Fantozz v. 250 Centre, Ltd.

2015 Ohio 3800

Opinion

[Cite as Fantozz v. 250 Centre, Ltd., 2015-Ohio-3800.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY

Jo Dee Fantozz, Erie County Treasurer Court of Appeals No. E-14-121

Appellee Trial Court No. 2010 CV 0998

v.

250 Centre, Ltd., et al. DECISION AND JUDGMENT

Appellants Decided: September 18, 2015

*****

Kevin J. Baxter, Erie County Prosecuting Attorney, and Jason R. Hinners, Assistant Prosecuting Attorney, for appellee.

D. Jeffery Rengel and Thomas R. Lucas, for appellants.

OSOWIK, J.

{¶ 1} This is an appeal from a June 1, 2011, summary judgment ruling of the Erie

County Court of Common Pleas, which granted summary judgment to appellee in a

foreclosure action 12 days after the summary judgment filing. For the reasons set forth below, we reverse the trial court judgment and remand the matter to the trial court for

further proceedings consistent with this decision.

{¶ 2} Appellants, 250 Centre, Ltd., Cecil Weatherspoon, Rose Weatherspoon and

South Bass Island Resort, Ltd., set forth the following two assignments of error:

I. The trial court committed reversible error and abused its

discretion in granting appellee’s motion for Summary Judgment less than

fourteen days after it was filed without allowing appellants an opportunity

to respond.

II. The trial court committed reversible error when it entered an

order of sale on July 15, 2014 without any evidence, determination, or

finding in the court’s record that appellant failed to abide by its delinquent

tax agreement.

{¶ 3} The following undisputed facts are relevant to this appeal. On December 8,

2010, appellee filed a foreclosure complaint against appellants stemming from a

delinquent property tax bill. On February 3, 2011, appellants filed an answer to the

complaint. On May 20, 2011, appellee filed for summary judgment. On June 1, 2011, 12

days after it was filed, the trial court granted summary judgment to appellee. This appeal

ensued.

{¶ 4} In the first assignment of error, appellants claim that the trial court erred in

granting appellee’s motion for summary judgment without furnishing appellants the

requisite 14-day period of time after the summary judgment filing in which to respond.

2. In support, appellants emphasize that summary judgment proceedings are governed by

Civ.R. 56(C) which mandates, “The motion shall be served at least fourteen days before

the time fixed for hearing. The adverse party, prior to the day of hearing, may serve and

file opposing affidavits.”

{¶ 5} Accordingly, the party opposing summary judgment must be furnished a

minimum period of 14 days in which they may file an opposing brief. In conjunction

with this, Erie County Local Rule 25.01(A), establishes in relevant part:

Motions for summary judgment shall be scheduled for a non-oral

hearing by the party filing the motion by noting the option on the first non-

oral hearing calendar date that is at least 28 days after the date of filing the

motion with the court or the date of service set forth on the certificates of

service attached to the motion, whichever is later. * * * Not later than 14

days before the date of the non-oral hearing, the opposing party(s) shall file

with the court and cause to be served upon the moving party opposing

affidavits, depositions, exhibits and documentation and a memorandum of

authorities opposing the motion.

{¶ 6} Based upon the above-quoted governing state and local rules of civil

procedure pertaining to applicable summary judgment timeframes, this court concurs that

appellants were not properly afforded the requisite time in which to oppose appellee’s

summary judgment filing. On the contrary, a June 1 ruling on a May 20 summary

judgment filing does not comport with Civ.R. 56(C) or Erie County Local Rule 25.01(A).

3. {¶ 7} Consistently, in Hooten v. Safe Auto Insurance Company, 100 Ohio St.3d 8,

2003-Ohio-4829, 795 N.E.2d 648, the Ohio Supreme Court clearly held that the non-

moving party in a summary judgment proceeding must receive at least 14 days to oppose

a summary judgment motion.

We are aware that some courts have found that Civ.R. 56(C) itself

provides the parties with sufficient notice of the submission date because it

states that the matter may be deemed submitted 14 days after the summary

judgment motion is served. * * * However, barring a more generous local

rule, Civ.R. 56 gives a “defender” 14 days to prepare a response to the

summary judgment motion. Id. at ¶ 20.

{¶ 8} The court determined that, “This court has found that, pursuant to Civ.R.

56(C), a hearing on a summary judgment motion may not take place until at least 14 days

have passed from service of the motion.” Id. at ¶ 39. It further stated that, “[a] motion

for summary judgment is rarely granted after only 14 days from service of the motion.”

Id. at ¶ 40. See, e.g., Bank of New York v. Brunson, 9th Dist. Summit No. 25118, 2010-

Ohio-3978, ¶ 9-10 (reversing the trial court’s granting of summary judgment after being

on the docket only nine days because Civ.R. 56(C) gives defendant at least 14 days to

oppose summary judgment motion). Lastly, appellee concedes that, “Summary Judgment

was granted two days early.”

4. {¶ 9} Based upon the foregoing, we find appellants’ first assignment of error to be

well-taken. Given the procedural nature of this matter, we limit our consideration of this

appeal to this timing component of the summary judgment dispute.

{¶ 10} In appellants’ second assignment of error, they maintain that the trial court

committed reversible error when it entered an order of sale on July 15, 2014, without any

evidence, determination, or finding in the court’s record that appellants failed to abide by

the delinquent tax agreement.

{¶ 11} Based upon our determination in response to appellants’ first assignment of

error, the second assignment of error, which is contingent upon our determination in

response to the first assignment of error, is likewise found well-taken.

{¶ 12} On consideration whereof, the judgment of the Erie County Court of

Common Pleas is reversed and remanded back to the trial court for proceedings

consistent with this decision. Appellee is ordered to pay costs of this appeal pursuant to

App.R. 24.

Judgment reversed.

5. Erie Cty. Treasurer v. 250 Centre, Ltd. C.A. No. E-14-121

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Stephen A. Yarbrough, P.J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

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