Belmon v. Hicks, L-08-1066 (2-6-2009)Belmon v. Hicks, L-08-1066 (2-6-2009)
{¶ 1} Appellant, George Hicks, appeals from: (1) an entry of summary judgment that was entered against him and in favor of appellee, Priscillа Belmon; and (2) an entry of judgment denying Hicks a default judgment on his counterclaim. For the reasons that follow, we affirm in part, and reverse in part, the judgment of the trial court.
{¶ 2} The facts of this case are undisputed and are as follows. Hicks rented certain residential propеrty to Belmon pursuant to a written lease agreement dated June
{¶ 3} On July 6, 2007, Belmon filed a motion for summary judgment. Hicks responded with a memorandum in opposition and an affidavit. On August 28, 2007, the trial court granted summary judgment in fаvor of Belmon and scheduled the matter for an assessment of damages hearing.
{¶ 4} Hicks filed a motion for reconsideration on September 5, 2007. The trial court denied that motion on November 2, 2007.
{¶ 5} On November 19, 2007, Hicks filed a motion for default judgment on his counterclaim. Belmon timely filed a memorandum in response to the motion, but she did not seek leave to file a late pleading nor did she make any attempt to еxplain why she failed to file a reply to Hicks’ counterclaim.
{¶ 6} On December 3, 2007, the trial court held the assessment of damages hearing on Belmon‘s motion for summary judgment. At the end of the hearing, the court awarded Belmon damages in the amount of $1,100 (representing two times the amount of Belmon‘s original $550 security deposit). During the hearing, Hicks requested that the
{¶ 7} Belmon‘s counsel filеd a motion for attorney fees and costs on February 7, 2008. The trial court granted the motion on February 22, 2008; attorney fees were awardеd in the amount of $300, and court costs were awarded in the amount of $114.
{¶ 8} On February 27, 2008, the trial court denied Hicks’ motion for default judgment and dismissed the underlying counterclaim.
{¶ 9} In this appeal, Hicks raises the following assignments of error:
{¶ 10} I. “THE LOWER COURT ERRED IN GRANTING SUMMARY JUDGMENT TO BELMON ON HER [
{¶ 11} II. “THE LOWER COURT ERRED IN DENYING HICKS A DEFAULT JUDGMENT ON HIS COUNTERCLAIM.”
{¶ 12} III. “THE LOWER COURT ERRED IN AWARDING DOUBLE DAMAGES, FEES, AND COSTS.”
{¶ 13} Hicks argues in his first assignment of error that the trial court erred in granting summary judgment to Belmon on her claim for damages against him.
{¶ 14} An appellate court reviewing a trial court‘s granting of summary judgment does so de novo, applying the same standard used by the trial court. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105.
“* * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuinе issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be сonsidered except as considered in this rule. * * *”
{¶ 16} Summary judgment is proper where: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) when the evidence is viewed most strongly in favor of the nonmoving party, reasonаble minds can come to but one conclusion, a conclusion adverse to the nonmoving party.Ryberg v. Allstate Ins. Co. (July 12, 2001), 10th Dist. No. 00AP-1243, citing Tokles & Son, Inc. v. Midwestern Indemnity Co. (1992), 65 Ohio St.3d 621, 629.
{¶ 17} The moving party bears the initial burden оf informing 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 fact as to an essential element of one or more of the non-moving party‘s claims.Dresher v. Burt (1996), 75 Ohio St.3d 280, 292. Once this burden has been satisfied, the non-moving party has the burden, as set forth at
{¶ 18} Hicks argues that Belmon failed to meet her burden under
{¶ 19} Hicks argues in his second assignment of error that the trial court erred in denying him a default judgment on his counterclaim, because the evidence is undisputed that Belmon failed to file a reply (or otherwise respond) to the counterclaim. Belmon concedes the deficiency regarding her response, but argues that the denial was proper, nevertheless. Specifically, Belmon argues that the trial court appropriately denied a default judgment to Hicks, because the trial court could not grant Hicks the relief sought in his demand for judgment pursuant to
{¶ 20} A trial court‘s decision as to whether to grant a motion for a default judgment is reviewed under an abuse of discretion standard.National City Bank v. Shuman, 9th Dist. No. 21484, 2003-Ohio-6116, ¶ 6. Judgment by default is governed by
{¶ 21} The demand for judgment in Hicks’ counterсlaim requests “judgment in accordance with their [sic] complaint filed in Case No. CVG-06-13186.” Case No. CVG-06-13186 is not a part of the record in this matter and, in fact, appears to be wholly unrelated to this matter. Significantly, the demand for judgment in Hicks’ counterclaim does not request any judgment whatsoеver against Belmon.
{¶ 22} Applying the plain language of
{¶ 23} In light of our determination in connection with Hicks’ first assignment of error, we find his third assignment of error, challenging the trial court‘s award of damаges, fees, and costs, to be moot.
{¶ 24} For all of the foregoing reasons, the judgment of the Lucas County Court of Common Pleas is affirmed in pаrt and reversed in part. This case is remanded to the trial court for entry of a judgment consistent with this decision. Appellee is ordered tо pay the costs of this appeal pursuant to
JUDGMENT AFFIRMED, IN PART AND REVERSED, IN PART.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. Arlene Singer, J., William J. Skow, P.J., CONCUR.