COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72242 HOME BANK, F.S.B. : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION DANIEL T. PAUER : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 19, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Cleveland Municipal Court : Case No. 96-CVF-0002471 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: BRENDAN DELAY Attorney at Law 323 Lakeside Avenue, W. Suite 450 Cleveland, Ohio 44113 For defendant-appellant: DANIEL T. PAUER, pro se 7060 Brook Lane Chesterland, Ohio 44026 KENNETH A. ROCCO, J.: -2- In this action originally brought by plaintiff-appellee Home Bank, F.S.B. on a claim of unjust enrichment against defendant- appellant Daniel T. Pauer, appellant appeals from several trial court orders in favor of appellees Home Bank and Nancy Czupik. The trial court denied appellant's motions for default judgment, to compel discovery, for sanctions, and for summary judgment on the complaint; however, it granted appellees' motions for a protective order and for summary judgment on both the complaint and appel- lant's counterclaims. Appellant contends the trial court's orders were improper. Appellant further contends the trial court lacked jurisdiction over the subject matter of the action. This court has reviewed the record, finds the relevant trial court orders were appropriate and, therefore, affirms those orders. In July 1995, appellant was a customer of appellee Home Bank, where he held both a personal checking account and a savings account through the union to which he belonged. The record reflects that late in the work day of July 17, 1995, Donna Hubany, General Ledger Analyst for Home Bank, received two wire transfers from other banking institutions. One of the wire transfers was in the amount of $225 and was for appellant from his daughter in New York. The other wire transfer was in the amount of $4800 and was to Home Bank for the payment of a mortgage from one of its other customers. The following day, Ms. Hubany prepared a deposit slip, placed appellant's name and checking account number on it, and listed the -3- amount of the deposit as $4800, 1 noting it was per wire transfer. That same day, appellant telephoned Home Bank to request information as to the wire transfer from his daughter. Appellant spoke to Melissa Nero. Appellant asked if the $225 was in his account yet. Ms. Nero informed appellant that although a wire transfer had been received, it was in the amount of $4800, not $225. Appellant expressed surprise and indicated that he would telephone his daughter about the matter. Subsequently, the wire transfer in the amount of $225 was also deposited in appellant's account. The following day, appellant withdrew $4600 in cash from the account. A check appellant had previously written was honored that day, leaving a balance of $18.26 in his account. On July 24, 1995, when Hubany conducted her weekly account balancing procedure, she noted the error she had made with regard to the wire transfer to appellant's account. Hubany corrected the error by reversing the deposit of $4800 and then informing Donna Callahan, Home Bank's Assistant Collection Administrator, of the situation. On July 25, 1995, since Callahan had difficulty in reaching appellant by telephone, she requested a credit report on appellant in order to verify both appellant's home address and his home and business telephone numbers. That same day, Callahan drafted a letter to appellant. The letter informed appellant of the deposit 1Quotes are taken from evidentiary materials filed in the trial court by the parties in support of their motions for summary judgment. -4- error, noted his withdrawal of a large portion of that amount, requested a return to Home Bank of the funds to which appellant was not entitled, and further requested appellant to contact Callahan immediately regarding the matter. Callahan mailed the letter to appellant's home address. Two days later, Callahan still had been unsuccessful in reaching appellant. She therefore engaged Metro Mortgage Services to leave a tag message on the front door of appellant's resi- dence. She also informed Home Bank's General Counsel/Corporate Secretary, appellee Nancy Czupik, about the matter. On August 9, 1995, Czupik drafted a letter to appellant demanding repayment of the funds. She gave the letter to Metro Mortgage Services for delivery. Metro Mortgage Services sent its employee, Alfred Henderson, to deliver the letter. Thereafter, Henderson appeared with the letter at appellant's house. Appellant observed Henderson for some time from inside the home before Henderson finally deposited the letter inside appellant's garage. By August 26, 1995, the original letter sent to appellant was returned