[Cite as Budz v. Somerfield, 2023-Ohio-155.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
GAIL BUDZ et al. : : Appellees : C.A. No. 29550 : v. : Trial Court Case No. 2021 CV 03126 : ROBERT SOMERFIELD ESTATE OF : (Civil Appeal from Common Pleas et al. : Court) : Appellants :
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OPINION
Rendered on January 20, 2023
ANDREW J. ZIEGLER, Attorney for Appellees
LEE C. FALKE, Attorney for Appellants
.............
EPLEY, J.
{¶ 1} The estate of Robert Somerfield and Stephen F. Somerfield (“Somerfield”),
its fiduciary, appeal from the trial court’s denial of their motion for summary judgment and
its grant of Renee Budz and Gail Budz’s motion for summary judgment. For the following -2-
reasons, the trial court’s judgment will be affirmed.
I. Facts and Procedural History
{¶ 2} The following facts are derived from Renee and Gail’s evidence in support of
their motion for summary judgment and the publicly-available online dockets of related
court proceedings. See, e.g., Huber Hts. Veterans Club, Inc. v. Grande Voiture d'Ohio
La Societe des 40 Hommes et 8 Chevaux, 2d Dist. Montgomery No. 29078, 2021-Ohio-
2695, ¶ 33 (courts may take judicial notice of judicial opinions and public records that are
accessible via the internet). Somerfield and the estate did not provide evidentiary
materials in support of their motion for summary judgment.
{¶ 3} Renee Budz is the niece of Robert Somerfield, who is now deceased. We
infer that Gail is Renee’s mother/Robert’s sister.
{¶ 4} According to Renee’s affidavit (Pls’ Ex. C), Renee relocated from Chicago to
Dayton in early 2013. While looking for a home to purchase, she found a property
located at 4901 Shiloh View Drive. Renee, however, was unable to obtain financing, and
accordingly, her uncle, Robert, purchased the property. As part of this arrangement,
Robert wanted Renee to give him “spending money” every month and, in exchange,
Robert would give Renee the house upon his death. In reliance on these
representations, Renee paid a significant amount of money out of her own funds to
improve the property, as the property was uninhabitable when it was purchased. Pls’
Ex. B, C.
{¶ 5} Renee moved into the property in July 2013 and began paying Robert
approximately $650 per month in cash. Renee also paid all real estate taxes, -3-
homeowner’s insurance, and necessary repairs. The parties agree that, in July 2015,
Robert asked Renee to sign a written residential lease agreement, which she did.
{¶ 6} Robert died on January 2, 2018. Renee stated that, upon his passing, she
learned that Robert had a trust in Illinois; the trustee told her that she was not going to
receive the property. Because Robert resided in Illinois but had property in Ohio, an
estate was opened in Montgomery County, Ohio as an ancillary administration.
Somerfield was appointed the fiduciary of Robert’s ancillary estate on July 27, 2018. See
In re Estate of Robert Somerfield, Montgomery P.C. No. 2018-EST-01440. In October
2018, Somerfield filed an inventory which identified only the Shiloh View property.
Renee filed an exception to the inventory, claiming that the property should not be
included as an asset of the estate and seeking a constructive trust. Pls’ Ex. A. Soon
thereafter, in November 2018, the estate filed a forcible entry and detainer action against
Renee and Gail in Vandalia Municipal Court. Somerfield v. Budz, Vandalia M.C. No.
CVG1801938.
{¶ 7} The probate court held a hearing on the exceptions in December 2018, and
the parties reached an agreement that Renee would apply for a mortgage to purchase
the real estate. Renee never obtained financing. On May 23, 2019, the estate obtained
a writ of restitution in the eviction action, but Gail and Renee remained at the property
pending appeal.
{¶ 8} Four days after the estate received the writ of restitution, a tornado struck the
property, causing significant damage. The damage included broken windows, fallen
trees, roof damage, and complete destruction of the rear porch. Pls’ Ex. C. Renee -4-
made numerous phone calls to Somerfield regarding the damage caused by the tornado,
but Somerfield did not return any of her calls. Renee states that, “[b]ecause the property
was uninhabitable and the Executor of the Estate refused [to] respond or to take any
action, out of necessity, I was forced to expended [sic] $31,000.00 of my own funds to
protect the property from further damage and cause the property to be habitable. This
included $5,000.00 to repair the porch and $26,000.00 for tree removal.” Renee
reportedly obtained cash to pay for those repairs by selling gold that she had purchased
over the years as an investment.
