Budz v. SomerfieldBudz v. Somerfield
ANDREW J. ZIEGLER, Attorney for Appellees
LEE C. FALKE, Attorney for Appellants
EPLEY, J.
{1} The estate of Robert Somerfield and Stephen F. Somerfield (“Somerfield“), its fiduciary, appeal from the trial court‘s denial of their motion for summary judgment and its grant of Renee Budz and Gail Budz‘s motion for summary judgment. For the following
I. Facts and Procedural History
{2} The following facts are derived from Renee and Gail‘s evidence in support of their motion for summary judgment and the publicly-available online dockets of related court proceedings. See, e.g., Huber Hts. Veterans Club, Inc. v. Grande Voiture d‘Ohio La Societe des 40 Hommes et 8 Chevaux, 2d Dist. Montgomery No. 29078, 2021-Ohio-2695, 33 (courts may take judicial notice of judicial opinions and public records that are accessible via the internet). Somerfield and the estate did not provide evidentiary materials in support of their motion for summary judgment.
{3} Renee Budz is the niece of Robert Somerfield, who is now deceased. We infer that Gail is Renee‘s mother/Robert‘s sister.
{4} According to Renee‘s affidavit (Pls’ Ex. C), Renee relocated from Chicago to Dayton in early 2013. While looking for a home to purchase, she found a property located at 4901 Shiloh View Drive. Renee, however, was unable to obtain financing, and accordingly, her uncle, Robert, purchased the property. As part of this arrangement, Robert wanted Renee to give him “spending money” every month and, in exchange, Robert would give Renee the house upon his death. In reliance on these representations, Renee paid a significant amount of money out of her own funds to improve the property, as the property was uninhabitable when it was purchased. Pls’ Ex. B, C.
{5} Renee moved into the property in July 2013 and began paying Robert approximately $650 per month in cash. Renee also paid all real estate taxes,
{6} Robert died on January 2, 2018. Renee stated that, upon his passing, she learned that Robert had a trust in Illinois; the trustee told her that she was not going to receive the property. Because Robert resided in Illinois but had property in Ohio, an estate was opened in Montgomery County, Ohio as an ancillary administration. Somerfield was appointed the fiduciary of Robert‘s ancillary estate on July 27, 2018. See In re Estate of Robert Somerfield, Montgomery P.C. No. 2018-EST-01440. In October 2018, Somerfield filed an inventory which identified only the Shiloh View property. Renee filed an exception to the inventory, claiming that the property should not be included as an asset of the estate and seeking a constructive trust. Pls’ Ex. A. Soon thereafter, in November 2018, the estate filed a forcible entry and detainer action against Renee and Gail in Vandalia Municipal Court. Somerfield v. Budz, Vandalia M.C. No. CVG1801938.
{7} The probate court held a hearing on the exceptions in December 2018, and the parties reached an agreement that Renee would apply for a mortgage to purchase the real estate. Renee never obtained financing. On May 23, 2019, the estate obtained a writ of restitution in the eviction action, but Gail and Renee remained at the property pending appeal.
{8} Four days after the estate received the writ of restitution, a tornado struck the property, causing significant damage. The damage included broken windows, fallen trees, roof damage, and complete destruction of the rear porch. Pls’ Ex. C. Renee
{9} In October 2019, the estate filed an action against Renee and Gail in common pleas court, seeking unpaid rent. Somerfield v. Budz, Montgomery C.P. No. 2019 CV 4807. In response, Renee and Gail raised as an affirmative defense: “Defendants have made significant repairs and improvements to the property, thus unjustly enriching Plaintiff, any such demand must be reduced by the amount that Plaintiffs have been unjustly enriched.” Somerfield v. Budz, Montgomery C.P. No. 2019 CV 4807 (Answer, Jan. 9, 2020).
{10} In late November 2019, we affirmed the municipal court‘s judgment in the eviction action. Somerfield v. Budz, 2d Dist. Montgomery No. 28437, 2019-Ohio-4804. Gail and Renee were removed from the Shiloh View property on January 22, 2020. See Somerfield v. Budz, Vandalia M.C. No. CVG1801938 (docket).