to Home Bank by the postal service as unclaimed. Appellant made no response to any of Home Bank's efforts to contact him. On November 30, 1995, Home Bank withdrew the total amount of appellant's balance from his union savings account, viz., $781.98, -5- as a set off against the $4600 amount appellant had withdrawn from his checking account.2 On February 2, 1996, Home Bank filed a complaint against appellant in the Cleveland Municipal Court. Home Bank averred the following: 1) appellant had been unjustly enriched by the error made to his checking account; 2) Home Bank had made a demand upon appellant for return of the funds; and 3) after set off from funds in appellant's other accounts, appellant owed Home Bank $3,762.74. Home Bank attached to its complaint a copy of the demand letter sent by Czupik to appellant and Henderson's affida- vit, in which Henderson stated that in his capacity as a Certified Service Processor who was employed by Reporters, Etc., he delivered Czupik's letter on August 13, 1995. On April 2, 1996, two months after the complaint was filed, appellant filed a request for twenty-eight days in which to file a responsive pleading to it. On May 2, 1996, appellant filed an answer in which he denied all the allegations of the complaint, asserted the allegations were invalid for Home Bank's failure to attach any accounting documents, and raised several affirmative defenses, including improper venue. In the same pleading, appellant also set forth a counterclaim against Home Bank, Nancy Czupik, both in her capacity as Corporate Counsel and individually, and Alfred Henderson. 2Home Bank made another set off from the account in May, 1996. -6- Appellant's first count of his counterclaim was against Home Bank for the unlawful acts of its agent, Alfred Henderson, including trespass, invasion of property, seizure of property, assault, intentional infliction of emotional distress, negligent infliction of emotional distress, unlawful entering *** and invasion of privacy. Appellant also asserted in a second count a cause of action against Home Bank for breach of contractual agreement for its negligence in failing to notify [appellant] of any [checking account] errors *** in a reasonable and timely manner. In the third count of his counterclaim, appellant alleged Czupik had converted funds from his union account. In the fourth, appellant alleged the credit search conducted by Home Bank's employee violated the Fair Credit Reporting and the Equal Opportunity Credit Acts. Finally, appellant claimed his wife was denied access to her checking account by appellees' acts, which violated the federal Fair Debt Collection and Privacy Acts. Appellant attached to his pleading copies of his July and August 1995 checking account statements and his December 1995 and January 1996 union account statements. Appellant also filed a motion to certify the case to the court of common pleas. On May 14, 1996, appellees filed a brief in opposition to appellant's motion to certify the case. On May 24, 1996, appellant filed his response to appellees' brief. -7- On May 31, 1996, Home Bank filed a request for leave to file a responsive pleading to the answer and counterclaim within 14 days following the disposition of [appellant's] pending motion to certify this cause of action to the Court of Common Pleas of Cuyahoga County, Ohio. On June 10, 1996, Nancy Czupik filed the same request. Appellees stated the request was submitted in order that they file their answers to appellant's counterclaims in the court before which it is determined that this [case] shall be heard. In an entry journalized on June 28, 1996, the trial court denied appellant's motion to certify the case to the court of common pleas. The trial court also journalized an entry granting appellees leave to plead until July 1, 1996. On July 1, 1996, appellees filed a motion for extension of time, requesting another fourteen days to respond to the counter- claims. The trial court did not rule on this motion. On July 15, 1996, appellees filed a motion to dismiss the first count of appellant's counterclaim. On July 19, 1996, appellees filed a reply to appellant's counterclaim in which they denied the pertinent allegations and set forth a list of affirmative defenses. On July 31, 1996, appellant filed a motion for default judgment on his counterclaim against Home Bank and Czupik. Therein, appellant argued that since the trial court had not issued a journal entry granting appellees' second request for leave to file a responsive pleading, he was entitled to judgment. Appellees -8- responded with a brief in opposition. Discovery then proceeded in the action. On August 19, 1996, appellees filed a motion for leave to file an amended reply to appellant's