SOLIEL TANS, L.L.C., ET AL. v. TIMBER BENTLEY COE, L.L.C. ET AL.
No. 108125
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
November 27, 2019
2019-Ohio-4889
MICHELLE J. SHEEHAN, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-18-903198
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 27, 2019
Appearances:
Wendy S. Rosett, for appellants.
Dinn, Hochman & Potter, L.L.C., Steven B. Potter, and Carly A. Boyd, for appellees.
MICHELLE J. SHEEHAN, J.:
{¶ 1} Soliel Tans, L.L.C. and its managing member Trinity Steffen (collectively referred to as “Tenant” hereafter) appeal from a judgment of the Cuyahoga County Court of Common Pleas granting summary judgment in favor of
{¶ 2} The parties entered into a lease agreement in 2016, and Tenant alleged Landlord failed to properly maintain the premises, causing damages to Tenant. In 2017, Landlord filed a complaint for eviction and breach of contract against Tenant in Rocky River Municipal Court.1 The municipal court granted eviction, and Landlord subsequently dismissed the breach of contract count of the complaint.
{¶ 3} In 2018, Tenant filed the instant lawsuit in the Cuyahoga County Common Pleas Court. Landlord filed a motion to dismiss on the ground that Tenant‘s claim for damages relating to the subject lease was barred because Tenant failed to raise compulsory counterclaims regarding its alleged damages stemming from Landlord‘s breach of the lease in the municipal court case. After providing notice to the parties, the trial court converted the motion to dismiss to a motion for summary judgment and ruled in favor of Landlord. On appeal, Tenant assigns the following two errors for our review:
- The trial court erred to the prejudice of the Appellants by converting the Appellees’ Motion to Dismiss into a Motion for Summary Judgment and, at the very least, by failing to stay the proceedings pursuant to
Rule 56(F) of the Ohio Rules of Civil Procedure , as requested by the Appellants. - Reviewing the converted Motion for Summary Judgment de novo, the Record is clear and convincing that the trial court
erred to the prejudice of the Appellants by granting the Appellees’ converted Motion for Summary Judgment.
{¶ 4} Having fully reviewed the record, we find no merit to the claims raised in the assignments of error. Accordingly, we affirm the trial court‘s judgment.
I. Substantive Facts and Procedural History
{¶ 5} Timber Bentley Coe, L.L.C. is the owner of a commercial property located at 24101 Lorain Road, North Olmsted, Ohio. Soliel Tans, L.L.C. is a business that provides tanning and related services. On July 28, 2016, the two parties entered into a three-year lease agreement commencing in November 2016. The relationship between Landlord and Tenant deteriorated quickly. Tenant alleged there were several problems with the conditions of the property.2
a. 2017 Cuyahoga County Common Pleas Court Case
{¶ 6} On September 29, 2017, Tenant filed a lawsuit in the Cuyahoga County Common Pleas Court (Cuyahoga C.P. No. CV 17 886685), alleging Landlord breached the lease agreement and also violated its duties as a landlord under
b. 2017 Municipal Court Case
{¶ 8} While the Cuyahoga County Common Pleas Court case was pending, on November 6, 2017, Landlord filed a complaint for eviction (forcible entry and detainer) and breach of contract against Tenant in the municipal court, in Rocky River M.C. No. 17 CVG 2375. Landlord alleged Tenant failed to (1) pay the security deposit of $3,200, (2) maintain an HVAC Maintenance Agreement as required by the lease, and (3) maintain an insurance policy underwritten by a company rated “best” as also required by the lease. Landlord sought eviction and damages stemming from Tenant‘s breach of the lease.
{¶ 9} On November 27, 2017, the municipal court held an eviction hearing in the case. After the hearing, the court granted eviction but allowed Tenant to file an answer regarding the breach of contract claim.3
c. Instant Case
{¶ 11} On September 4, 2018, Tenant filed the instant complaint in the Cuyahoga County Common Pleas Court against Landlord, alleging breach of contract, fraudulent inducement, respondeat superior, negligence, and intentional infliction of emotional distress, all relating to the subject lease agreement and subject premises. The complaint named Soliel Tans, L.L.C. and its managing member Trinity Steffen as plaintiffs, and Timber Bentley Coe, L.L.C. and its member and agent Douglas Bercu as defendants.
{¶ 12} On October 4, 2018, Landlord filed a motion to dismiss and requested the motion be converted to a motion for summary judgment should the trial court find consideration of the motion would require an analysis of matters outside the pleading. Landlord argued the complaint should be dismissed because Tenant‘s claims were compulsory counterclaims in the municipal court case. Landlord attached several exhibits to its motion.
{¶ 13} Exhibit A was a copy the complaint filed on September 29, 2017, in the common pleas court (CV 17 886685); exhibit B was the affidavit of Trinity Steffen filed in that case; exhibit C was a copy of the journal entry in that case
{¶ 14} Also attached to the motion was Attorney Steven Potter‘s affidavit. Attorney Potter stated the affidavit was made upon personal knowledge and that (1) exhibits A to C were true copies of pleadings or orders filed in Aces & Jaxis L.L.C. d.b.a. Soliel Tans v. Timber Development Corporation, Cuyahoga County C.P. No. CV 17 886685, and (2) exhibits D-G were true and accurate copies of pleadings and orders filed or issued in Rocky River M.C. No. 17 CVG 2375.