{11} Two days later, on January 24, 2020, Renee and Gail filed monetary claims related to the Shiloh View property in the probate case. The first claim sought $25,000 for personal injuries and $25,000 for personal property damage due to the estate‘s
{12} In August 2020, the parties reached an agreement in the common pleas court action. They agreed to a judgment of $16,350 in favor of the estate on its claim for unpaid rent, that the parties would work together to get those funds released from the municipal court clerk‘s office and paid to the estate, and that the fiduciary would file a notice of satisfaction of judgment when the funds were paid. They further agreed that “Defendants may pursue a separate action against the estate for alleged personal injuries suffered as a result of their occupancy in the unit.” Somerfield v. Budz, Montgomery C.P. No. 2019 CV 4807 (Agreed Dismissal Entry, Aug. 20, 2020). The entry did not address the pending claim in probate court for reimbursement of repair expenses.
{13} A final account was filed in the probate court in November 2020. Pls’ Ex. H. The final account reflects that the Shiloh View property had been sold. Renee again objected to the account, noting that her claim for $58,145 had not yet been rejected. Pls’ Ex. I. On November 16, 2020, Somerfield opposed the exception. He noted that Renee and Gail had raised in the common pleas court action the affirmative defense that they had made significant repairs and improvements to the property. He further indicated that
{14} A magistrate scheduled a hearing on the final account and exceptions. At the hearing, Renee reportedly was given additional time to file a reply to Somerfield‘s opposition memorandum. Renee did not file a reply memorandum. Somerfield moved for approval of final account and dismissal of the exception. On June 1, 2021, the probate court approved the final account filed by the estate. Pls’ Ex. J. The probate court‘s entry did not address the exception.
{15} On August 2, 2021, Gail and Renee filed the instant suit against the estate and Somerfield, seeking to recover $58,145 that she failed to receive as part of the final account. The answer denied that Renee and Gail were entitled to payment on their claim and sought $5,000 from Renee and Gail as damages for frivolous conduct. The estate and Somerfield also raised as affirmative defenses that the claims were barred by the doctrine of res judicata and were not timely filed under
{17} On April 28, 2022, the parties filed cross-motions for summary judgment. In their motion, the estate and Somerfield couched Gail and Renee‘s action as an improperly-filed appeal from the probate court‘s final judgment approving the final account. They asked for summary judgment in the amount of $5,000 on their counterclaim. No exhibits were attached to the motion.
{18} Renee and Gail‘s motion for summary judgment asserted that their claim was properly filed under
{19} No party filed a memorandum in opposition to the others’ motion for summary judgment.
{20} On July 14, 2022, the trial court granted Gail‘s and Renee‘s motion for summary judgment and denied the estate and Somerfield‘s motion for summary judgment. The court first reasoned that Gail and Renee properly filed their claim under
{21} The estate and Somerfield appeal from the trial court‘s judgment. Renee and Gail have not filed a cross-appeal.
{22} In their sole assignment of error, the estate and Somerfield claim that the trial court erred in denying their motion for summary judgment and granting Renee and Gail‘s motion for summary judgment. First, they argue that Renee and Gail‘s claim was the subject of the prior civil action in common pleas court and, therefore, was barred by the doctrine of res judicata. As part of that argument, Somerfield and the estate assert that Renee and Gail had the burden to address affirmative defenses in their motion for summary judgment. Second, Somerfield and the estate contend that the claims for reimbursement were barred by the statute of limitations in
{23} In response, Gail and Renee assert that Somerfield and the estate have waived their affirmative defenses by not raising them at the summary judgment phase. They argue that Somerfield and the estate should not be given a second chance on appeal to raise issues that first should have been raised in the trial court. Gail and Renee emphasize that, pursuant to Todd Dev. Co., Inc. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, a plaintiff moving for summary judgment does not bear the initial burden of addressing the nonmoving party‘s affirmative defenses. We agree with Renee and Gail.
