Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dearth v. Fifth Third Bank

Court of Appeals of Ohio, Fourth District

June 26, 2013

CHARLES E. DEARTH, DBA CANDLE SENSE, LLC, Plaintiff-Appellant,
v.
FIFTH THIRD BANK, Defendant-Appellee.

Joseph P. Sulzer, Chillicothe, Ohio, for appellant.

James E. Burke, Drew M. Micks, Keating Muething & Klekamp PLL, Cincinnati, Ohio, and James L. Mann, Mann & Preston, LLP, Chillicothe, Ohio, for appellee.

DECISION AND JUDGMENT ENTRY

William H. Harsha, Judge.

{¶1} Charles Dearth appeals an entry granting summary judgment to Fifth Third Bank (Fifth Third) and initially contends that certain affidavits attached to the motion do not comply with Civ.R. 56(E). Originally, Dearth contested his membership in a federal class action lawsuit that was based on the same re-sequencing of debit card transactions that is the subject of this case. However, the federal court subsequently denied his petition to withdraw as a member of the class and Dearth conceded his membership. Because the affidavits he complains of relate solely to his status as a member of the class action in federal court, and he has conceded his membership in that class, any irregularities in those affidavits are now irrelevant.

{¶2} He also argues that the fourth cause of action in his complaint is not barred by the doctrine of res judicata because it is not a claim that could have been litigated in the class action suit. However, even if we assume that to be true, his claim is subject to a release. As part of the settlement agreement in the class action, every member released Fifth Third from any claims relating in any way to the re-sequencing of debit card transactions and overdraft fees. And because his fourth cause of action relates to the closure of his checking account due to overdraft fees from the re-sequencing of Dearth's debit card transactions, the trial court did not err by granting summary judgment in favor of Fifth Third on the basis of release.

I. FACTS

{¶3} This action arises from a business checking account Charles Dearth opened with Fifth Third Bank. In his amended complaint, Dearth alleged that Fifth Third improperly re-sequenced transactions in his checking account in order to maximize overdraft fees. Dearth alleged that Fifth Third would hold checking account transactions until the end of the day and thereafter post the transactions from the largest dollar amount to the smallest, regardless of when the charges were actually made. He also alleged this practice maximized the number of overdraft fees Fifth Third could charge him. In response Fifth Third filed an answer and motion to stay pending final approval of a nationwide class action in federal court. It asserted that the class action was also based on re-sequencing of debit card transactions and as a member Dearth would be precluded from independently pursuing the claims in his complaint.

{¶4} After the court denied the motion, Fifth Third filed amended motions for summary judgment based on the federal court's approval of the class action settlement. The trial court granted Fifth Third's motion for summary judgment finding that Dearth was a member in the class and therefore he released Fifth Third from any claims relating to the re-sequencing of debit card transactions. Dearth now appeals that judgment.

II. ASSIGNMENT OF ERROR

{¶5} Dearth raises one assignment of error for our review:

1. THE TRIAL COURTS GRANTING SUMMARY JUDGMENT FOR THE DEFENDANT-APPELLEE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

III. LAW AND ANALYSIS

A. Affidavits Submitted In Support of Summary Judgment

{ΒΆ6} Initially Dearth argues that certain affidavits submitted by Fifth Third along with its amended motion for summary judgment do not comply with Civ.R. 56(E) because they did not include "the required documents that were allegedly mailed to Appellant, the best evidence, " or "any verified copies or records actually maintained by Appellee's Affiant ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.