DEUTSCHE BANK NATIONAL TRUST CO., PLAINTIFF-APPELLEE, VS. KENNETH KNOX, ET AL., DEFENDANTS-APPELLANTS.
CASE NO. 09-BE-4
STATE OF OHIO, BELMONT COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
July 9, 2010
2010-Ohio-3277
Hon. Gene Donofrio, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common Pleas of Belmont County, Ohio Case No. 06CV0086; JUDGMENT: Reversed and Remanded
For Plaintiff-Appellee Attorney Rosemary Taft Milby, Attorney Matthew G. Burg, Lakeside Place, Suite 200, 323 West Lakeside Avenue, Cleveland, Ohio 44113
For Defendants-Appellants Attorney Thomas M. Ryncarz, 3713 Central Avenue, Shadyside, Ohio 43947
OPINION
DONOFRIO, J.
{¶2} On March 2, 2006, appellee filed a foreclosure action against appellants alleging they had defaulted on their home loan.
{¶3} Appellee next filed a motion for summary judgment. It first alleged that appellants were barred from raising the defective legal description contained in the mortgage as a defense under the doctrine of res judicata. It further asserted that per the terms of the promissory note and mortgage, because appellants breached the terms of the note by non-payment, it was entitled to accelerate the balance due. It finally alleged that although the parties had entered into a forbearance agreement, appellants breached that agreement when they failed to make timely payments.
{¶4} Appellants responded arguing that summary judgment was not proper because res judicata did not apply in this case and that equity dictated that the forbearance agreement remain in effect because it was appellee, not appellants, who first breached the forbearance agreement. They also requested a hearing on the motion.
{¶5} The trial court granted appellee’s summary judgment motion and entered a foreclosure decree on February 8, 2007. It found that no genuine issues of material fact existed and appellee was entitled to judgment as a matter of law.
{¶6} On August 13, 2007, appellants filed a motion to set aside the court’s judgment. They alleged that the trial court ruled on the summary judgment motion without holding a hearing on the motion as they had requested. They further alleged that while the order of sale went on record on February 27, 2007, neither the summary judgment entry nor the order of sale was ever served on them or their counsel. Appellants claimed that they did not learn of the court’s ruling until August 7, 2007, when a neighbor told them about it and that they then informed their
{¶7} Subsequently, on October 10, 2007, the parties agreed to stay the sale of the real estate. The court ordered the parties to confer regarding resolution of this matter and to report back to the court in 30 days to determine if a hearing was necessary.
{¶8} The next entry from the court was not until over a year later, November 17, 2008. Here the court stated that it reviewed its previous entry, determined that the parties were unable to resolve the matter, and scheduled appellants’ motion to set aside judgment for an evidentiary hearing.
{¶9} The court held the hearing on January 5, 2009. It subsequently overruled appellants’ motion to set aside the summary judgment against them, lifted the stay, and ordered appellee to proceed with an order of sale.
{¶10} Appellants filed a single notice of appeal on February 12, 2009, from both the summary judgment entry and the judgment overruling their motion to set aside the summary judgment.
{¶11} The trial court issued a stay of its order pending this appeal.
{¶12} Appellants raise two assignments of error, the first of which states:
{¶13} “THE TRIAL COURT COMMITTED ERROR IN GRANTING THE APPELLEE’S MOTION FOR SUMMARY JUDGMENT.”
{¶14} Here appellants attack the affidavits that appellee attached to its motion for summary judgment. They contend that the individuals who signed the affidavits could not have had personal knowledge of the matters to which they averred. Appellants also contend that appellee attached improper summary judgment evidence to its motion.
{¶15} The trial court entered its summary judgment/foreclosure decree on February 8, 2007. The judgment indicates that it was “submitted” to appellants’ counsel. Additionally, the docket reflects on February 8, 2007, “Copies served on Attorney and parties of record.” Appellants claim that they did not receive notice of
{¶16} A party shall file their notice of appeal within 30 days of the later of entry of the judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if service is not made on the party within the required three day period.
{¶17} “Timely filing of a notice of appeal from the final judgment or order complained of is necessary to confer the appellate jurisdiction of a court of appeals to review any error the judgment or order involves.” Miller v. Smith, 2d Dist. No. 19958, at ¶19 citing Richards v. Industrial Commission (1955), 163 Ohio St. 439. A
{¶18} This court does not have jurisdiction over this issue. The docket clearly indicates that the judgment was served on the attorneys and the parties on February 8, 2007. Even if we accept appellants’ assertion that they did not receive notice of the summary judgment until August 2007, that does not explain why appellants failed to file an appeal from the summary judgment at that time. The fact remains that appellants did not file a notice of appeal until two years after the trial court granted summary judgment and at least a year and a half after they received the judgment entry.
{¶19} Accordingly, appellants’ first assignment of error is without merit.
{¶20} Appellants’ second assignment of error states:
{¶21} “THE TRIAL COURT COMMITTED ERROR IN OVERRULING THE APPELLANTS’ MOTION TO SET ASIDE THE SUMMARY JUDGMENT ENTRY.”
