Congress Lake Co. v. Green

2019 Ohio 3487

• Court: Ohio Court of Appeals
• Decided: August 26, 2019
• Docket: 2019CA00002
• Status: Published

Opinion

[Cite as Congress Lake Co. v. Green, 2019-Ohio-3487.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

CONGRESS LAKE COMPANY : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 2019CA00002 : ROBERT L. GREEN : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Canton Municipal Court, Case No. 2018-CVF-2826

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: August 26, 2019

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

WILLIAM W. EMLEY, SR. ROBERT L. GREEN, PRO SE P.O. Box 35548 4427 Dalbury Ave. NE Canton, OH 44735-5548 Canton, OH 44714 Stark County, Case No. 2019CA00002 2

Delaney, J.

{¶1} Defendant-Appellant Robert L. Green appeals the December 19, 2018

judgment entry of the Canton Municipal Court.

FACTS AND PROCEDURAL HISTORY

{¶2} On May 9, 2018, Plaintiff-Appellee Congress Lake Company filed a

complaint on account in the Canton Municipal Court. It alleged Defendant-Appellant

Robert L. Green was a member of the Congress Lake Country Club and the attached

billing statement showed Green’s membership account was due and owing in the amount

of $3,714.89 as of March 25, 2018.

{¶3} Green filed a pro se answer on August 6, 2018, stating he disputed the

amount owed.

{¶4} On October 23, 2018, Congress Lake Company filed a motion for summary

judgment arguing there was no genuine issue of material fact that there was “due and

owing from the Defendant, Robert L. Green, to the Plaintiff the sum of of [sic] $3,714.89

plus costs and interest at the rate of 18% per annum from March 25, 2018.” In support of

its motion for summary judgment, Congress Lake Company attached the affidavit of Paul

Showalter, the General Manager of Congress Lake Company. Showalter averred he was

in possession of the business records of the company which established Green owed

$3,714.89 on his account.

{¶5} Green responded to the motion for summary judgment on November 28,

2018. In his response, he first argued there was a genuine issue of material fact as to the

amount owed. He attached a copy of an email, purportedly sent by Paul Showalter to

Green on January 19, 2018. In the email, Showalter asked to know Green’s account Stark County, Case No. 2019CA00002 3

status because the board of the Congress Lake Company needed payment with a “demit”

request, or the board would expel Green and turn the account over to collection. Green

also attached a billing statement from Congress Lake Company dated December 25,

2017, which showed Green owed $1,891.66. Green stated in his response that he

contacted Congress Lake Company and canceled his membership prior to the December

2017 billing.

{¶6} Congress Lake Company filed a motion for additional time to supplement

its motion for summary judgment on December 12, 2018. It argued Green had never

served Congress Lake Company with his pleadings.

{¶7} On December 19, 2018, the trial court issued its judgment entry denying the

motion to supplement the motion for summary judgment and granting the motion for

summary judgment. In its ruling, the trial court found Congress Lake Company met its

initial burden of proving it was entitled to judgment as a matter of law on the amount due

and owing. Green, the trial court next determined, did not come forward with specific facts

to show that as of March 25, 2018, there was a genuine issue of material fact whether he

owed $3,714.89. The trial court found Green did not submit any evidentiary material

pursuant to Civ.R. 56 that could be properly considered by the court. Even considering

Green’s attachments, the trial court found they did not challenge the facts established by

Congress Lake Company that an account was due and owing.

{¶8} It is from this judgment Green now appeals. Stark County, Case No. 2019CA00002 4

ASSIGNMENTS OF ERROR

{¶9} Green raises two Assignments of Error:

{¶10} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

TO APPELLEE CONGRESS LAKE CLUB.

