LEAH N. SMITH v. CBERT PROPERTIES, LLC
Appellate Case No. 28058
Trial Court Case No. 2017-CV-5205 (Civil Appeal from Common Pleas Court)
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
January 4, 2019
[Cite as Smith v. Cbert Properties, L.L.C., 2019-Ohio-12.]
Rendered on the 4th day of January, 2019.
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RONALD J. KOZAR, Atty. Reg. No. 0041903, 40 N. Main Street, Suite 2830, Dayton, Ohio 45423
Attorney for Plaintiff-Appellant
JENNIFER R. GREWE, Atty. Reg. No. 0092329, 33 W. First Street, Suite 600, Dayton, Ohio 45402
Attorney for Defendant-Appellee
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{¶ 1} Leah Smith appeals from a judgment of the Montgomery County Court of Common Pleas, which entered summary judgment for CBert Properties, LLC, on Smith’s claims for negligence, conversion, and a violation of
I. Facts and Procedural History
{¶ 2} In 2015, Smith moved into apartment four of an apartment building in Kettering, Ohio, which was owned by CBert and managed by Oberer Management Services. Each apartment in the building was assigned two basement storage units (a large unit and a small unit), each labelled with the corresponding apartment number. Accordingly, Smith was assigned Storage Unit #4. (We will refer to the storage units collectively for the most part.)
{¶ 3} The following year, CBert evicted the tenant living in apartment one. Several items were left in Storage Unit #1. CBert notified the former tenant that the items should be removed by a certain date. After that date, when the items had not been removed, CBert hired a waste removal company to clean out Storage Unit #1 and dispose of the items found inside, which the company did.
{¶ 4} Smith claims that the items removed from Storage Unit #1 were actually hers. She says that the building manager had given her permission use Storage Unit #1. Smith
{¶ 5} Smith opposed summary judgment with her own affidavit. She averred that, when she moved in, one of the storage units assigned to her apartment contained items from another tenant. She asked the building manager, Kim Larkin, if she could use Storage Unit #1, which was empty, and, according to Smith, Larkin agreed. Smith included with her affidavit a photograph of Storage Unit #1 taken by CBert before it was cleaned out. While there was a prominent “1” high on the door frame, there was also a smaller and fainter handwritten “4” on the frame lower down. Smith says that she does not know who wrote it.
{¶ 6} The trial court sustained CBert’s motion for summary judgment, concluding that Smith’s affidavit was self-serving and insufficient to establish a genuine issue of material fact for trial.
{¶ 7} Smith appeals.
II. Analysis
{¶ 8} The sole assignment of error alleges that the trial court erred by entering
The negligence and conversion claims
{¶ 9} There were two relevant issues as to the negligence and conversion claims. One was whether CBert authorized Smith, through the building manager, to use Storage Unit #1, and the other issue was whether CBert knew that items in Storage Unit #1 belonged to Smith.
{¶ 10} The trial court concluded that the affidavit supporting CBert’s summary judgment motion established that there was no genuine issue as to these issues. In the affidavit, Hargraves averred that “CBERT does not ever permit tenants to use storage units which do not correlate with their apartment unit. For example, Unit #4 would not be permitted to use any storage unit except for Large Storage Unit #4 and Small Storage Unit #4.” (Hargraves Aff. ¶ 7.) Hargraves specifically stated that “Smith was only permitted to use Large Storage Unit #4 and Small Storage Unit #4 during the term of her tenancy” (Id. at ¶ 13) and that “Smith was not authorized by CBERT or Oberer to use any other storage unit” (Id. at ¶ 14.) Finally, Hargraves said that “[a]t no time prior to [the waste-
{¶ 11} “An otherwise competent affidavit is not invalid for the sole reason that it is executed by a party and submitted to aver facts in opposition to summary judgment. To the contrary, a party’s affidavit is competent to create a genuine issue of material fact if made on personal knowledge.” (Citation omitted.) Fifth Third Mtge. Co. v. Berman, 10th Dist. Franklin No. 11AP-637, 2012-Ohio-4411, ¶ 17. Civ.R. 56 imposes no corroboration requirement. We note too that Civ.R. 56(C) states that “the party against whom the motion for summary judgment is made * * * [is] entitled to have the evidence or stipulation construed most strongly in that party’s favor.” To the extent that Smith’s affidavit did not present mere conclusory assumptions but set forth matters within her personal knowledge, it could be considered.
{¶ 12} We think that Smith’s affidavit did present more than conclusory assumptions and set forth matters within her personal knowledge. Smith stated that she “asked [Kim Larkin] if I could just use the empty [storage unit] associated with Apartment One and Kim said yes.” (Smith Aff. ¶ 3.) Smith’s lease indicated that Larkin was an employee of Oberer, which managed the apartment building for CBert. This means that if Larkin gave Smith permission, CBert effectively gave her permission to use Storage Unit #1. This averment, along with the photograph showing a “4” written on the door frame
{¶ 13} We further note that most of our jurisprudence regarding a “self-serving affidavit” is in postconviction relief cases where the trial court, under appropriate circumstances, may determine that such an affidavit lacks credibility. See e.g. State v. Henry, 2017-Ohio-7427, 96 N.E.3d 1139, ¶ 20 (2d Dist.). The issue has also occasionally arisen in the civil context, where we have held that a self-serving affidavit that contradicts the same witness’s earlier sworn testimony “should be given no weight.” Kaplun v. Brenner, 2d Dist. Montgomery No. 17791, 2000 WL 234707, *4. However, this is not a postconviction case and the affidavit did not contradict prior testimony. The trial court cited Dalzell v. Rudy Mosketti, L.L.C., 2d Dist. Clark No. 2015-CA-93, 2016-Ohio-3197, ¶ 23, for the proposition that a self-serving affidavit containing no more than bald contradictions of the moving party’s evidence is insufficient to avoid summary judgment. But in that case the affidavit did contradict, in part, the plaintiff’s earlier deposition testimony, and it additionally contained unsupported conclusory allegations that the defendants had knowledge of a defective picnic table. The affidavit here was more than a bald contradiction of the affidavit submitted by the defense in support of summary judgment.
The statutory claim
{¶ 15} Smith’s third claim is that CBert violated
{¶ 16}
{¶ 17} We do not think that a basement storage unit divided by framing and chicken wire is a “dwelling unit.”
{¶ 18} Therefore, CBert was entitled to summary judgment on Smith’s claim that it violated
III. Conclusion
{¶ 19} The trial court erred when it entered summary judgment for CBert on Smith’s claims for negligence and conversion; the assignment of error is sustained and the trial court’s judgment is reversed as to those claims. The trial court’s judgment is affirmed as to the claim based on
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WELBAUM, P.J. and TUCKER, J., concur.
Copies sent to:
Ronald J. Kozar
Jennifer R. Grewe
Hon. Erik R. Blaine