counterclaim, which was supported by counsel's affidavit. On August 20, 1996, the trial court granted this motion. Ultimately, on October 8, 1996, following numerous additional filings in the case, the trial court denied appellant's motion for default judgment. On October 28, 1996, appellant filed a motion to compel discovery, alleging Home Bank was providing insufficient and dishonest information in its responses to appellant's discovery requests. Home Bank filed a brief in opposition to appellant's motion. On December 6, 1996, Home Bank filed its own motion to compel discovery against appellant. Subsequently, the trial court denied appellant's motion but granted Home Bank's motion. On December 17, 1996, appellant filed a motion for default judgment against Henderson. On January 3, 1997, appellees Home Bank and Czupik filed a joint motion for partial summary judgment. Appellees alleged that the documentary evidence already filed in the action demonstrated they were entitled to judgment with respect to the causes of action set forth in count one of appellant's counterclaim. Home Bank also filed a separate motion for summary judgment on the complaint and the remaining counts of the counterclaim, attaching thereto its employees' affidavits, which incorporated other documentary evidence by reference. -9- That same day, appellant filed his own motion for judgment on the pleadings or, in the alternative, motion for summary judgment on the complaint, alleging Home Bank's failure to attach a copy of an account was fatal to its cause of action. Appellant attached his affidavit, wherein he stated in pertinent part only that he had received Czupik's demand letter on August 20, 1995. On January 8, 1997, Home Bank filed a motion for a temporary restraining order against appellant. Therein, Home Bank alleged appellant had initiated a telephone call to one of its employees at her home at 6:00 a.m. and had demanded information regarding the employee's affidavit attached to Home Bank's motion for summary judgment. A few days later, Home Bank and Czupik also filed motions for a protective order. Home Bank sought an assurance by appellant he would not use information gained in discovery to harass Home Bank's witnesses. On January 13, 1997, the court granted Home Bank's motion for a restraining order. On January 21, 1997, appellant filed a brief in response to appellees' motions for summary judgment on the complaint and his counterclaim. Appellant attached thereto in pertinent part the following: 1) his affidavit, wherein he recounted his memory of the 6:30 a.m., January 8, 1997" conversation with Home Bank's employee; 2) his friend Frank Aveni's affidavit, wherein Mr. Aveni recounted a telephone conversation he had with appellant during the month of August, 1995" concerning a man who had frightened appellant and his wife by trespassing; and 3) copies of his -10- account statements. Appellant also filed a response to appellees' motions for a restraining and a protective order. On February 14, 1997, the trial court issued a journal entry and opinion in which it granted Home Bank's motion for summary judgment on the complaint, granted appellees' motions for summary judgment on the counterclaim, and overruled appellant's motion for judgment on the pleadings or, in the alternative, motion for summary judgment on the complaint. The trial court also issued a separate journal entry in which it dismissed appellant's claims against Henderson for failure of service. Subsequently, appellant filed a timely notice of appeal from the foregoing orders. Appellant presents eleven assignments of error for this court's review, which will be combined and addressed together when either so presented by appellant or appropriate. Appellant's first assignment of error states: THE CLEVELAND MUNICIPAL COURT ERRED BY RENDER- ING A SUMMARY JUDGMENT MOTION AGAINST THE DEFENDANT-APPELLANT WHERE IT HAD NO JURISDIC- TION OVER THE DEFENDANT-APPELLANT OR THE SUBJECT MATTER OF THE UNDERLYING SUIT. Appellant argues the trial court's order granting summary judgment to appellees was invalid because the trial court had neither subject matter jurisdiction over the controversy nor personal jurisdiction over him. The record reflects appellant never raised the issue of personal jurisdiction in the trial court either by motion or in any responsive pleadings; hence, appellant waived it. Civ.R. 12(B)(2) and (H)(1); D.T. & I. Ry. Co. v. Maxine's Potato Serv. (1983), 13 -11- Ohio App.3d 157; Security Ins. Co. v. Regional Transit Auth. (1982), 4 Ohio App.3d 24 at 28. Moreover, R.C. 1901.18(A)(2) gives a municipal court subject matter jurisdiction over actions for the recovery of money that arise within its territory. Home Bank averred in