Fish v. McDougald

2013 Ohio 2328

• Court: Ohio Court of Appeals
• Decided: June 7, 2013
• Docket: C-120832
• Status: Published

Opinion

[Cite as Fish v. McDougald, 2013-Ohio-2328.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

B. DAVID FISH, : APPEAL NO. C-120832 TRIAL NO. 12CV-16873 Plaintiff-Appellant, :

vs. : O P I N I O N.

WALLACE MCDOUGALD, :

and :

PAMELA MCDOUGALD, :

Defendants-Appellees. :

Civil Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: June 7, 2013

B. David Fish, pro se,

John M. Williams, for Defendants-Appellees.

Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

Per Curiam. {¶1} Raising a single assignment of error, plaintiff-appellant B. David Fish

challenges the trial court’s entry of summary judgment in favor of defendants-

appellees Wallace and Pamela McDougald on Fish’s claim for breach of a lease

agreement. Because the record does not reflect that the McDougalds ever moved for

summary judgment, we must reverse.

{¶2} The McDougalds intended to move for summary judgment on Fish’s

claim. They attempted to file electronically their motion and their own supporting

affidavits. While the affidavits were received by the clerk of courts, the summary-

judgment motion did not reach the clerk. It was not filed with the clerk or docketed.

{¶3} The McDougalds had provided the trial court with a courtesy copy of

the motion. On November 9, 2012, it placed of record an entry purporting to grant

the McDougalds’ unfiled summary-judgment motion. Fish appealed.

{¶4} Since their motion was never filed with the clerk of the trial court, the

record certified for our review does not reflect that the McDougalds ever moved for

summary judgment, that Fish was ever served with the motion, or what the basis of

the motion was. See App.R. 9(A); see also Civ.R. 5(A) and 7(B). Generally, Civ.R. 56

does not authorize trial courts to enter summary judgment in favor of a nonmoving

party. Marshall v. Aaron, 15 Ohio St.3d 48, 472 N.E.2d 335 (1984), syllabus; see

also Jeranek v. Cornwell, 147 Ohio App.3d 177, 181, 769 N.E.2d 409 (1st Dist.2001);

Lawless v. Indus. Comm. of Ohio, 1st Dist. No. C-960420, 1997 Ohio App. LEXIS

1160 (Mar. 26, 1997).

{¶5} On the state of the fragmentary record certified to this court, we will

not apply the exception to this rule suggested in Todd Dev. Co. v. Morgan, 116 Ohio

St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, ¶ 16, permitting the entry of summary

judgment for a nonmoving party where all the relevant evidence is before the trial

court and the summary-judgment standard has been met. See, e.g., Bank of

America, N.A. v. Omega Design/Build Group, LLC., 1st Dist. No. C-100018, 2011-

2 OHIO FIRST DISTRICT COURT OF APPEALS

Ohio-1650, ¶ 48. Therefore, we hold that the trial court was without authority to

enter summary judgment in the McDougalds’ favor in November 2012. The

assignment of error is sustained on this basis alone.

{¶6} The judgment of the trial court granting summary judgment in favor of

the McDougalds is reversed. The cause is remanded to the trial court for further

proceedings consistent with law and this opinion.

Judgment reversed and cause remanded.

CUNNINGHAM, P.J., DINKELACKER and DEWINE, JJ.

Please note:

The court has recorded its own entry on the date of the release of this opinion.