IN THE SUPREME COURT OF OHIO

ROBERT ADAMS

vs.

Appellee

DIANNA DISBENNETTaka DIANE DISBENNETT

Appellant

On Appeal from theMarion County Court ofAppeals, Third AppellateDistrict

Court of AppealsCase No. 9-08-14

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT, DIANNA DISBENNETT, aka DIANE DISBENNETT

Ted I. Coulter #0021569WILSON, COULTER & KOCHHEISER CO., L.P.A.181 S. Main StreetMarion, OH 43302740-382-4444 .Fax No. 740-387-3406

CLEUK QrCOURTSUPR M(: C©OFONIO

COUNSEL FOR APPELLANT, DIANNA DISBENNETT, aka DIANE DISBENNETT

Christian HardestyVidmar & Hardesty, Ltd.1971 W. 5`h Ave., Suite 4Columbus, OH 43212614-316-6716Fax No. 614-543-1306COUNSEL FOR APPELLEE, ROBERT ADAMS

TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLICOR GREAT GENERAL INTEREST ... ........................................1

STATEMENT OF THE CASE AND FACTS ..................................................2

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW .................................4

Proposition of Law #1

When a Defendant asserts the statute of frauds as an affirmative defense, the burdenis on the Defendant to prove that defense. If the Defendant establishes that defenseby showing an oral contract within the statute of frauds, the burden of proof thenshifts to the Plaintiff to show facts taking the case out of the Statute of Frauds byclear and convincing evidence. If the Plaintiff fails to sustain his or her case byclear and convincing proof of the essential elements of their cause of action, ajudgment. or verdict will be rendered against the Plaintiff in the absence ofcompetent evidence taking the oral contract out of the operation of the statute.Thus, where the Defendant demonstrates that an agreement is subject to the statuteof frauds, it is up to the Plaintiff to make a showing that an exception to the statuteis met.

Proposition of Law #2

When a party offers as proof electronically stored evidence of instant messagesfrom a computer, the offering party shall be required to bring the computer' s harddrive into court and retrieve the messages in order to meet the requirements of theoriginal evidence and the best evidence to avoid fraud being connnitted by theoffering party.

CONCLUSION .............. ..........................:..............................................8

CERTIFICATE, OF SERVICE ..................................................................... 9

APPENDIX . . .. :. . . . . . . . . .. .. .. ... . .. .. .. . . . . . .. .. . . . .. .. . . . .. . . . . . . . . . . . . . .. . . . . . . . . . . . . .. .. .. . . . . . . 10

Appendix Page

Opinion of the Marion County Court of Appeals ( 10/20/08) ............................. 1

Judgment Entry of the Marion County Court of Appeals ( 10/20/08) ................. 17

Judgment Entry of the Marion County Municipal Court for Marion County, OH(2/22/08) ............. .............................................................. 18

EXPLANATION OF WHY THIS CASE IS A CASE OFPUBLIC OR GREAT GENERAL INTEREST

This case presents an opportunity in the first proposition of law for this Court to clarify the

burden of proof test and the shifting of that burden in oral contract cases where the affirmative

defense of the statute of frauds is plead by a defendant. A review of Ohio cases indicates that when

some one pleads the defense of statute of frauds they have the burden, as with other affirmative

defenses, to prove. The case law is limited though. However, where the case law is not clear is

that when a Defendant establishes the defense by showing an oral contract is within the statute, the

Plaintiff must then show facts taking the case out of the statute. This shifting of the burden back to

the Plaintiff puts the Plaintiff in a position where he or she must `sustain' his or her case by clear

and convincing proof that the oral contract does not fall within the statute of frauds. Otherwise

the Plaintiff's case fails. In short, what some may consider to be a rule of evidence needs to be

established as common law.

The second proposition of law involves the continuing and increasing issue of electronically

stored information being offered as evidence in Courts of Law. The rules and cases so far leaves

to the Court's discretion the admission or denial of admission of said evidence if the Court

deternrines it is authentic and reliable. However, with technology and the ability of electronic

stored information to be modified & created without a trace of fraud, it is important to have as

many required safeguards to prevent the fraud from occurring. In the case at bar, copies of instant

messages were introduced as evidence against the Defendant, Diane Disbennett. If the computer

from which the information is forthcoming is able to be brought into the courtroom and the

evidence is produce henceforth, the chances of fraud is reduced.

1

STATEMENT OF TIHE CASE AND FACTS

The Appellee, Robert Adams, filed a complaint against the Appellant, Diane Disbennett, in

the Marion Municipal Court on August 23, 2006. The Complaint stated that Mr. Adams had

loaned money to Ms. Disbennett three different times and that Ms. Disbennett did not pay Mr.

Adams back pursuant to an oral agreement. The Appellant filed an answer on September 22,

2006. On May 14, 2007, the Appellee filed a Motion in Limine to prohibit the introduction of

computerized instant messages between the parties. The case proceeded to trial on July 10, 2007.

The Court heard first a motion in limine filed by Ms. Disbennett regarding the admission as

evidence various instant messages between the parties that Mr. Adams alleged corroborated that

there was an oral loan agreement between the parties. Mr. Adams printed these instant messages

off of his computer and brought them to Court as evidence. Mr. Adams' computer was not

brought to the courtroom to print out the instant messages as Ms. Disbennett believed should have

been done. Ms. Disbennett's position through out the case was that the money Mr. Adams gave

her was not loans, but gifts as they were in a relationship. Ms. Disbennett further argued that

even if monies were loans, then Mr. Adams' cause of action for breach of an oral agreement to

pay the money back was barred by the defense of the statute of frauds.

The Court ruled that some exhibits of some of the messages were admissible and that some

of the messages were not admissible. The matter proceeded with the taking of testimony of

witnesses on July 10, 2007.