its complaint that the erroneous deposit of the wire transfer into appellant's account occurred in Cleveland, Ohio. Since the record supports this averment, reflecting Home Bank's main office is located in Cleveland, the trial court did not lack subject matter jurisdiction over the controversy. Morrison v. Steiner (1972), 32 Ohio St.2d 86. For these reasons, appellant's first assignment of error is overruled. Appellant's second and third assignments of error state: II. THE TRIAL COURT ERRED IN FAILING TO ENTER A DEFAULT JUDGMENT AGAINST EACH AND ALL COUNTERCLAIM DEFENDANT'S (sic.) WHEN NO ANSWER CONTESTING ISSUES WAS EVER FILED WITH THE CLERK OF THE CLEVELAND MUNICIPAL COURT OR SERVED UPON PAUER. III. THE TRIAL COURT ERRED AS A MATTER OF LAW IN OVERRULING DEFENDANT'S MOTION FOR DEFAULT JUDGMENT AGAINST ALFRED HENDERSON IN THAT DEFENDANT COMPLIED WITH THE RE- QUIREMENTS OF CIVIL RULE 4.6(D) REGARDING ORDINARY MAIL SERVICE UPON ALFRED HENDERSON. Appellant first argues the trial court improperly denied his motion for default judgment against appellees Home Bank and Czupik since the docket reflects appellees failed to file a responsive -12- pleading to his counterclaim within the time limit originally imposed. Despite appellant's failure to designate this judgment as one challenged in his notice of appeal, this court will consider appellant's argument pursuant to Maritime Manufacturers, Inc. v. Hi-Skipper Marina (1982), 70 Ohio St.2d 257. As the supreme court indicated therein, it is preferable to decide cases on their merits whenever possible. Of course, this rule of law applies also to appellees. Thus, a trial court's ruling on a motion for default judgment will not be reversed absent an abuse of discretion. Davis v. Immediate Med. Serv., Inc. (1997), 80 Ohio St.3d 14; Miller v. Lint (1980), 62 Ohio St.2d 209; Huffer v. Cicero (1995), 107 Ohio App.3d 65, 74. The record reflects although the trial court originally permitted appellees leave to plead to appellant's counterclaim until July 1, 1996, only four days prior to that date, new counsel for appellees entered a notice of appearance in this case. On July 1, 1996, therefore, appellees' counsel filed a second motion for leave to plead to the counterclaim. Counsel stated therein a legitimate reason for the request; viz., he needed only fourteen more days to prepare a response to appellant's counterclaim. The trial court did not specifically rule on the request; however, on July 15, 1996, appellees did attempt to file a responsive pleading. In an affidavit later filed in the action, appellees' counsel explained that the attempt was initially unsuccessful because the pleading mistakenly bore a jury demand and -13- was returned by the clerk of the trial court for lack of a deposit therefor. Appellees' counsel quickly corrected the error; appellees' initial reply to the counterclaim was successfully filed on July 19, 1996. Although appellant was served with a copy of the pleading, he nevertheless filed a motion for default judgment along with his motion to strike appellees' initial reply. Under the circum- stances of this case, since appellees substantially complied with the rules of civil procedure and made a showing of excusable neglect, the trial court did not abuse its discretion in denying appellant's motion for default judgment. Marion Production Credit Assn. v. Cochran (1988), 40 Ohio St.3d 265 at 271; cf., Miller v. Lint, supra; Huffer v. Cicero, supra; McDonald v. Berry (1992), 84 Ohio App.3d 6. Appellant further argues the trial court improperly denied his motion for default judgment as to Alfred Henderson. The trial court denied the motion on the basis that Henderson had never been made a party to the action since service of process had never been accomplished. A court lacks jurisdiction to enter judgment against a defendant where effective service of process has not been made upon the defendant and the defendant has neither appeared in the case nor otherwise waived service. Rite Rug Co., Inc. v. Wilson (1995), 106 Ohio App.3d 59 and 62. Civ.R. 4.1 through 4.6 specify how service is to be made. As the supreme court indicated in Akron-Canton Regional Airport Auth. -14- v. Swinehart (1980), 62 Ohio St.2d 403, the preferred method of service is at a residence since it is most likely to reach the party. In this case, appellant's attempts to serve Henderson with a copy of the counterclaim at a residence address were unsuccessful; they were returned as unclaimed or undeliverable. Cf., Bentz v. Carter(1988), 55 Ohio App.3d 120. Appellant thereafter attempted mail service at another address, viz., 1700 London Road, Cleveland, Ohio 44112; the record reflects appellant believed it was the business address of Henderson's most recent