Slack v. Cropper, No. 99-P-0115

• Decision Date: 23 April 2001
• Docket Number: No. 99-P-0115, No. 99-P-0116.
• Citation: 143 Ohio App.3d 74,757 NE 2d 404
• Parties: SLACK et al., Appellees and Cross-Appellants, v. CROPPER et al., Appellants and Cross-Appellees.
• Court: Ohio Court of Appeals

143 Ohio App.3d 74

757 NE 2d 404

SLACK et al., Appellees and Cross-Appellants, v. CROPPER et al., Appellants and Cross-Appellees.

Nos. 99-P--P-0116.

Court of Appeals of Ohio, Eleventh District, Portage County.

Decided April 23, 2001.

Childs & Silfani, L.L.P., James W. Childs and Daniel L. Silfani, for appellees and cross-appellants.

John J. Plough, for appellants and cross-appellees.

GRENDELL, Judge.

Appellants/cross-appellees, James L. Cropper, and Thomas Bruggeman, collectively referred to as appellants, appeal from the November 16, 1999, judgment entry of the Portage County Common Pleas Court.

Appellees/cross-appellants, James G. Slack, Donna J. Slack, and Slack Farms, Ltd., collectively referred to as appellees, filed a complaint on an account against appellants on March 7, 1997. Attached to the complaint were invoices totaling $86,376 in bills for the care and training of at least five horses: Pair of Queens, One Eyed Bird, Aces and Deuces, Full House Chad, and Kristi's Judge. The invoices covered the period from August 16, 1988, through December 31, 1995.

On April 11, 1997, appellants filed their answer and counterclaim. Cropper filed a counterclaim asking for $3,445. In his counterclaim, Cropper alleged that Slack had obtained a check payable to Cropper in the amount of $3,445, forged Cropper's endorsement on the check, and then cashed it, keeping the proceeds for himself.

Slack is a licensed trainer of racehorses. He began boarding and training horses for appellants in 1973. He received payments for his services from a number of sources: direct payments from appellants, proceeds from the sale of horses, and proceeds from the horse's earnings at the racetrack.

Slack testified that he never had a written agreement for the boarding or training of horses with any of his clients. He had trained over twenty horses for appellants, and when he received money on their account, he always applied it to appellants' oldest bills first. Appellants testified that they had sent payments to Slack but that their account had not been properly credited. They further testified that they were never made aware of the fact that they owed the amounts claimed by Slack. A jury trial was held on July 13, 14, 15, and 19, 1999. On appellees' complaint, the jury reached a verdict in their favor and awarded them damages in the amount of $86,366. On Cropper's cross-complaint, the jury awarded him $3,445 in damages.

On July 20, 1999, appellees filed a motion for allowance of prejudgment interest. On August 3, 1999, appellants filed a motion for judgment notwithstanding the verdict and for a new trial. A hearing was held on these motions on November 15, 1999. The trial court overruled all three motions in a November 16, 1999 judgment entry.

Appellants have filed a timely appeal and make the following assignments of error:

"[1.] The trial court erred, to the prejudice of [appellants], by allowing testimonial evidence by [Slack] that any money paid by [appellants] on the account was applied to `old bills.'

"[2.] The trial court erred to the prejudice of [appellants] by admitting alleged written evidence of the account attached to the complaint because it was hearsay and not prepared at or near the time of the account.

"[3.] The verdict was not supported by the weight of the evidence and is contrary to law because numerous credits totaling over $28,000.00 were not deducted from the amount due.

"[4.] The court erred, to the prejudice of [appellants], by not granting their motions to continue and for leave to file summary judgment where [Slack] missed a scheduled deposition without notice be taken [sic] only four days before trial.

"[5.] The court erred to the prejudice of [appellants] by not giving their requested jury instruction.

"[6.] The court erred by allowing any bills before March 7, 1991 for `Pair of Queens.'

"[7.] The court erred in not granting a new trial or not granting judgment notwithstanding the verdict."

Appellees have filed a timely cross-appeal and raise the following assignment of error:

"The trial court erred to the prejudice of [appellees] by not awarding prejudgment interest as a matter of law pursuant to [R.C. 1343.03(A) ] at the statutory rate of ten percent per annum."

Appellants contend, in their first assignment of error, that the trial court improperly admitted testimony that Slack applied payments received from appellants to old bills. Appellants note that Bruggeman made thousands of dollars of payments on bills that Slack sent to him between 1992 and 1995. At trial, Slack admitted that he had received those payments, but claimed that the payments were applied to "old bills." Appellants contend that Slack's testimony was hearsay. We disagree.