On July 10, 2007, the parties both testified as well as Mr. Adams' sister, Martha Osborne

and Ms. Disbennett's cousin, Peggy Sherman. Some witnesses who had been subpoenaed did not

appear on the July 10, 2007 trial date. The Court continued the case until October 22, 2007. On

2

October 22, 2007, witness, Angela Byrd did testify, but witness Angela Reynolds did not appear.

Therefore, the case was continued until January 28, 2008. Ms. Reynolds did not appear on

January 28, 2008. At such time the trial Court denied the Appellant's motion to continue the case

and the trial Court proceeded to hear final arguments. The trial Court filed its decision in a

judgment entry on February 22, 2008 and that Ms. Disbennett's defense of statute of frauds

failed. The trial Court's decision was that Ms. Disbennett did owe Mr. Adams for $10,000.00,

but did not owe him for two checks he wrote in the amounts of $355.00 and $826.00.

Appellant appealed to the Third District Court of Appeals and the judgment of the trial

court was affirmed. It is from this decision of the Court of Appeals that Appellant herein presents

this appeal.

3

MEMORANDUM IN SUPPORT OF THE PROPOSITIONS OF LAW

Proposition of Law #1

When a Defendant asserts the statute of frauds as an affirmative defense, the burdenis on the Defendant to prove that defense. If the Defendant establishes that defenseby showing an oral contract within the statute of frauds, the burden of proof thenshifts to the Plaintiff to show facts taking the case out of the Statute of Frauds byclear and convincing evidence. If the Plaintiff fails to sustain his or her case byclear or convincing proof of the essential elements of their cause of action, ajudgment or verdict will be rendered against the Plaintiff in the absence ofcompetent evidence taking the oral contract out of the operation of the statute.Thus, where the Defendant demonstrates that an agreement is subject to the statuteof frauds, it is up to the Plaintiff to make a showing that an exception to the statuteof frauds is met.

The Plaintiff/Appellee in the case at bar alleged in his complaint filed on August 23, 2006

in Municipal Court of Marion County, Ohio that he had entered into an oral agreement to loan the

Defendant/Appellant $10,000.00. The Plaintiff stated that the Defendant agreed to pay the Plaintiff

back the $10,000.00. The issue in this case became when was the Defendant to pay the Plaintiff

back? Was it to be more than a year after of the making of the alleged oral agreement? The

Defendant in her answer alleged the statute of frauds defense.

The issue becomes who has what burden of proof when the statute of fraud rule applies to

an oral contract? The case law is limited on this issue in Ohio.

In Geiger v.. Geiger, 2d District Court of Appeals of Ohio, Montgomery County,

(11/16/93) 93-LW-4296 (2nd) stated:

Our review of Ohio case law indicates that Rose Anna is correct in her assertionthat parties seeking to remove an oral contract from the statute of frauds mustprove their case by clear and convincing evidence. In so concluding, we note thatfew cases have specifically examined the question of the appropriate burden ofproof in such cases. Rather, most cases merely state, without citation orexplanation, that such cases must be proven by clear and convincing evidence.

4

Various legal treatises do touch on the issue.

In 73 Am Jur 2d, Section 606, page 245, the following is stated:

In accordance with the general rule of evidence, where the defendant asserts thestatute of frauds as an affirmative defense, the burden is on him to prove thatdefense. If the defendant establishes that defense by showing an oral contract withinthe statute of frauds, the plaintiff must then show facts taking the case out of thestatute. In other words, if the contract rests entirely in parol and the defendantproperly asserts the protection of the statute, it is incumbent upon the plaintiff, inorder to avoid the operation of the statute, to establish facts which take the case outof that operation."

In 510.. Jur. 3d 188, Statute of Frauds, pp. 321-2 it is stated as follows:

The Statute of Frauds does not change the general rule of evidence in contractactions that the plaintiff has the burden to prove the execution and existence of thecontract upon which he or she relies.... ThePlaintiff must sustain his or her case byclear and convincing proof of the essential elements of the cause of action. In anaction on an oral contract within the Statute of Frauds, a motion for judgment orfor a directed verdict will be rendered against the Plaintiff in the absence ofcompetent evidence taking the oral contract out of the operation of the statute.

In 37 Corpus Juris Secundum, Statute of Frauds, Section 213 it is written:

The burden of proof as to whether a contract satisfies the requirements of thestatute of frauds is on the party seeking to enforce the contract. The defense of thestatute of frauds is affirmative defense for which the defendant, or the proponent ofthe defense has the burden of proof to establish that the contract meets the criteriaof the statute.

Where the applicability of the statute of frauds to the plaintiff's breach of contractaction is, established by the plaintiff's petition, the plaintiff and not the defendanthas the burden to produce evidence that the statute of frauds is satisfied or thatsome exception to the statute of frauds is met.

Where the statute of frauds is pleaded against a contract, plaintiff has the burden ofproving compliance with the statute or of proving the contract is not within thestatute.

In the case at bar, the Court of Appeals stated in paragraph 20, page 14 that the "The

statute of frauds is an affirmative defense. " The Court of Appeals went on to say in paragraph 21,

5

page 16: "Generally, a defendant must prove an affirmative defense by clear and convincing

evidence." The Court of Appeals did not deal with the issues of the burden being on the Plaintiff

to prove compliance with the statute of fraud or of proving the contract is not within the statute.

The Court of Appeals stated that if the trial court did use the "preponderance of evidence"

standard that the Defendant had to prove his affirmative defense of "statute of frauds" by, it was

really to the Defendant's benefit. See paragraph 21, page 16.