employer, an entity appellant called both Reporters Etc and Reporters Inc. *** [I]n order to justify service on a defen- dant at a business address, the party being served must have such a habitual, continuous or highly continual and repeated physical presence at the business address that the party ordering the service of process would have reasonable grounds to calculate that the service would promptly reach the party being served. The business address should not simply be the address of the party's business, it should be the address where the party himself has his own office, or at least where he is continually and regularly physically present most of the time. Bell v. Midwestern Educational Serv., Inc. (1993), 89 Ohio App.3d 193 at 202. Appellant's initial attempt to serve Henderson by mail at the London Road address was returned by the postal service as Moved Left No Address. Appellant then attempted bailiff service at the same address; this was returned as Not Found. Eventually, on September 30, 1996, approximately five months after appellant filed his counterclaim, appellant repeated his -15- request for service upon Henderson at Reporters Etc and Report- ers Inc This time, appellant gave three different addresses for the business. Appellant also requested different methods of service for each address: regular mail at the London Road address; certified mail at a box number; and bailiff service at an address on St. Clair Avenue in Cleveland. The docket does not reflect return of service by regular mail at the London Road address. See Civ.R. 4.6(D). However, the record also fails to reflect the return of either other method utilized by appellant. In any event, there is nothing in the record to support an assumption appellant had reasonable grounds to believe the service of process would reach Henderson at the business since appellant neither knew of the business's actual address nor provided anything other than conjecture that Henderson would continually and regularly be physically present there. Akron- Canton Regional Airport Auth. v. Swinehart, supra; Rite Rug Co., Inc. v. Wilson, supra; Midwestern Educational Serv., Inc., supra. Furthermore, Henderson did not enter an appearance in this action. Under these circumstances, the trial court could not assume service of process was made upon Henderson by regular mail. Therefore, the trial court did not err in denying appellant's motion for a default judgment as to him. King v. Harza (1993), 91 Ohio App.3d 534; see, also, Grant v. Ivy (1980), 69 Ohio App.2d 40. For the foregoing reasons, appellant's second and third assignments of error are overruled. -16- Appellant's remaining assignments of error will be addressed in logical order; therefore, appellant's ninth, tenth and eleventh follow: IX. THE TRIAL COURT ERRED IN FAILING TO GRANT SANCTIONS OR TO ORDER PLAINTIFF AND COUN- TERCLAIM DEFENDANTS TO PROVIDE DISCOVERY. X. THE TRIAL COURT ERRED IN DENYING DEFEN- DANT'S MOTION TO COMPEL DISCOVERY. XI. THE TRIAL COURT ERRED IN GRANTING PLAIN- TIFF'S VERIFIED MOTION FOR RESTRAINING ORDER. In these assignments of error, appellant takes issue with some of the discovery rulings made by the trial court. Appellant first argues appellees failed to adequately respond to his requests for discovery; therefore, the trial court erred in denying appellant's motions for sanctions and to compel discovery. Appellant also argues the trial court improperly foreclosed him from seeking evidence relevant to his claims when it granted appellees' motions for protective orders. It must be noted that appellant designated discovery rulings by the trial court neither in his notice of appeal to this court nor in his docketing statement filed in this court. Faced with a similar factual situation, this court has made the following observations: App.R. 3 must be construed in light of the purpose of a notice of appeal, which is to notify appellees of the appeal and advise them of just what appellants *** [are] undertaking to appeal from. Maritime Manufacturers, Inc. v. Hi-Skipper Marina (1982), 70 Ohio St.2d 257, 258-259, 24 O.O.3d 344, 345, 436 N.E.2d 1034, 1036. This court has previously held -17- that we are without jurisdiction to review a judgment or order which is not designated in the appellant's notice of appeal. Schloss v. McGinness(1984), 16 Ohio App.3d 96, 97-98, 16 OBR 101, 103, 474 N.E.2d 666, 668. See, also, Carey v. Carey (1983), 9 Ohio App.3d 243, 246, 9 OBR 416, 419, 459 N.E.2d 626, 629. Mari- time, on the other hand, reached the opposite conclusion, holding that an appellate court did not lack jurisdiction to hear an appeal even though the notice of appeal mistakenly specified that the appeal was taken from the order denying the motion for