Stewart v. StraderStewart v. Strader
Rendered on the 11th day of December, 2009.
J. DOUGLAS STEWART, Atty. Reg. No. 0018518, 7518 Slate Ridge Blvd., Reynoldsburg, Ohio 43068 Attorney for Plaintiff-Appellee
JAMES N. GRIFFIN, Atty. Reg. No. 0015917, 4 West Main Street, Suite 526, Springfield, Ohio 45502 Attorney for Defendants-Appellants
FROELICH, J.
{¶ 1} Dale and Sharon Strader appeal from a judgment of the Clark County Court of Common Pleas, which granted summary judgment to Dale E. Stewart on his claim against the Straders for breach of a residential rental agreement. Stewart was granted judgment in
I
{¶ 2} Stewart’s unrefuted evidence in support of his summary judgment motion establishes the following facts:
{¶ 3} On February 19, 1994, Stewart and the Straders entered into a written residential lease whereby the Straders would rent a farm house located at 6789 Old Route 70 in South Charleston, Ohio, for twelve months, commencing on March 1, 1994. The original rent was $575 per month, due before the first of each month. The lease agreement required the Straders to provide 30 days written notice prior to vacating the premises. The Straders provided a security deposit of one month’s rent ($575). At the conclusion of the one-year lease, the Straders continued to rent the premises on a month-to-month basis.
{¶ 4} In this complaint, Stewart alleged that he provided written notice that the rent would increase to $600 per month beginning on January 1, 1997. Although Strader’s affidavit does not state that the rent increased to $600 on January 1, 1997, the affidavit and rental ledger reflect that the rent was $600 between 2003 and 2007. The Straders allegedly failed to pay the full monthly rent on October 1, 2003, and each month thereafter. The Straders vacated the farm house on January 18, 2007. They did not provide notice of their intent to vacate the premises.
{¶ 5} On May 16, 2007, Stewart brought suit against the Straders, alleging that they owed $21,726.64 for rent through January 2007; Stewart did not attach of copy of the lease to his complaint. He further asserted that they caused “extraordinary” damage to the
{¶ 6} The Straders retained counsel and filed an answer. In their answer, they denied that they owed any rent, that there was ever an increase in the rental fees for the property, and that they had caused any damage to the property beyond ordinary wear and tear.
{¶ 7} On July 23, 2008, the trial court scheduled a bench trial for October 28, 2008. The order further stated: “LEAVE IS GRANTED TO FILE SUMMARY JUDGMENT MOTIONS AT LEAST FORTY-FIVE DAYS PRIOR TO TRIAL DATE.” Thus, motions for summary judgment were required to be filed on or before September 14, 2008.
{¶ 8} On October 6, 2008, Stewart moved for summary judgment against the Straders, seeking damages in the amount of $21,751.64, representing accrued rentals through January 31, 2007, and rent for February 2007. Stewart also sought interest from February 28, 2007, and court costs. At that time, he no longer requested damages for physical damage to the property. Stewart supported his motion with an affidavit, a copy of the rental agreement, and copies of rental ledgers and handwritten receipts.
{¶ 9} Four days later, Stewart filed a motion for leave to file his summary judgment instanter, as filed on October 6, 2008. Stewart included an agreed entry granting the motion for the court to sign. The trial court signed the agreed “Entry Granting Leave to File a
{¶ 10} The Straders did not respond to Stewart’s summary judgment motion. On November 6, 2007, the trial court granted Stewart’s uncontested motion and entered judgment in the amount of $21,751.64, plus interest from February 28, 2007, and costs.
{¶ 11} The Straders appeal from the trial court’s judgment, raising two assignments of error.
II
{¶ 12} The Straders’ first assignment of error states:
{¶ 13} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANTS AND DENIED THEM THEIR DAY IN COURT BY GRANTING A MOTION FOR SUMMARY JUDGMENT OUTSIDE THE RULES OF CIVIL PROCEDURE AND NOT GIVING THE APPELLANTS AN OPPORTUNITY TO RESPOND TO THE MOTION FOR SUMMARY JUDGMENT.”
{¶ 14} In their first assignment of error, the Straders set forth the standard for granting a motion for summary judgment and argue that the requirements of
{¶ 15} In response, Stewart emphasizes that the Straders never responded to the motion for summary judgment and that his motion was properly supported with
{¶ 16}
{¶ 17} In Ohio Valley Radiology Assocs., Inc. v. Ohio Valley Hosp. Ass‘n (1986), 28 Ohio St.3d 118, the Supreme Court of Ohio held that
{¶ 18} “The service of pleadings, written motions, and other papers, then, is a task imposed by the Civil Rules on the attorneys. A court, on the other hand, generally acts and speaks only through its journal by means of orders.