{¶ 9} In October 2019, the estate filed an action against Renee and Gail in
common pleas court, seeking unpaid rent. Somerfield v. Budz, Montgomery C.P. No.
2019 CV 4807. In response, Renee and Gail raised as an affirmative defense:
“Defendants have made significant repairs and improvements to the property, thus
unjustly enriching Plaintiff, any such demand must be reduced by the amount that
Plaintiffs have been unjustly enriched.” Somerfield v. Budz, Montgomery C.P. No. 2019
CV 4807 (Answer, Jan. 9, 2020).
{¶ 10} In late November 2019, we affirmed the municipal court’s judgment in the
eviction action. Somerfield v. Budz, 2d Dist. Montgomery No. 28437, 2019-Ohio-4804.
Gail and Renee were removed from the Shiloh View property on January 22, 2020. See
Somerfield v. Budz, Vandalia M.C. No. CVG1801938 (docket).
{¶ 11} Two days later, on January 24, 2020, Renee and Gail filed monetary claims
related to the Shiloh View property in the probate case. The first claim sought $25,000
for personal injuries and $25,000 for personal property damage due to the estate’s -5-
negligence following the 2019 tornado. Pls’ Ex. D. The second claim sought
$58,145.00 for reimbursement of repairs Renee had made to the real property. Pls’ Ex.
E. Both documents were signed by Renee and notarized. On March 13, 2020,
Somerfield rejected the claim for personal injuries and personal property damage (Pls’
Ex. F), and he asked for a 30-day extension of time to respond to the pending claim (Pls’
Ex. G). Somerfield never filed a document specifically accepting or rejecting the
reimbursement claim.
{¶ 12} In August 2020, the parties reached an agreement in the common pleas
court action. They agreed to a judgment of $16,350 in favor of the estate on its claim for
unpaid rent, that the parties would work together to get those funds released from the
municipal court clerk’s office and paid to the estate, and that the fiduciary would file a
notice of satisfaction of judgment when the funds were paid. They further agreed that
“Defendants may pursue a separate action against the estate for alleged personal injuries
suffered as a result of their occupancy in the unit.” Somerfield v. Budz, Montgomery C.P.
No. 2019 CV 4807 (Agreed Dismissal Entry, Aug. 20, 2020). The entry did not address
the pending claim in probate court for reimbursement of repair expenses.
{¶ 13} A final account was filed in the probate court in November 2020. Pls’ Ex.
H. The final account reflects that the Shiloh View property had been sold. Renee again
objected to the account, noting that her claim for $58,145 had not yet been rejected. Pls’
Ex. I. On November 16, 2020, Somerfield opposed the exception. He noted that Renee
and Gail had raised in the common pleas court action the affirmative defense that they
had made significant repairs and improvements to the property. He further indicated that -6-
Gail and Renee had failed to notify him about the need for repairs after the tornado and
any repairs made to the property were unauthorized. In addition, Somerfield argued that
the Rejection of Claim filed on March 13, 2020, addressed the entirety of Gail and Renee’s
claims, and they had failed to file a timely suit under R.C. 2117.12. Next, Somerfield
asserted that the claim arose out of the same transaction or occurrence as was the
subject of the civil proceeding, and the claim was barred by the doctrine of res judicata.
Somerfield also asserted that, pursuant to R.C. 2117.11, his silence in not allowing the
claim constituted a rejection. Finally, he stated, “in response to Claimants’ Exception to
the Final Account, the Fiduciary has now specifically rejected the portion of Claimants’
filing referred to in their Exception.”
{¶ 14} A magistrate scheduled a hearing on the final account and exceptions. At
the hearing, Renee reportedly was given additional time to file a reply to Somerfield’s
opposition memorandum. Renee did not file a reply memorandum. Somerfield moved
for approval of final account and dismissal of the exception. On June 1, 2021, the
probate court approved the final account filed by the estate. Pls’ Ex. J. The probate
court’s entry did not address the exception.
