Cincinnati v. PE Alms Hill Realty, L.L.C.

Citations

• 2023 Ohio 2784

Syllabus

CIV.R. 56 – AFFIDAVITS – EVID.R. 803 – ADOPTIVE BUSINESS RECORDS – UNCONSCIONABILITY – AMBIGUITY – BREACH OF GUARANTY – DUE PROCESS – CIV.R. 53: Where affidavits offered in support of motions for summary judgment detailed the affiant's history with managing the loans at issue and her familiarity with the loan documents and related records, the affiant was not lacking in personal knowledge of the matters described therein. Where the accompanying affidavits established that the challenged business records were kept in the regular course of business, came from a source with personal knowledge of the events described therein, and were recorded at or near the time of the events described therein, and where the trustworthiness of the records was suggested by the affiant's use of the records in her own regularly-conducted business activity, the records were admissible under Evid.R. 803(6) as adoptive business records. Defendant waived the affirmative defense of unconscionability by failing to assert it in his answers to the plaintiffs' complaints. The language of the guaranties executed by defendant prohibited defendant from challenging the guaranties on the ground that they are ambiguous. Where no genuine issues of material fact existed as to defendant's breach and resulting damages, the trial court did not err in granting summary judgment to plaintiffs on their complaints for breach of guaranty. The trial court's sua sponte reconsideration of its previous order, and its subsequent entry of an order granting summary judgment to plaintiffs on their claims for breach of guaranty, did not deprive defendant of notice or of an opportunity to be heard on the issue of damages.