What this case at bar does is give this Court a chance to clarify the law in Ohio on these

issues of who has the burden of proof and what is the standard of proof. In this case, the

Defendant's position is that the Plaintiff should have proven by clear and convincing evidence that

the statute of frauds rule does not apply. The Defendant testified that the monies given to her were

a gift from the Plaintiff who was dating her and trying to win her permanent affections. She

further testified that she told the Defendant she could not pay him back.

The Plaintiff gave the indication that the Defendant was to pay him back when she was able

to borrow money on her home. Plaintiff acknowledges that there was no set date for him to be

paid back by the Defendant. However, the Defendant did not have ajob and her health was bad.

Therefore, the Defendant would not be able to pay the Plaintiff back within a year or at any time

in reality. Hence, the terms of the alleged contract could not be performed within a year and the

rule of the statute of frauds applies. The Plaintiff was neither held to have the burden of proof at

any time, nor required to meet the burden by the standard of clear and convincing evidence in this

case. ["A remand is necessary where the appellate court can not get a clear understanding of the

basis of the trial court's standard of proof used and the basis for judgment from the findings. 5

Am Jur 2d, Appellate Review, Sec. 688, p. 357.]

6

Therefore, the Plaintiff's case should have been dismissed and judgment ruled against the

Plaintiff for the rule of law should be that once a Defendant pleads and establishes a defense that

an oral contract falls within the statute of frauds, the Plaintiff trying to enforce the oral contract

has the burden of proof to establish facts that takes the oral contract out of the statute of frauds by

clear and convincing evidence.

Proposition of Law #2

When a party offers as proof electronically stored evidence of instant messagesfrom a computer, the offering party shall be required to bring the computer' s harddrive into Court and retrieve the messages in order to meet the requirements of theoriginal evidence and the best evidence to avoid fraud being committed by theoffering party.

In the case at bar, the Plaintiff printed out instant messages between himself and the

Defendant off of his own computer to try to establish that there was an oral agreement between

himself and the Defendant to pay back money to him that he claimed he loaned the Defendant

instead of giving to her, The Plaintiff brought these print outs to Court.

Evidence, Rule 1002 states the following:

To prove the content of a writing, recording, or photograph, the original writing,recording, or photograph is required, except as otherwise provided in these rules orby statute enacted by the General Assembly not in conflict with a rule of theSupreme• Court of Ohio.

The Plaintiff testified he had his computer in his vehicle. The best way to avoid fraud by

modification of electronically stored information is to have the source of such evidence produced

in court and hav? the information printed off of the computer in the Court room. The Defendant

feels very strongly that this should be the rule of law.

7

CONCLUSION

For the reasons discussed above, this case involves matters of public and great general

interest. The Appellant request that the court grant jurisdiction and allow this cause so that the

critical issue presented herein will be reviewed on the merits.

Respectfully submitted,

Ted I. Coulter #0021569WILSON, COULTER & KOCHHEISER,

CO., L.P.A.181 S. Main St.Marion, OH 43302740-382-4444Fax No. 740-387-3406Attorney for Dianna Disbennett, Appellant

8

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing document was forwarded to Christian

Hardesty, Attorney for Appellee, via first class mail at Vidmar & Hardesty, Ltd., 1971 W. 5'

Ave., Suite 4, Columbus, OH 43212, this 71'c^ day of //c'lPyy ,en , 2008.

I: Coulter #0021569Attorney for Dianna Disbennett, Appellant

9

APPENDIX

COURT OF APPEALSTHIRD APPELLATE DISTRICT

MARION COUNTY

ROBERT ADAMS,

PLAINTIFF-APPELLEE,

COURT aFA^PPEALS

ocr 2 0 2008

duu^E M. wRca'Ei,Tyc°Ep^oc

CASE NUMBER 9-08-14

v. OPINION

DIANNA DISBENNETT,AKA DIANE DISBENNETT,

DEFENDANT-APPELLANT.

CHARACTER OF PROCEEDINGS: Appeal from Municipal Court.

JUDGMENT: Judgment affirmed.

DATE OF JUDGMENT ENTRY: October 20, 2008

ATTORNEYS:TEDI.COULTERAttorney at LawReg. #0021569181 S. Main StreetMarion, OH 43301For Appellant.

CHRISTIAN HARDESTYAttorney at LawReg. #0078289John VidmarAttorney at LawReg. #00762171971 West 5th Avenue, Suite 4Columbus, OH 43212For Appellee.

1

Case Number 9-08-14

WILLAMOWSKI, J.

f¶1} The defendant-appellant, Dianna Disbennett, also known as Diane

Disbennett, appeals the decision of the Marion County Municipal Court ordering

her to pay $10,000 plus interest to the plaintiff-appellee, Robert Adams. On

appeal, Disbennett argues that Adams did not prove his case by a preponderance

of the evidence; that the trial court erred in finding the statute of frauds

inapplicable; that the trial court erred by using the preponderance of the evidence

standard as it relates to the statute of frauds defense; that the trial court erred by

admitting hearsay; and that the trial court erred by admitting unauthenticated and

unreliable trial exhibits.

{¶2} The basic facts of the case are undisputed. Sometime during the

summer of 2005, the parties met through Match.com, an online dating service. At

that time, Disbennett had litigation pending against her former employer for

injuries she allegedly sustained in the course of her employment, and she was

purchasing a residence from her sister through a land contract. However, she had

fallen behind on her payments, and her sister requested a fmal payoff of $10,000.

Disbennett obtained the money from Adams and received a deed to the home from

her sister. Sometime in December 2005, Adams purchased a new window for the

home. By January 2006, the parties had essentially ended their relationship.

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Case Number 9-08-14

{13} On August 23, 2006, Adams filed a complaint, alleging that he had

made three loans totaling $11,181 to Disbennett. Adams alleged that each loan

was made pursuant to an oral contract of repayment. Adams alleged one claim of

breach of contract, one claim of quantum meruit, and one claim of unjust

enrichment. Disbennett filed her answer on September 22, 2006, claiming the

money was given to her as a gift and asserting the statute of frauds as an

affirmative defense.

