Maguire v. Natl. City BankMaguire v. Natl. City Bank
Rendered on the 28th day of August, 2009.
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JOHN MAGUIRE, 215 McDaniels Street, Apartment 410, Dayton, Ohio 45405 Plaintiff-Appellant, pro se
ADAM C. SHERMAN, Atty. Reg. #0076850, Vorys, Sater, Seymour and Pease LLP, 221 East Fourth Street, Suite 2000, Cincinnati, Ohio 45202 Attorney for Defendant-Appellees
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PER CURIAM:
{¶ 1} Plaintiff-appellant John Maguire appeals from a summary judgment rendered against him on his claims for breach of contract and civil fraud against defendant-appellee National City Bank. Maguire contends that the trial court erred by rendering summary judgment while discovery remained pending. He further contends that the trial court improperly disregarded an affidavit that he submitted in
{¶ 2} We conclude that the trial court did not abuse its discretion by implicitly overruling Maguire‘s motion to compel, since he failed to comply with the provisions of
I
{¶ 3} In 2007 Maguire filed this action against National City Bank for damages arising from an alleged breach of contract, wrongful eviction and theft of property. The trial court dismissed the action, and Maguire appealed. We held that the trial court did not err by dismissing the claims for wrongful eviction and theft of property. Maguire v. National City Bank, Montgomery App. No. 22168, 2007-Ohio-4570. But we reversed the trial court‘s decision dismissing the claim for breach of contract. Id., ¶ 19.
{¶ 4} On remand, Maguire filed an amended complaint, as well as a second amended complaint, in which he added a claim for civil fraud against National City
{¶ 5} The facts relevant hereto are gleaned from the record, the affidavit of Patricia Herman, an employee of the Bank in its Loss Mitigation Department as well as the “statement” filed by Maguire in opposition to the motion for summary judgment.
{¶ 6} According to Maguire‘s complaint and brief, Wheeler apparently agreed to sell the property to Maguire for an amount less than the balance owing on the mortgage.1 However there is no documentary evidence, nor any averment in Maguire‘s statement, to support the existence of a written contract for the sale of the subject property.
{¶ 7} Maguire wrote a letter to National City Bank in which he offered to “purchase [the] trust deed for $28,000 case.” In the letter he also noted that it was his responsibility to “negotiate for the Grant Deed with Lyle Wheeler.” National City Bank informed Maguire that it would not sell the mortgage or loan documents. The Bank did indicate that it would agree to a “short sale” of the property; meaning that the Bank agreed to accept less than the actual principal amount owed on the loan as
{¶ 8} In September, 2003, Maguire opened a “closing account” with a title company and demanded that National City Bank agree to close on the contract. Maguire was arrested on October 1, 2003 “by federal authorities on matters unrelated to the short sale contract.”
{¶ 9} The closing did not occur and the Bank did not receive any monies on the deadline date.
{¶ 10} Subsequently, Wheeler requested approval of a short sale for the sum of $32,000, which was agreed to by the Bank. Wheeler sold the property to a different individual, and the Bank was paid the sum of $32,000 in November, 2003.
{¶ 11} As noted above, Maguire brought this action against the Bank in 2007. National City Bank filed a motion for summary judgment on September 11, 2008, more than a year after we rendered our prior judgment in this action. In its motion, the Bank argued that Maguire had failed to demonstrate the existence of a contract or any evidence of fraud. Maguire filed a memorandum in opposition to the motion for summary judgment, to which he attached a document styled as “Statement of John Maguire.” In its reply brief, National City Bank noted that Maguire‘s statement was not sworn or notarized, and urged the trial court to disregard it. Thereafter, Maguire re-filed the statement in affidavit form.
{¶ 12} The trial court rendered summary judgment in favor of National City
II
{¶ 13} Maguire‘s First Assignment of Error states as follows:
{¶ 14} “THE COURT COMMITTED ERROR WHEN IT GRANTED SUMMARY JUDGMENT TO THE DEFENDANT WHILE THE DEFENDANT WAS IN VIOLATION OF RULES OF DISCOVERY AND THE PLAINTIFF HAD A MOTION TO COMPEL DISCOVERY PENDING.”
{¶ 15} Maguire claims that a motion to compel discovery was pending at the time the trial court rendered summary judgment against him, and that the trial court therefore erred by entering judgment.
{¶ 16} Initially we note that there is no indication in the record that the trial court ruled on these motions. Therefore, we assume the trial court overruled them. Roth v. Roth, Cuyahoga App. No. 89141, 2008-Ohio-927, ¶ 65.
