Hardesty v. Corrova, 85AP-86

• Decision Date: 11 February 1986
• Docket Number: No. 85AP-86,85AP-86
• Citation: 27 OBR 389,27 Ohio App.3d 332,501 N.E.2d 81
• Parties: , 27 O.B.R. 389 HARDESTY, Appellant, v. CORROVA, Appellee. *
• Court: Ohio Court of Appeals

Page 332

27 Ohio App.3d 332

501 N.E.2d 81, 27 O.B.R. 389

HARDESTY, Appellant, v. CORROVA, Appellee. ^*

No. 85AP-86.

Court of Appeals of Ohio, Tenth District, Franklin County.

Feb. 11, 1986.

Syllabus by the Court

1. An account record is not a necessary prerequisite to set forth a prima facie case on account.

2. Proof of one error in an account record does not render the record inadmissible.

3. Evid.R. 803(6) does not require that the entries themselves be made by a person with knowledge of the subject matter in issue, it being sufficient if the postings were made from information transmitted by a person with such knowledge.

4. In order to authenticate an account record, it is not necessary to present the testimony of the person who made the actual postings.

5. When a cause is remanded to the trial court in order to take additional evidence, but the court, instead, conducts an entire new trial without objection, it is incumbent upon the parties to present all of their evidence, rather than relying upon evidence previously adduced at the first trial.

Donald F. Kelch, Jr.,

Columbus, for appellant.

J. Boyd Binning and John Frazier Jackson, Columbus, for appellee.

WHITESIDE, Judge.

Plaintiff, Michael J. Hardesty, appeals from a judgment of the Franklin County Court of Common Pleas and raises five assignments of error as follows:

"1. The trial court committed reversible error in failing to admit plaintiff's account into evidence on the basis the entries were not timely made.

"2. The trial court committed reversible error granting defendant's motion for involuntary dismissal without considering plaintiff's alternative causes of action which allege that an express or implied contract for the payment of legal fees existed between plaintiff and defendant.

"3. The trial court committed reversible error in finding plaintiff failed to have personal knowledge of the method of maintenance of the account record and the record was not trustworthy.

"4. The trial court committed reversible error by disregarding and taking no judicial notice of the prior findings of the trial court and court of appeals.

"5. The trial court committed reversible error in considering questions and matters beyond its authority and which were not with[in] the order of reference."

Plaintiff brought this action seeking to recover attorney fees allegedly due him from defendant Frank Corrova for services performed in connection with the incorporation of a venture known as "C.S.S., Inc.," with continued representation, including legal services connected with the sale of the business.

This is the second appeal in this case. Upon the first appeal, Hardesty v. Corrova (June 1, 1982), No. 81AP-1021, unreported, this court reversed an earlier judgment dismissing plaintiff's claim. The court found that defendant was personally liable to plaintiff for the fees for legal services rendered until defendant asked plaintiff to discontinue representation in July 1978. The court also found that the fees charged were reasonable for the services rendered. However, the court found it necessary to remand the cause to the trial court "for a new trial on the question of the amount of compensation due plaintiff for services rendered prior to defendant's termination of plaintiff's representation in July 1978," because of confusion "relative to whether matters billed were of a personal or business nature, and whether payments were properly credited, not whether the charges for the individual services rendered were reasonable."

Following remand, a new trial was conducted before a referee, who recommended exclusion of the account submitted by the plaintiff as evidence and the rendering of the judgment of involuntary dismissal pursuant to Civ.R. 41(B)(2), stating in part in his report as conclusions of law:

"1. Plaintiff's Exhibit 2 is an out of court statement, with the declarant not testifying at trial, offered to prove the truth of the matter asserted. This Referee concludes as a matter of law that it was hearsay evidence as defined by Rule 801(C), Ohio Rules of Evidence, and excluded by Rule 802.

"This Referee further concludes that plaintiff failed to qualify his exhibit as a hearsay exception (record of regularly conducted activity) admissible under Rule 803(6). Defendant's objection at trial to the admission of Plaintiff's Exhibit 2 was properly sustained.