{¶11} “II. THE TRIAL COURT ERRED BY FAILING TO RECOGNIZE THE

AMBUGUITY AND CONFUSION CREATED BY THE ACTIONS OF SHOWALTER IN

THAT A ‘DEMIT’ OR ‘LEAVE OF ABSENCE’ IS NOT MENTIONED ANYWHERE IN THE

BYLAWS AND RULES OF CONGRESS LAKE CLUB.”

ANALYSIS

{¶12} Green’s two Assignments of Error argue the trial court erred in granting the

motion for summary judgment in favor of Congress Lake Company, so we consider the

arguments together.

{¶13} We refer to Civ.R. 56(C) in reviewing a motion for summary judgment which

provides, in pertinent part:

Summary judgment shall be rendered forthwith if the pleading, depositions,

answers to interrogatories, written admissions, affidavits, transcripts of

evidence in the pending case and written stipulations of fact, if any, timely

filed in the action, show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter of law. * *

* A summary judgment shall not be rendered unless it appears from such

evidence or stipulation and only from the evidence or stipulation, that

reasonable minds can come to but one conclusion and that conclusion is

adverse to the party against whom the motion for summary judgment is Stark County, Case No. 2019CA00002 5

made, such party being entitled to have the evidence or stipulation

construed most strongly in the party's favor.

{¶14} The moving party bears the initial responsibility of informing the trial court

of the basis for the motion, and identifying those portions of the record before the trial

court, which demonstrate the absence of a genuine issue of fact on a material element of

the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264

(1996). The nonmoving party then has a reciprocal burden of specificity and cannot rest

on the allegations or denials in the pleadings, but must set forth “specific facts” by the

means listed in Civ.R. 56(C) showing that a “triable issue of fact” exists. Mitseff v.

Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).

{¶15} Pursuant to the above rule, a trial court may not enter summary judgment if

it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,

674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264

(1996).

{¶16} As an appellate court reviewing summary judgment motions, we must stand

in the shoes of the trial court and review summary judgments on the same standard and

evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506

N.E.2d 212 (1987).

{¶17} We note that at all times during these proceedings, Green appears pro se.

Nevertheless, he is bound by the same rules and procedures as litigants who retain

counsel. Miller v. State, 5th Dist. Richland No. 15CA96, 2016–Ohio–4623, ¶ 27 citing

Meyers v. First National Bank of Cincinnati, 3 Ohio App.3d 209, 210, 444 N.E.2d 412 (1st

Dist.1981). The Ohio Civil Rule of Procedure governing motions for summary judgment Stark County, Case No. 2019CA00002 6

is Civ.R. 56. Under Civ.R. 56(C), the court makes its decision whether to grant summary

judgment “if the pleadings, depositions, answers to interrogatories, written admissions,

affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the

action, show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” If the party wishes to introduce evidence

not specifically authorized by Civ.R. 56(C), the proper method is to incorporate the

evidence by reference into a properly framed affidavit. Wesley v. Walraven, 4th Dist.

Washington No. 12CA18, 2013-Ohio-473, 2013 WL 544053, ¶ 31 citing Martin v. Central

Ohio Transit Auth., 70 Ohio App.3d 83, 89, 590 N.E.2d 411 (10th Dist.1990). Accord

Discover Bank v. Combs, 4th Dist. No. 11CA25, 2012–Ohio–3150, ¶ 17. Civ.R. 56(E)'s

requirement that sworn or certified copies of all papers referred to in the affidavit be

attached is satisfied by attaching the papers to the affidavit with a statement contained in

the affidavit that the copies are true and accurate reproductions. Id. citing State ex rel.

Corrigan v. Seminatore, 66 Ohio St.2d 459, 467, 423 N.E.2d 105 (1981); Discover Bank.

{¶18} Civ.R. 56(C) states, “[n]o evidence or stipulation may be considered except

as stated in this rule.”

{¶19} In this case, Congress Lake Company supported its motion for summary

judgment with an affidavit from Showalter, the General Manager of Congress Lake

Company. The affidavit stated that Showalter was in possession of the business records

of the company relating to the account with Robert L. Green. The records showed Green

owed a sum of $3,714.89 on his account.

