2019 Ohio 1136
Ohio Ct. App.2019Background
- In 2006 CAM borrowed $1,167,500 and granted an open-ended mortgage on Horizon Drive; Bret Adams and his law firm provided an unconditional guaranty.
- The original lender (Republic) merged into Citizens, which merged into FirstMerit, which merged into Huntington; CAM, Adams, and the law firm defaulted in 2014 and Huntington accelerated the loan in 2016.
- CAM made a partial payment and entered a forbearance/loan-modification agreement (Sept. 2016) requiring a $10,000 payment, direct rent payments to Huntington, and a $570,000 balloon payment by Dec. 31, 2016; appellants failed to comply and then placed two junior mortgages on the Horizon property.
- Appellants sued for declaratory judgment (alleging unconscionability and duress) on Jan. 2, 2017; Huntington counterclaimed and sought foreclosure and moved for summary judgment.
- The trial court granted Huntington’s motion, entering judgment for Huntington on the note/guaranty and a decree of foreclosure; appellants appealed only arguing summary-judgment error and denial of due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was improper because genuine issues of material fact existed | Appellants said factual disputes (e.g., unconscionability/duress, chain-of-title, discovery issues) precluded summary judgment | Huntington relied on summary-judgment evidence, including an affidavit and loan records, showing no triable issues | Court held summary judgment proper — appellants failed to raise specific trial-court objections and did not meet Dresher burden |
| Whether Huntington's affidavit complied with Civ.R. 56(E) and thus could be considered | Appellants argued the Hefflinger affidavit lacked personal knowledge, admissible facts, competency, and attachments | Huntington argued the affidavit and supporting documents established absence of material factual dispute | Court held appellants waived challenge to the affidavit by not raising it below, so the trial court could consider it |
| Whether failure to object to summary-judgment evidence in the trial court preserves appellate complaint | Appellants contended appellate review should consider affidavit defects and evidence admissibility | Huntington argued failure to object in trial court waived these issues on appeal | Court held errors regarding summary-judgment evidence were waived when not raised below |
| Whether appellants were denied due process by the summary-judgment procedure | Appellants asserted inadequate notice/discovery and lack of fair opportunity to respond | Huntington pointed to regular motion practice and available response opportunities | Court rejected due-process claim tied to waived evidentiary objections and affirmed judgment |
Key Cases Cited
- Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54 (states summary-judgment standard and de novo review)
- Dresher v. Burt, 75 Ohio St.3d 280 (moving party’s burden in summary judgment and reciprocal burden of nonmoving party)
- State ex rel. Gilmour Realty, Inc. v. Mayfield Hts., 122 Ohio St.3d 260 (court may consider noncomplying evidence when no objection is raised)
- Timberlake v. Jennings, 10th Dist. No. 04AP-462 (waiver of appellate challenge when no trial-court objection to summary-judgment evidence) (appellate district authority cited for waiver principle)
- New Falls Corp. v. Russell-Seitz, 10th Dist. No. 08AP-397 (same waiver principle for affidavit defects in summary-judgment practice) (appellate district authority cited)