“We are mindful that Tidewater bore the burden of proving the elements of its claim by a preponderance of the evidence.”
How later courts described this case
- “We are mindful that Tidewater bore the burden of proving the elements of its claim by a preponderance of the evidence.”
- “For a valid contract to exist, there must be an offer on one side, an acceptance on the other side, and mutual assent between the parties with regard to the consideration for the bargain.”
Written by the judges who cited it.
The opinion
[Cite as Tidewater Fin. Co. v. Cowns, 197 Ohio App.3d 548, 2011-Ohio-6720.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
TIDEWATER FINANCE COMPANY, : APPEAL NO. C-110254
TRIAL NO. A-0907074
Appellant, :
O P I N I O N.
v. :
COWNS, :
Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded.
Date of Judgment Entry on Appeal: December 28, 2011
Keith D. Weiner & Associates Co., L.P.A., Suzana Krasnicki, and Keith D. Weiner, for
appellant.
Thomas R. Koustmer, for appellee.
.
F ISCHER , Judge.
{¶ 1} Plaintiff-appellant Tidewater Finance Company t/a Tidewater Motor Credit and
Tidewater Credit Services (“Tidewater”) brought this action against defendant-appellee Marcellinus
Cowns for default on a financing agreement. Cowns allegedly entered the agreement with Jeff
Wyler Eastgate, Inc., to finance the purchase of a used vehicle from the company, which then
assigned its rights under the agreement to Tidewater. Following a bench trial, the Hamilton County
Court of Common Pleas entered judgment for Cowns. Because this judgment was contrary to the
manifest weight of the evidence, we reverse.
Facts & Procedural Background
{¶ 2} At trial, Tidewater called only one witness, a paralegal and records custodian
employed by Tidewater. She conceded that she had no personal knowledge of the events
surrounding the signing of the financing agreement and its assignment to Tidewater. Nevertheless,
she authenticated the agreement and a payment ledger as records of regularly conducted activity
under Evid.R. 803(6) and 901(B)(10). The trial court admitted these records without objection.
{¶ 3} The agreement indicates that on May 28, 2005, “Marcellinus M Cowns” agreed to
buy a 2002 Mitsubishi Montero from Jeff Wyler Eastgate and financed $12,588.46 at an annual
percentage rate of 21.95 percent. According to the agreement’s payment schedule, the buyer agreed
to pay Jeff Wyler Eastgate $350.44 per month for five years. The agreement also provided that if
the buyer failed to make a payment on time, Jeff Wyler Eastgate was entitled to demand that the
buyer pay the balance due “if the failure has continued for at least thirty (30) days.” In that event,
the amount owed would be “the unpaid part of the Amount Financed plus the earned and unpaid
part of the Finance Charge, any late charges, and any amounts due because [the buyer] defaulted.”
{¶ 4} Two signature lines for the buyer appear on the agreement. Next to the first, the
agreement provides, “This contract contains the entire agreement between you and us relating to this
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contract. Any change to this contract must be in writing and [the creditor-seller] must sign it. No
oral changes are binding.” Next to the second, it states, “You agree to the terms of this contract.
You confirm that before you signed this contract, we gave it to you, and you were free to take it and
review it. You confirm that you received a completely filled-in copy when you signed it.” A
signature appears on each line.
{¶ 5} The signed document provides, albeit below the buyer’s signature lines, that “[Jeff
Wyler Eastgate] assigns its interest in this contract to TIDEWATER MOTOR CREDIT.” This is
also dated May 28, 2005. A signed signature line for Jeff Wyler Eastgate appears next to this
language.
{¶ 6} The payment ledger names “Cowns, Marcellinus M” as the customer on the
detailed account. According to the ledger, the customer opened the account on May 28, 2005, with
an opening balance of $12,588.46. The ledger also lists as the collateral on the account a 2002
Mitsubishi Montero with the same vehicle identification number specified in the financing
agreement.
{¶ 7} The ledger indicates several late payments, including four in 2006 that were over 30
days late. The last payment credited to the account appears to have been made later that year. The
ledger also shows that the balance due on the date named in the complaint—May 29, 2009—was
$11,609.48 in unpaid principal, $7,110.18 in unpaid accrued interest, a $250 attorney fee, and a $75
repossession fee, for a total amount due of $18,719.66.
{¶ 8} In his defense, Cowns presented no testimony or other evidence. But in closing, he
argued that Tidewater had failed to show that it was he who had signed the financing agreement.
He also argued that the agreement was improperly assigned to Tidewater because there was no
evidence that the buyer had agreed to the assignment in writing. The trial court entered judgment
for Cowns, and Tidewater now appeals, raising two assignments of error.
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Analysis
{¶ 9} In its first assignment of error, Tidewater argues that the trial court erred in finding
that the company had not proved by a preponderance of the evidence that a contract had existed
between the parties and that Cowns had breached that contract. And in its second assignment of
error, Tidewater argues that the trial court erred in finding that the contract was not validly assigned
to Tidewater.
{¶ 10} These assignments of error are premised on a “Memorandum of Decision” that was
apparently signed by the trial judge. But this document was never filed. Thus, we cannot—and
must not—consider it as part of the record. See App.R. 9(A); Steinriede v. Cincinnati, 1st Dist.
No. C-100289, 2011-Ohio-1480, ¶ 10; see also State v. Ishmail (1978), 54 Ohio St.2d 402, 377
N.E.2d 500, paragraph one of the syllabus. We therefore must examine the assignments of error
only with respect to the trial court’s entry of judgment. Together, the assignments of error
essentially challenge the court’s judgment as contrary to the manifest weight of the evidence.
