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Ronald J. Solomon, D.D.S., Inc. v. Davisson

Court of Appeals of Ohio, First District, Hamilton

May 23, 2018

RONALD J. SOLOMON, D.D.S., INC., d.b.a. CORNERSTONE DENTAL GROUP, Plaintiff-Appellant,
v.
BETHANY DAVISSON, Defendant-Appellee.

          Civil Appeal From: Hamilton County Municipal Court No. 17CV-02674

          Karen Comisar Prescott, for Plaintiff-Appellant,

          Bethany Davisson, pro se.

          OPINION

          ZAYAS, JUDGE.

         Background

         {¶1} Defendant-appellee Bethany Davisson went to Ronald J. Solomon, D.D.S., to have dental work performed. She signed a "Financial Responsibility Agreement, " which explained "that all fees are due and payable at the time the services are rendered unless prior financial arrangements have been made." In bold print, the next paragraph states "I further understand that a late charge of 1 ½% (18 APR) may be added to my account after sixty (60) days." Solomon performed several procedures over three days in late January of 2016. After Davisson's insurance paid a share of the charges, $1569 was still owed on her account. Davisson did not pay the remainder because she alleged she disputed two of the procedures. After a hearing, the magistrate reduced the amount owed by $178 for one of the dental fillings Davisson questioned. The magistrate entered judgment for "1391.00 late charges from 1/19/11 at 18% per annum & post judgt. at 18% per annum." No objections to the magistrate's decision were filed.

         {¶2} The trial judge rejected the magistrate's decision in part, ordered a copy of the transcript of the proceedings and took the matter under review. The court subsequently adopted in part and rejected in part the magistrate's decision. The court adopted the judgment amount of $1391, but rejected the assessment of the 18 percent interest. The decision stated that the judge had reviewed the transcript and the law and concluded that the plaintiff was "not entitled to prejudgment and post-judgment interest at 18% per annum. The Plaintiff sued on an account, not breach of contract claim. The financial agreement was permissive and not mandatory. The Plaintiff did not include the interest in billing. The Plaintiff has been made whole by the judgment." The trial court then entered judgment for Solomon for "$1391.00 plus judgment interest and cost [sic]." Solomon now appeals the trial court's rejection of the part of the magistrate's decision awarding him 18 percent interest.

         {¶3} Solomon's assignment of error alleges that the trial court erred when it rejected the magistrate's decision in part on the grounds that the written financial responsibility agreement executed by the Davisson was not a contract, that Solomon was not entitled to contractual late fees, and that the late-fee provision was permissive and not mandatory. We agree.

         {¶4} The trial judge found that Solomon was not entitled to prejudgment and post-judgment interest at 18 percent per annum. R.C. 1343.03(A) permits parties to agree to a contractual rate of interest. It provides that:

when money becomes due and payable upon any bond, bill, note, or other instrument of writing, upon any book account * * * the creditor is entitled to interest at the rate per annum determined pursuant to section 5703.47 of the Revised Code, unless a written contract provides a different rate of interest in relation to the money that becomes due and payable in which case the creditor is entitled to interest at the rate provided in that contract.

(Emphasis added.)

         {¶5} The trial court found that Solomon sued on an account. "An open book account is a detailed statement that constitutes the principal record of the transactions between the creditor and debtor * * * [t]he statement details the debits and credits in connection with the debtor/creditor relationship." Cusano v. Klein, 264 F.3d 936, 942 (9th Cir.2001); Minster Farmers Coop. Exchange Co., Inc. v. Meyer, 117 Ohio St.3d 459, 2008-Ohio-1259, 884 N.E.2d 1056, ¶ 16. An invoice or account statement unilaterally stating interest terms does not meet R.C. 1343.03's requirement of a written contract. Minster at ¶ 28. In order for a written contract to exist for purposes of R.C. 1343.03(A), there must be a writing to which both parties have assented. Id. at ¶ 27. The trial court was presented with plaintiffs exhibit A, which is a copy of Davisson's "Patient History Report." It details her account reflecting Solomon's charges and payments made by Davisson and her insurance company. The trial court was also presented with plaintiffs exhibit D, which is a "Financial Responsibility Agreement."

         Prejudgment Interest

         {¶6} The "Financial Responsibility Agreement" is a document that, according to the transcript of proceedings, Solomon's patients were asked to read and sign. In this agreement, Davisson states that she is financially responsible for any and all treatment, that all fees are due and payable at the time services are rendered, and that a late charge of 1.5 percent (18 percent APR) may be added to her account after 60 days. The agreement is a written contract which evinces that both parties agreed that Davisson would be obligated to pay for the dental treatment she received and late charges after 60 days. "[A] judgment creditor is entitled to a contractual interest rate instead of the statutory rate when (1) the parties have a written contract, and (2) that contract provides a rate of interest with respect to money that becomes due and payable." Hobart Bros. Co. v. Welding Supply Serv., Inc., 21 Ohio App.3d 142, 144, 486 N.E.2d 1229 (10th Dist.1985). The fact that the agreement ...


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