[Cite as Union Bank Co. v. Lampert, 2014-Ohio-4427.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
THE UNION BANK COMPANY,
PLAINTIFF-APPELLEE,
v. CASE NO. 2-13-32
PATRICK A. LAMPERT, ET AL.,
DEFENDANTS-APPELLANTS, -and- OPINION APRIL BOWERSOCK, AUGLAIZE COUNTY TREASURER, ET AL.,
DEFENDANTS-APPELLEES.
Appeal from Auglaize County Common Pleas Court Trial Court No. 2012 CV 0084
Judgment Affirmed
Date of Decision: October 6, 2014
APPEARANCES:
Richard A. Boucher and Julia C. Kolber for Appellants
Jerry M. Johnson and Christine M. Bollinger for Appellee, The Union Bank Company Case No. 2-13-32
PRESTON, J.
{¶1} Defendants-appellants, Thomas G. and Diane L. Kloeppel, Thomas J.
and Jill E. Kloeppel, New Vision Feeds, Inc. (“New Vision”), Kloeppel Cattle
Company (“KCC”), and KLK Cattle Company (“KLK”) (collectively, the
“Appellants”), appeal the November 27, 2013 judgment entry of foreclosure of the
Auglaize County Court of Common Pleas.1 For the reasons that follow, we affirm.
{¶2} On March 19, 2012, plaintiff-appellee, The Union Bank Company
(“Union Bank”), filed a “complaint for foreclosure, replevin, and money
judgment” against the Appellants and other defendants, some of whom defaulted
by not filing answers, others of whom ultimately disclaimed their interests or were
dismissed from the case, and others of whom have not appealed the trial court’s
judgment entry of foreclosure. (Doc. No. 1). (See also Doc. No. 218). Union
Bank alleged that various combinations of the Appellants were in default on 19
promissory notes, and it sought to foreclose on various parcels and sought replevin
on various items of personal property securing the notes. (Doc. No. 1).
{¶3} On May 31, 2012, the Appellants filed their respective answers to
Union Bank’s complaint and their respective bad-faith counterclaims against
Union Bank. (Doc. Nos. 79, 80, 81, 83, 84).
1 Patrick A. and Jamie E. Lampert (collectively, the “Lamperts”) originally joined the Appellants in the appeal of the trial court’s November 27, 2013 judgment entry. (See Doc. No. 221). However, the Lamperts’ appeal was dismissed by this court pursuant to the Lamperts’ “Notice of Dismissal of Appeal as to Lampert Parties’ [sic] Only,” filed September 25, 2014.
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{¶4} On January 25, 2013, Union Bank filed motions for summary
judgment as to the Appellants. (Doc. Nos. 125, 126, 127, 129, 130). In those
motions, Union Bank argued that it was entitled to judgment as a matter of law
based on the Appellants’ default on various promissory notes.
{¶5} On June 26, 2013, the Appellants filed responses in opposition to
Union Bank’s motions for summary judgment against them. (Doc. Nos. 174, 175,
176, 177, 178). In their responses in opposition, the Appellants argued that Union
Bank failed to demonstrate how or when the Appellants defaulted on the notes,
that the Appellants did not receive proper notice prior to a declaration of default or
acceleration, and that the affidavit supporting Union Bank’s motions for summary
judgment was executed by an individual without personal knowledge of the facts
of the case or the information in the affidavit. (See id.).
{¶6} On June 26, 2013, Union Bank filed a reply in support of its motions
for summary judgment against the Appellants. (Doc. No. 186).
{¶7} On July 23, 2013, the trial court filed a “summation and opinion”
granting Union Bank partial summary judgment. (Doc. No. 191). The trial court
concluded that there was no genuine issue of material fact that the Appellants were
in default on the notes and that Union Bank was entitled to judgment in its favor.
However, the trial court noted that the balances owed on some of the notes were
unclear and said that Union Bank “must prove the accounting as to each note, the
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payments, the interest rates, and the balance owed.” (Id.). The trial court set those
“remaining issues” for trial, but also granted the parties “further leave to file
motions for summary judgment, limited to the remaining issues ONLY, however,
on or before August 29, 2013.” (Emphasis sic.) (Id.).
{¶8} On August 29, 2013, Union Bank filed a “second motion for summary
judgment as to accounting, payments, interest rates, balance owed and
counterclaims of the defendants.” (Doc. No. 200).
{¶9} On September 25, 2013, the Appellants filed a response in opposition
to Union Bank’s second motion for summary judgment. (Doc. No. 209). The
Appellants argued that Union Bank “misappropriated funds received on behalf of
Defendants, making payments on accounts not associated with funds received and
paying off loans due later in time than others.” (Id.). They also argued that Union
Bank made unauthorized advances on at least one loan and charged unreasonable
legal fees on two loans. (Id.). Finally, the Appellants argued that these alleged
misdeeds on the part of Union Bank demonstrated that summary judgment was not
appropriate on the Appellants’ bad-faith counterclaims. (Id.).
{¶10} On October 7, 2013, Union Bank filed a “supplement” to its second
motion for summary judgment. (Doc. No. 211). Attached to the supplement was
“a summary matching Debtors and Loans with an aggregate amount due of each
Debtor.” (Emphasis sic.) (Id.).
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{¶11} That same afternoon, the Appellants filed a “supplemental response”
to Union Bank’s second motion for summary judgment. (Doc. No. 212). The
Appellants reiterated their “position that [Union Bank] caused the defaults by
misapplying payments and charging unnecessary and erroneous late fees, charges
and legal fees.” (Id.). Attached to the Appellants’ supplemental response was a
table containing the amounts reflecting “the principal amounts of the loans,
interest charges and all fees up until April, 2010,” except that the Appellants
subtracted “[a]ll fees, late charges and legal fees,” which they argued had “never
been proven to this Court to be reasonable.” (Id.).
{¶12} On October 11, 2013, the trial court filed a judgment entry granting
partial summary judgment in Union Bank’s favor. (Doc. No. 214). In that
judgment entry, the trial court incorporated its July 23, 2013 “summation and
opinion” and granted judgment in Union Bank’s favor for specific amounts against
the Appellants and on the Appellants’ counterclaims. (Id.). The trial court
concluded that two genuine issues of material fact remained—whether Union
Bank had the right to obtain judgment on one loan to the Lamperts and whether
Union Bank’s claim for legal fees was fair, just, and reasonable. (Id.). The trial
court set the two remaining issues for trial. (Id.).
{¶13} On November 22, 2013, Union Bank, the Lamperts, and all of the
Appellants, except Diane L. Kloeppel and Jill E. Kloeppel, filed a stipulation
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resolving the two remaining issues for trial. (Doc. No. 217). (See also Doc. No.
218). In the stipulation, the parties agreed that the amount of legal fees requested
by Union Bank was reasonable. (Doc. No. 217). They also agreed that the
Lamperts had a home equity loan with Union Bank that was not in default and
under which Union Bank was not pursuing foreclosure. (Id.).
{¶14} On November 27, 2013, the trial court filed its judgment entry of
foreclosure that is the subject of this appeal. (Doc. No. 218). In rejecting the
Appellants’ arguments that genuine issues of material fact remained as to Union
Bank’s claims and the Appellants’ bad-faith counterclaims, the trial court relied
heavily on a “Forbearance and Reaffirmation Agreement” (“Agreement”) into
which Thomas J. Kloeppel, Thomas G. Kloeppel, Patrick A. Lampert, New
Vision, KCC, and KLK entered with Union Bank on September 28, 2010. (Id.).
The trial court entered judgment in favor of Union Bank and against the
Appellants for specific amounts, and it set forth the priority of liens on the various
real and personal property securing the promissory notes.2 (Id.). Based on the
parties’ stipulation, the trial court also awarded Union Bank reasonable attorney
fees in the amount of $49,492.92.3 (Id.).