{¶ 15} Also attached to the motion was an affidavit by Douglas Bercu, a member of Timber Bentley Coe authorized to act on its behalf. Bercu stated (1) Timber Bentley Coe filed a lawsuit against Soliel Tans, L.L.C., in Rocky River M.C. No. 17 CVG 2375, which raised two counts, eviction and damages (for breach of contract); (2) the municipal court held a hearing on the eviction matter on November 27, 2017, where Trinity Steffen appeared on behalf of Soliel Tans; (3) the
{¶ 16} On October 9, 2018, the trial court in this matter journalized an entry which stated “[t]he court will treat defendants’ motion to dismiss as a motion for summary judgment pursuant to
{¶ 17} Subsequently, Tenant filed a “Brief in Opposition to Defendants’ Motion for Summary Judgment/Motion to Dismiss or Motion to Stay Summary Proceedings.”4 Tenant claimed the trial court should not consider the proceedings in the municipal court case because the court cannot take judicial notice of proceedings in another case. Moreover, Tenant asserted that Attorney Steven Potter was not a records custodian for the court and his affidavit could not authenticate the court documents. Tenant asserted that, in the municipal court case, before Tenant had an opportunity to further investigate the damages and file a counterclaim against Landlord, Landlord prematurely dismissed the breach of contract count of
{¶ 18} On December 7, 2016, Landlord filed a reply brief. In response to Tenant‘s assertion that the court documents in the prior court cases cannot be considered by the trial court in this case, Landlord attached to its reply brief six exhibits, which were certified copies of (1) the Rocky River Municipal Court docket in Case No. 17 CVG 2375, (2) November 28, 2017 magistrate‘s decision in the case; (2) January 25, 2018 notice of dismissal in the case; (4) the Cuyahoga Court of Common Pleas Court docket in CV 17 886685, (5) Tenant‘s complaint in that case; and (6) December 13, 2017 entry of dismissal in the case.
{¶ 19} On December 18, 2018, the trial court issued a decision in the instant case. It struck the exhibits (the certified copies of the court documents) attached to Landlord‘s reply brief because Landlord filed the exhibits without first obtaining leave of court to accompany its reply brief with the additional evidentiary materials. The court, however, granted summary judgment in favor of Landlord. Tenant now appeals.
II. Analysis
{¶ 20} We review a trial court‘s entry of summary judgment de novo, using the same standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment may only be granted when the following is established: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) that reasonable
{¶ 21} On appeal, Tenant raises two assignments of error. Under the first assignment of error, it argues that the trial court erred in converting Landlord‘s motion to dismiss into a motion for summary judgment and that the court erred in failing to stay the proceedings pursuant to
a. Conversion of the Motion to Dismiss to Summary Judgment
{¶ 22} Under the first assignment of error, Tenant asserts two claims. First, it asserts that the trial court improperly converted Landlord‘s motion to dismiss to a motion for summary judgment. Pursuant to
{¶ 23} Here, Landlord filed a “Motion to Dismiss or, in the Alternative, Motion for Summary Judgment” on October 4, 2018. As it is improper to look at matters outside the pleadings in ruling on a
{¶ 24} The trial court complied with the notice required by
{¶ 25} Under the first assignment of error, Tenant also claims the trial court erred in failing to stay the proceedings pursuant to
{¶ 26}
Should it appear from the affidavits of a party opposing the motion for summary judgment that the party cannot for sufficient reasons stated present by affidavit facts essential to justify the party‘s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just.
”
{¶ 27} “The burden is upon the party seeking to defer the court‘s action on a motion for summary judgment to demonstrate that a continuance is warranted[.]” Kupczyk v. Kuschnir, 8th Dist. Cuyahoga No. 76614, 2000 Ohio App. LEXIS 3380, 5-6 (July 27, 2000). “Mere allegations requesting a continuance or deferral of action for the purpose of discovery are not sufficient reasons why a party cannot present
{¶ 28} Here, Tenant opposed the motion for summary judgment asserting that the claims it raised in this present case were not barred by res judicata because the claims did not constitute compulsory counterclaims in the municipal court case. Although Tenant sought a continuance of a ruling on the motion for summary judgment, it did not set forth any reasons for a continuance or explain why additional discovery was necessary. We note this was not the first litigation filed between the parties on the subject commercial lease. Furthermore, the evidence regarding the pleadings and entries in the municipal court case was equally accessible to Tenant. “The party seeking additional time to respond to a motion for summary judgment must present sufficient reasons that would justify the requested continuance, and do more than merely assert generally the need for additional discovery.” Juergens at ¶ 52, citing Grill v. Artistic Renovations, 8th Dist. Cuyahoga No. 105882, 2018-Ohio-747, 106 N.E.3d 934, ¶ 33. Based on the record before us,
c. Compulsory Counterclaim
{¶ 29} We now turn to the main issue in this appeal, raised under the second assignment of error: whether Tenant was required to bring any compulsory counterclaims against Landlord when Landlord filed the forcible entry and detainer and breach of contract action in the Rocky River Municipal Court.
