Davie v. First Baptist Church of Greater Cleveland

2016 Ohio 7713

• Court: Ohio Court of Appeals
• Decided: November 10, 2016
• Docket: 104004
• Status: Published

Opinion

[Cite as Davie v. First Baptist Church of Greater Cleveland, 2016-Ohio-7713.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104004

ERICA DAVIE

PLAINTIFF-APPELLANT

vs.

FIRST BAPTIST CHURCH OF GREATER CLEVELAND, ET AL. DEFENDANTS-APPELLEES

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-833834

BEFORE: S. Gallagher, J., E.A. Gallagher, P.J., and Boyle, J.

RELEASED AND JOURNALIZED: November 10, 2016 FOR APPELLANT

Erica Davie, pro se 3367 Milverton Road Shaker Heights, Ohio 44120

ATTORNEY FOR APPELLEES

Dennis R. Fogarty Davis & Young 1300 East 9th Street, Suite 1950 Cleveland, Ohio 44114 SEAN C. GALLAGHER, J.:

{¶1} Erica Davie appeals the denial of a motion for relief from judgment and the

granting of summary judgment in favor of First Baptist Church of Greater Cleveland,

Jane Pernicone, and Jeff Gordon (collectively “the Church”). Finding no merit to any of

the arguments raised, we affirm.

{¶2} Davie enrolled her children in the Church’s day-care program. Davie was

not a member of the congregation, which enjoyed a 10 percent discount on tuition.

Davie, however, did not pay full tuition. She received assistance from Cuyahoga

County, and as part of that, Davie only paid a nominal fee to the Church. The county

paid the rest. The county required Davie to periodically update her financial status in

order to retain benefits. Further, the Church has a strict policy on failure to pay — any

account two weeks past due will result in a restriction placed on the account, precluding

attendance the following week, all of which can occur without notice.

{¶3} Davie failed to keep her assistance status up to date. The county sent notice

that her benefits were being discontinued. Davie nonetheless continued her children’s

enrollment in the day care. Ultimately, Davie’s account with the Church became

approximately $1,800 overdue, and the Church precluded the children from attending the

program effective the following week. The debt was never satisfied, and the Church wrote it off as uncollectible. In addition, Davie never attempted to rectify the issue with

the county or seek to have the children re-enrolled in the program.

{¶4} Instead, Davie sued the Church, claiming the exclusion of her children was

racially or religiously motivated. The Church filed a motion for summary judgment,

setting out the above undisputed facts based on (1) excerpts from Davie’s and her

husband’s depositions; (2) an affidavit executed by Pernicone authenticating (a) a copy of

the parent handbook, which provides the Church’s termination for nonpayment policy, (b)

an invoice demonstrating the amount owed by Davie for services rendered for each of

Davie’s children, and (c) the letter notifying Davie that her account was two weeks past

due and her children were not able to continue their attendance; and (3) an affidavit from

Gordon generally denying Davie’s allegations. Davie objected to the evidence attached

to the motion, complaining that the deposition excerpts and documents attached to the

affidavit were not permitted under Civ.R. 56(C). The Church, in response to Davie’s

motion to strike, filed the complete deposition transcripts for the trial court’s

consideration under Civ.R. 32(A).

{¶5} Davie belatedly filed a brief in opposition to summary judgment,

accompanied with a request for leave, attaching many of the same documents that the

Church attached to its motion for summary judgment. The trial court denied the request

as moot upon granting summary judgment in favor of the Church. Davie immediately

filed a motion for relief from judgment, in which she also included a proposed brief in

opposition to the motion for summary judgment. Davie’s attorney notified the trial court that the original response deadline was missed because of a family emergency, and the

attorney was granted leave to withdraw. In the abundance of caution, in resolving the

motion for relief from judgment, the trial court considered Davie’s brief in opposition and

held that Davie failed to demonstrate any basis to support her claims against the Church

as required under Civ.R 60(B). The motion for relief from judgment was then denied.

{¶6} In this appeal, Davie claims that the trial court improperly considered

evidence outside the scope of Civ.R. 56(C) and, in the alternative, erred in denying her

request for relief from final judgment. We find no merit to either claim.

{¶7} In considering a motion for summary judgment, a trial court may consider

“the relevant portions” of the pleadings, depositions, answers to discovery, affidavits,

transcripts, and stipulations of fact. Civ.R. 56(C). Further, any document authenticated

in a properly framed affidavit may also be considered. Rhodes v. Sinclair, 7th Dist.

Mahoning No. 08-MA-23, 2012-Ohio-5848, ¶ 50, citing Biskupich v. Westbay Manor

Nursing Home, 33 Ohio App.3d 220, 222, 515 N.E.2d 632 (8th Dist.1986). The relevant

documents and deposition excerpts attached to the Church’s motion for summary

judgment complied with Civ.R. 56(C). The only documents arguably outside the scope

of the rule were those authenticated by affidavit, a permissible practice. Rhodes. In

addition, all the documents attached to Pernicone’s affidavit were also introduced as

evidence in, and attached to, Davie’s depositions. The evidentiary material was properly

considered by the trial court for summary judgment purposes. {¶8} In response, Davie claims that the depositions were not properly

authenticated, that neither she nor her husband had seen the depositions or waived their

right to reading the transcript, that the depositions filed with the court had not been served

under Civ.R. 5, and that portions of the depositions were omitted. Her claims are

without merit because according to the record, (1) the filed transcripts were complete; (2)

the transcripts included the court reporter’s notarization and Davie’s and her husband’s

express waivers of the right to the reading under Civ.R. 30(E); and (3) the notices of

filing the deposition transcripts included the required certificate of service under Civ.R.

5(B)(3).

{¶9} Finally, in challenging the denial of her motion for relief from judgment,

Davie focuses solely on an explanation for the belated response to the motion for

summary judgment. In order to prevail on a motion for relief from judgment pursuant to

Civ.R. 60(B), however, the movant must also demonstrate a meritorious defense or claim

if relief is granted. GTE Automatic Elec., Inc. v. ARC Industries, 47 Ohio St.2d 146,

150-151, 351 N.E.2d 113 (1976). Simply demonstrating excusable neglect is not

sufficient. Even if we determined that her belated response was a product of excusable

neglect, Davie has not provided us any basis to conclude that the trial court erred in

determining that she failed to present a meritorious claim for relief on the allegations in

her complaint. App.R. 16(A)(7); Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20,

520 N.E.2d 564 (1988). We, therefore, cannot conclude that the trial court abused its discretion in denying Davie’s motion based on the arguments advanced in the current

appeal.

{¶10} Having overruled both assigned errors as presented, we affirm.

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, P.J., and MARY J. BOYLE, J., CONCUR