2 No money judgment was entered against Diane L. Kloeppel and Jill E. Kloeppel; however, they both executed mortgages against real property that was the subject of the trial court’s judgment, and Jill E. Kloeppel executed consumer security agreements against personal property that was the subject of the trial court’s judgment. 3 On appeal, the Appellants do not challenge the trial court’s award of attorney fees.
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{¶15} The Appellants filed their notice of appeal on December 20, 2013.
(Doc. No. 221). They raise three assignments of error for our review. We will
first address together the second and third assignments of error, followed by the
first assignment of error.
Assignment of Error No. II
The trial court erred in granting summary judgment when genuine issues of fact remained as to whether appellee misled appellants into entering into loans and forced the default of the loans by applying payments in an arbitrary manner.
Assignment of Error No. III
The trial court erred in granting summary judgment in favor of appellee on appellant’s [sic] counterclaim [sic] for bad faith.
{¶16} In their second assignment of error, the Appellants argue that there is
a genuine issue of fact concerning whether Union Bank “improperly applied
payments in the ordinary course of business, heedlessly causing a default and/or
payment arrearage.” (Appellants’ Brief at 9). Specifically, the Appellants argue
that in June and July 2010, Union Bank received funds belonging to KCC and
applied those funds not to KCC’s debts, but to the accounts of three of the
Appellants—New Vision, Thomas G. Kloeppel, and KLK—a third-party family
member, and an insurance company. The Appellants also argue that Union Bank
“paid off loans that were not due at the time of payment instead of paying off
notes that had already matured and were due and payable. (Id.). The Appellants
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argue “that but for [Union Bank’s] misappropriation of funds Appellants would
not owe the amounts claimed by [Union Bank] and that the accounting by [Union
Bank] fails to take into consideration miscalculations it caused by the
misappropriation.” (Id. at 11).
{¶17} The Appellants make many of the same arguments under their third
assignment of error, this time in support of their assertion that genuine issues of
fact exist as to their bad-faith counterclaims. They again argue that a genuine
issue of fact exists concerning whether Union Bank “improperly applied payments
in the ordinary course of business, heedlessly causing a default and/or payment
arrearage.” (Id. at 13). The Appellants argue that “[o]n a minimum of two
separate occasions, [Union Bank] failed to use funds paid directly to [Union Bank]
on behalf of one Appellant to pay off that Appellant’s debts” and that Union Bank
“failed to obtain authorization from Appellants to pay on loans not held by
Appellants, but rather held by family members or associate companies.” (Id. at
13-14). Finally, the Appellants argue that Union Bank “paid off loans that were
not due at the time of payment instead of paying off notes that had already
matured” and that “there were advancements made on loans that were not
authorized by Appellants.” (Id. at 14).
{¶18} We review a decision to grant summary judgment de novo. Doe v.
Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there
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is no genuine issue of material fact, the moving party is entitled to judgment as a
matter of law, and reasonable minds can reach but one conclusion when viewing
the evidence in favor of the non-moving party, and the conclusion is adverse to the
non-moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist.
Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).
{¶19} Before addressing the Appellants’ arguments under their second and
third assignments of error, we will address the deficiencies of the Appellants’
brief. First, although the Appellants’ second assignment of error contains a
statement that a genuine issue of fact “remained as to whether appellee misled
appellants into entering into loans,” they make no arguments related to that
assertion. (Appellants’ Brief at 7-12). “[P]ursuant to App.R. 12(A)(2), ‘[t]he
court may disregard an assignment of error presented for review if the party
raising it fails to identify in the record the error on which the assignment of error is
based or fails to argue the assignment separately in the brief, as required under
App.R. 16(A).’” Wasinski v. PECO II, Inc., 3d Dist. Crawford Nos. 3-08-14 and
3-08-16, 2009-Ohio-2615, ¶ 15, quoting App.R. 12(A)(2). Therefore, under
App.R. 12(A)(2), we decline to address the Appellants’ bald assertion—
unsupported by argument or citations to the record—that a genuine issue of fact
remained concerning whether Union Bank misled them “into entering into loans.”