new trial rather than from the final judgment entered on the merits. Maritime, supra, at 258, 24 O.O.3d at 345, 436 N.E.2d at 1035. Parks v. Baltimore & Ohio R.R. (1991), 77 Ohio App.3d 426 at 428. In this case, the orders appellant appealed from relate only to the merits of the case. Since the trial court's discovery orders are clearly separate, as was the case in Parks, this court lacks jurisdiction to consider appellant's ninth, tenth and eleventh assignments of error. Schloss v. McGinness (1984), 16 Ohio App.3d 96; Carey v. Carey (1983), 9 Ohio App.3d 243; cf., Maritime Manufacturers, Inc. v. Hi-Skipper Marina, supra. Appellant's remaining assignments of error are not argued separately as required by App.R. 16(A)(7). However, this court will exercise its discretionary authority pursuant to App.R. 12(A)(2) to address them. Hence, appellant's fourth and fifth assignments of error follow. IV. THE TRIAL COURT ERRED IN EXCLUDING DEFEN- DANT PAUER'S AFFIDAVIT ATTACHED TO THE BRIEF IN OPPOSITION TO SUMMARY JUDGMENT ON THE COMPLAINT AND COUNTERCLAIM WHICH CONTRADICTED OPPOSING AFFIDAVITS AND CREATED GENUINE ISSUES OF FACTS (sic) WHICH REMAINED TO BE LITIGATED. -18- V. THE TRIAL COURT ERRED IN EXCLUDING AFFI- DAVIT OF PAUER'S WITNESS INCORPORATED TO (sic) THE BRIEF IN OPPOSITION TO PLAIN- TIFF'S SUMMARY JUDGMENT MOTION ON THE COUNTERCLAIM WHICH EVIDENCED PAUER'S ALLEGATIONS IN THE COUNTERCLAIM REGARDING ALFRED HENDERSON. Appellant asserts the trial court failed to give proper consideration to either his or his witness's affidavits attached to his brief in opposition to appellees' motions for summary judgment; however, there is nothing in the record to support this assertion. In fact, the trial court specifically stated it had construed all the evidence in a light most favorable to appellant prior to granting summary judgment for appellees on both the complaint and appellant's counterclaim. (Emphasis added.) Under these circum- stances, this court presumes the trial court considered the affidavits. Bruns v. Cooper Industries, Inc. (1992), 78 Ohio App.3d 428; Northwestern Life Ins. Co. v. Rogers (1989), 61 Ohio App.3d 506; cf., Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356; Norwalk v. Cochran (1995), 108 Ohio App.3d 343. Therefore, appellant's fourth and fifth assignments of error are overruled. Appellant's sixth assignment of error states: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON THE COMPLAINT AND COUNTERCLAIM BY CONSIDERING AS SUITABLE SUPPORTING DOCUMENTS, COPIES OF AFFIDAVIT'S (sic) SUBMITTED BY DONNA HUBANY, DONNA CALLAHAN, MELISSA NERO AND CHRISTINE BLACK. THEIR AFFIDAVITS, (sic) WERE NOT ORIGINAL NOTARIZED DOCUMENTS AND ARE NOT OF EVIDENTIARY QUALITY AS REQUIRED BY CIVIL RULE 56(C). In addressing this assignment of error, this court notes appellant raised no objection in the trial court to the affidavits -19- attached to appellees' motion for summary judgment on the basis they were not original and notarized. Appellant has therefore waived the argument he asserts in his sixth assignment of error. See, e.g., Forster v. Ohio Bur. of Workers' Comp. (1995), 102 Ohio App.3d 744; Murray v. Bank One (1994), 99 Ohio App.3d 59; Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78. Accordingly, appellant's sixth assignment of error is overruled. Appellant's seventh assignment of error states: THE TRIAL COURT ERRED IN FAILING TO GRANT PAUER'S MOTION FOR JUDGMENT ON THE PLEADINGS, OR, IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF'S COMPLAINT. Appellant argues appellees' complaint was fatally flawed because appellees failed to comply with the requirements of Civ.R. 10(D). However, that rule has no application since appellees' claim was founded on one of unjust enrichment rather than specifically on an account. See, e.g. Crosby v. Beam (1992), 83 Ohio App.3d 501 at 509; cf., Gabriele v. Reagan (1988), 57 Ohio App.3d 84; Climaco, Seminatore, Delgatti & Hollenbaugh v. Carter (1995), 100 Ohio App.3d 313. Moreover, rather than granting appellant's motion for judgment on the pleadings, [t]he proper procedure in attacking the fail- ure of a plaintiff to attach a copy of a written instrument or to state a valid reason for his failure to attach same is to serve a motion for a definite statement, pursuant to Civ.R. 12(E). Had that motion been granted, as would have been proper in this case, plain- tiff could properly have been required to amend his complaint within 14 days after -20- notice of the order sustaining the motion for a definite statement, and ordered to attach a copy of the written instrument or state a valid reason for the failure to attach same. In the event a party fails to obey the order of the court, the court may strike the plead- ing to which