{¶4} On May 14, 2007, Disbennett filed a motion in limine seeking to

exclude from introduction at trial several statements she had allegedly made to

Adams on the Yahoo! Instant Messenger service ("IM"). On June 13, 2007,

Adams filed a memorandum in opposition to Disbennett's motion, and Disbennett

filed a supplemental memorandum on July 10, 2007. The court began a bench

trial on that same day, and continued the second day of trial until October 22,

2007, on which date, the court heard testimony from an additional witness. The

court continued trial again until January 28, 2008, at which time the remaining

defense witness did not appear. The court heard closing arguments, and on

February 22, 2008, rendered its decision. The court determined that Adams had

proven the existence of an agreement for the $10,000 loan, but he had not proven

that his purchase of a window for Disbennett's home constituted a loan. The court

accordingly ordered Disbennett to pay $10,000 together with interest of eight-

Case Number 9-08-14

percent per annum to Adams. Disbennett appeals the judgment of the trial court,

raising five assignments of error for our review.

Assignment of Error No. 1

The trial court erred in finding that the Plaintiff-Appellee hadmet his burden of proof by a preponderance of the evidence thatthere was an agreement between the Plaintiff-Appellee andDefendant-Appellant that the Defendant-Appellant agreed topay the Plaintiff-Appellee back $10,000 as the manifest weight ofthe evidence fails to sustain Plaintiff-Appellee's burden.

Assignment of Error No. 2

The trial court erred in finding that the statute of frauds rule didnot apply and that the Plaintiff-Appellee to prevail on his claimdid not have to have in writing the alleged agreement that theDefendant-Appellant had to pay back the Plaintiff-Appellee$10,000.

Assignment of Error No. 3

The trial [c]ourt erred in finding that the statute of frauddefense of the Defendant-Appellant fails as the trial court used apreponderance of evidence standard instead of a clear andconvincing evidence standard to determine that the oral contractwas taken out of the operation of the statute of fraud.

Assignment of Error No. 4

The trial [c]ourt erred in allowing testimony of the Plaintiff-Appell[ee]'s sister as to her "understanding" that the Plaintiff-Appellee wanted to loan money to the Defendant-Appellant untilthe Defendant-Appellant could get money to purchase the homeas said testimony is based on inadmissible hearsay of thePlaintiff-Appellee.

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Case Number 9-08-14

Assignment of Error No. 5

The trial [c]ourt erred in allowing the Plaintiff-Appellee to admitas evidence his exhibits D& E which were copies of instantmessaging allegedly between the parties.

{¶5} For ease of analysis, we elect to address the assignments of error out

of order, begmning with the fifth assignment of error, in which Disbennett argues

the IM records were not authenticated pursuant to Evid.R. 901(A) nor

corroborated by originals under Evid.R. 1001. In response, Adams claims the trial

court did not abuse its discretion by admitting the exhibits. Adams contends the

IM records were relevant to prove a loan; the probative value of the evidence

"clearly outweighed" any unfair prejudice; the printouts should be considered

originals pursuant to Evid.R. 1001(3); and the records were authenticated.

{¶6} A trial court's decision to admit or exclude evidence is reviewed

under an abuse of discretion standard. State v. McCullough, 3d Dist. No. 12-07-

09, 2008-Ohio-3055, at ¶ 25, citing Deskins v. Cunningham, 3d Dist. No. 14-05-

29, 2006-Ohio-2003, at ¶ 53, citing Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio

St.3d 83, 482 N.E.2d 1248. An "`abuse of discretion' connotes more than an error

of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450

N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d

144, internal citations omitted.

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Case Number 9-08-14

{¶7} Evid.R. 901(A) provides: "[t)he requirement of an authentication or

identification as a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is what its proponent

claims." Evid.R. 902(B)(1) provides in pertinent part: "[b]y way of illustration

only, and not by way of limitation, the following are examples of authentication or

identification conforming with the requirements of this rule: *** Testimony that _

a matter is what it is claimed to be."

{1[8} The trial court permitted Adams to authenticate the documents

through his own testimony. See Johnson-Wooldridge v. Wooldridge (Jul. 26,

2001), 106' Dist. No. OOAP-1073, citing Kassouf v. White (Mar. 2, 2000), 8`h Dist.

No. 75446. During the hearing on the motion in limine, Adams testified that

"Bob99HD" was his IM screenname, or his online identity; that "Diane

Disbennett" was how her name came up on his computer even though her

screennames were "sexybitch43302" and "mzz_dakota43302;" that he had not

changed any of the messages; that Exhibit D was a print out of what he observed

on his computer screen; and that Exhibit E was a compilation of messages from

various dates, with each page representing a different day's conversation. (Trial

Tr., May 23, 2008, at 13; 15; 33-35; 44). Adams also testified that the messages

contained information that would have been private between himself and

Disbennett. (Id. at 49). During Disbennett's testimony, she stated only that she

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Case Number 9-08-14

could not recall typing the messages Adams attributed to her, and that her

computer was disposed of prior to the commencement of litigation. (Id. at 61; 64-

65).

{¶9} Although the following case from the Tenth Appellate District is not

directly on point in that it concerns authentication of telephone calls rather than

computer messages, it contains some useful general information concerning

authentication under Evid.R. 901.

