the attached account statements. 

Citibank (South Dakota), N.A. v. Lesnick, Lake App. 

No.2005-L-013, 2006-Ohio-1448, [¶] 14. 

Ogunduyile, 2007-Ohio-5166, at ¶ 10-11. 

{¶18} We agree with the analysis in Ogunduyile and apply that reasoning to the 

present case. As we noted above, Ferguson’s affidavit states that she has access to 

Combs’s account records. The affidavit also states that the monthly account statements 

are “a true and accurate statement of what is now due and owing Discover Bank[.]” 

Therefore, in accordance with Ogunduyile, we find that Citibank’s summary-judgment 

evidence complies with Civ.R. 56(C). 

C. 

{¶19} Finally, we find (1) that there are no genuine issues of material fact and (2) 

that Discover is entitled to judgment as a matter of law. As part of its summaryjudgment motion, Discover submitted all of Combs’s monthly account statements. The 

first statement shows a balance of zero, and the last statement shows a balance of 

$10,573.76. This is significant because 

[i]n order to recover money due, “[a]n account must show the 

name of the party charged and contain: (1) a beginning 

balance (zero, or a sum that can qualify as an account 

stated, or some other provable sum); (2) listed items, or an 

item, dated and identifiable by number or otherwise, 

representing charges, or debits, and credits; and (3) 

summarization by means of a running or developing 
Pickaway App. No. 11CA25 12 

balance, or an arrangement of beginning balance and items 

which permits the calculation of the amount claimed to be 

due.” Ogunduyile, at ¶ 7, quoting Gabriele v. Reagan, 57 

Ohio App.3d 84, 87, 566 N.E.2d 684 (12th Dist.1988). 

{¶20} We find that Ferguson’s “affidavit and the account statements are 

sufficient to establish a prima facie case for money owned on an account.” Ogunduyile

at ¶ 12. And here, Combs failed to present sufficient rebuttal evidence. In responding 

to an interrogatory, Combs claimed that he “does not remember applying for nor using 

this card.” But this statement “is nothing more than a general denial of [Discover’s] 

claim, which is insufficient to satisfy [Combs’s] reciprocal burden under Dresher[, 75 

Ohio St.3d 280, 662 N.E.2d 264,] and Civ.R. 56(E).” Id. at ¶ 15. To meet his burden, 

Combs “was required to set forth specific facts that would permit a trier of fact to find 

that the amount of debt claimed by [Discover] was incorrect.” Id. Combs, however, 

failed to do so. 

C. 

{¶21} In conclusion, after construing the record and all inferences therefrom in 

Combs’s favor, we find the following: (1) there are no genuine issues of material fact; (2) 

Discover is entitled to judgment as a matter of law; and (3) reasonable minds can come 

to just one conclusion, and that conclusion is adverse to Combs. Accordingly, we affirm 

the judgment of the trial court. 

JUDGMENT AFFIRMED. 
Pickaway App. No. 11CA25 13 

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs 

herein taxed. 

The Court finds that there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this Court directing the 

Circleville Municipal 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. Exceptions. 

Abele, P.J., and McFarland, J.: Concur in Judgment & Opinion. 

For the Court 

 

 

 BY:_____________________________ 

 Roger L. Kline, Judge 

NOTICE TO COUNSEL 

Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing 

with the clerk.