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{¶20} We also note that, aside from authorities setting forth the de novo
standard of review of summary-judgment decisions and two inapposite cases
discussing “bad faith” under different statutes, the Appellants cite no authorities in
support of their arguments under their second and third assignments of error.
Namely, the Appellants do not explain how the alleged “genuine issues of fact”
are material in light of the substantive law governing this case.
{¶21} “In deciding a summary judgment case, it is ‘[t]he substantive law
[that] determines whether a genuine issue of material fact remains.’” Matthews v.
Exigence of Fremont, L.L.C., 6th Dist. Sandusky No. S-13-012, 2013-Ohio-5907,
¶ 31, quoting Jones v. Wheelersburg Local School Dist., 4th Dist. Scioto No.
12CA3513, 2013-Ohio-3685, ¶ 28. See also Heffner Investments, Ltd. v. Piper, 3d
Dist. Mercer Nos. 10-07-09 and 10-07-10, 2008-Ohio-2495, ¶ 15 (“‘As to
materiality, the substantive law will identify which facts are material.’”), quoting
Turner v. Turner, 67 Ohio St.3d 337, 340 (1993) and Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986). Indeed, “[t]he first step in
determining whether there were any genuine issues of material fact is an
examination of applicable substantive law * * *.” Orndorff v. ALDI, Inc., 115
Ohio App.3d 632, 635 (9th Dist.1996), citing Anderson at 248. The Appellants
offer no arguments concerning this first step under their second and third
assignments of error, and we will not supply arguments for them. See Camp v.
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Star Leasing Co., 10th Dist. Franklin No. 11AP-977, 2012-Ohio-3650, ¶ 67 (“It is
not the duty of this court to construct legal arguments in support of an appellant’s
appeal.”); Reid v. Plainsboro Partners, III, 10th Dist. Franklin Nos. 09AP-442 and
09AP-456, 2010-Ohio-4373, ¶ 25, 28 (stating that an appellate court “may not
construct legal arguments for” an appellant).
{¶22} Nevertheless, we hold that no genuine issues of fact remain as to
whether Union Bank “forced the default of the loans by applying payments in an
arbitrary manner” or as to whether Union Bank acted in “bad faith.” Underlying
each assignment of error is the Appellants’ assertion that Union Bank misapplied
payments or otherwise mishandled their loan accounts. Dispositive of both
assignments of error is the Agreement between Union Bank and Thomas J.
Kloeppel, Thomas G. Kloeppel, Patrick A. Lampert, New Vision, KCC, and KLK.
(Agreement, Doc. No. 1, Ex. 46; Doc. No. 186, Ex. 46).4
{¶23} The Appellants allege that the misapplication of payments leading to
default occurred in June and July 2010. However, the record reflects that the
Agreement was executed approximately two or three months later, on September
28, 2010. In the Agreement, the signing Appellants acknowledged that they were
4 It appears that Union Bank never properly authenticated the Agreement under Civ.R. 56, although it did attach the Agreement to its complaint and its June 26, 2013 reply in support of its initial motions for summary judgment. The Appellants did not object, and the trial court considered the Agreement. Even though it was not properly authenticated under Civ.R. 56, the trial court, in its discretion, was free to consider the Agreement absent an objection from the Appellants. Bader v. Ferri, 3d Dist. Allen No. 1-13- 01, 2013-Ohio-3074, ¶ 13. Therefore, we too will consider the Agreement for purposes of our review, despite its apparent noncompliance with Civ.R. 56. Id. at ¶ 14.