"Thus, `[i]t is clear that the connection between a message(either oral or written) and its source may be established bycircumstantial evidence.' * * * Moreover, `[a]ny combination ofitems of evidence illustrated by Rule 901(b) * * * wiIl suffice solong as Rule 901(a) is satisfied.' * * * Finally, `[t]he burden ofproof for authentication is slight.' *** We have explainedthat[:]

""the showing of authenticity is not on a par with more technicalevidentiary rules, such as hearsay exceptions, governingadmissibility. Rather, there need be only a prima facie showing,to the court, of authenticity, not a full argument on admissibility.Once a prima facie case is made, the evidence goes to the juryand it is the jury who wiII ultimately determine the authenticityof the evidence, not the court. The only requirement is thatthere has been substantial evidence from which they could inferthat the document was authentic."' United States v. Reilly (C.A.3,1994), 33 F.3d 1396, 1404, [internal quotations omitted].

State ex rel. Montgomery v. Villa (1995), 101 Ohio App.3d 478, 484-485, 655

N.E.2d 1342. In alleging that the IM records introduced by Adams were not

properly authenticated, Disbennett cites the following:

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Case Number 9-08-14

"There are many states in the development of computer datawhere error can be introduced, which can adversely affect theaccuracy and reliability of the out put * * * Determining whatdegree of foundation is appropriate in any given case is in thejudgment of the court. The required foundation will vary notonly with particular circumstances but also with the individualjudge."

Lorraine v. Markel Amer. Ins. Co. (D. Md. 2007), 241 F.R.D. 534, 543, quoting

Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence §

900.06[3] (Joseph M. McLaughlin ed., Matthew Bender 2d ed. 1997). Disbennett

then provides a litany of possibilities as to why Exhibits D and E were not

authenticated; however, the majority of those reasons are either unsupported by

the record or simply contradicted by the testimony. The trial court was in the best

position to observe the witnesses and assess credibility. Seasons Coal Co., Inc. v.

Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273. On this record, we

cannot find the trial court abused its discretion when it authenticated Plaintiff's

Exhibits D and E.

{¶10} Disbennett also contends that Exhibits D and E were improperly

admitted because they were not the "originals." Disbennett contends that Adams

could have brought his computer's hard drive into court and retrieved the

messages in open court. The Rules of Evidence do not impose such a burden upon

a plaintiff. Evid.R. 1001(3) defines "original" as, "[a]n `original' of a writing or

recording is the writing or recording itself or any counterpart intended to have the

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Case Number 9-08-14

same effect by a person executing or issuing it. * * * If data are stored in a

computer or similar device, any printout or other output readable by sight, shown

to reflect the data accurately, is an `original."' At the hearing, Adams testified that

his hard drive was in his car and was accessible. However, Adams hoped to prove

his case by use of his exhibits, which were print-outs of information stored in the

computer. Disbennett has cited no authority to support her proposition that Adams

was required to produce the computer in court, and she has cited no authority to

show that the print outs of information stored on Adams computer were not to be

considered the "originals." On this record, we cannot hold that the trial court

abused its discretion when it admitted Plaintiffs Exhibits D and E into evidence.

The fifth assignment of error is overruled.

{¶11} In the fourth assignment of error, Disbennett contends that the trial

court erred by allowing inadmissible hearsay into evidence. At trial, Adams'

sister, Martha Osbourne, testified that Adams asked her to loan him $10,000.

Osboume testified that she asked Adams why he needed the money, and she

stated, "I understood that there was a house that was to be sold or bought by Diane

- anyway, and that she was to - she was going to get a loan, but she needed money

- he needed money until she could get the loan in her name." (Trial Tr., at

120:10-13).

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Case Number 9-08-14

{¶12} Generally, "a written or oral out-of-court statement, offered into

evidence to prove the truth of the matter asserted is considered inadmissible

hearsay, unless the statement falls within a hearsay exception." McDermott v.

McDermott, 6th Dist. No. F-02-023, 2003-Ohio-2361, at ¶ 19, citing Evid.R. 801,

802. "Evid.R. 803(3) provides that the following is excluded from the hearsay

rule: `A statement of the declarant's then existing state of mind, emotion,

sensation, or physical condition (such as intent, plan, motive, design, mental

feeling, pain, and bodily health), but not including a statement of memory or belief

to prove the fact remembered or believed unless it relates to the execution,

revocation, identification or terms of declarant's will."' Id. at ¶ 20.

{¶13} As in McDermott, Osbourne's testimony merely indicates Adams'

motive for seeking a loan from her. See Unifirst Corp. v. Yusa Corp., 12th Dist.

No. 08-25-2003, 2003-Ohio-4463, at ¶ 20. Furthermore, even if the trial court did

err in allowing the testimony under Evid.R. 803(3), the error was non-prejudicial

since the evidence was cumulative. Unif:rst, at ¶ 21, citing McDermott, at ¶ 22,

citing State v. Tomlinson (1986), 33 Ohio App.3d 278, 281, 515 N.E.2d 963.

Adams testified that he and Disbennett agreed that she would repay him the

$10,000 she used to purchase her home. Adams also testified that Disbennett

specifically told him she would repay the money. (Trial Tr., at 127). On this

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Case Number 9-08-14

record, we cannot find an abuse of discretion in the trial court's admission of

Osboume's statement. The fourth assignment of error is overruled.

{¶14} In the first assignment of error, Disbennett contends the trial court

erred in finding that Adams had met his burden of proof in proving the existence

of a contract. A preponderance of the evidence means the greater weight of the

evidence. Steingass Mechanical Contracting, Inc. v. Warrensville Heights Bd. of

Educ., 151 Ohio App.3d 321, 2003-Ohio-28, 784 N.E.2d 118, at ¶ 30, citing

Travelers' Ins. Co. of Hartford Connecticut v. Gath (1928), 118 Ohio St. 257, 160

N.E. 710. To establish a breach of contract claim, the plaintiff must prove by a

preponderance of the evidence that a contract existed; that the plaintiff completed

performance; that the defendant failed to perform; and that the plaintiff was

damaged by the defendant's failure to perform. Bryan Publishing Co. v. Kuser, 3d

Dist. No. 7-07-17, 2008-Ohio-2610, at ¶ 18, citing Farmers State Bank v.

Followay, 9th Dist. No. 07CA0011, 2007-Ohio-6399, at ¶ 13, citing Lawrence v.

Lorain Cty. Community College (1998), 127 Ohio App.3d 546, 548-49, 713

N.E.2d 478.

{¶15} "To constitute a valid contract, there must be an offer on the one side

and an acceptance on the other resulting in a meeting of the minds of the parties."

Cramer v. Bucher, 3d Dist. No. 5-02-01, 2002-Ohio-3397, at ¶ 10, citing Noroski

v. Fallet (1982), 2 Ohio St.3d 77, 79, 442 N.E.2d 1302.

11

Case Number 9-08-14

To constitute a gift, there must be a donative intent. 52 OhioJurisprudence 3d (1984), Gifts, Section 8. On the other hand, a"`[c]ontract' is [an] agreement upon sufficient considerationbetween two or more persons to do or not to do [a] particularthing." Schlupe v. Ohio Dept. of Adm. Serv. (1992), 78 OhioApp.3d 626, 605 N.E.2d 987, paragraph two of the syllabus.More specifically, to demonstrate that a transaction is a loan, thetrial court may take into consideration the relationship of theparties and an individual's need for the loan. Modica v. Keith(Feb. 28, 1985), Cuyahoga App. No. 48649, unreported, 1985 WL6630, citing Cook Org., Inc. v. Nightingale (1928), 6 Ohio LawAbs. 737; 18 Ohio Jurisprudence 3d (1980), Contracts, Section347. In addition, the trial court can deliberate "whether in viewof their relations a loan might be made without being evidencedby a note and any other incidents that would enable one to inferthat the transaction constituted a loan or did not." Modica,supra.

Saum v. Moenter (1995), 101 Ohio App.3d 48, 51-52, 654 N.E.2d 1333.

{116} At trial, Osbourne testified that Adams sought a $10,000 loan from

her because he believed he was going to loan the money to Disbennett. (Trial Tr.,

at 120). Adams testified on his own behalf and indicated that before he gave her

the money, Disbennett specifically stated she would repay the money; that there

was no time frame for repayment; that he did not get the loan in writing because

he thought he could trust Disbennett; that the money he loaned her was partially

from his savings and partially borrowed at 25% interest; that there were no

witnesses to the discussion of the loan; and that he never wanted to marry

Disbennett, though he had been interested in a long-term relationship. (Id. at 127-

128; 131; 138; 142; 153).

12

Case Number 9-08-14

{¶17} Disbennett testified on her own behalf. Disbennett told the court

that one night while Adams was at her home, she and Angel Byrd had a telephone

conversation on the speakerphone. (Id. at 175). At that time, Byrd indicated that

Disbennett's sister would sell her the house for $10,000. (Id.). Disbennett

testified that Adams wanted to give her the money even though she told him she

would be unable to obtain a loan; that Adams never asked her to repay anything;

that Adams told her he would get the $10,000 for her because he loved her; and

that Adams did not want his name on the deed until after they broke up. (Id. at

179; 181; 188; 190). Angel Byrd also testified for Disbennett. Byrd stated that

Adams answered the phone the night she called Disbennett to relay the offer to

purchase the home at $10,000, and the conversation was over the speakerphone

because Disbennett was busy cooking. (Id. at 224). During that conversation,

Byrd heard Adams tell Disbennett he would come up with the money because he

did not want Disbennett on the streets. (Id. at 225-226). Byrd also stated that

Disbennett told Adams she would be unable to repay the money. (Id. at 234-235).

On cross-examination, Byrd admitted that Adams did not refer to the money as

either a gift or a loan. (Id. at 233).

{¶18} The court also had before it Plaintiff's Exhibits D and E. In Exhibit

E, there was a message from "diane disbennett" on February 24, 2006 at 6:43

p.m., which stated, "i'm really sorry about the house i did try and when i get my

13

Case Number 9-08-14

money you will get yours i'm using a friends computer so i got to go again i'm

sorry." (Pl.'s Ex. E). Adams introduced this evidence to prove the existence of a

loan. Even if we disregard the evidence in Plaintiffs Exhibit E, Adams'

testimony alone is sufficient to establish the creation of a loan agreement between

himself and Disbennett. While the court heard evidence to the contrary from the

defense, the judge apparently placed greater weight on the testimony of the

plaintiff. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d at 80, 461 N.E.2d 1273.

On this record, the trial court did not err in fmding the existence of a loan

agreement by a preponderance of the evidence. The first assignment of error is

overruled.

{¶19} For ease of analysis, we elect to consider the second and third

assignments of error together. In her brief, Disbennett contends that the trial court

used the clear and convincing evidence standard rather than the preponderance of

the evidence standard in determining that the parties' oral agreement was outside

the statute of frauds.

{¶20} The statute of frauds is an affirmative defense. See generally

Marion Prod. Credit flssn, v. Cochran (1988), 40 Ohio St.3d 265, 269, 533 N.E.2d

325; Naylor v. Lacy, 3d Dist. No. 7-02-01, 2002-Ohio-3392, at ¶ 6, citing Civ.R.

8(C). The statute of frauds may be found in R.C. 1335.05. At issue in this case is

whether the parties' contract was unable to be performed within one year.

14

Case Number 9-08-14

Courts have a long history of giving the "not to be performedwithin one year" provision a literal and narrow construction.Sherman v. Haines (1995), 73 Ohio St.3d 125, 127, 652 N.E.2d698. The Ohio Supreme Court summarized this in Sherman at127, 652 N.E.2d 698 as follows:

"The provision applies only to agreements which, by their terms,cannot be fully performed within a year; and not to agreementswhich may possibly be performed within a year, thus, where thetime for performance under an agreement is indefinite, or isdependent upon a contingency which may or may not happenwithin a year, the agreement does not fall within the Statute ofFrauds. (Citations omitted.)