{¶ 17} Trial courts have “broad discretion over discovery matters.” State ex rel. Citizens for Open, Responsive & Accountable Govt. v. Register, 116 Ohio St.3d 88, 2007-Ohio-5542, at ¶ 18. Thus, absent an abuse of that discretion, an appellate court will not reverse a decision of the trial court regarding discovery. An abuse of discretion “implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 18} Pursuant to
{¶ 19} Moreover, we note that Maguire did not seek discovery from the Bank until August 29, 2008, almost a year after we rendered our prior judgment in this cause. Furthermore, both the discovery requests and the motion to compel were filed after both parties had fully briefed the issues for summary judgment. Neither in his motion to compel, nor otherwise, did Maguire seek an extension of time to respond to the motion for summary judgment, as permitted by
{¶ 20} We conclude that the trial court did not abuse its discretion by failing to consider the merits of Maguire‘s motion prior to overruling it. See, Roth, supra at 66; Deutsch Bank Nat. Trust Co. v. Doucet, Franklin App. No. 07AP-453, 2008-Ohio-589, ¶ 20.
{¶ 21} The First Assignment of Error is overruled.
III
{¶ 22} Maguire‘s Second Assignment of Error is as follows:
{¶ 23} “THE COURT COMMITTED ERROR WHEN IT REFUSED TO ACCEPT THE PLAINTIFF‘S SWORN AFFIDAVIT AS EVIDENCE IN DEFENSE OF THE DEFENDANT‘S MOTION FOR SUMMARY JUDGMENT.”
{¶ 24} Maguire contends that the trial court erred by disregarding the statement he filed in support of his memorandum in opposition of National City
{¶ 25} Maguire‘s statement, attached to his response to the Bank‘s motion for summary judgment, was not sworn or notarized. National City Bank, in its reply to Maguire‘s memorandum, made note of this irregularity. Thereafter, Maguire re-submitted, without seeking leave of court, the statement with a notary seal. The trial court expressly declined to consider the statement.
{¶ 26} Given our resolution of the Third Assignment of Error set forth in Part IV, below, we conclude that this argument has been rendered moot. Even if we were to conclude that the trial court should have considered Maguire‘s statement, its error in failing to have done so is harmless, since we conclude that the contents of the statement do not affect the outcome of the case. From our review of the statement, we conclude that Maguire failed to demonstrate the existence of a genuine issue of material fact.
{¶ 27} Maguire‘s Second Assignment of Error is overruled.
IV
{¶ 28} Maguire‘s Third Assignment of Error provides as follows:
{¶ 29} “THE COURT COMMITTED ERROR WHEN IT GRANTED THE DEFENDANT‘S MOTION FOR SUMMARY JUDGMENT BASED UPON INSUFFICIENT EVIDENCE.”
{¶ 30} Maguire contends that the evidence does not support the trial court‘s decision to render summary judgment against him.
{¶ 31} “The appropriateness of rendering a summary judgment hinges upon
{¶ 32} The party seeking summary judgment initially bears the burden of informing the trial court of the basis for the motion and identifying portions of the record demonstrating an absence of genuine issues of material fact as to the essential elements of the nonmoving party‘s claims. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. The moving party may not fulfill its initial burden simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Id. Rather, the moving party must support its motion by pointing to some evidence of the type set forth in
{¶ 33} If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. Id. However, once the moving party satisfies its initial burden, the nonmoving party bears the burden of offering specific facts demonstrating a genuine issue for trial. Id. The nonmoving party may not rest upon the mere allegations and denials in the pleadings but instead must point to or submit some evidentiary material that demonstrates a genuine dispute over a material fact. Id.;
{¶ 34} National City Bank filed its motion for summary judgment asserting that
{¶ 35} Contrary to Maguire‘s assertions, there is no evidence to indicate that National City Bank held itself out as being capable of agreeing to the sale of the property, which it did not own. The Bank‘s evidence, and Maguire‘s own statement, show that, at most, National City Bank agreed to accept a payment less than the amount owed on the mortgage; in other words, it agreed that it would accept a short sale. Even if we construe the evidence as showing that the Bank entered into the short sale agreement with Maguire, rather than with Wheeler, there is nothing in the record to demonstrate that it breached that contract, which was necessarily contingent upon the assent of the owner, Wheeler. To the contrary, the record demonstrates that the Bank agreed to the short sale, but that Wheeler eventually sold the property to an individual other than Maguire. Furthermore, the record is devoid of any evidence demonstrating that National City Bank acted to interfere with the sale of the property from Wheeler to Maguire.
{¶ 37} The Third Assignment of Error is overruled.
V
{¶ 38} All of Maguire‘s assignments of error having been overruled, the judgment of the trial court is Affirmed.
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DONOVAN, P.J., BROGAN, J., and FAIN, J., concur.
Copies mailed to:
John Maguire
Adam C. Sherman
Hon. Mary Lynn Wiseman