BARBARA A. BELOVICH v. ELLEN CONDREN CROWLEY, ET AL.
No. 109523
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
June 17, 2021
2021-Ohio-2039
EMANUELLA D. GROVES, J.
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 17, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-833275
Appearances:
Kronenberg + Belovich Law, L.L.C., and Jacob A. H. Kronenberg, for appellee Barbara A. Belovich.
Lawrence R. Hupertz, for appellees Peter M. Castleman and Sloane Castleman.
Gallagher Sharp, L.L.P., and Clark D. Rice, for appellants Ellen Condren Crowley n.k.a. Ellen Catherine Condren and Ellen Catherine Condren, Trustee of the Ellen Catherine Condren Revocable Living Trust.
{¶ 1} Appellants, Ellen Condren Crowley n.k.a. Ellen Catherine Condren (Condren) and the Ellen Catherine Condren Revocable Living Trust (Condren Trust), appeal the trial court‘s judgment granting appellee, Barbara Belovich‘s (Belovich) foreclosure against property titled to Condren and the Condren Trust (the Condren defеndants). Additionally, the trial court ruled against the Condren defendants in favor of Peter and Sloane Castleman (Castlemans), the mortgagees of the property, finding they were owed $104,386 plus interest and an additional $88,766 on a revolving line of credit loan agreement. For the reasons that follow, we affirm the trial court‘s judgment.
Procedural History and Factual Background
{¶ 2} Belovich was appointed guardian ad litem and legal counsel for Condren‘s children in the divorce between Condren and her former husband, Charles Crowley. Belovich was awarded fees by the domestic relations court for services rendered in the amounts of $15,830 plus interest on July 1, 2011, and $11,195 plus interest on March 12, 2013.
{¶ 3} Pursuant to the divorce decree, Condren received title to the marital home on Calverton Road in Shaker Heights, which she transfеrred to the Condren Trust. Subsequently, the Condren Trust took title to a property located on Bell Tower Court in Chagrin Falls, Ohio. The Castlemans were mortgagees to both properties. The property on Calverton was sold to a third party for which the Castlemans granted a partial release of that lien. The Bell Tower property was
{¶ 4} On September 4, 2014, having failed to receive payment from Condren for her services, Belovich obtained judgments from the common pleas court for the amounts owed to her and placed liens on the Bell Tower property.
{¶ 5} On September 24, 2014, Belovich filed a complaint alleging fraudulent conveyance, fraud, and foreclosure against Condren, the Condren Trust, and the Castlemans.1 The initial attempt to serve Condren and the Condren Trust failed. On November 7, 2014, Belovich perfected service on the Condren defendants by certified mail. The receipt was signed by other.
{¶ 6} The Castlemans filed an answer and a crossclaim alleging that the Condren dеfendants were in default on the mortgage and the revolving line of credit agreement.
{¶ 7} The Condren defendants in answer to the complaint, filed a crossclaim for abuse of process.
{¶ 8} The Condren defendants filed a motion for summary judgment, which the Castlemans joined on Belovich‘s claims of fraudulent conveyance and fraud. The trial court denied the motion finding that the motiоn did not include an affidavit or other admissible
{¶ 10} Belovich filed a motion for summary judgment on her complaint and also asked that the court acknowledge a unity of interest between Condren and the Condren Trust so that her claim could reach the Condren Trust‘s assets. Belovich also moved to dismiss the Condren defendants’ crossclaim. The Condren defendants filed for summary judgment arguing that Belovich never perfected service and that the Condren Trust took possession of the property long before Belovich‘s claims ripened. The Castlemans filed for summary judgment against the Condren defendants on their crossclaim arguing that the Condren defendants breached their open-ended mortgage contract and the revolving line of credit agreement with the Castlemans and that the Castlemans were entitled tо judgment as a matter of law.
{¶ 11} The court granted Belovich‘s motion for summary judgment as to the foreclosure and granted the motion to dismiss the Condren defendants’ crossclaim. The court also found that the property in a revocable trust was subject to the claims of the settlor‘s debtors. Under
{¶ 12} The trial cоurt denied the Condren defendants’ motion for summary judgment finding that service was perfected on November 7, 2014, and all subsequent amended complaints were served properly pursuant to
{¶ 13} The trial court granted the Castlemans’ motion for summary judgment finding that the Condren defendants breached the terms of their agreements with the Castlemans. The court was unable to determine damages аnd, therefore, referred that matter to a magistrate for further deliberation.