{¶ 15} On August 2, 2021, Gail and Renee filed the instant suit against the estate
and Somerfield, seeking to recover $58,145 that she failed to receive as part of the final
account. The answer denied that Renee and Gail were entitled to payment on their claim
and sought $5,000 from Renee and Gail as damages for frivolous conduct. The estate
and Somerfield also raised as affirmative defenses that the claims were barred by the
doctrine of res judicata and were not timely filed under R.C. 2117.11. -7-
{¶ 16} The estate and Somerfield attached numerous exhibits to their answer: (1)
Renee’s Nov. 12, 2018 exception to inventory; (2) the March 10, 2020 probate court order
noting that Renee was unable to obtain a mortgage to purchase the real estate; (3)
Renee’s exception to final account; (4) Somerfield’s May 6, 2021 motion to approve final
account and dismiss exception; (5) the probate court’s June 1, 2021 entry approving and
settling account; (6) the complaint for back rent in common pleas court; (7) a copy of the
lease agreement; (8) Gail and Renee’s answer to the complaint for back rent; (9) the
agreed dismissal entry in the common pleas court case; and (10) a printout of the docket
sheet for the probate case.
{¶ 17} On April 28, 2022, the parties filed cross-motions for summary judgment.
In their motion, the estate and Somerfield couched Gail and Renee’s action as an
improperly-filed appeal from the probate court’s final judgment approving the final
account. They asked for summary judgment in the amount of $5,000 on their
counterclaim. No exhibits were attached to the motion.
{¶ 18} Renee and Gail’s motion for summary judgment asserted that their claim
was properly filed under R.C. 2117.12, which authorizes an action on a rejected claim
within two months after the rejection. They contended that the probate court’s approval
of the final account was a de facto rejection of their claim. As to the merits of the claim
itself, they argued that the estate had been unjustly enriched in two instances: (1) when
Renee spent $27,145 to make the residence habitable, with Robert’s knowledge and
consent, and (2) when she made repairs of approximately $31,000 after the May 2019
tornado. They supported their arguments with ten exhibits, including an affidavit by -8-
Renee, an itemized list of payments made to Robert, receipts from repairs performed in
2013, 2016, and 2018, copies of the notarized claims against the estate, the rejection of
claim, the request for extension to respond to the pending claim, the final account,
Renee’s exception to the final account, and the probate court’s approval of the final
account.
{¶ 19} No party filed a memorandum in opposition to the others’ motion for
summary judgment.
{¶ 20} On July 14, 2022, the trial court granted Gail’s and Renee’s motion for
summary judgment and denied the estate and Somerfield’s motion for summary
judgment. The court first reasoned that Gail and Renee properly filed their claim under
R.C. 2117.12 in the court of common pleas; it rejected the assertion that this matter should
have been brought as an appeal. Upon review of Gail and Renee’s claims, the court
concluded that they had paid $28,170 for repairs, as substantiated by the documents and
receipts attached to their motion for summary judgment. The court noted that the estate
and Somerfield did not refute those amounts or demonstrate a genuine issue of material
fact as to those claims. The trial court further stated: “However, although Plaintiffs assert
that the[y] paid an additional $31,000.00 for porch repair and tree removal, there does not
appear to be any evidence in support of this contention, other than Plaintiffs’ statement in
an affidavit. Therefore, the Court finds that Plaintiffs are entitled to judgment as a matter
of law, and damages in the amount of $28,170.00.”
{¶ 21} The estate and Somerfield appeal from the trial court’s judgment. Renee
and Gail have not filed a cross-appeal. -9-
II. Review of Summary Judgment Ruling
{¶ 22} In their sole assignment of error, the estate and Somerfield claim that the
trial court erred in denying their motion for summary judgment and granting Renee and
Gail’s motion for summary judgment. First, they argue that Renee and Gail’s claim was
the subject of the prior civil action in common pleas court and, therefore, was barred by
the doctrine of res judicata. As part of that argument, Somerfield and the estate assert
that Renee and Gail had the burden to address affirmative defenses in their motion for
summary judgment. Second, Somerfield and the estate contend that the claims for
reimbursement were barred by the statute of limitations in R.C. 2117.12. We note that
res judicata and statute of limitations are affirmative defenses under Civ.R. 8(C).
{¶ 23} In response, Gail and Renee assert that Somerfield and the estate have
waived their affirmative defenses by not raising them at the summary judgment phase.
They argue that Somerfield and the estate should not be given a second chance on
appeal to raise issues that first should have been raised in the trial court. Gail and Renee
emphasize that, pursuant to Todd Dev. Co., Inc. v. Morgan, 116 Ohio St.3d 461, 2008-
Ohio-87, 880 N.E.2d 88, a plaintiff moving for summary judgment does not bear the initial
burden of addressing the nonmoving party’s affirmative defenses. We agree with Renee
and Gail.
{¶ 24} Pursuant to Civ.R. 56(C), summary judgment is proper when (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) reasonable minds, after construing the evidence most strongly in
favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor -10-
Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving
party carries the initial burden of affirmatively demonstrating that no genuine issue of
material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526
N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials
of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary
judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). The
substantive law of the claim or claims being litigated determines whether a fact is
“material.” Perrin v. Cincinnati Ins. Co., 2020-Ohio-1405, 153 N.E.3d 832, ¶ 29 (2d
Dist.).
{¶ 25} Once the moving party satisfies its burden, the nonmoving party may not
rest upon the mere allegations or denials of the party’s pleadings. Dresher at 293; Civ.R.
56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits
or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is
a genuine issue of material fact for trial. Dresher at 293. Throughout, the evidence
must be construed in favor of the nonmoving party. Id.
{¶ 26} We review the trial court’s ruling on a motion for summary judgment de
novo. Schroeder v. Henness, 2d Dist. Miami No. 2012-CA-18, 2013-Ohio-2767, ¶ 42.
De novo review means that this court uses the same standard that the trial court should
have used, and we examine all the Civ.R. 56 evidence, without deference to the trial court,
to determine whether, as a matter of law, no genuine issues exist for trial. Ward v. Bond,
2d Dist. Champaign No. 2015-CA-2, 2015-Ohio-4297, ¶ 8.
{¶ 27} Somerfield and the estate argue that Renee and Gail did not meet their -11-
initial summary judgment burden because they did not address the affirmative defenses.
Somerfield and the estate rely on ABN AMRO Mtge. Group v. Meyers, 159 Ohio App.3d
608, 2005-Ohio-602, 824 N.E.2d 1041 (2d Dist.), in which we held: “[I]n order to
demonstrate the absence of any genuine issue of material fact for trial (and thereby to
obtain a complete summary judgment), [the plaintiff-moving party] bore the initial burden
to address the [defendant-nonmoving party’s] affirmative defenses in its motion for
summary judgment.” Id. at ¶ 8; see ABN Amro Mtge. Group, Inc. v. Arnold, 2d Dist.
Montgomery No. 20530, 2005-Ohio-925, ¶ 16.
{¶ 28} However, the Ohio Supreme Court has since held that “[a] plaintiff or
counterclaimant moving for summary judgment does not bear the initial burden of
addressing the nonmoving party’s affirmative defenses.” Todd Dev., 116 Ohio St.3d
461, 2008-Ohio-87, 880 N.E.2d 88, syllabus. The Court explained, in part:
[T]here is no requirement in the Civil Rules that a moving party must negate
the nonmoving party’s every possible defense to its motion for summary
judgment. To the contrary, Civ.R. 56(E) states that a party opposing
summary judgment may not rest upon its pleadings, but must set forth
specific facts showing that there is a genuine issue for trial. If a moving
party meets the standard for summary judgment required by Civ.R. 56, and
a nonmoving party fails to respond with evidence of a genuine issue of
material fact, a court does not err in granting summary judgment in favor of
the moving party.
Id. at ¶ 14. Consequently, our holding in ABN AMRO is no longer good law. See Credit -12-
Invests., Inc. v. Obanion, 2d Dist. Montgomery No. 26129, 2014-Ohio-5799, ¶ 19
(recognizing that the supreme court “explicitly rejected the rationale this court applied in
ABN AMRO”). Somerfield’s and the estate’s argument regarding Renee and Gail’s initial
burden fails on the authority of Todd, which is dispositive.
{¶ 29} Renee and Gail argue that we should not address Somerfield and the
estate’s appellate arguments, because they were not raised before the trial court. In
essence, the estate and Somerfield claim on appeal that their affirmative defenses (res
judicata and statute of limitations) have merit and judgment should have been entered in
their favor.
{¶ 30} It is well settled that arguments raised for the first time on appeal will not be
considered by an appellate court. Powell v. Cleveland, 8th Dist. Cuyahoga No. 111338,
2022-Ohio-4286, ¶ 53. This rule applies when reviewing decisions on motions for
summary judgment. Id.; Whitson v. One Stop Rental Tool & Party, 2017-Ohio-418, 84
N.E.3d 84, ¶ 17 (12th Dist.). “[A]lthough we review summary judgment decisions de
novo, ‘the parties are not given a second chance to raise arguments that they should
have raised below.’ ” Hamper v. Suburban Umpires Assn., Inc., 8th Dist. Cuyahoga No.
92505, 2009-Ohio-5376, ¶ 27, quoting Perlmutter v. People’s Jewelry Co., 6th Dist. Lucas
No. L-04-1271, 2005-Ohio-5031, ¶ 29. We have held that “[a]ny error committed by the
trial court in granting summary judgment is waived if the non-moving party fails to file a
brief or evidence in opposition or fails to challenge the movant’s evidence.” USA Freight,
L.L.C. v. CBS Outdoor Group, Inc., 2d Dist. Montgomery No. 26425, 2015-Ohio-1474,
¶ 21. -13-
{¶ 31} Similarly, if the nonmoving party fails to raise an issue when responding to
the moving party’s motion for summary judgment, the nonmoving party has waived that
issue on appeal. E.g., Great Lakes Window, Inc. v. Resash, Inc., 11th Dist. Trumbull No.
2006-T-0114, 2007-Ohio-5378, ¶ 24; Sovereign Bank, N.A. v. Singh, 9th Dist. Summit
No. 27178, 2015-Ohio-3865, ¶ 11 (“When the non-moving party fails to raise an argument
when responding to the motion for summary judgment, the party forfeits the right to raise
that argument on appeal.”); Whitson at ¶ 17 (party appealing a summary judgment ruling
cannot advance new theories or raise new issues to secure reversal); Hanick v. Ferrara,
2020-Ohio-5019, 161 N.E.3d 1, ¶ 115 (7th Dist.) (“The appellate court need not rule on a
new legal argument which was waived by failing to raise it with the trial court when
responding to a summary judgment motion.”); Tchankpa v. Ascena Retail Group, Inc.,
10th Dist. Franklin No. 19AP-760, 2020-Ohio-3291, ¶ 20 (“The failure to raise an
argument in response to a motion for summary judgment waives the argument for
purposes of appellate appeal.”); Bank of Am., N.A. v. Thompson, 2d Dist. Montgomery
No. 26316, 2015-Ohio-456, ¶ 19 (“In a foreclosure action, a homeowner’s grounds for
challenging a summary judgment decision not raised in the trial court are waived, and
may not be raised for the first time on appeal.”).
{¶ 32} This court has recognized limited circumstances where the rule is not strictly
applied. For example, we permitted a party to raise a new issue on appeal in the
“exceptional circumstance” where there was an intervening change in the law by a higher
authority. Davis v. Buckeye State Mut. Ins. Co., 2d Dist. Miami No. 2002-CA-48, 2004-
Ohio-5795, ¶ 18-20 (Galatis constituted a significant change in the law, permitting a legal -14-
argument to be made on appeal that was not made in the trial court). We have also
stated that, if the nonmoving party raises “the basic question at issue” when opposing
summary judgment in the trial court, “the mere fact that the specific argument being made
in the appellate court was not made in the trial court does not preclude consideration of
the issue,” provided the opposing party is not unfairly surprised. Marcum v. Newbauer,
2d Dist. Montgomery No. 10630, 1988 WL 35313, *1 (Mar 17, 1988). Neither of these
circumstances exists here.
{¶ 33} In this case, Somerfield’s and the estate’s motion for summary judgment
asserted that “this case” was originally filed in the probate court and was “improperly
appealed and filed” in the common pleas court. They wrote: “To be an effective appeal
of a decision of the [probate court], the appeal must be filed in the Ohio Second District
Court of Appeals for Montgomery County, Ohio pursuant to Ohio Revised Code,
§2101.42.” Somerfield and the estate did not seek summary judgment on Renee and
Gail’s claim on the ground that the claim was barred by res judicata, nor did they challenge
the timeliness of the action based on the statute of limitations in R.C. 2117.12. They also
did not file a memorandum in opposition to Renee and Gail’s motion for summary
judgment. In short, Somerfield and the estate failed to seek summary judgment on their
affirmative defenses, and Renee and Gail’s summary judgment motion went
unchallenged in the trial court. Somerfield and the estate cannot raise their defenses
now, for the first time, on appeal.
{¶ 34} Somerfield’s and the estate’s assignment of error is overruled.
III. Conclusion -15-
{¶ 35} The trial court’s judgment will be affirmed.
TUCKER, J. and LEWIS, J., concur.