DeLage Landen Fin. Servs., Inc. v. Evergreen Title Agency, Inc.

2012 Ohio 5726

• Court: Ohio Court of Appeals
• Decided: December 6, 2012
• Docket: 98343
• Status: Published

Opinion

[Cite as DeLage Landen Fin. Servs., Inc. v. Evergreen Title Agency, Inc., 2012-Ohio-5726.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98343

DELAGE LANDEN FINANCIAL SERVICES, INC. PLAINTIFF-APPELLANT

vs.

EVERGREEN TITLE AGENCY, INC. DEFENDANT-APPELLEE

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-759767

BEFORE: Cooney, J., Stewart, P.J., and Keough, J.

RELEASED AND JOURNALIZED: December 6, 2012

ATTORNEY FOR APPELLANT

Jeffrey L. Koberg Ziegler, Metzger LLP 925 Euclid Avenue Suite 2020 Cleveland, OH 44115-1441

ATTORNEY FOR APPELLEE

Michael P. Meehan 3416 West 159th Street Suite 100 Cleveland, OH 44111

COLLEEN CONWAY COONEY, J.:

{¶1} This case came to be heard upon the accelerated calendar

pursuant to App.R. 11.1 and Loc.R. 11.1. Plaintiff-appellant, DeLage Landen

Financial Services, Inc. (“DLL”), appeals the trial court’s granting summary judgment in favor

of defendant-appellee, Evergreen Title Agency, Inc. (“Evergreen”). Finding some merit to

the appeal, we reverse and remand. {¶2} In July 2011, DLL filed suit against Evergreen, alleging a breach of contract

involving the lease of two copy machines. DLL moved for summary judgment in February

2012. In March 2012, after the deadline for all dispositive motions had passed, Evergreen

moved for summary judgment instanter. On April 4, 2012, the trial court denied DLL’s

motion. On April 9, 2012, DLL moved for an extension of time to reply to Evergreen’s

motion for summary judgment, alleging that Evergreen had not properly served DLL. Without

ruling on DLL’s motion for an extension, the trial court granted Evergreen’s motion for

summary judgment on April 10, 2012.

{¶3} DLL now appeals, raising three assignments of error.

Denial of Summary Judgment

{¶4} In the first assignment of error, DLL argues that the trial court erred by denying

its motion for summary judgment.

{¶5} Appellate review of summary judgments is de novo. Grafton v. Ohio Edison

Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). The Ohio Supreme Court stated the

appropriate test in Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201

(1998), as follows:

Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no

genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and

that conclusion is adverse to the nonmoving party, said party being entitled to

have the evidence construed most strongly in his favor. Horton v. Harwick

Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of

the syllabus. The party moving for summary judgment bears the burden of

showing that there is no genuine issue of material fact and that it is entitled to

judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280,

292-293, 662 N.E.2d 264, 273-274.

{¶6} It is well established that the party seeking summary judgment bears the burden

of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett, 477

U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1987). The record on summary judgment

must be viewed in the light most favorable to the opposing party. Williams v. First United

Church of Christ, 37 Ohio St.2d 150, 309 N.E.2d 924 (1974).

{¶7} In moving for summary judgment, 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 which demonstrate the absence of a genuine issue of fact or material

element of the nonmoving party’s claim.” Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107.

A motion for summary judgment forces the plaintiff to produce probative evidence on all essential elements of his case for which he has the burden of production at trial. Celotex, 477

U.S. at 330. Plaintiff’s evidence must be such that a reasonable jury might return a verdict in

his favor. Seredick v. Karnok, 99 Ohio App.3d 502, 651 N.E.2d 44 (8th Dist.1994). See

also Ford Motor Credit Co. v. Walker, 8th Dist. No. 82828, 2003-Ohio-6163.

{¶8} In deciding a motion for summary judgment, Civ.R. 56(C) only allows the trial

court to consider “pleadings, depositions, answers to interrogatories, written admissions,

affidavits, transcripts of evidence in the pending case, and written stipulations of fact.”

Generally, the failure to authenticate a document submitted on summary judgment renders the

document void of evidentiary value. See Citizens Ins. Co. v. Burkes, 56 Ohio App.2d 88,

381 N.E.2d 963 (8th Dist.1978).

{¶9} Civ.R. 56(E) mandates that sworn or certified copies of all papers filed in

support of or in opposition to a motion for summary judgment must be accompanied by an

affidavit swearing that the matters contained within the document were made on the affiant’s

personal knowledge. The affidavit shall also set forth facts that would be admissible, and

shall affirmatively show that the affiant is competent to testify to those matters. Id.

{¶10} In its complaint, DLL argued that Evergreen breached a contract for the lease of

two copy machines. This contract, which was attached to the complaint, was originally

between Evergreen and CCT Financial Corporation (“CCT”), dated June 29, 2005. DLL also attached a “Confirmation of Assignment,” dated May 3, 2011, which states that CCT assigned

the contract to DLL. The actual assignment itself was never submitted, nor was its omission

ever explained. In its motion for summary judgment, DLL attached an affidavit in support of

the confirmation of assignment.