{¶20} In his response to the motion for summary judgment and to demonstrate

there was a genuine issue of material fact, Green attached an email from Showalter and Stark County, Case No. 2019CA00002 7

a billing statement from Congress Lake Company. The email and billing statement,

standing alone, are not evidence specially authorized by Civ.R. 56(C); therefore, Green

must incorporate them by reference in a properly framed affidavit pursuant to Civ.R.

56(E). Green did not submit an affidavit incorporating the email and billing statement by

reference with his response to the motion for summary judgment. For that reason, the

trial court found Green did not meet his burden of specificity to set forth “specific facts” by

the means listed in Civ.R. 56(C) to show that a “triable issue of fact” existed. Mitseff v.

Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988). Upon our de novo review

of the motion for summary judgment and response, we likewise find Green did not meet

his reciprocal burden under Civ.R. 56 to establish there was a genuine issue of material

fact for trial.

{¶21} In his appellate brief, Green raises arguments regarding the language of

the Congress Lake Company Bylaws and an affidavit from Showalter about Green’s

resignation from the Congress Lake Country Club. Our appellate review is limited to the

record before us and the record in this case does not contain a copy of the Congress

Lake Company Bylaws or an affidavit from Showalter, other than the affidavit submitted

in support of the Congress Lake Company’s motion for summary judgment. “The duty to

insure that the record on appeal is complete falls upon the appellant.” Heinrichs v. 356

Registry, Inc., 10th Dist. No. 15AP-532, 2016-Ohio-4646, 70 N.E.3d 91, 2016 WL

3522293, ¶ 68 quoting Greff v. Meeks & Co., 10th Dist. No. 96APE05–692, 1997 WL

15134 (Jan. 16, 1997). See also App.R. 9(B)(1). “The duty of submitting the record falls

upon an appellant because it is he who bears the burden of showing error by reference

to matters in the record.” Id. quoting Watley v. Dept. of Rehab. & Corr., 10th Dist. No. Stark County, Case No. 2019CA00002 8

06AP–1128, 2007-Ohio-1841, 2007 WL 1153050, ¶ 16. Thus, when portions of the record

“necessary for resolution of assigned errors are omitted from the record, the reviewing

court has nothing to pass upon and thus, as to those assigned errors, the court has no

choice but to presume the validity of the lower court's proceedings, and affirm.” Knapp v.

Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).

{¶22} Further, Green did not raise these arguments regarding the language of the

bylaws or Showalter’s statements about Green’s resignation to the trial court. A party

cannot assert new arguments for the first time on appeal. Kennedy v. Green, 5th Dist.

Muskingum No. CT2018-0033, 2019-Ohio-854, 2019 WL 1126355, ¶ 35 citing Stores

Realty Co. v. Cleveland, 41 Ohio St. 41, 42, 322 N.E.2d 629 (1975). As a general rule, a

litigant who has the opportunity to raise an issue in the trial court, but declines to do so,

waives the right to raise that issue on appeal. The Strip Delaware, LLC v. Landry's

Restaurants, Inc., 5th Dist. No. 2010CA00316, 2011–Ohio–4075. Since Green failed to

make such argument to the trial court, this Court will not review these issues on appeal.

May v. Westfield Village L.P., 5th Dist. No. 02–COA–051, 2003–Ohio–5023, citing Lippy

v. Society Nat'l Bank, 88 Ohio App.3d 33, 623 N.E.2d 108 (1993).

{¶23} Accordingly, we find the judgment of the Canton Municipal Court to grant

summary judgment in favor of Congress Lake Company was supported by the Civ.R. 56

evidence. Green’s two Assignments of Error are overruled. Stark County, Case No. 2019CA00002 9

CONCLUSION

{¶24} The judgment of the Canton Municipal Court is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Wise, John, J., concur.