{¶22} Appellants filed a motion to set aside default judgment on August 13, 2007. However, the trial court did not grant a default judgment against appellants. Instead, the trial court granted appellee’s motion for summary judgment. The trial
{¶23} Appellants argue in this assignment of error that the trial court should have granted their
{¶24} The Ohio Supreme Court set out the controlling test for
{¶25} “To prevail on a motion brought under
{¶26} The standard of review used to evaluate the trial court’s decision to grant or deny a
{¶27} The first GTE element is satisfied if the party requesting a
{¶28} Appellants’ actual motion to set aside judgment fails to satisfy the first GTE requirement. Their motion does not allege any claim or defense. They do not set forth any facts that would aid the court in determining whether they had a meritorious claim or defense. The motion simply sets out the relevant history. It then asserts that the court’s entry granting summary judgment and ordering foreclosure was never served on them or their counsel and that they did not learn of the court’s judgment until a neighbor told them of it in August 2007.
{¶29} It was not until the oral hearing on their motion that appellants asserted any type of defense. (Motion hearing Tr. 20-30). This is where, for the first time other than in their initial answer to the complaint, appellants argued that appellee breached the forbearance agreement and would not accept their payments. The court entertained appellants’ argument. (Motion hearing Tr. 20-30).
{¶30} The trial court considered appellants’ argument that it was appellee who first breached the forbearance agreement and not appellants who first breached it. Because the court considered appellants’ argument even though they failed to raise this defense in their motion for relief from judgment, we too will consider it as an allegation of a meritorious defense as contemplated by GTE.
{¶31} But nowhere prior to their appellate brief do appellants raise the defense that appellee attached improper summary judgment affidavits to its motion for summary judgment. Accordingly, we must disregard that argument for purposes of this appeal. A party may not raise an issue for the first time on appeal. Litva v. Richmond, 172 Ohio App.3d 349, 2007-Ohio-3499, at ¶18.
{¶32} If appellee indeed breached the forbearance agreement before appellants, this would be a meritorious defense to the foreclosure action. Thus, appellants met the first GTE element.
{¶33} The second element of the GTE test requires that the moving party be entitled to relief under one of the grounds stated in
{¶35} In their motion, appellants did not specifically allege that they were entitled to relief under any of the grounds set out in
{¶36} The fact that appellants may not have received notice of the court’s entry granting summary judgment would not change the facts that caused the court to grant summary judgment in the first place. Appellants did receive appellee’s motion for summary judgment. That is clear because they filed a response to appellee’s motion. They also requested a hearing in their response.
{¶37} But an important fact was brought out at the hearing on appellants’
{¶38} Thus, at the time it granted summary judgment, the trial court was not aware of the facts that appellants alleged in their response to the summary judgment motion and it was not aware that appellants had requested a hearing on the motion.
{¶39} The hearing ended when the court had to stop it in order to proceed with another matter. (Jan. 2009 Tr. 32). The court stated that after it dealt with its other matter, it would resume the hearing so that appellants could present testimony and evidence. (Jan. 2009 Tr. 32-33). However, it appears the hearing never resumed. (Jan. 2009 Tr. 33). There is no indication on the record why the hearing never reconvened.
{¶40} Given the puzzling course of action this case took (i.e., summary judgment without reading/considering appellants’ response or request for hearing, hearing on the matter that was set to resume for evidence but never did), appellants are entitled to relief from the summary judgment entry. While this is not a model
{¶41} When a party is denied the opportunity to respond to a summary judgment motion, his right of due process in infringed upon. See State v. Dunbar (March 26, 2001), 5th Dist. No. 2000CA00334; State v. Pless (1993), 91 Ohio App.3d 197. In essence, that is what happened here. Although appellants responded to appellee’s summary judgment motion, the court did not see the response before granting summary judgment. When the court realized this, it decided to hold a hearing so that appellants could present their arguments/evidence in opposition to summary judgment. However, the hearing was interrupted and, from what we can tell from the record, it never resumed.
{¶42} Thus, under
{¶43} As to the third GTE requirement, appellants’ motion for relief from judgment was timely. They filed their motion on August 13, 2007. This was just days
{¶44} Accordingly, appellants’ second assignment of error has merit.
{¶45} For the reasons stated above, the trial court’s judgment denying appellants’
Vukovich, P.J., concurs.
DeGenaro, J., dissents with attached dissenting opinion.
DeGenaro, J., dissenting.
{¶46} I must respectfully dissent from the majority‘s decision to reverse the trial court‘s judgment entry denying appellants’
{¶47} Errors not specifically raised and argued in the parties’ briefs are considered waived for purposes of appeal.
{¶48} As the majority recognizes, appellants’ motion for relief from judgment failed to satisfy two of the three GTE elements: 1) it failed to allege a meritorious claim/defense as well as operative facts setting forth that claim/defense; and 2) it failed to identify which of the grounds for relief set forth in
{¶49} However, the majority concludes that because the trial court stated that it had not considered appellants’ response in opposition to appellee‘s summary judgment motion when it entered summary judgment in favor of appellee, this omission was analogous to denying appellants the opportunity to respond to the appellee‘s summary judgment motion, reasoning that this infringed upon appellants’ due process rights and thus appellants were entitled to relief under
{¶50} Because appellants did not assert this issue, appellants have waived the error for appeal. Moreover, the error that the majority has found does not constitute a manifest miscarriage of justice. In fact, even if appellants had properly preserved the issue for appeal, any error by the trial court was harmless.
{¶51} As explained in Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264, a party moving for summary judgment has the initial burden under
{¶53} The majority also suggests that appellants might have been able to provide support for response in opposition to summary judgment had the trial court reconvened the hearing. Again, appellants neither raised this as error nor presented a statement pursuant to
{¶54} Based on the foregoing, I would affirm the judgment of the trial court.