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“in default of the terms of the Promissory Notes described in the attached Exhibit
A as well as additional Promissory Notes which are not a part of this Agreement *
* *” and that “but for this Agreement, the Debtors would presently be obligated to
immediately pay the Promissory Notes described on the attached Exhibit A.”
(Agreement at 1). The Appellants who signed the Agreement also agreed “that,
subject to the defenses filed by the Debtors in the Shelby County litigation, as of
June 21, 2010, the outstanding principal amount of, and accrued but unpaid
interest on, the obligations was no less than [$3,831,039.04].” (Id. at 1-2).
{¶24} “Exhibit A” to the Agreement listed 18 promissory notes. (Id. at 11-
12). Union Bank sued the Appellants under 9 of those 18 promissory notes,
alleging that the Appellants were in default on them. (Doc. No. 1). As for the
remaining 10 promissory notes that Union Bank included in its complaint but did
not list in Exhibit A to the Agreement, each one contained a “cross-collateralize,
cross-default” provision that made the default of one promissory note a default of
all other indebtedness of the Appellants signing the promissory note:
CROSS-COLLATERALIZE, CROSS-DEFAULT. This loan is
herein cross-collateralized and cross-defaulted with all other
indebtedness of each and every borrower and/or guarantor
hereunder, whether such debt now exists or is entered into in the
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future and any and all renewals, extensions or modifications of
same.
(Emphasis sic.) (Doc. No. 200, Thompson Aff., Exs. 1, 3, 5, 8, 14, 30, 32, 34, 36,
38). Each one of these 10 promissory notes predated the September 28, 2010
Agreement. (See id.). Therefore, under the provisions in the promissory notes, the
Appellants’ acknowledgement that they were in default on the promissory notes
listed in Exhibit A to the Agreement also served as an acknowledgement that they
were in default on the 10 promissory notes not listed in Exhibit A.
{¶25} The Appellants do not dispute the validity of the Agreement. Nor do
they argue that they preserved from “the Shelby County litigation” any defenses
relevant to this issue. Rather, they argue that Union Bank’s “mistakes do not just
disappear because they happened before a Forbearance Agreement was entered
into by the parties.” (Appellants’ Reply Brief at 3-4). According to the
Appellants, “It is not relevant when the misapplication of payments occurred, but
simply that they did occur.” (Emphasis sic.) (Id. at 3). We disagree.
{¶26} By executing the Agreement and acknowledging that they were in
default of the promissory notes on which Union Bank eventually sued them—
whether by operation of the Agreement’s terms, for the promissory notes listed in
Exhibit A, or by operation of the “cross-collateralize, cross-default” clauses, for
the promissory notes not listed in Exhibit A—and by agreeing that they owed a
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minimum sum of $3,831,039.04, the Appellants cut off any arguments they may
have had concerning the alleged bad-faith misapplication of payments that
occurred before execution of the Agreement. See Graubard Mollen Dannet &
Horowitz v. Edelstein, 173 A.D.2d 230, 231, 569 N.Y.S.2d 639 (1991)
(concluding that the defendants “waived their present defenses and ratified their
obligations under the Promissory Note and Guaranty by soliciting and accepting
an extension of time to fulfill their obligations to the plaintiff and in executing a[n]
* * * Agreement acknowledging their indebtedness to the plaintiff, at a time when
the defendants were aware of the plaintiff’s alleged antecedent fraud”); S.E.C. v.
Bilzerian, 378 F.3d 1100, 1109 (D.C.Cir.2004) (agreeing with the trial court’s
conclusion that by reaffirming his obligations under a note, the defendant waived
any fraud defense he might have had under Florida law). See also BAC Home
Loans Servicing, L.P. v. Haas, 3d Dist. Marion No. 9-13-40, 2014-Ohio-438, ¶ 23,
fn. 3 (“Essentially, a reaffirmation agreement is a new contract that renegotiates or
reaffirms a debtor’s personal liability on the original debt.”). In other words, on
September 28, 2010, the Appellants acknowledged that they were in default on the
promissory notes, even after the alleged bad-faith misapplication of payments that
occurred in June and July 2010. If the Appellants believed they were not in
default—or that Union Bank acted in bad faith and “forced the default”—they
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should have declined to agree they were in default or preserved that issue in the
Agreement. They did not do so.