There are two aspects that need to be considered: First, was Slack's in-court testimony hearsay in nature; second, were the exhibits demonstrating the account, i.e., the computer billing records, hearsay? In Am. Sec. Serv., Inc. v. Baumann (1972), 32 Ohio App.2d 237, 244-245, 61 O.O.2d 256, 260, 289 N.E.2d 373, 378, the Tenth Appellate District Court of Appeals held that "the fact that properly maintained and proved business records are admissible does not preclude the admission into evidence of testimony predicated upon firsthand knowledge to prove the facts which the business records may be offered as evidence to prove." Therefore, if the exhibits were properly admitted, then the declarant may testify as to his firsthand knowledge of those exhibits.

The principal reason for excluding hearsay evidence is that the out-ofcourt declarant is not available for cross-examination. Mikula v. Balogh (1965), 9 Ohio App.2d 250, 38 O.O.2d 311, 224 N.E.2d 148. In the instant case, Slack had firsthand personal knowledge, as he had primary responsibility for maintaining his business records and was testifying as to his personal knowledge of the content of those records. Therefore, his testimony, in which he relied upon on his firsthand knowledge of those records, was not hearsay.

The issue of the records themselves is addressed in the second assignment of error. For the foregoing reasons, appellants' first assignment of error lacks merit.

In their second assignment of error, appellants contend that appellees' Exhibit A, which was attached to their complaint, should be excluded as hearsay. This Exhibit A consists of a series of computer-generated invoices for the years 1989 through 1996. These invoices were admitted into evidence as plaintiffs' Exhibits 32 through 39.

In an action on an account, the account that is attached to the complaint need not be admissible at trial. AMF, Inc. v. Mravec (1981), 2 Ohio App.3d 29, 2 OBR 32, 440 N.E.2d 600, paragraph three of the syllabus. However, in the instant matter, the court determined that the invoices to which appellants have raised a hearsay objection could be admitted into evidence as plaintiffs' Exhibits 32 through 39. The colloquy regarding the admission of the exhibits was as follows:

"Mr. Plough: I'm objecting to 27, 28, 29, 30, 31, 26, 13, 12, 11 and 32 through 39. "The Court: What are they?

"Mr. Plough: Some of these, Your Honor, are handwritten statements on certain horses. Let's see. Let's go through these 26, 27, 28, 29, 30 and 31 are handwritten statements on Pair of Queens.

"The Court: What's your objection?

"Mr. Plough: My objection, which hasn't been established yet, is that my client never saw those bills.

"The Court: That will be based upon the testimony. As far as Exhibits are concerned, they can go in for what they show.

"* * *

"Mr. Childs: 32 through 39 are bills that were attached to the complaint which he's testified to ad nauseam and I would—

"Mr. Plough: Those are the ones he admitted were never sent to my clients and he produced those January of '97.

"Mr. Childs: Said he never sent them.

"Mr. Plough: He never sent them to my clients.

"Mr. Childs: Doesn't mean they weren't.

"Mr. Plough: Obviously some of them are mistaken and there is no credit shown for any of the horses which are obvious—

"The Court: I think the Jury understands that. I'm going to leave these in for some benefit to them in deciding this case."

Appellants' counsel did not object to the exhibits on the grounds of hearsay. The rule in Ohio is that if a party fails to raise a hearsay objection at a time when the documents could be cured, he waives that error on appeal. Amerifirst Sav. Bank of Xenia v. Krug (1999), 136 Ohio App.3d 468, 481, 737 N.E.2d 68, 76-77.

We appreciate counsel's argument that it is not unusual for some trial courts to discourage counsel from offering the reason for their objections unless the reason is specifically requested by the court. However, even if appellants had made a proper hearsay objection before the trial court, the invoices at issue would still have been admissible under Evid.R. 803(6), which states:

"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 * * * made at or near the time 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 * * * unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness."

Slack's testimony was that these computer records were part of his business operation and that they were the successor records to his earlier handwritten records. Thus, there was evidence that the computer invoices were hearsay exceptions under Evid.R. 803(6). As previously indicated, under Evid.R. 901(B)(1), the foundation evidence for the introduction of business records must demonstrate that "(i) the record was prepared by an employee of the business who had a duty...