Cardservice Internatl., Inc. v. FarmerCardservice Internatl., Inc. v. Farmer
Dated: July 29, 2009
WHITMORE, Judge.
{¶1} Defendant-Appellant, Russell Farmer, d.b.a. Northstar Satellite (Farmer), appeals from the judgment of the Barberton Municipal Court, granting summary judgment in favor of Plаintiff-Appellee, Cardservice International, Inc. (Cardservice). This Court affirms.
I
{¶2} On July 25, 2008, Cardservice filed a complaint against Farmer for $7,320.91 plus interest based on Farmer’s defaulting on his account. On August 19, 2008, Farmer responded by letter, which the court construed as his answer. In the letter, Farmer denied owing the $7,320.91 amount and indicated that he was currently in negotiation with Cardservice’s attorney in an attempt to settle the dispute. Subsequently, Cardservice notified the court that it had served Farmer with interrogаtories, a request for admissions, and a request for production, and the trial court set the matter for trial.
{¶4} Once again, Farmer failed to respond to Cardservice’s discovery requests, аnd on December 3, 2008, Cardservice filed a motion to strike Farmer’s answer and to issue a default judgment in its favor. The trial court denied Cardservice’s motion several days later. On December 24, 2008, Cardservice filed a motion for summary judgment to which it attached an affidavit, Farmer’s account agreement, and its unanswered request for admissions. Farmer did not respond to any of Cardservice’s motions. On January 12, 2009, the trial court granted summary judgment in favor of Cardservice.
{¶5} Farmer now appeals from the trial court’s judgment and raises a single assignment of error for our review.
II
Assignment of Error
THE TRIAL COURT ABUSED ITS DISCRETION IN THIS MATTER WHEN IT GRANTED THE APPELLEE’S MOTION FOR SUMMARY JUDGMENT BASED ON THE APPELLANT PROCEEDING IN THIS MATTER PRO SE.
{¶6} In his sole assignment of error, Farmer argues that the trial court erred in granting Cardservice’s motion for summary judgment on the basis that he did not respond to Cardservice’s request for admissions. Specifically, he argues that he had no legal duty to respond tо the request because [it] was defective.
{¶8} Pursuant to
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgmеnt as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidencе most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.
The party moving for summary judgment bears the initial burdеn of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-93. Sрecifically, the moving party must support the motion by pointing to some evidence in the record of the type listed in
{¶9}
{¶10} The record reflects that on Sеptember 11, 2008 Cardservice filed a notice of service, indicating that it had served Farmer with a request for admissions. When Farmer failed to respond within twenty-eight days, Cardservice filed a motion to compel on October 17, 2008. The trial court granted the motion and gave Farmer an additional thirty days to respond to Cardserviсe’s request. Once again, Farmer failed to respond. Even after Cardservice indicated in its summary judgment motion on December 24, 2008 that it was relying in part upon the аdmissions because they were now deemed admitted, Farmer took no action. Accordingly, the admissions contained in Cardservice’s unanswered request werе conclusively established. L.E. Sommer Kidron, Inc. at ¶45. The request for admissions asked Farmer to admit, among other things, that he was responsible for the full balance and interest due on the аccount as specified in Cardservice’s complaint. Farmer limits his argument on appeal to an assertion that Cardservice’s request for admissions [was] dеfective and so he had no legal duty to respond. Farmer fails to offer any explanation as to why he believes the request was defective. An appellant bears the burden of demonstrating error on appeal by developing an argument and supporting that argument with citations to the record and to applicable legal authority.
{¶12} Once a court of appeals determines an appeal is frivolous, it may require the appellant to pаy reasonable expenses of the appellee including attorney fees and costs.
III
{¶13} Farmer’s sole assignment of error is overruled. The judgment of the Barberton Municipal Court is affirmed. Farmer is ordered to pay $500 towards the attorney fees of Cardservice.
Judgment affirmed.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court оf Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
DICKINSON, J. CONCURS
MOORE, P. J. CONCURS IN JUDGMENT ONLY, SAYING:
{¶14} I concur in the majority’s determination that the appeal in this matter is wholly frivolous. Inasmuch as the trial court had the opportunity to preside over the case, I would remand to allow the trial court in its discretion to decide the amount of any sanction.
APPEARANCES:
JEFFREY V. HAWKINS, Attorney at Law, for Appellant.
SCOTT RUSSO MILLER, Attorney at Law, for Appellee.