{¶ 30}
A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party‘s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.
{¶ 31} Under
{¶ 32} Forcible entry and detainer actions are governed by
{¶ 33} Given the case law authority,
{¶ 34} We apply a two-part test for determining whether there is a compulsory counterclaim: (1) whether the claim existed at the time of serving the pleading, and (2) whether the claim arose out of the transaction or occurrence that is the subject matter of the opposing claim. Adams at ¶ 23, citing Rettig, 68 Ohio St.3d 274, 626 N.E.2d 99. The Rettig court also set forth a “logical relation” test for determining whether claims “arise out of the same transaction or occurrence.” Under the “logical relation” test, “‘a compulsory counterclaim is one which is logically related to the opposing party‘s claim where separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts.‘” Adams at ¶ 25, quoting Rettig. “‘[M]ultiple claims are compulsory counterclaims where they involve many of the same factual issues, or the same factual and legal issues, or where they are offshoots of the same basic controversy between the parties.‘” Id., quoting Rettig. The purpose behind the rule
{¶ 35} Regarding the first question, Tenant‘s claims relating to the alleged breach of contract by Landlord existed by November 2017, when Landlord filed the forcible entry and detainer action in the municipal court, and the alleged fraudulent inducement occurred when the parties entered into the lease agreement in July 2016.
{¶ 36} Regarding the second question, all of Tenant‘s claims arose from the parties’ lease agreement concerning the premises located at 24101 Lorain Road; as such, they were “logically related” to Landlord‘s claim in the municipal court case, which related to the same lease agreement governing the same premises. Forney, 158 Ohio App.3d 338, 2004-Ohio-4444, 815 N.E.2d 722, at ¶ 19 (each of tenant‘s causes of action arose from the landlord-tenant relationship over the subject premises and therefore logically related to the landlord‘s claims in the landlord‘s prior forcible entry and detainer action). See also McAlpine v. Patrick, 8th Dist. Cuyahoga No. 86453, 2006-Ohio-1101, ¶ 16.
{¶ 37} Because Tenant‘s claims existed at the time Landlord filed the forcible entry and detainer action in the municipal court and “arose out of the same transaction,” the claims were compulsory counterclaims and must be raised in the prior detainer action under
{¶ 38} Tenant argues Haney, 130 Ohio App.3d 293, 720 N.E.2d 101, and its progeny does not apply here because the damages count in the municipal court case was ultimately dismissed by Landlord and Tenant had “neither the duty nor the opportunity” to file the counterclaims. This claim is without merit. First, regarding Tenant‘s assertion that it could not file the counterclaims in the municipal court case because the 2017 common pleas court case it filed against Landlord was still pending at the time, our review of the record reflects the common pleas court dismissed the 2017 case on December 13, 2017, and Tenant had until December 29, 2017, to file an answer (and any counterclaims) in the municipal court action.
d. Authentication of Pleadings and Court Entries
{¶ 40} Under the second assignment of error, Tenant also claims the trial court cannot consider the pleadings and court entries in the Rocky River Municipal Court case because these documents have not been properly authenticated by a records custodian.
{¶ 41} In the motion to dismiss filed by Landlord in the instant case, Landlord attached several exhibits relating to the municipal court case: (1) a copy of Landlord‘s “Complaint for Eviction and Breach of Contract“; (2) a copy of the
{¶ 42}
{¶ 43}
(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any law of a jurisdiction, state or federal, or rule prescribed by the Supreme Court of Ohio.
“[C]ertified municipal court documents that are self-authenticating under Evidence Rule 902(4) are admissible under
{¶ 44} The Rules of Evidence do not prohibit the admission of the court documents without an affidavit from the records custodian.
(8) Public records and reports. Records reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, offered by defendant, unless the sources of information or other circumstances indicate lack of trustworthiness.
(Emphasis added.) The proponent of the public record which is not self-authenticating is required to present some extrinsic evidence demonstrating the public record is what it purported to be. State v. Morrow, 138 Ohio App.3d 38, 42, 740 N.E.2d 314 (2d Dist.2000). However, “[t]he foundational conditions for evidence introduced pursuant to
{¶ 45} Here, we find Landlord presented sufficient evidence to support a finding that the court documents were what they purported to be. Attorney Potter, who was also Landlord‘s trial counsel in the municipal court case, stated in the affidavit that the affidavit was made upon personal knowledge and the four exhibits were true copies of pleadings and orders filed or issued in the Rocky River M.C. No. CV 17 886685. As such, Landlord sufficiently established the authenticity of the documents in the municipal court case. The second assignment of error lacks merit.
{¶ 46} Judgment affirmed.
It is ordered that appellees recover of appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
MICHELLE J. SHEEHAN, JUDGE
PATRICIA ANN BLACKMON, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR