June 2, 2008

Ohio's 10th Appellate District Holds That an Affidavit Attached to a Complaint Did Not Satisfy the Requirements of Civil Rule 10(D)(1) for a Claim on an Account

In Hudson & Keyse, LLC v. Carson (10th App. Dist., May 29, 2008), No. 07AP-936, the Tenth Appellate District reversed the trial court's denial of a motion for more definite statement filed under Civil Rule 10(D).  In the case, plaintiff Hudson & Keyse, LLC sued Kenneth Carson as assignee of a credit card account.  The complaint included claims for 1) failure to pay on an account, 2) quantum meruit, 3) unjust enrichment, and breach of contract.  The complaint attached an affidavit from plaintiff setting forth the amount due, but did not reference the account number and did not attach account statements.  In response, Mr. Carson filed a number of motions to dismiss and for more definite statement arguing in relevant part that plaintiff should have been required to attach a copy of the account pursuant to Civil Rule 10(D)(1).   

The trial court denied each of defendant's various motions and granted summary judgment to plaintiff on its claim on an account.  On appeal, the Tenth Appellate District acknowledged that Civil Rule 10(D)(1) can be satisfied by attaching documents that do not strictly meet the definition of a statement of account.  However, the Court found that the affidavit attached to plaintiff's complaint failed to reference the account number of the account at issue, or attach any documents related to the account such as monthly statements or the credit card agreement.  As such, the Court held that plaintiff failed to place defendant on notice of the account upon which plaintiff's claims were based pursuant to Civil Rule 10(D)(1).  Based on this holding, the Court found that the trial court erred in denying defendant's motion for more definite statement and remanded the case with instructions for plaintiff to file an amended complaint that complies with Civil Rule 10(D)(1).  The decision was authored by Judge Sadler, with Judges Petree and T. Bryant concurring.

This E-alert was prepared by Justin W. Ristau. Please contact any member of the Bricker & Eckler Creditor Rights & Bankruptcy group for more information.