{¶ 11} A civil judgment that is “supported by some competent, credible evidence going to
all the essential elements of the case will not be reversed by a reviewing court as being against the
manifest weight of the evidence.” C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279,
376 N.E.2d 578, syllabus. “In an appeal from a bench trial, a reviewing court must presume that the
factual findings of the trial judge are correct because the trial judge had an opportunity ‘to view the
witnesses and observe their demeanor, gestures and voice inflections, and use these observations in
weighing the credibility of the proffered testimony.’ ” Lucero v. Ohio Dept. of Rehab. & Corr.,
10th Dist. No. 11AP-288, 2011-Ohio-6388, ¶ 16, quoting Seasons Coal Co., Inc. v. Cleveland
(1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273. “If the evidence is susceptible to more than one
interpretation, we must give it the interpretation consistent with the trial court’s judgment.” Cent.
Motors Corp. v. Pepper Pike (1995), 73 Ohio St.3d 581, 584, 653 N.E.2d 639.
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{¶ 12} In this case, Tidewater asserted a breach-of-contract claim against Cowns. “To
prevail on such a claim, a claimant must establish the existence of a contract, performance on its
part, breach by the other party, and its own damage or loss.” Ward v. Cent. Invest. L.L.C., 1st Dist.
Nos. C-100080 and C-100081, 2010-Ohio-6114, ¶ 12. “For a valid contract to exist, there must be
an offer on one side, an acceptance on the other side, and mutual assent between the parties with
regard to the consideration for the bargain.” Nunez v. J.L. Sims Co., 1st Dist. No. C-020599, 2003-
Ohio-3386, ¶ 24.
{¶ 13} We hold that with the admission of the financing agreement and the payment ledger
at trial, Tidewater presented competent, credible evidence going to all the essential elements of its
claim against Cowns. On its face, the agreement shows that there was a contract between
Tidewater’s assignor, Jeff Wyler Eastgate, and “Marcellinus M Cowns.” This is competent,
credible evidence that the defendant-appellee, Marcellinus M. Cowns, was a party to this agreement.
See 42 Ohio Jurisprudence 3d (2011) Evidence and Witnesses, Section 145 (“Identity of persons
will be presumed from identity of names, especially if the name is not a common one”). Further,
the ledger indicates performance by Jeff Wyler Eastgate, breach by Cowns, and damage to
Tidewater. As noted above, the ledger names Tidewater’s customer as “Cowns, Marcellinus M”
and identifies the collateral on the account as a 2002 Mitsubishi Montero with the same vehicle
identification number as listed in the financing agreement.
{¶ 14} Cowns did not refute either the agreement or the ledger with evidence and did not
object to either their authentication or their admission by the trial court. We are mindful that
Tidewater bore the burden of proving the elements of its claim by a preponderance of the evidence.
See, e.g., Schaffer v. Donegan (1990), 66 Ohio App.3d 528, 534, 585 N.E.2d 854. We also
recognize that “triers of fact are not required to accept evidence simply because it is uncontroverted,
unimpeached, or unchallenged.” Smith v. Simkanin, 5th Dist. No. 2011-CA-00045, 2011-Ohio-
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6123, ¶ 32. Nevertheless, under the facts of this case, we hold that the manifest weight of the
evidence clearly supports a finding that Cowns entered the financing agreement with Jeff Wyler
Eastgate.
{¶ 15} Furthermore, the agreement is competent, credible evidence that the contract—in
providing that “Seller assigns its interest in this contract to TIDEWATER MOTOR CREDIT”—
was assigned by Jeff Wyler Eastgate to Tidewater.
{¶ 16} There is nothing in the record indicating that this assignment was invalid. The law
generally favors the free assignability of contracts absent “clear contractual language prohibiting
assignment.” Pilkington N. Am., Inc. v. Travelers Cas. & Sur. Co., 112 Ohio St.3d 482, 2006-Ohio-
6551, 861 N.E.2d 121. See also Restatement of the Law 2d, Contracts (1981) Section 317(2). With
some exceptions, “unless otherwise agreed all rights of either seller or buyer can be assigned except
where the assignment would materially change the duty of the other party, or increase materially the
burden or risk imposed on the other party by the contract, or impair materially the other party’s
chance of obtaining return performance.” R.C. 1302.13.
{¶ 17} Cowns argues that under the financing agreement, the buyer had to agree to any
assignment. He apparently relies on the agreement’s provision stating, “Any change to this contract
must be in writing and [Jeff Wyler Eastgate] must sign it.” We cannot say, however, that this
general language clearly prohibited Jeff Wyler Eastgate from assigning its rights under the
agreement absent the buyer’s written approval. Moreover, the assignment was set forth in the
signed agreement.
{¶ 18} Cowns also argues that the assignment to Tidewater materially impairs the buyer’s
chance of obtaining a return performance, particularly with respect to warranties, because Tidewater
is a finance company, and Jeff Wyler Eastgate is an automobile retailer. At trial, however, Cowns
presented no evidence to support this contention. Moreover, the financing agreement expressly
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disclaims all warranties, including the implied warranties of merchantability and fitness for a
particular purpose.
Conclusion
{¶ 19} We are reluctant to reverse a trial court’s judgment, especially in a civil case, as
contrary to the manifest weight of the evidence. But here, we are forced to do so. The judgment of
the trial court is reversed, and the cause is remanded with instructions for the trial court to enter
judgment for Tidewater.
Judgment reversed,
and cause remanded.
S UNDERMANN , P.J., and H ILDEBRANDT , J., concur.
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