{¶11} Evergreen argued that DLL’s motion for summary judgment should be denied

because DLL had failed to set forth sufficient evidentiary material to prove that it was the

holder of the account by assignment. Evergreen argued that the confirmation of sale was not

made at or near the time of the assignment, nor was the affidavit sworn to by someone who

had personal knowledge of the document.

{¶12} A review of the record indicates that DLL failed to set forth adequate evidence

of the assignment.

In an action on an account, when an assignee is attempting to collect on an

account in filing a complaint, the assignee must “allege and prove the

assignment.” Zwick v. Zwick (1956), 103 Ohio App. 83, 84, 74 Ohio Law

Abs. 183, 134 N.E.2d 733. In other words, in order to prevail, the assignee

must prove that they are the real party in interest for purposes of bringing the

action. An assignee cannot prevail on the claims assigned by another holder without proving the existence of a valid assignment agreement. Natl. Check

Bur., Inc. v. Cody, 8th Dist. No. 84208, 2005-Ohio-283, citing Zwick * * *.

Worldwide Asset Purchasing, L.L.C. v. Sandoval, 5th Dist. No. 2007-CA-00159,

2008-Ohio-6343, ¶ 26.

{¶13} In addition, it is well established that “‘a party’s unsupported and self-serving

assertions, offered by way of affidavit, standing alone and without corroborating materials

under Civ.R. 56, will not be sufficient to demonstrate material issues of fact.’” Davis v.

Cleveland, 8th Dist. No. 83665, 2004-Ohio-6621, ¶ 23, quoting Bell v. Beightler, 10th Dist.

No. 02AP-569, 2003-Ohio-88, at ¶ 33.

{¶14} Therefore, we find that DLL failed to produce probative evidence on all

essential elements of its case when it failed to authenticate the alleged assignment, and in turn,

the trial court did not err in denying DLL’s motion for summary judgment.

{¶15} Accordingly, the first assignment of error is overruled.

Motion for Extension

{¶16} In the second assignment of error, DLL argues that the trial court erred in

granting summary judgment to Evergreen. In the third assignment of error, DLL argues that

the trial court abused its discretion by denying DLL an extension to reply to Evergreen’s motion for summary judgment instanter. We choose to address DLL’s third assignment of

error first.

{¶17} We review the trial court’s rulings on the motion for summary judgment

instanter and on the motion for an extension of time under an abuse-of-discretion standard.

To constitute an abuse of discretion, the ruling must be more than legal error; it must be

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450

N.E.2d 1140 (1983).

{¶18} In this case, the trial court ordered that all dispositive motions be filed by

February 29, 2012. DLL filed a motion for summary judgment on February 16, which was

denied. Evergreen filed a motion for summary judgment instanter on March 5, 2012. The

court accepted Evergreen’s motion despite its untimeliness.

{¶19} On April 9, 2012, DLL filed a motion for an extension of time in which to

respond to Evergreen’s motion for summary judgment, arguing that Evergreen had failed to

properly serve DLL with its motion for summary judgment. On April 10, the trial court

granted Evergreen’s motion for summary judgment, five weeks after it was filed. We can

only speculate regarding the court’s awareness of DLL’s April 9 motion for an extension of

time because it was never separately ruled on. {¶20} DLL argues that the trial court abused its discretion in denying its motion for an

extension, in light of the court’s decision to allow the filing of Evergreen’s motion for

summary judgment instanter after the court’s deadline.

{¶21} First, we find no abuse of the court’s discretion in accepting Evergreen’s motion

for summary judgment instanter. This court has held that a trial court is within its discretion

to consider a pleading that is properly attached to a motion for leave to file instanter. Wilsman

& Schoonover, LLC v. Millstein, 8th Dist. No. 82006, 2003-Ohio-3258; Tomko v. McFaul,

133 Ohio App.3d 742, 729 N.E.2d 832 (8th Dist.1999).

{¶22} Having granted Evergreen extra time, however, the trial court should have done

the same for DLL. DLL’s motion contained a valid reason for seeking an extension — its

allegation that Evergreen had not properly served DLL with its motion for summary judgment.

The court ruled on Evergreen’s motion five weeks after it was filed, barely affording DLL

the necessary time to respond. In an attempt to resolve this case on the merits, we find that

DLL should have been afforded the opportunity to oppose Evergreen’s motion.

{¶23} Therefore, although we find that the trial court did not abuse its discretion in

accepting Evergreen’s motion for summary judgment instanter, we find that the trial court

abused its discretion in denying DLL’s motion for an extension of time to file its opposition.

{¶24} Accordingly, the third assignment of error is sustained. {¶25} The second assignment of error is moot. We reverse the trial court’s grant of

summary judgment to Evergreen and remand for further proceedings consistent with this

opinion.

{¶26} Judgment reversed and case remanded.

It is ordered that appellant recover of said appellee 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

Rule 27 of the Rules of Appellate Procedure.

______________________________________________ COLLEEN CONWAY COONEY, JUDGE

MELODY J. STEWART, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR