MN NORTH CHASE II, LLC Appellee v. KENNETH ROWE Appellant
C.A. No. 25694
STATE OF OHIO COUNTY OF SUMMIT IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
August 17, 2011
2011-Ohio-4071
APPEAL FROM JUDGMENT ENTERED IN THE AKRON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE No. 10 CVF 05439
Dated: August 17, 2011
DICKINSON, Judge.
INTRODUCTION
{¶1} M-N North Chase II LLC sued Kenneth Rowe for unpaid rent after Mr. Rowe vacated an apartment before his lease expired. Mr. Rowe answеred, alleging that he had been let out of the lease early. North Chase served Mr. Rowe with requests for admissions, which Mr. Rowe did not answer on time. Thе municipal court granted summary judgment to North Chase based on the admissions. Mr. Rowe has appealed, assigning as error that the municipal сourt incorrectly granted summary judgment to North Chase. We reverse because the trial court did not give Mr. Rowe an opportunity to file a rеsponse to North Chase‘s motion for summary judgment.
FACTS
{¶2} Mr. Rowe signed a one-year lease for an apartment, which he completed without incident. According to Mr. Rowe, shortly after he renewed his lease, he received a letter from
{¶3} In June 2010, North Chase sued Mr. Rowe for breach of contract, аlleging that he had not paid any rent for the last eight months of his lease. Mr. Rowe answered, alleging that he had been released from the leаse. On August 6, 2010, North Chase served Mr. Rowe with discovery requests, including requests for admissions, interrogatories, and requests for production of documents. The rеquests for admissions gave Mr. Rowe 28 days to answer them, the minimum required under
{¶4} On September 9, 2010, North Chase served Mr. Rowe with a motion for summary judgment, but did not file it. On September 13, it moved for leave to file its motion for summary judgment. On September 20, Mr. Rowe served his answers to North Chase‘s discovery requests and filed them with the court. In his responses to North Chase‘s requests fоr admissions, Mr. Rowe admitted that he signed a one-year lease, but denied that he owed North Chase anything because he had terminated the lease in accordance with a letter he received from the lessor.
{¶5} On October 25, 2010, the municipal court held a final pretrial conference. Mr. Rowe did not appear for the conference. That same day, North Chase filed, and the trial court granted, the motiоn for summary judgment that it certified it had served on September 9. In its
SUMMARY JUDGMENT
{¶6} Mr. Rowe‘s assignment of error is that the municipal court incorrectly granted summary judgment to North Chase. He has argued that the lease he signed was not with North Chase but with an entity called “the Waterford at Portage Trail.” He has also argued that he complied with all the conditions he had received regarding being let out of the lease early.
{¶7} We do not need to reach Mr. Rowe‘s substantive arguments because we conclude that the trial court violated his right to due process when it granted North Chase‘s motion for summary judgment without giving him an opportunity to respond to it. Under
{¶8} “As applied to summary judgment, procedural due process requires that a nоnmoving party have an opportunity to respond before the adjudication of a motion for summary judgment.” Village of Harbor View v. Jones, 10th Dist. Nos. 10AP-356, 10AP-357, 2010-Ohio-6533, at ¶37; State ex rel. Thernes v. United Local Sch. Bd. Dist. of Educ., 7th Dist. No. 07 CO 45, 2008-Ohio-6922, at ¶45. “[
{¶9} Although North Chase served Mr. Rowe with its motion for summаry judgment in September 2010, Mr. Rowe did not have an obligation to respond to the motion until the court granted North Chase leave to file and North Chase actually filed the motion with the court. See Capital One Bank v. Toney, 7th Dist. No. 06 JE 28, 2007-Ohio-1571, at ¶47 (concluding nonmoving party “had no obligation to respond to the merits of summary judgment motion until the trial court granted [moving party] leave to file such motion“); Brengman v. Glass, 10th Dist. No. 92AP-522, 1992 WL 249603 at *1 (Oct. 1, 1992). The court, however, gave Mr. Rowe no opportunity to respond to the motion after its filing, entering its ruling only one minute later. We, therefore, conclude that the municipal court violated Mr. Rowe‘s due process rights.
{¶10} Because Mr. Rowe failed to answer North Chase‘s requests for admissions on time, we must consider whether the municipal court‘s error was harmless. Under
{¶11} Because Mr. Rowe did not receive any time to respond to North Chasе‘s motion for summary judgment after it was filed, he did not have the opportunity to ask the court for an extension of the requests for admissions deadlinе, to move to withdraw his admissions, or to argue that, notwithstanding the facts deemed admitted, North Chase was not entitled to judgment
CONCLUSION
{¶12} Thе municipal court should have given Mr. Rowe an opportunity to respond to North Chase‘s motion for summary judgment after North Chase filed it. The judgment of the Akron Municipal Court is reversed, and this matter is remanded for proceedings consistent with this opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandаte issue out of this Court, directing the Akron Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal еntry shall constitute the mandate, pursuant to App.R. 27.
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 of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
CLAIR E. DICKINSON
FOR THE COURT
MOORE, J.
CONCUR
APPEARANCES:
KENNETH ROWE, pro se, Appellant.
SARAH S. GRAHAM, Attorney at Law, for Appellee.