{24} Pursuant to
{25} Once the moving party satisfies its burden, the nonmoving party may not rest upon the mere allegations or denials of the party‘s pleadings. Dresher at 293;
{26} We review the trial court‘s ruling on a motion for summary judgment de novo. Schroeder v. Henness, 2d Dist. Miami No. 2012-CA-18, 2013-Ohio-2767, ¶ 42. De novo review means that this court uses the same standard that the trial court should have used, and we examine all the
{27} Somerfield and the estate argue that Renee and Gail did not meet their
{28} However, the Ohio Supreme Court has since held that “[a] plaintiff or counterclaimant moving for summary judgment does not bear the initial burden of addressing the nonmoving party‘s affirmative defenses.” Todd Dev., 116 Ohio St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, syllabus. The Court explained, in part:
[T]here is no requirement in the Civil Rules that a moving party must negate the nonmoving party‘s every possible defense to its motion for summary judgment. To the contrary,
Civ.R. 56(E) states that a party opposing summary judgment may not rest upon its pleadings, but must set forth specific facts showing that there is a genuine issue for trial. If a moving party meets the standard for summary judgment required byCiv.R. 56 , and a nonmoving party fails to respond with evidence of a genuine issue of material fact, a court does not err in granting summary judgment in favor of the moving party.
Id. at ¶ 14. Consequently, our holding in ABN AMRO is no longer good law. See Credit Invests., Inc. v. Obanion, 2d Dist. Montgomery No. 26129, 2014-Ohio-5799, ¶ 19 (recognizing that the supreme court “explicitly rejected the rationale this court applied in ABN AMRO“). Somerfield‘s and the estate‘s argument regarding Renee and Gail‘s initial burden fails on the authority of Todd, which is dispositive.
{29} Renee and Gail argue that we should not address Somerfield and the estate‘s appellate arguments, because they were not raised before the trial court. In essence, the estate and Somerfield claim on appeal that their affirmative defenses (res judicata and statute of limitations) have merit and judgment should have been entered in their favor.
{30} It is well settled that arguments raised for the first time on appeal will not be considered by an appellate court. Powell v. Cleveland, 8th Dist. Cuyahoga No. 111338, 2022-Ohio-4286, ¶ 53. This rule applies when reviewing decisions on motions for summary judgment. Id.; Whitson v. One Stop Rental Tool & Party, 2017-Ohio-418, 84 N.E.3d 84, ¶ 17 (12th Dist.). “[A]lthough we review summary judgment decisions de novo, ‘the parties are not given a second chance to raise arguments that they should have raised below.‘” Hamper v. Suburban Umpires Assn., Inc., 8th Dist. Cuyahoga No. 92505, 2009-Ohio-5376, ¶ 27, quoting Perlmutter v. People‘s Jewelry Co., 6th Dist. Lucas No. L-04-1271, 2005-Ohio-5031, ¶ 29. We have held that “[a]ny error committed by the trial court in granting summary judgment is waived if the non-moving party fails to file a brief or evidence in opposition or fails to challenge the movant‘s evidence.” USA Freight, L.L.C. v. CBS Outdoor Group, Inc., 2d Dist. Montgomery No. 26425, 2015-Ohio-1474, ¶ 21.
{32} This court has recognized limited circumstances where the rule is not strictly applied. For example, we permitted a party to raise a new issue on appeal in the “exceptional circumstance” where there was an intervening change in the law by a higher authority. Davis v. Buckeye State Mut. Ins. Co., 2d Dist. Miami No. 2002-CA-48, 2004-Ohio-5795, ¶ 18-20 (Galatis constituted a significant change in the law, permitting a legal
{33} In this case, Somerfield‘s and the estate‘s motion for summary judgment asserted that “this case” was originally filed in the probate court and was “improperly appealed and filed” in the common pleas court. They wrote: “To be an effective appeal of a decision of the [probate court], the appeal must be filed in the Ohio Second District Court of Appeals for Montgomery County, Ohio pursuant to Ohio Revised Code,
{34} Somerfield‘s and the estate‘s assignment of error is overruled.
III. Conclusion
TUCKER, J. and LEWIS, J., concur.
EPLEY, J.
JUDGE