Further, the court relied upon 2 Corbin on Contracts (1950) 538-539, Section 444, for the proposition that:

°°°If a promise is so worded that it cannot be fully performedaccording to its own terms within one year, it is the kind ofpromise to which the one-year provision may be applicable. Thismay be so because the promise requires performance until adate more than a year away ** * or such a number of periodicalperformances as total more than a year. * **"' Sherman at 129,652 N.E.2d 698.

Long v. Agler (Jun. 8, 1999), 3d Dist. No. 15-98-19. In this case, despite

Disbennett's testimony that the money was a gift, the evidence established that the

parties did not set a time for repayment. Instead, repayment was conditioned upon

Disbennett obtaining a subsequent mortgage on the property,l which removes the

contract from the statute of frauds because the contract could be performed within

one year.

' It appears that the parties also contemplated the settlement of Disbennett's personal injury lawsuit, whichwould have been a potential resource from which Disbennett could have repaid the loan.

15

Case Number 9-08-14

{¶21} Generally, a defendant must prove an affirmative defense by clear

and convincing evidence. See In re Estate of Haas, 10`h Dist. No. 07AP-512,

2007-Ohio-7011, at ¶ 43, quoting State v. Robinson (1976), 47 Ohio St.2d 103,

107, 351 N.E.2d 88 "[i]n a civil case, the plaintiff normally has the burden of

producing evidence to support his case, and the defendant has the burden of

producing evidence of any affirmative defenses"); Farris Disposal Inc. v.

Leipply's Gasthaus, Inc., 9th Dist. No. 22569, 2005-Ohio-6737, at ¶ 23, citing

Sigma Sales, Co. v. dB Sales II, Inc. (May 27, 1998), 9^' Dist. No. 18606. The trial

court did not set forth which standard it used in determining that the contract was

outside the statute of frauds, and even if the trial court mistakenly applied the

preponderance of the evidence standard, Disbennett received the benefit of the

court's supposed mistake and failed to capitalize upon the error. The second and

third assignments of error are overruled.

{122} The judgment of the Marion County Municipal Court is affirmed.

Judgment affirmed.

PRESTON and ROGERS, J.J., concur.

r

16

IN THE COURT OF APPEALS OF THE THHLD APPELLATE JUDICIAL DISTRICT OF OHIO

MARION COUNTY

ROBERT ADAMS, CASE NUMBER 9-08-14

PLAINTIFF-APPELLEE, J U D G M E N T

v. ENTRY

DIANNA DISBENNETT,AKA DIANE DISBENNETT,

DEFENDANT-APPELLANT.

COURT F€LE6OF APPEALS

OCT 2 0 2008MARiO?^ COJP^lTY 01I0JULIE M. KAGEL, CLEl;Y

For the reasons stated in the opinion of this Court rendered herein, the

assignments of error are overruled, and it is the judgment and order of this Court

that the judgment of the trial court is affirmed with costs to appellant for which

judgment is rendered and the cause is remanded to that court for execution.

It is further ordered that the Clerk of this Court certify a copy of this

judgment to that court as the mandate prescribed by Appellate Rule 27 or by any

other provision of law, and also furnish a copy of any opinion filed concurrently

herewith directly to the trial judge and parties of record.

DATED: October 20, 2008

17

IN THE MARION MUNICIPAL COURT FOR MARION COUNTY, OHIOCIVIL DIVISION

ROBERT ADAMS, Case No. 06 CVF 1683Plaintiff

V.

DIANE DISBENNETTaka Dianna Disbennett,

Defendant

'.I^J::FI??LGW:aY

L 12

MAWON, OHIO :JUDGMENTENTRY

This matter came before the Court for a trial on July 10, 2007, October 22, 2007 and January 28,2008. Immediately prior to the start of the trial the Court also held a hearing on Defendant'smotion in liniine. The parties incorporated the testimony elicited during the motion hearing intothe trial.

Plaintiff was present and represented by Attorney Christian Hardesty apd Defendant was presentat all but the final trial date and represented by Attonrey Ted Coulter. Plaintiff filed a complaintagainst Defendant for nonpayment of loans totaling $11,181.00. Service was completed onDefendant. For the reasons set forth below, the Court shall enter judgment in favor of Plaintiffand against Defendant in the amount of $10,000, plus interest at the statutory rate of 8% perannum from the date.of judgment; costs to Defendant.

FINDINGS OF FACT AND ANALYSIS

It is undisputed that Plaintiff and Defendant met on match.com in 2005. The couple visited ortalked to each other every day and enjoyed a close relationship. They continued to communicatevia text messaging after the relationship ended in approximately January, 2006. Plaintiff wasidentified as "bob99hd" and Defendant was identified as "diane disbennett" and "mzz_dakota"on Yahoo instant messaging files,

At some point after the couple started dating, Defendant fell behind in the $800/month paymentsfor a house she was purchasing from her sister in Marion County, Ohio on a land contract.Defendant was not workiiLg and could not obtain a bank loan. The sister offered to sellDefendant the home outright if she could quickly come up with $10,000. On or about September2, 2005 Plaintiff wrote a $10,000.00 check to Defendant which she endorsed and used topurchase the property (Plaintiff s Exhibit A). Only Plaintiff and Defendant were present whenthe couple discussed the terms of Plaintiff s$10,000 payment for the house. The home wastitled solely in Defendant's hame at closing.

On or. about November 9, 2005 and December 16, 2005 Plaintiff also wrote two checks to WellKaw Glass ($355.00 and $826.00, respectively) that paid for a new window in Defendant'sproperty (Plaintiff s Exhibit B). Defendant received many gifts from Plaintiff, including tworings, a Thomas Kinkaid picture, harleyboots, a jacket and other clothes. Plaintiff alsopurchased a vehicle for Defendant's use that remained titled in Plaintiffs name. The

18

relationship ended in early 2006. The vehicle was eventually retumed to Plaintiff.

Plaintiff claims the $10,000 check to purchase Defendant's home and the two checks to WellKaw were loans that Defendant agreed to repay. Plaintiff withdrew money from his savingsaccount and borrowed additional funds at a 25% interest rate to provide Defendant with the$10,000. Plaintiff borrowed money against his mastercard to pay for the windows. Plaintiffclaims Defendant promised that once she received the deed Defendant would be able to borrowmoney from her 401(k) and repay Plaintiff. It was only later that Defendant learned she neededto own the home for at least one year before taking money out from her 401(k). Plaintiff's sistertestified that she understood Plaintiff wanted to loan money to Defendant until Defendant couldget money to purchase the home. Plaintiff claims he wanted to see Defendant have a roof overher head. Plaintiff denies wanting to marry Defendant. Plaintiff testified that he loaned moneyin the past under verbal agreements and was always repaid. He believed that if Defendantpromised to repay the money, she would. Plaintiff did not document the loan, demandownership of the house or require a mortgage on the property. Plaintiff also knew thatDefendant was involved in a personal injury case filed early in their relationship that would besettling.

Even after their relationship ended, Plaintiff testified that Defendant still promised to repay thesums borrowed for the house and window. On or about February 8, 2006 Defendant sentPlaintiff a text message stating "i hadnt heard a thing from u guess youre mad at me i'm gonamake u a 1 time offer-it expires at 12:00 noon u sign the title to the truck over to me ill call thelawyers and get the soonest time that should help your stress level" followed minutes later by themessage "are u still gonna pay my bills what ever u spend it will get repayed this is where thetrust thing comea to play i trust u u trust me well just let me know bye" (Plaintiff s Exhibit F).Defendant sent a message on or about February 15, 2006 stating "i want to thank u for letting mehave the truck and the phone with out those I wouldnt be able to get ajob youll be the ls` to getpd back i'm sorry things didnt work out with us ..." (Plaintiff's Exhibit E, page 2). Defendantalso sent Plaintiff a message on February 24, 2006 stating "i'm really sorry about the house i didtry and when i get my money you will get yours" (Plaintiff s Exhibit D, E page 3).

Defendant claims Plaintiff provided her with $10,000 and the window money as a gift that wasnot to be repaid. In fact, Defendant claims she was on disability and could never repay that sum.When Plaintiff asked Defendant what she wanted for Christmas, Plaintiff told her she needednew windows. Plaintiff insisted on giving Defendant such substantial gifts because he loved herand wanted to entice her into marriage. Defendant testified it was only after their relationshipended that Plaintiff indicated she needed to repay the money. Defendant's cousin testifiedregarding the many gifts Plaintiff provided to Defendant. This cousin assumed the new windowwas among these gifts. When she told Plaintiff "what a great gift" he responded "it was." Sheacknowledged Plaintiff never specifically said the window was a gift. Defendant's cousintestified she saw Plaintiff and Defendant as a loving couple that contemplated marriage.

Defendant could not remember sending the instant messages referred to by Plaintiff. Defendantneeded to replace her computer after the time period in question and therefore could not pull upher message log to verify what was sent. Defendant also denied using a friend's computer tosend Plaintiff messages.

19

charge an executor or administrator upon a special promise to answer damagesout of his own estate; nor to charge a person upon an agreement made uponconsideration of marriage, or upon a contract or sale of lands, tenements, orhereditaments, or interest in or concerning them, or upon an agreement that is notto be performed within one year from the making thereof; unless the agreementupon which such action is brought, or some memorandum or note thereof, is inwriting and signed by the party to be charged therewith or some other personthereunto by him or her lawfully authorized.

In this case, at the time the contract was formed both parties understood that Defendant wouldreceive the deed a short time after closing, and certainly within one year of the loan. At the timethe contract was made the parties further understood that once Defendant held title to theproperty she would qualify to borrow the money against her 401(k) account. Plaintiff paid themoney directly to Defendant, did not secure the loan by real estate and did not acquire ownershipof the real estate. For these reasons, Defendant's statute of frauds defense fails.

On the other hand, Plaintiff failed to prove by a preponderance of the evidence that Defendantagreed to repay the cost of the new window in Defendant's home. It is clear the Plaintiff offeredto pay for the window and the Defendant allowed the window to be installed into her home.Defendant never received any funds from Plaintiff because the checks were written directly toWell Kaw. There was no evidence presented regarding any deadline for Defendant's allegedrepayment of the loan or other details of the loan. There was no evidence that Defendant everpromised to repay the loan, other than PlaintifPs own (self-serving) testimony. WhenDefendant's friend commented that the window was a gift, Plaintiff had an opportunity to correctthis inipression but did not.

PROPOSED DECISION

Based upon the foregoing, it is hereby ADJUDGED, ORDERED AND DECREED thatjudgment is hereby entered in favor of Plaintiff and against Defendant in the amount of $10,000,plus interest at the statutory rate of 8% per annum from the date of judgment; costs to Defendant.

IT IS SO ORDERED.

Michele Worobiec, Acting Judgecc: Counsel for Plaintiff

Counsel for Defendant

21

CVF 0601683

TED COULTER, ESQ.MARION COUNTY COURTHOUSE MAIL

RECEIVEDFEB Z 5 700fl

WiLSON, COULTrR& KOCHHEI"i-R C0, L.R.A.

22

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