HARSHMAN DYNASTY, LLC v. HOWARD MASON
Appellate Case No. 25873
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
March 21, 2014
2014-Ohio-1108
Trial Court Case No. 2011-CV-3793 (Civil Appeal from Municipal Court)
WORRELL A. REID, Atty. Reg. No. 0059620, 6718 Loop Road, #2, Centerville, Ohio 45459 Attorney for Defendant-Appellant
{1} In this case, we are asked to decidе if the trial court erred when it granted Appellee‘s unopposed motion for summary judgment. The motion relied on facts that were deemed admitted pursuant to
{2} We conclude that the trial court did not err when it granted summary judgment based on facts deemed admitted pursuant to
I. Facts and Course of Proceedings
{3} On August 1, 2010, Plaintiff-Appellee, Harshman Dynasty, LLC (“Harshman“), as landlord, and The Dayton Computer Shoр, LLC, as tenant, entered into a commercial lease. Defendant-Appellant, Howard Mason, signed the lease as CEO of The Dayton Computer Shop, LLC. Mason also personally signed an unconditional guaranty.
{4} Harshman‘s complaint аgainst Mason was filed on June 22, 2011, and was originally defended by Mason, acting pro se. On October 14, 2011, Harshman served Mason with requests for admissions, but Mason failed to respond. In December 2011, Harshman was granted leave to file an amended complaint, updating the amount of rent due to $12,730.33, based
{5} On December 28, 2011, Harshman filed a motion requesting the court to deem certain facts to be admitted. Mason did not respond to this motion, either. Consequently, on January 13, 2012, the trial court deemed the following facts admitted pursuant to
{6} Harshman also sought leave to file summary judgment regarding its complaint on December 28, 2011, and the trial court granted leave on January 13, 2012. Subsequently, on January 18, 2012, the court ordered Mason to file his response to the summary judgment motion within 21 days. Again, Mason failed to respond.
{7} On February 16, 2012, the trial court filed an order granting the motion for summary judgment, and awarded judgment against Mason in the amount of $12,730.03, plus interеst and costs. Mason did not respond to this order, either.
{8} Subsequently, on April 9, 2012, Mason filed a motion for relief from judgment pursuant to
{9} Mason appeals from the denial of his motion for relief from judgment, and from the summary judgment decision, which he claims was not properly served under
II. FIRST ASSIGNMENT OF ERROR
{10} Mason‘s first assignment of error states that:
The entry granting summаry judgment filed on 2/16/12 which is subject to review on this appeal, is contrary to law because there were unresolved issues of material fact and the Appellee was not entitled to judgment as a matter of law.
{11} Under this assignment of error, Masоn contends that there were genuine issues of material fact precluding summary judgment, including the statements in his answer, which raised issues of whether the rent was paid, whether forgery occurred, and whether Harshman failed to mitigate its damages. Assuming for purposes of argument that Mason can challenge the summary judgment decision despite his failure to appeal from that judgment, we note that, pursuant to
{12} Notably, Mason has not challenged the trial court‘s order that deemed the facts admitted, based оn Mason‘s failure to timely respond to the requests for admissions. Unanswered requests for admission are ordinarily deemed conclusively admitted for all purposes of the action. Cleveland Trust Co. v. Willis, 20 Ohio St.3d 66, 67, 485 N.E. 2d 1052 (1985).
{13} According to Mason, summary judgment was improper because his liability as the guarantor is necessarily secondary to the liability of The Dayton Computer Shop, LLC, which was the principal debtor. In support of this proposition, Mason relies on Madison Natl. Bank of London, Ohio v. Weber, 117 Ohio St. 290, 158 N.E. 543 (1927), which made certain distinctions between the obligations of sureties and guarantors. Id. at 293. This argument ignores the language of the personal guaranty, which waived any such requirements. In this regard, the Retail Lease Agreement signed by Mason states as follows:
This Guaranty is an absolute and unconditional Guaranty of payment and of performance. It shall be enforceable against the Guarantor without the necessity of any suit or proceeding on Landlord‘s part of any kind or nature whatsoever against Tenant, and without the necessity of any notice of non-payment, nonperformance, or non-observance or of any notice of acceptance of Guaranty or of any other notice or demand to which the Guarantor might otherwise be entitled, all of which the Guarantor hereby expressly waives; and the Guarantor hereby expressly agrees that the validity of this Guaranty and the obligations of the Guarantor hereunder shall in no way be terminated, affected, diminished or impaired by reason of the assertion or the failure to assert by Landlord against Tenant of any of the rights or remedies reserved to Landlord pursuant to the provisions of the Lease. Doc.#12, Exhibit A, pp. 27-28.
{15} Accordingly, Mason‘s first assignmеnt of error is overruled.
III. SECOND ASSIGNMENT OF ERROR
{16} Mason‘s second assignment of error states that:
The trial court‘s entry denying Defendant‘s motion for relief from judgment filed on 7/18/13 was contrary to law and an abuse of discretion.
{17} Under this assignment of error, Mason contends that he is entitled to relief from the order granting summary judgment because he had meritorious defenses to present to the complaint. Specifically, Mason claims that he terminated the lease pursuant to the lease provisions, and that he was not personally liable on the lease because he signed the lease in his capacity as CEO.
{18} Mason is not entitled to
{19} Secondly, Mason has not affirmatively demonstrated that the trial court abused its discretion when it denied his
{20} “To prevail on a motion brought under
{21} All of these requirements must be satisfied, and the motion should be denied if any one of the requirements is not met. (Citation omitted.) Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d 914 (1994), and Cincinnati Ins. Co. v. Schaub, 2d Dist. Montgomery No. 22419, 2008-Ohio-4729, ¶ 15. Stated more concisely, to prevail on a
{23} Our review of the record indicates that Mason failed to demonstrate excusable neglect for his lack of response. Mason was served with the complaint on August 19, 2011, and represented himself pro se until April 9, 2012, after summary judgment had been granted. Mason fаiled to respond to the request for admissions, the motion to deem admissions admitted, and the motion for summary judgment, even after the trial court specifically granted Mason 21 days to respond to the summary judgment motion.
{24} Furthermore, Mason failed tо contact the court at any time until he filed the motion for relief from judgment. Mason also never filed any affidavits supporting the allegations that comprise his defenses, at either the summary judgment stage or the
{25} Significantly, Mason provided no еxcuse beyond his pro se status. Courts have
{26} In this regard, The Tenth District Court of Appeals stated that:
“While one has the right to represent himself or herself and one may proceed into litigation as a pro se litigant, the pro se litigant is to be treated the same as one trained in the law as far as the rеquirement to follow procedural law and the adherence to court rules. If the courts treat pro se litigants differently, the court begins to depart from its duty of impartiality and prejudices the handling of the case as it relates to othеr litigants represented by counsel. * * * [S]ee, also, Jones v. Booker (1996), 114 Ohio App.3d 67, 70, 682 N.E.2d 1023.” Pryor at ¶ 9, quoting Justice v. Lutheran Social Servs. of Cent. Ohio, 10th Dist. Franklin No. 92AP-1153, 1993 WL 112497, *2 (April 8, 1993).
{27} In 2006, we reviewed a similar case in which a pro se defendant failed to respond to requests for admission, the facts were deemed admitted, and summary judgment was granted against her. In this regard, we stated that:
Although Lee [the defendant] proceeded pro se, she was subject to the same rules as counsel and “must accept the results of [her] own mistakes and errors.” Meyers v. First Natl. Bank of Cincinnati (1981), 3 Ohio App.3d 209, 210, 444 N.E.2d 412. The consequence of her failure to respond to the request for admissions was that there was no genuine issue of material fact as to the validity of Great Seneca‘s claim. Thus, the trial court did not err in granting summary judgment in favor of Great Seneca.
Great Seneca Fin. Corp. v. Lee, 2d Dist. Montgomery No. 21134, 2006-Ohio-2123, at ¶ 5.
IV. Conclusion
{29} All of Mason‘s assignments of error having been overruled, the judgment of the trial court is affirmed.
FROELICH, P.J., and HALL, J., concur.
Copies mailed to:
Cliff G. Linn
Worrell A. Reid
Hon. Carl Sims Henderson