Buckeye Lake Firebells v. Leindecker
2011 Ohio 1792
Ohio Ct. App.2011Background
- Firebells is an unincorporated association; Renee Leindecker (treasurer) and Richard Leindecker (fire chief) are defendants.
- Firebells alleged a shortage from a corn festival concession; initial counts showed $2,300, but subsequent counts showed $1,760.
- A September 2008 review found additional unaccounted funds: $750 in 2006 and $1,000 in 2007.
- Firebells sought replevin for listed property; the trial court ordered return of property and later summary judgment for $2,240 based on a Debbie Colley affidavit.
- Appellants challenged the affidavit’s notarization, the $2,240 award’s basis under Civ. R. 56(E), and whether the defense was adequately reflected in the record.
- The appellate court affirmed in part, reversed in part, and remanded for further proceedings consistent with its opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the affidavit valid evidence for summary judgment despite notarization defects? | Buckeye Lake argues the affidavit lacked proper certification. | Leindeckers contend the affidavit was defective and not properly notarized. | First assignment overruled; substantial compliance found. |
| Did the affidavit support a $2,240 damages award under Civ. R. 56(E) with attached papers? | Firebells claims the records referenced support the amount. | Appellees failed to attach sworn/certified copies of all referenced records. | Second and fourth assignments sustained; award not supported. |
| Did the affidavit disclose Renee Leindecker’s defense about the missing $540? | Affidavit shows missing $540; unopposed allegations support judgment. | Disputed facts include how $540 was missing; some statements are inadmissible hearsay. | Third assignment overruled; unopposed allegations support portion of judgment. |
| Was there error as to any judgment against Richard Leindecker regarding the firing allegations for Civ. R. 56 purposes? | Judgment against Richard concerned firing of Colleys. | No money judgment was entered against Richard; issue is about reinstatement. | Fifth assignment overruled; no monetary judgment against Richard. |
Key Cases Cited
- Stearn v. Board of Elections of Cuyahoga County, 14 Ohio St.2d 175 (Ohio 1968) (affidavits may be substantially compliant without perfect notarization)
- City Commission of Gallipolis v. State, 36 Ohio App.2d 258 (Ohio App. 1930) (notary defects not necessarily fatal to affidavits)
- Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41 (Ohio 1975) (objection/waiver rule for trial proceedings applies to appeal)
- Inland Refuse Transfer Co. v. Browning-Ferris Industries of Ohio, Inc., 15 Ohio St.3d 321 (Ohio 1984) (summary judgment evidentiary standards; cannot resolve ambiguities)
- Houndsell v. American States Insurance Co., 67 Ohio St.2d 427 (Ohio 1981) (standard for summary judgment and material facts)