Civ.R. 5(A) does not require the service of orders unless the order is ‘required by its terms to be served.’ ***{¶ 19} “*** Ohio courts have traditionally held that while some form of notice of a trial date is required to satisfy due process, an entry of the date of trial on the court’s docket constitutes reasonable, constructive notice of that fact. ***” Ohio Valley Radiology Assocs., 28 Ohio St.3d at 124.
{¶ 20} We have noted, citing Ohio Valley Radiology Assocs., that “parties are
{¶ 21} The record does not reflect whether the Straders were sent a copy of the court’s entry granting leave to Stewart to file his motion for summary judgment. Indeed, none of the court’s entries and notices indicate if or when those orders were sent to the parties. The Straders’ brief acknowledges that they received notices from the court regarding scheduled pre-trial conferences on June 24, 2008, and July 16, 2008. They claim, however, that they did not receive the July 23, 2008, notice of the scheduled bench trial or the October 14, 2008, entry granting Stewart leave to file his motion for summary judgment instanter.
{¶ 22} Based on the record, we cannot determine whether the trial court sent its entry granting leave to Stewart to file his summary judgment motion out of time to the Straders. Contrast First Natl. Bank of S.W. Ohio v. Doellman, Butler App. No. CA2004-CA06-134, 2005-Ohio-679, at ¶29 (noting that the record suggested that the clerk of court had served the plaintiff’s counsel, but not the defendant, who was pro se and not in default). Even if the record reflected that the court had sent its decision to grant leave to the Straders, we would be unable to determine whether the Straders received the entry. It is clear, however, that the Straders were aware that Stewart’s motion for summary judgment had been filed and that they agreed to the late filing. The court filed its entry granting Stewart leave to file his motion for summary judgment on October 14, 2008, and the entry was journalized on the following day. Thus, the Straders had constructive notice that
{¶ 23} On appeal, the Straders’ counsel has submitted an affidavit stating that “no copy of that order [granting Stewart leave to file the summary judgment motion] was served upon counsel.” He states that there is no certificate of service or any record of service by the clerk of court, and that he “had no notice that the Court granted the motion for leave *** until the motion [for summary judgment] was granted by the trial court.” While such an affidavit and evidence may be appropriate for possible
{¶ 24} In light of the record before us, the first assignment of error is overruled.
III
{¶ 25} The Straders’ second assignment of error states:
{¶ 26} “EVEN IF THE TRIAL COURT DID NOT ERR IN ADDRESSING THE MOTION FOR SUMMARY JUDGMENT, WHICH APPELLANTS STILL ASSERT,
{¶ 27} In their second assignment of error, the Straders claim that the trial court should not have granted summary judgment to Stewart because he failed to support his motion with evidence as required by
{¶ 28}
{¶ 29} Upon a motion for summary judgment, the moving party bears the initial burden of showing that no genuine issue of material fact exists for trial. Harless, supra. The moving party cannot discharge its initial burden simply by making a conclusory assertion that the non-moving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some
{¶ 30} Our review of the trial court’s decision to grant summary judgment is de novo. See Helton v. Scioto Cty. Bd. of Commrs. (1997), 123 Ohio App.3d 158, 162.
{¶ 31} Stewart attached several documents to his motion for summary judgment, including (1) a rental agreement, dated February 19, 1994, between Stewart and Dale Strader; (2) an affidavit by Stewart; (3) Stewart Farms account records; (4) a handwritten note from Dale Strader regarding a check dated January 30, 2004; and (5) four receipts for payments from either Dale Strader or Sharon Strader.
{¶ 32} In his affidavit, Stewart stated under oath that he was the owner of a house that was used as a rental home, that he rented the home to the Straders, and that the rental agreement was attached as Exhibit A. Stewart further stated that he maintained records in the regular course of business, including the rental agreement (Exhibit A) and handwritten receipts and rental ledgers, which were attached. Stewart stated that the Straders “have failed to pay rent for a single-family dwelling (farm house) known as 6789 Old Rt 70, South Charleston, Ohio, and that the dwelling was vacated on or about January 18, 2007; that no advance notice was provided to Plaintiff by the Defendants; that past due rents of
{¶ 33} Stewart’s affidavit and supporting documents satisfy the requirements of
{¶ 34} The second assignment of error is overruled.
IV
{¶ 35} The judgment of the trial court will be affirmed.
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BROGAN, J. and FAIN, J., concur.
J. Douglas Stewart
James N. Griffin
Hon. Douglas M. Rastatter