Miller v. Blume
2013 Ohio 5290
Ohio Ct. App.2013Background
- Miller and Blume are neighbors; Blume sought to have a partition fence rebuilt under ORC chapter 971.
- Blume filed an affidavit Sept. 30, 2009 with the recorder asserting an existing fence between their properties.
- In 2010 Blume filed a complaint with the Jackson Township trustees; trustees viewed the property and reviewed records under ORC 971.09.
- A Dec. 26, 2010 trustees’ letter concluded the fence had been used as a boundary for over 20 years and shared responsibility was to be split.
- Dec. 3, 2010 Miller filed a verified complaint seeking injunction and to strike the affidavit and to prohibit the trustees from finding an existing line fence.
- May 18, 2012 Blume moved for summary judgment; Jan. 7, 2013 the trial court granted it, finding no genuine issue of material fact about the existence of a prior fence; this decision was affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Miller showed a genuine issue about the fence’s existence | Miller argues the verified complaint provides sufficient summary judgment evidence | Blume argues the trustees’ finding and attached affidavits show a fence existed; complaint moot | No genuine issue; trial court correct |
| Whether a verified complaint can substitute for specific evidence | Miller relies on the verified complaint as evidence | Movant's evidence requires rebuttal with specific facts; verified pleading alone is insufficient | Reciprocal burden requires specific facts; not met |
| Whether the case is moot due to the township trustees’ decision | Miller seeks to preempt or override board’s finding | Board already ruled; arbitration/appeal remedies exist | Mootness supported; no reversible error |
| Whether Miller failed to pursue statutorily provided remedies | N/A | Arbitration or appeal under ORC 971.09(G)(1) was available | Proper to reject; remedies not pursued |
| Whether the court could consider the trustee letter attached to the motion | N/A | Letter supported summary judgment; nonmovant did not object | Proper to consider; no reversible error |
Key Cases Cited
- Byrd v. Smith, 110 Ohio St.3d 24 (Ohio 2006) (summary judgment burden on movant; reciprocal burden on nonmovant)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (establishing no genuine issue of material fact; Dresher standard)
- Mootispaw v. Eckstein, 76 Ohio St.3d 383 (Ohio 1996) (reciprocal burden to set forth specific facts)
- State ex rel. Spencer v. East Liverpool Planning Comm., 80 Ohio St.3d 297 (Ohio 1997) (verified pleadings can be evidence; movant must rebut allegations)
- Target Natl. Bank v. Loncar, 2013-Ohio-3350 (7th Dist.) (nonmovant must specify why a disputed amount is disputed)
- Citibank v. McGee, 2012-Ohio-5364 (7th Dist.) (nonmovant must go beyond mere denial to show genuine issue)
- American Express Centurion Bank v. Banaie, 2010-Ohio-6503 (7th Dist.) (reciprocal burden and evidenced disputes)