{¶27} For the reasons above, there is no genuine issue of fact as to whether
Union Bank “forced the default.”
{¶28} The Appellants’ second and third assignments of error are overruled.
Assignment of Error No. I
The trial court erred in granting summary judgment when the amount of alleged damages was undeterminable.
{¶29} In their first assignment of error, the Appellants argue that “[i]t was
reversible error for the trial court to grant [Union Bank’s motions for summary
judgment] despite the fact that it was unable to determine from the pleadings and
evidence before it what amount, if any, was due [Union Bank].” (Appellants’
Brief at 5). They argue that “because the alleged amount in default was so
unclear[,] that alone was sufficient to create a dispute of fact to defeat summary
judgment.” (Id. at 6). The Appellants point to the trial court’s statement in its
July 23, 2013 “summation and opinion” that it was necessary for Union Bank “‘to
provide additional or supplemental account summaries regarding the Notes in
default since it is difficult to ascertain exactly what amounts are due and owing to
date and how those amounts were calculated.’” (Id., quoting Doc. No. 191). The
Appellants argue that the “additional or supplemental account summaries”
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provided by Union Bank were not evidence on which the trial court could base
summary judgment.
{¶30} We again note that, as they failed to do under their second and third
assignments of error, the Appellants have failed to explain how the alleged dispute
of fact described under their first assignment of error is material in light of the
substantive law governing this case. See Matthews, 2013-Ohio-5907, at ¶ 31.
Aside from authorities setting forth the de novo standard of review of
summary-judgment decisions, the Appellants cite only three inapposite cases
concerning the inappropriateness of a cognovit judgment when the note is facially
insufficient to support that judgment. This case does not involve a cognovit
judgment. Once again, we will not supply for the Appellants their arguments
concerning materiality. Speakman, 2014-Ohio-2152, at ¶ 7.
{¶31} Nevertheless, we hold that the amount in default was not so unclear
so as to “create a dispute of fact to defeat summary judgment.” We note that the
Appellants do not dispute the specific amounts for which the trial court entered
judgment against the Appellants and in favor of Union Bank. Therefore, we will
not address those specific amounts. Rather, the Appellants argue two things.
First, they argue that the trial court based its decision on information other than
evidence properly before the trial court. Second, they argue that the trial court’s
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asking for “additional or supplemental account summaries” demonstrates that the
amount in default was so unclear as to create a genuine issue of fact.
{¶32} We need not consider the Appellants’ argument that the trial court
considered evidence other than evidence properly before it. The Appellants did
not object to any of the evidence submitted by Union Bank in support of its
motions for summary judgment. “The failure to object to evidence submitted in
support of a motion for summary judgment waives any error in considering that
evidence under Civ.R. 56(C).” Loukinas v. Roto-Rooter Servs. Co., 167 Ohio
App.3d 559, 2006-Ohio-3172, ¶ 22 (1st Dist.). See also Zeallear v. F & W
Properties, 10th Dist. Franklin No. 99AP-1215, 2000 WL 1015345, *5 (July 25,
2000) (“Issues not timely raised in the trial court and presented for the first time
on appeal shall not be considered. * * * Failure to raise * * * objections to
evidence in opposition to summary judgment will constitute waiver of such
arguments.”). Because the Appellants failed to object to the admission of
evidence in support of Union Bank’s motions for summary judgment, the
Appellants waived that issue, and we will not consider it.