"2. Plaintiff did not present any other evidence that would show that he was entitled to any additional legal fees for services rendered to the defendant. This Referee concludes that the prima facie case on an account cannot be presented without at least properly presenting, and qualifying for admission into evidence, the account record.

"Accordingly, at the close of plaintiff's case, defendant moved for involuntary dismissal of the complaint pursuant to Civil Rule 41(B)(2). The motion was sustained on the ground that, upon the facts and the law, plaintiff has shown no right to the additional payment of monies due on account or otherwise."

The trial court overruled objections to the referee's report, adopted the report as its own, and entered judgment accordingly.

Although the referee was in error in finding an account record a necessary prerequisite for a prima facie case on account (see American Security Service v. Baumann [1972], 32 Ohio App.2d 237, 289 N.E.2d 373 ), the essential issue before us is whether sufficient evidence was adduced to authenticate the account record offered into evidence by plaintiff. In his report, the referee referred only to plaintiff's exhibit 2, whereas, the account record was also offered into evidence as plaintiff's exhibit 1, which is also a copy of the account attached to the complaint. Plaintiff's exhibit 2 is the original account record of which plaintiff's exhibit 1 is a copy, but which reflects one additional item dated July 19, 1979, not included on plaintiff's exhibit 1. Although plaintiff's exhibit 1 is a copy, it was admissible pursuant to Evid.R. 1003, since no objection was made to use of a duplicate as defined by Evid.R. 1001(4), although it may be unnecessary to admit both the original and duplicate. Nevertheless, we consider the referee's recommended finding as to admissibility to pertain to plaintiff's exhibit 1, as well as plaintiff's exhibit 2.

In rejecting plaintiff's exhibits, the referee relied upon Evid.R. 803(6), which provides in pertinent part:

"The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

" * * *

"(6) Records of regularly conducted activity. A * * * record * * * in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the * * * record * * * all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. * * * "

This rule encompasses what is ordinarily called the business record exception to the hearsay rule. In rejecting plaintiff's exhibits, the referee specifically stated in his findings of fact:

"2. Plaintiff presented evidence regarding services rendered to the defendant, but plaintiff could not recall what services were rendered in relation to an account for payment submitted to the defendant. Plaintiff testified that he did not personally maintain an accounting record of services rendered, which were [sic ] sent to the Defendant (see plaintiff's Exhibit 2).

"Plaintiff testified that he was not the individual who maintained an office accounting record which was alleged to be the accounting record for services rendered to defendant, Frank Corrova. Plaintiff also testified that he did not have personal knowledge of the manner the account record was actually maintained.

"Plaintiff admitted that his accounting record was, on occasion, inconsistent with billing statements sent to the defendant and thus not trustworthy.

"3. Plaintiff failed to present any evidence that the various entries on the document proffered as proof of an account were made at or near the time of the alleged servies [sic ] and charges, or that the entries were made by a person with knowledge of the alleged services and charges. Defendant's Exhibits A through E demonstrated that plaintiff personally kept some time sheets (although no evidence was presented to show that the services listed were actually performed by plaintiff or were actually performed for the benefit of C.S.S., Inc.). However, no evidence was presented to demonstrate any regular system whereby (some unknown person at some unknown time) the number of hours of services claimed by plaintiff for a period of time was converted to a dollar figure, and that charge was entered upon the account ledger. * * * "

Considering these findings individually, plaintiff testified as to the services rendered for which the billings were made. However, it is true that he could not recall specifically what services were rendered during a particular month with respect to a specific billing. This, however, is the very reason for the business record exception to the hearsay rule, rendering it unnecessary to prove specifically what services were rendered on a given date, the business record maintained in the ordinary course of business sufficing for that purpose.

Although plaintiff did testify that he did not personally post the items to the account, he testified that he did maintain the account, with postings being made monthly by his secretary under his direction and supervision, and that he reviewed the account monthly at the time he prepared or gave instructions for preparation of each bill. Plaintiff did not testify that he had no personal knowledge of the manner in which the...