the motion was directed, or make any other orders as it deems just, which would include involuntary dismissal with prejudice pursuant to Civ.R. 41(B)(1). Point Rental Co. v. Posani (1976), 52 Ohio App.2d 183 at 186. For these reasons, the trial court did not err in denying appellant's motion for judgment on the pleadings. Appellant's seventh assignment of error is, accordingly, overruled. Appellant's eighth assignment of error states: THE TRIAL COURT ERRED IN AWARDING A MONETARY JUDGMENT TO PLAINTIFF SINCE IT DID NOT HAVE SUFFICIENT INFORMATION TO BASE A DECISION ON REGARDING ANY ALLEGED INDEBTEDNESS OF DEFEN- DANT TO PLAINTIFF. In this assignment of error and the arguments in his appellate brief relating to it, appellant essentially contends the evidence before the trial court did not justify summary judgment for appellees on their complaint and on his counterclaim. This court disagrees. In Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293, the supreme court outlined the test to be applied in order to determine if summary judgment is appropriate for the moving party. *** [A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of inform- ing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essen- tial element(s) of the nonmoving party's claims. *** [T]he moving party must be able to -21- specifically point to some evidence of the type listed in Civ.R. 56(C) which affirma- tively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a recip- rocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. (Emphasis in original.) Pursuant to Civ.R. 56(E): Form of affidavits; further testimony; defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. *** When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affida- vit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. *** Appellee Home Bank alleged in its complaint that, due to a deposit error, appellant had received and then retained money that was not rightfully his. R.C. 1304.70(A) states in pertinent part: 1304.70 (UCC 4A-303) Erroneous execution of payment order. A receiving bank that executes the payment order of the sender by issuing a payment order in an amount greater than the amount of the sender's order *** is entitled to payment ***. The bank may recover from the beneficiary of the erroneous order the excess payment received to the extent allowed by the law governing mistake and restitution. -22- In Ohio, the common law governing mistake and restitution allows for recovery of money on a claim of unjust enrichment, which prevents a person from retaining a benefit to which he is not entitled. Liberty Mut. Ins. Co. v. Indus. Comm. (1988), 40 Ohio St.3d 109, 110-111, citing Stan-Clean of Lexington, Inc. v. Stanley Steemer Internatl., Inc. (1981), 2 Ohio App.3d 129, 131 and Hummel v. Hummel (1938), 133 Ohio St. 520, 528; see, also, Sigrist v. Lyons(1995), 100 Ohio App.3d 252; Katz v. Banning (1992), 84 Ohio App.3d 543. A plaintiff must show both that it has conferred the benefit and also that it has a superior equity, thus, for defendant to retain the benefit would be unconscionable. Id. In this case, the evidence before the trial court conclusively demonstrated Home Bank's claim that appellant was unjustly enriched by the wire transfer error to his checking account. Hubany's affidavit proved that the transfer was made on July 18, 1995, that the $4800 was money owed to Home Bank as a mortgage payment, and that the error was corrected on July 24, 1995. Callahan's affidavit proved appellant had not returned the funds despite Home Bank's repeated requests that he do so. Appellant simply failed to respond to this evidence. Indeed, he attached to his brief in opposition copies of his checking account records for the relevant time period. These supported Home Bank's claim appellant had received and then withdrawn most of the money mistakenly placed there. Thus, since Home Bank provided evidence identifying for the trial court the portions of the record that demonstrated the -23- absence of a genuine issue of material fact as to its claim of unjust enrichment, the trial court did not err in granting Home Bank's motion for summary judgment on the complaint. Sigrist v. Lyons, supra. Similarly, summary judgment for appellees on appellant's counterclaim was also appropriate. Appellant had the burden to prove each element of his several causes of action in order to defeat appellee's motion. Dresher v. Burt, supra; Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. Instead, appellant relied upon affidavits that either were not based upon personal knowledge, had no evidentiary quality, or merely restated the allegations of the counterclaim. Civ.R. 56(C) & (E); Climaco, Seminatore, Delgatti & Hollenbaugh v. Carter, supra. Moreover, although appellant alleged in the first count of his counterclaim that Henderson was appellees' agent, the evidence actually demonstrated only that Henderson was an employee of Reporters, Etc. rather than of appellees. See, e.g., Bostic v. Connor (1988), 37 Ohio St.3d 144 at 145-146; Industrial Comm. of Ohio v. Laird (1933), 126 Ohio St. 617 at syllabi 1 and 4; Iames v. Murphy (1995), 106 Ohio App.3d 627 at 633. The copy of the check from Home Bank for services rendered in delivering the demand letter to appellant was made out to this entity. Henderson averred in his affidavit attached to the complaint that he was employed by Reporters, Etc. Finally, there was no evidence that indicated appellees either selected Henderson to deliver the letter or directed him in the details of the delivery. Councell v. Douglas -24- (1955), 163 Ohio St. 292; cf., Richardson v. Mehan (1982), 69 Ohio St.2d 52. Appellant also failed to support his allegation in the second count of his counterclaim, viz., that Home Bank breached its contractual agreement with him by negligently failing to timely correct errors made to his checking account. The evidence before the trial court demonstrated Home Bank followed accepted business practices by detecting the error during its weekly account balancing procedure, immediately correcting the error, and then attempting to notify appellant of the error the next day. R.C. 1303.01(A)(4); see, also, Micro Experts, Inc. v. Edison Technolo- gies, Inc. (Aug. 8, 1997), Cuyahoga App. No. 71822, unreported. In the third count of his counterclaim, appellant asserted Czupik had converted funds from his union account when the funds from the account were used to set off the amount wrongfully appropriated by appellant. In Goralsky v. Taylor (1991), 59 Ohio St.3d 197, however, the supreme court stated that money deposited in a bank becomes the property of the bank ; the depositor may have the money repaid on demand, subject to the terms of the depository agreement between himself and the bank. See, also, R.C. 1304.11(A). The trial court had before it evidence that demonstrated that in opening his account with the bank, appellant agreed the account would be subject to Home Bank's common law right of set-off. Therefore, the third count of appellant's counterclaim was also ripe for summary judgment for appellees. Daugherty v. Central Trust Co. (1986), 28 Ohio St.3d 441; Mains Paper Food -25- Service-Midwest, Inc. v. Regal Foods, Inc. (1995), 100 Ohio App.3d 454; cf., McKinney, Inc. v. Wyman Corp. (1995), 102 Ohio App.3d 648. Although appellant asserted in the fourth count of his counterclaim Home Bank's credit inquiry violated the Fair Credit Reporting Act and the Equal Opportunity Credit Acts, a review of those laws reveals they do not apply to the facts. The Fair Credit Reporting Act governs credit reporting agencies such as the one which provided the information to Home Bank. See Section 1681, Title 15, U.S. Code. The Equal Opportunity Credit Acts, both federal and state, merely enjoin credit-providing agencies from discrimination. See Section 1691, Title 15, U.S. Code; R.C. 4112.021. Moreover, Callahan's affidavit established the credit information gained was used merely to verify appellant's address and telephone number. Cf., Wolfe v. Woods (1993), 85 Ohio App.3d 569. Therefore, appellant's fourth count was both unsupported and unsupportable. Finally, in the fifth count of his counterclaim, appellant sought to establish a claim on his wife's behalf. Since appel- lant's wife was not made a party to the action, summary judgment for appellees was appropriate. Civ.R. 17(A); see, also, e.g., Young v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1993), 88 Ohio App.3d 12 at 16. Appellees provided evidence in support of their motions for summary judgment identifying for the trial court the portions of the record that demonstrated the absence of genuine issues of -26- material fact as to its claim and appellant's counterclaim. In the face of this, appellant failed to set forth specific facts showing there was an issue for trial. Under these circumstances, the trial court did not err in granting appellees' motion for summary judgment. Dresher v. Burt, supra; Sigrist v. Lyons, supra; Climaco, Seminatore, Delgatti & Hollenbaugh v. Carter, supra; see, also, Micro Experts, Inc. v. Edison Technologies, Inc., supra. Accordingly, appellant's eighth assignment of error is also overruled. The judgment and orders of the trial court are affirmed. It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cleveland Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, P.J. and JAMES D. SWEENEY, J. CONCUR JUDGE KENNETH A. ROCCO -27- N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .