Gallwitz v. Novel

2012 Ohio 1559

Opinion

[Cite as Gallwitz v. Novel, 2012-Ohio-1559.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

WAYNE GALLWITZ, Executor of the JUDGES: Estate of GLEN GALLWITZ Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Plaintiff-Appellee Hon. Julie A. Edwards, J.

-vs- Case No. 11 CA 84

ABBY NOVEL OPINION Defendant-Appellant

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2011 CV 00470

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 4, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM DOUGLAS LOWE ABBY NOVEL REESE, PYLE, DRAKE & MEYER PRO SE Post Office Box 919, 36 North 2nd St. Post Office Box 416, 301 North Main Street Newark, Ohio 43058-0919 Utica, Ohio 43080

For Scott K. Ryan For Licking County Planning Commission

DENNIS E. DOVE JAMES D. MILLER LICKING COUNTY PROS. OFFICE LICKING COUNTY PROS. OFFICE 20 South Second Street, P. O. Box 830 20 South Second Street, P. O. Box 830 Newark, Ohio 43058-0830 Newark, Ohio 43058-0830 Licking County, Case No. 11 CA 84 2

Wise, J.

{¶1} Appellant Abby Novel appeals from the July 14, 2011, decision of the

Licking County Common Pleas Court granting summary judgment in favor of Appellee

Wayne Gallwitz, Executor of the Estate of Glen Gallwitz.

STATEMENT OF THE FACTS AND CASE

{¶2} The relevant facts of this case are as follows:

{¶3} On or about January 1, 2008, Appellant Abby Novel executed a note

stating that Glen Gallwitz, her stepfather, had loaned her $5,000.00 at 6% interest for a

total of $10,000.00.

{¶4} Subsequently, on June 24, 2009, Gallwitz filed a complaint against

Appellant, demanding judgment against her in the amount of $10,000.00 plus interest.

{¶5} On July 22, 2009, Novel filed her Answer, claiming that the money given

to her on January 8, 2002, by Glen Gallwitz was a gift. Novel further alleged that, on

such date, she offered to pay Glen Gallwitz back but was told that she did not have to

do so because she had taken care of Gallwitz during his senior years and because her

mother, Carrie Gallwitz, had allowed Gallwitz's grandson to live rent-free at a rental

home owned by Carrie in Columbus. Novel further alleged that she had written out the

loan note on her own initiative.

{¶6} After Glen Gallwitz died on July 2, 2009, his son Wayne Gallwitz, the

Executor of Glen Gallwitz's estate, was substituted as the party plaintiff.

{¶7} Appellee Gallwitz obtained a judgment against Appellant in the amount of

$14,980.82 in Knox County, Ohio. Said judgment was upheld on appeal. Licking County, Case No. 11 CA 84 3

{¶8} The judgment is secured by a Certificate of Judgment filed as of record

with the Licking County Clerk of Courts, at Judgment Docket 132, page 39. The

Certificate of Judgment has an outstanding principal balance of $10,000, with interest at

six percent (6%) per annum from April 28, 2010, until satisfied.

{¶9} No payments have been made towards the judgment, with the entire

amount, including accumulating interest, remaining unsatisfied. Interest is increasing at

the rate of $1.64 per day. As of May 5, 2011, post-judgment interest amounted to

$611.51 for a total balance due of $15,592.33.

{¶10} A foreclosure action was filed in this matter on April 4, 2011.

{¶11} Appellant filed her Answer on May 2, 2011.

{¶12} On May 10, 2011, after obtaining leave, Appellee filed a Motion for

Summary Judgment. The trial court scheduled the matter for a non-oral hearing on the

Motion for Summary Judgment on May 27, 2011, at 4:30 p.m.

{¶13} On May 25, 2011, Appellant filed her Memorandum Contra Appellee's

Motion.

{¶14} On May 26, 2011, Appellant filed an Ex Parte Motion for a Temporary

Restraining Order.

{¶15} Appellant failed to serve notice on either Appellee or Appellee's counsel.

Learning that such a motion had been filed through a review of the on-line docket,

Appellee filed a Memorandum Contra the Motion for a Temporary Restraining Order on

May 27, 2011.

{¶16} On June 21, 2011, the trial court denied Appellant's Motion for a

Temporary Restraining Order. Licking County, Case No. 11 CA 84 4

{¶17} On June 21, 2011, the court also granted Appellant’s son, Sur Novel,

permission to appear Pro Hac Vice and continued the non-oral hearing on the Motion

for Summary Judgment until June 30, 2011, at 4:30 p.m.

{¶18} On June 29, 2011, Appellant filed a Motion to again continue the non-oral

hearing date. Appellee filed a Memorandum Contra that Motion on July 5, 2011.

{¶19} On June 30, 2011, Appellee filed a notice to take Appellant's telephone

deposition for July 18, 2011, with said deposition to take place in Cleveland, Ohio.

{¶20} On July 12, 2011, Appellant filed for a protective order regarding said

deposition stating that there had been no prior agreement or court order to allow a

telephone deposition.

{¶21} Also on July 12, 2011, Appellant filed a second Memorandum Contra

Appellee's Motion for Summary Judgment.

{¶22} On July 14, 2011, the trial court denied Appellant's request for additional

time to file a third memorandum contra Appellee's Motion for Summary Judgment.

{¶23} Also on July 14, 2011, the trial court granted Appellee's Motion for

Summary Judgment, issuing a Foreclosure Decree.

{¶24} Appellant now appeals, assigning the following errors for review:

ASSIGNMENTS OF ERROR

{¶25} "I. THE LOWER COURT ERRER (SIC) IN GRANTING SUMMARY

JUDGMENT TO PLAINTIFF-APPELLEE BECAUSE GENUINE ISSUES OF MATERIAL

FACT EXISTED RELATING TO THE DEFENDANT-APPELLANT'S AFFIRMATIVE

DEFENSES OF "LEGAL INCOMPETENCE AND FRAUD" PLEADED IN HER

ORIGINAL ANSWER. Licking County, Case No. 11 CA 84 5

{¶26} “II. THE LOWER COURT ERRED BECAUSE THE ORIGINAL PLAINTIFF,

GLEN GALLWITZ, IN THE UNDERLYING LAWSUIT WAS LEGALLY INCOMPETENT

AS PROVED BEYOND A REASONABLE DOUBT DURING HIS DEPOSITION UNDER

OATH.

{¶27} “III. THE LOWER COURT ERRED BECAUSE ATTORNEY WM.

DOUGLAS LOWE CONSPIRED WITH ATTORNEY DAVID C. MORRISON TO COVER

UP THE LEGAL INCOMPETENCE OF GLEN GALLWITZ BY FORGING A POWER OF

ATTORNEY ("POA") AFTER THE DEATH OF GLEN GALLWITZ.

{¶28} “IV. THE LOWER COURT ERRED BECAUSE THE DEFENSE OF

"LEGAL INCOMPETENCE AND FRAUD" WERE NEVER PLEADED IN THE ANSWER

OR LITIGATED DURING THE ORIGINAL LAWSUIT IN KNOX COUNTY UNDER

JUDGE OTHO EYSTER BECAUSE SUCH WERE STILL NOT DISCOVERED BY

DEFENDANT-APPELLANT.

{¶29} “V. THE LOWER COURT ERRER (SIC) BECAUSE JUDGE DAVID

BRANSTOOL FAILED TO ALLOW THE DEFENDANT-APPELLANT A REASONABLE

OPPORTUNITY TO TAKE THE NOTICED DEPOSITION OF PLAINTIFF-APPELLEE,

WAYNE GALLWITZ.

{¶30} “VI. THE LOWER COURT ERRER (SIC) IN GRANTING SUMMARY

JUDGMENT TO PLAINTIFF-APPELLEE BECAUSE THE ORIGINAL PLAINTIFF, GLEN

GALLWlTZ, IN THE UNDERLYING LAWSUIT LACKED CAPACITY AND WAS UNDER

THE UNDUE INFLUENCE OF IMMEDIATE MEMBERS OF THE GALLWITZ FAMILY.” Licking County, Case No. 11 CA 84 6

Summary Judgment Standard

{¶31} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As

such, we must refer to Civ.R. 56 which provides, in pertinent part: “ *** Summary

judgment shall be rendered forthwith if the pleadings, 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 therefrom, 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 made, such party being entitled to have the

evidence or stipulation construed most strongly in the party's favor.*** ”

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

judgment if it appears a material fact is genuinely disputed. The party moving for

summary judgment bears the initial burden of informing the trial court of the basis for its

motion and identifying those portions of the record that demonstrate the absence of a

genuine issue of material fact. The moving party may not make a conclusory assertion

that the non-moving party has no evidence to prove its case. The moving party must

specifically point to some evidence which demonstrates the non-moving party cannot

support its claim. If the moving party satisfies this requirement, the burden shifts to the

non-moving party to set forth specific facts demonstrating there is a genuine issue of Licking County, Case No. 11 CA 84 7

material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, 674 N.E.2d

1164, citing Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107, 662 N.E.2d 264.

{¶33} It is pursuant to this standard that we review Appellant's Assignments of

Error.

I., II, III, IV, & VI

{¶34} Appellant herein claims the trial court erred in granting summary judgment

in favor of Appellee and issuing a Foreclosure Decree in this matter. We disagree.

{¶35} This Court has thoroughly examined and analyzed each of Appellant’s

assignments of error and finds that the doctrine of res judicata is applicable in the

instant action.

{¶36} The doctrine of res judicata consists of two different but related legal

concepts-claim preclusion and issue preclusion. Id. The doctrine of issue preclusion,

which is also known as collateral estoppel, “holds that a fact or point that was actually

and directly at issue in a previous action, and was passed upon and determined by a

court of competent jurisdiction, may not be drawn into question in a subsequent action

between the same parties or their privies, whether the cause of action in the two actions

be identical or different.” Ft. Frye Teachers Assn., OEA/NEA v. State Emp. Relations

Bd. (1998), 81 Ohio St.3d 392, 395, 692 N.E.2d 140. In turn, the doctrine of claim

preclusion, which is also known as estoppel by judgment, provides that a “valid, final

judgment rendered upon the merits bars all subsequent actions based upon any claim

arising out of the transaction or occurrence that was the subject matter of the previous

action.” Grava, supra, at syllabus. Licking County, Case No. 11 CA 84 8

{¶37} Appellant herein is asserting arguments that either were or could have

been raised in her two previous appeals involving the will contest action against the

Estate of Glen Gallwitz or the action by Gallwitz to recover on the Note herein.

{¶38} The doctrine of res judicata bars the re-litigation of the claims or issues

that were raised or might have been raised within the two prior actions. State ex rel.

Sneed v. Anderson, supra, 866 N.E.2d 1084; State ex rel. Mora v. Wilkinson, supra, 824

N.E.2d 1000. Under the doctrine of law of the case, Appellant cannot resurrect these

same arguments by merely requesting to reopen the case.

{¶39} Appellant’s Assignments of Error I, II , III, IV and VI are overruled.

V.

{¶40} Appellant argues in her fifth Assignment of Error that the trial court erred in

not allowing her to take the telephone deposition of Wayne Gallwitz or additional time

for discovery. We disagree.

{¶41} Upon review we find no error as Appellant failed to provide the trial court

with sufficient reasons why she could not present facts essential to her opposition to

Appellee’s motion for summary judgment pursuant to Civ.R. 56(F). Rather, Appellant

had already filed a response in opposition, then her son entered his Pro Hac Vice

appearance and the trial court granted a continuance of the non-oral hearing, then

Appellant filed a second response in opposition. We find no evidence to support that

Appellant was prejudiced by not being permitted additional time to file a third response

in opposition.

{¶42} Further, as to the deposition, Appellant failed to properly serve notice on

either Mr. Gallwitz or his counsel of her wish to take such deposition. Additionally, the Licking County, Case No. 11 CA 84 9

trial court granted summary judgment in this matter disposing of all claims prior to the

time such deposition had been “scheduled” to take place.

{¶43} Appellant’s fifth Assignment of Error is overruled.

{¶44} For the foregoing reasons, the judgment of the Court of Common Pleas of

Licking County, Ohio is hereby affirmed.

By: Wise, J.

Gwin, P. J., and

Edwards, J., concur.

___________________________________

JUDGES JWW/d 0314 Licking County, Case No. 11 CA 84 10

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

WAYNE GALLWITZ, Executor of the : Estate of GLEN GALLWITZ : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : ABBY NOVEL : : Defendant-Appellant : Case No. 11 CA 84

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Licking County, Ohio, is affirmed.

Costs assessed to Appellant.

JUDGES