{¶33} Moreover, even if we were to consider the Appellants’ argument that
the trial court considered evidence improperly before it, “when a party fails to
object to evidence that is otherwise inadmissible under Civ.R. 56(C), ‘the court
may, but is not required to consider such evidence when it determines whether
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summary judgment is appropriate.’” Bader v. Ferri, 3d Dist. Allen No. 1-13-01,
2013-Ohio-3074, ¶ 13, quoting Armaly v. City of Wapakoneta, 3d Dist. Auglaize
No. 2-05-45, 2006-Ohio-3629, ¶ 17. Because the Appellants failed to object, the
trial court was allowed to consider evidence submitted by Union Bank that may
have otherwise not complied with Civ.R. 56.
{¶34} Finally, even assuming the trial court requested supplemental
evidence, “supplemental evidence is a permissible tool to support a motion for
summary judgment.” Kisielius v. Kisielius, 3d Dist. Shelby Nos. 17-09-05 and 17-
09-11, 2009-Ohio-4624, ¶ 21, citing Feichtner v. Kalmbach Feeds, Inc., 3d Dist.
Wyandot No. 16-04-09, 2004-Ohio-6048, ¶ 11. And it is well within a trial court’s
discretion to order or allow parties to supplement their arguments in favor of or
against summary judgment. See McElrath v. Trumbull Cty. Children’s Servs. Bd.,
11th Dist. Trumbull No. 93-T-4959, 1994 WL 638193, *4 (Nov. 16, 1994).
Therefore, the Appellants’ argument is meritless.
{¶35} Similarly meritless is the Appellants’ argument that had there been
no genuine issue of fact, the trial court would not have needed to request
“additional or supplemental account summaries.” Just as they failed to do in
response to Union Bank’s second motion for summary judgment, the Appellants
on appeal fail to suggest how the amounts requested by Union Bank and awarded
by the trial court are incorrect even after the Agreement. Instead, they argue only
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that “the alleged amount in default was so unclear” that a dispute of fact remained
to defeat summary judgment. (Appellants’ Brief at 6). Once Union Bank came
forward with evidence of the amounts in default, it was the Appellants’ burden to
rebut that evidence by pointing the trial court to “specific facts” demonstrating a
genuine issue of fact concerning those amounts. Chase Home Fin., L.L.C. v. Heft,
3d Dist. Logan Nos. 8-10-14 and 8-11-16, 2012-Ohio-876, ¶ 28, quoting Civ.R.
56(E). See also Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The Appellants
failed to do so, and we reject their amorphous, nonspecific argument that a
genuine issue of fact remains because the trial court asked for “additional or
supplemental account summaries.” See Teetors v. Benson Truck Bodies, Inc., 6th
Dist. Sandusky No. S-93-9, 1994 WL 63016, *4 (Feb. 25, 1994) (“[W]e hold that
the mere existence in the voluminous record of a complex case, of evidence
sufficient to show a genuine issue of material fact is not enough to avoid summary
judgment, as the party with the burden of setting forth specific facts must draw the
trial court’s attention to that evidence in some manner. The trial court is under no
obligation to search the record for evidence in support of a party’s position.”). See
also Blount v. Schindler Elevator Corp., 10th Dist. Franklin No. 02AP-688, 2003-
Ohio-2053, ¶ 40, citing Teetors.
{¶36} In short, Civ.R. 56 “does not exclude ‘factually and legally complex’
cases from resolution by summary judgment when appropriate. Such cases are not
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inappropriate for summary judgment.” (Emphasis sic.) Bowes v. Cincinnati
Riverfront Coliseum, Inc., 12 Ohio App.3d 12, 15 (1st Dist.1983). To the extent
the Appellants argue that this case is inappropriate for summary judgment simply
because the record is voluminous and contains multiple promissory notes with
varying parties responsible for each and various collateral securing each, we reject
the Appellants’ argument.
{¶37} The Appellants’ first assignment of error is overruled.
{¶38} Having found no error prejudicial to the appellants herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
WILLAMOWSKI, P.J. and ROGERS, J., concur.
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