Reveille II, L.L.C. v. IonReveille II, L.L.C. v. Ion
Dated: March 16, 2011
WHITMORE, Presiding Judge.
{¶1} Defendant-Appellant, Mary K. Ion, appeals from the decision of the Summit County Court of Common Pleas, granting summary judgment in favor of Plaintiff-Appellee, Reveille II LLC (“Reveille“), and cross-claimant, Michael Scanlon. This Court affirms.
I
{¶2} On December 30, 2009, Reveille filed a complaint against Ion, seeking to foreclose on her home and the adjoining eleven acres of land located at 669 East Barlow Road in Hudson. Reveille sought to foreclose on a $22,740.11 promissory note it held from Ion which was secured by a mortgage on the Barlow Road property. Reveille named several other parties as defendants to the action and identified the purported interest each defendant had in the foregoing property. One of the defendants named in the suit was Michael Scanlon, an attorney who also held а mortgage interest in the property. Scanlon filed an answer and cross-claim against Ion, asserting that he had $5,000 mortgage on the property, based on a promissory note
{¶3} On February 19, 2010, Reveille filed a motion for summary judgment. On February 23, 2010, Scanlon also filed a motion for summary judgment. On February 25, 2010, Ion filed her answer to Reveille‘s complaint and Scanlon‘s cross-claim and a counterclaim asserting that Reveille‘s mortgage interest was void because it was procured by the use of undue influence and a lack of consideration. She also filed a motion to dismiss, asserting that she was under the protection of a bankruptcy stay and that Reveille had not received relief from stay in order to pursue the foreclosure action. The matter was referred to foreclosure mediation in March, and in April, the mediator referred the сase back to the trial court for resolution.
{¶4} On May 19, 2010, Ion filed a discovery request. On May 25, 2010, the trial court granted summary judgment to Reveille and Scanlon and entered a decree of foreclosure as to the Barlow Road property. Following the trial court‘s order of foreclosure, Ion filed several pleadings, including a motion to vacate the foreclosure decree and a motion for default judgment based on Reveille‘s failure to file an answer in response to her counterclaim asserting its mortgage interest was void. Iоn then timely filed her notice of appeal from the order of foreclosure. She asserts two assignments of error for our review, which we have combined in order to facilitate our analysis.
Assignment of Error Number One
“THE TRIAL COURT ERRED IN GRANTING, APPELLEES, REVEILLE II, LLC‘S AND MICHAEL SCANLON‘S MOTIONS FOR SUMMARY JUDGMENT WHEN THE MOTIONS FOR SUMMARY JUDGMENT WERE NOT SERVED UPON APPELLANT, MARY K. ION AND THE MOTION WAS FILED BY APPELLEES PRIOR TO APPELLANT, MARY K. ION, FILING AN ANSWER AND COUNTERCLAIM, ANSWER TO CROSSCLAIM AND MOTION TO DISMISS AND BEFORE THERE WAS ANY OPPORTUNITY TO COMPLETE DISCOVERY.”
Assignment of Error Number Two
“THE TRIAL COURT ERRED BY DENYING, APPELLANT, MARY K. ION, OF THE FUNDAMENTALLY FAIR PROCEDURES IN ACCORDANCE WITH DUE PROCESS OF LAW AND THE RIGHT TO AN OPPORTUNITY TO BE HEARD BY GRANTING, APPELLEES, REVEILLE II, LLC‘S AND MICHAEL SCANLON‘S MOTION FOR SUMMARY JUDGMENT[.]”
{¶5} In her first assignment of error, Ion asserts that neither she nor her counsel was servеd with the motions for summary judgment separately filed by Reveille and Scanlon. Consequently, she asserts that the trial court erred as a matter of law in granting summary judgment in favor of Reveille and Scanlon. In her second assignment of error, Ion asserts that she was denied due process when summary judgment was granted in favor of Reveille and Scanlon because she was not given the opportunity to be heard in opposition to the motion. We disagree.
{¶6} An appellate court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105.
“(1) No genuine issue as to any material fact rеmains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in the favor of the party against whom the motion for
summary judgmеnt 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 burden 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. Specifically, thе moving party must support the motion by pointing to some evidence in the record of the type listed in
{¶7} In its motion for summary judgment, Reveille asserts that Ion is in default on the promissory note the parties executed in August 2008. Attached to Reveille‘s summary judgment motion are two affidavits: one signed by Dana Hoover, Reveille‘s managing member, in which she attests that Ion is in default on the promissory note she executed with Reveille, which is secured by the mortgage on her real property; and another signed by Dean Hoover, in which he attests to his attorney fees in the underlying foreclosure action, which are to be paid by Ion under the terms of the parties’ promissory note. In Scanlon‘s summary judgment motion, he asserts, by way of an affidavit attached to his motion, that he holds a promissory note frоm Charles Hott, the previous owner of the Barlow Road property, which is in default and also secured by a mortgage on the property. As indicated, Reveille and Scanlon filed their motions on February 19, 2010, and February 23, 2010, respectively. Based on the foregoing evidence, both Reveille and Scanlon met their initial burden under Dresher.
{¶9}
{¶10} The certificates of service accompanying both summary judgment motions in this case contain identical language, which indicate that the mоtions were served “by regular mail on all defendants who have not answered or otherwise appeared and on the counsel of record for those defendants who have answered or otherwise appeared.” The certificates were dated and signed by the respective attorney for each party. Without question, the certificates of service
{¶11} Ion argues in her brief that when she and her attorney jointly signed the request for leave to plead on February 8, 2010 in which she requested additiоnal time to file an answer, Ion had only a “tentative fee agreement” with her attorney, which was subject to the approval of the bankruptcy court. In that same vein, she asserts that when the motions for summary judgment were served on her, she had not yet “file[d] an answer or othеrwise appear[ed].” The record, however, belies this assertion. Irrespective of when Ion and her attorney consummated
{¶12} To the extent Ion argues that information contained in her answer аnd counterclaim were sufficient to create a genuine issue of material fact and preclude summary judgment,
{¶13} Ion also argues that the trial court failed to consider the affidavit she attached to her motion to vacate in which she attested to having not received either party‘s motion. This argument is flawed for several reasons. A motion to vacate is by definition a post-judgment motion, so any assertion that the trial court failed to consider matters contained in a post-judgment motion before entering judgment is simply illogical. See, e.g., JP Morgan Chase Bank v. Ritchey, 11th Dist. No. 2006-L-247, 2007-Ohio-4225, at ¶45 (disregarding an affidavit attesting to improper service which was attached to a motion to vacate filed nearly a month after summary judgment was granted and subsequently appealed). Further, though Ion filed a motion to vacate the foreclosure decree in which shе asserted several grounds to support vacating the
{¶14} Because the record demonstrates that service of the motions for summary judgment was proper under the Civil Rules and Ion failed to file any type of brief in opposition in response, the trial court did not err in granting Reveille and Scanlon‘s motions. Accordingly, Ion‘s two assignments of error are overruled.
III
{¶15} Ion‘s two assignments of еrror are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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 Appellant.
BETH WHITMORE
FOR THE COURT
DICKINSON, J.
MOORE, J.
CONCUR
APPEARANCES:
ESTELLE D. FLASCK, Attorney at Law, for Appellant.
DEAN S. HOOVER, Attorney at Law, for Appellee.
MICHAEL C. SCANLON, pro se, Appellee