{¶ 14} The Condren defendants filed a notice of appeal; however, that appeal was dismissed, sua sponte, because damages had not yet been determined and there was no final appealable order.
{¶ 15} On remand, the magistrate held two hearings on the issue of damages owed the Castlemans. The first hearing was held on October 4, 2018. The case was continued to November 1, 2018, for conclusion. The Condren defendants filed a posthearing brief arguing that the Castlemans failed to prove their damages and also filed a motion to strike the Castlemans’ exhibits and cancel the November 1st hearing. The magistrate denied the motion and held the hearing.
{¶ 16} The magistrate awarded the Castlemans $104,386 plus 4.15 percent interest on the promissory note and $88,766 with no prejudgment interest on the revolving line of credit loan agreement. The Castlemans also requested attorney fees. The terms of the contract specified it was governed under Nevada law;
{¶ 17} The Condren defendants filed objections to the magistrate‘s decision arguing that the decision was based on inadmissible hearsay evidence: specifically, unauthenticated bank statements and inadmissible rebuttal testimony. The trial court held a hearing on the objections. The Condren defendants reopened the issue of breach, arguing they did not breach the open-ended mortgage contract. The trial court determined that issue was moot because it had already been decided in its previous decision.
{¶ 18} The trial court also found that the record did not reflect that the Castlemans had restеd their case after the first hearing. The court specifically noted that when asked, the Condren defendants did not present a transcript or any other evidence to show the Castlemans rested their case.
{¶ 19} However, the court did find that the bank statements were inadmissible hearsay under
{¶ 20} The trial court adopted the magistrate‘s decision. The Condren defendants appealed.
{¶ 21} The Condren defendants present the following assignments of error for our review:
The trial court erred to the prejudice of defendant-appellant Ellen Catherine Condren, trustee of the Ellen Catherine Condren Revocable Living Trust when it denied its motion for summary judgment asserting that plaintiff-appellee failed to perfect service or service of process.
Assignment of Error No. 2
The trial court and magistrate erred to the prejudice of defendants/appellants Ellen Catherine Condren, Trustee of the Ellen Condren Revocable Living Trust and Ellen Catherine Condren Crоwley nka Ellen Catherine Condren when it entered judgment on the cross-claim of defendants/appellees Peter and Sloane Castlemen [sic] based upon inadmissible hearsay evidence and improper rebuttal testimony and evidence.
Law and Analysis
{¶ 22} In their first assignment of error, the Condren defendants argue that the trial court erred in denying their motion for summary judgment that asserted that Belоvich failed to perfect service on them.
{¶ 23} As a preliminary matter,
{¶ 24} The Condren defendants raised the issue of failure of service in their answer to the complaint filed on February 26, 2015. Therefore, they preserved the issue for review.
{¶ 25} We review a court‘s ruling on a motion for summary judgment under a de novo standard of review. Coleman v. Kaiser Permanente, 8th Dist. Cuyahoga No. 84130, 2004-Ohio-5478, ¶ 8. Therefore, we afford no deference to the trial court‘s decision and independently review the record to determine whether the denial of summary judgment was appropriate. Id.
{¶ 26} A trial court must grant a motion for summary judgment when the moving party demonstrates that (1) there is no genuine issue of material fact, (2) the moving рarty is entitled to judgment as a matter of law, and (3) reasonable minds can come to, but one conclusion and that conclusion is adverse to the party against whom the motion for summary is made. Capella III L.L.C. v. Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746, 940 N.E.2d 1026, ¶ 16 (10th Dist.), citing Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 6.
{¶ 27} The burden of showing that no genuine issue of material fact exists falls on the party who moves for summary judgment. Sickles v. Jackson Cty. Hwy. Dept., 196 Ohio App.3d 703, 2011-Ohio-6102, 965 N.E.2d 330, ¶ 12 (4th Dist.), citing Dresher v. Burt, 75 Ohio St.3d 280, 294, 1996-Ohio 107, 662 N.E.2d 264. In order
{¶ 28} In thеir motion for summary judgment, the Condren defendants argued that Belovich failed to perfect service within the time designated by the trial court and the time designated by rule.
{¶ 29} It is axiomatic that [a] civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing upon a named defendant * * *. Holloway v. Gen. Hydraulic & Machine, Inc., 8th Dist. Cuyahoga No. 82294, 2003-Ohio-3965, ¶ 7, quoting
{¶ 30} A review of the record in this case shows that certified mail was sent to the Bell Tower property in November 2014. A certified mail receipt was received by the court on November 7, 2014, and was signed by other.
{¶ 32} The presumption of proper service is rebuttable by sufficient evidence. Id. at ¶ 11, quoting Rafalski v. Oates, 17 Ohio App.3d 65, 66, 477 N.E.2d 1212 (8th Dist.1984).
{¶ 33} Condren did not present any evidence to rebut the presumption of prоper service. She did not indicate that the complaint was sent to the wrong address, nor did she argue that the person who signed for the complaint was either unknown to her or unauthorized to sign for mail on her behalf.
{¶ 34} For the forgoing reasons, we overrule the first assignment of error.
{¶ 35} In the second assignment of error, the Condren defendants argue that the magistrate erred in finding damagеs for the Castlemans based on hearsay evidence and improper rebuttal testimony and that the trial court erred in adopting the magistrate‘s decision.
{¶ 36} [T]he trial court has the ultimate authority and responsibility over the magistrate‘s findings and rulings. Ramsey v. Ramsey, 10th Dist. Franklin No. 13AP-840, 2014-Ohio-1921, ¶ 16; citing Sweeney v. Sweeney, 10th Dist. Franklin No. 06AP-251, 2006-Ohio-6988, ¶ 13, quoting Hartt v. Munobe, 67 Ohio St.3d 3, 5-6, 615 N.E.2d 617 (1993). The trial court must undertake an independent review of the magistrate‘s report to determine any errors. Id., citing Hartt at 5-6, citing Normandy Place Assoc. v. Beyer, 2 Ohio St.3d 102, 443 N.E.2d 161 (1982), paragraph two of the syllabus.
{¶ 37} The trial court does not reviеw a magistrate‘s decision in the same manner as an appellate court, rather the trial court must conduct a de novo review of the facts and conclusions in the magistrate‘s decision. Id. at ¶ 17, citing Sweeney at ¶ 14, citing DeSantis v. Soller, 70 Ohio App.3d 226, 232, 590 N.E.2d 886 (10th Dist. 1990). As the ultimate finder of fact, the trial court must make its own factual determinations through an independent analysis and should not adopt the magistrate‘s findings unless the trial court fully agrees with thеm. Id., citing DeSantis.
{¶ 38} We review the trial court‘s decision to adopt a magistrate‘s decision under an abuse of discretion standard. Abbey v. Peavy, 8th Dist. Cuyahoga No. 100893, 2014-Ohio-3921, ¶ 13. The term abuse of discretion means more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.’ Lindhorst v. Elkadi, 8th Dist. Cuyahoga No. 80162, 2002-Ohio-2385, ¶ 20, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 39}
{¶ 40} Condren alleges that the magistrate‘s decision and, consequently, the trial court‘s dеcision were based on inadmissible hearsay and improper rebuttal testimony. The trial court in this case held a hearing on Condren‘s objections and additionally, wrote an opinion supporting its findings. Specifically, the court agreed with Condren that certain exhibits admitted into evidence were inadmissible hearsay under
{¶ 41} Condren failed to file a transcript or affidavit with her оbjections to the magistrate‘s decision. She also failed to file a transcript in this court or submit a statement of testimony or evidence pursuant to
{¶ 42} On appeal, if a party failed to provide a transcript to the trial court as required in
{¶ 43} In appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial proсess itself. Goldfuss v. Davidson, 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), syllabus.
{¶ 44} We cannot find plain error. There was evidence presented as to the agreement between the parties that the terms of the agreements defined breach to include failure to pay taxes and causing liens to be placed on the property and that Condren had failed to pay taxes and liens were placed on the propеrty. There was also testimony about sums of money given to Condren via the line of credit. When asked about payments from the accounts, Condren indicated, I‘m not aware of this
{¶ 45} The trial court did not abuse its discretion in adopting the magistrate‘s decision. To the contrary, the trial court did a thorough review of the magistrate‘s decision, correсted it where necessary, and held a hearing to clarify other issues before ultimately adopting the decision.
{¶ 46} On this thorough record, plain error cannot be found.
{¶ 47} For the foregoing reasons, appellants’ second assignment of error is overruled.
{¶ 48} Judgment affirmed.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EMANUELLA D. GROVES, JUDGE
MICHELLE J. SHEEHAN, P.J., and MARY EILEEN KILBANE, J., CONCUR