Sawmill Creek Condominium Owners' Assn., Inc. v. Black Hole Ltd. , 2016 Ohio 8005 ( 2016 )

[Cite as Sawmill Creek Condominium Owners’ Assn., Inc. v. Black Hole Ltd., 2016-Ohio-8005.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
Sawmill Creek Condominium Court of Appeals No. E-16-021
Owners’ Association, Inc.
Appellee Trial Court No. 2015 CV 0158
v.
Black Hole, Ltd., et al. DECISION AND JUDGMENT
Appellant Decided: December 2, 2016
*****
Wm. R. S. Steuk, for appelee.
D. Jeffery Rengel and Thomas R. Lucas, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Black Hole Ltd., appeals the January 21, 2016 and
February 11, 2016 judgments of the Erie County Court of Common Pleas which,
respectively, granted summary judgment in favor of plaintiff-appellee, Sawmill Creek
Condominium Owners’ Association, and entered a judgment entry of foreclosure based
upon nonpayment of assessments and liens secured by the subject property. Because we
find that appellant failed to refute the evidence provided in appellee’s motion for
summary judgment, we affirm.
{¶ 2} This action commenced on March 18, 2015, with appellee filing a complaint
in foreclosure against appellant, as owner of a condominium unit, and Donald and Glenn
Eisenberg and William and Lou Goldstein as individuals who may have claimed an
interest in the unit. On that date, appellee claimed that appellant owed $10,603.84 in
unpaid assessments and fees. Ultimately, appellee was granted default judgment against
the individual defendants and proceeded against appellant.
{¶ 3} On September 3, 2015, appellee filed a motion for summary judgment. In
support, appellee relied on the unanswered requests for admissions, propounded upon
appellant and deemed admitted, the Declaration of Condominium Ownership and
Bylaws, the affidavit of association president Pam Solze, and copies of three unsatisfied
liens dating back to January 2011.
{¶ 4} In opposition, appellant argued that the amount appellee claimed was owed
was not supported by the evidence. Appellant admitted that it owed up to $4,459.70 in
unpaid assessments and that it had not paid any assessments since October 2013.
Appellant also admitted that appellee was entitled to foreclose upon the property.
Appellant contended, however, that in calculating the monthly assessments and fees from
October 2013, until the date appellee filed its motion for summary judgment the amount
2.
requested was “in far excess of the amount owed or admitted.” In response, appellee
clarified that the October 2013 date was simply the last date that any payments were
made.
{¶ 5} On January 21, 2016, the trial court granted appellee’s motion for summary
judgment and found that it supported its claim for $17,478.25 with the affidavit of Pam
Solze and judgment liens predating October 2013. The court further noted that appellant
failed to provide evidence refuting the sum.
{¶ 6} Earlier, on December 21, 2015, defendants Donald and Glenn Eisenberg
filed a motion to vacate the default judgment entered against them. Defendants argued
that because they were not properly served notice of the action, the court lacked personal
jurisdiction over them. Thereafter, the Eisenbergs filed a Civ.R. 60(B) motion to vacate
the default judgment. While these motions were pending, appellant filed its notice of
appeal. At the request of appellant, we remanded the matter for the court to rule on the
motions. On April 28, 2016, the motions were denied and appellant filed an amended
notice of appeal to include the judgment entry (though he does not raise any arguments
related thereto in his appeal).
{¶ 7} Appellant now raises one assignment of error for our review:
The trial court erred in granting summary judgment to appellee.
{¶ 8} In its sole assignment of error, appellant argues that the trial court
erroneously relied on and awarded the amount owed as set forth in the affidavit of Pam
Solze. Appellant argues that the sum is considerably higher than the amount prayed for
in the complaint and not supported by sufficient Civ.R. 56 evidence. Conversely,
3.
appellee argues that in opposing its summary judgment motion appellant failed to provide
any evidence controverting its claim.
{¶ 9} The standard of review on motions for summary judgment is de novo; that
is, an appellate court applies the same standard in determining whether summary
judgment should be granted as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d
102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56, to prevail on a motion for summary
judgment the moving party must demonstrate:
(1) that there is no genuine issue as to any material fact; (2) that the
moving party is entitled to judgment as a matter of law; and (3) 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, who is entitled to have the evidence construed most strongly in his
favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375
N.E.2d 46 (1978).
{¶ 10} Reviewing de novo the Civ.R. 56(C) materials filed in the trial court, we
must conclude that the trial court did not err when it granted appellee’s motion for
summary judgment. The evidence presented by appellee, specifically the unsatisfied liens
dating back to 2011 and the affidavit of Pam Solze established the amount owed.
Appellant then had a reciprocal burden to present evidence under Civ.R. 56(E). The
conclusory statements in appellant’s brief were not sufficient to raise an issue of fact. See
Fifth Third Bank v. Mufleh, 6th Dist. Lucas Nos. L-04-1188, L-04-1157, L-04-1262,
2005-Ohio-2351; Natl. City Bank v. TAB Holdings, Ltd., 6th Dist. Erie No. E-10-060,
4.
2011-Ohio-3715. Based on the foregoing, we find that because no genuine issue of fact
remains for trial, appellant’s assignment of error is not well-taken.
{¶ 11} On consideration whereof, we find that substantial justice has been done
the party complaining, and the judgment of the Erie County Court of Common Pleas is
affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.
Judgment affirmed.
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
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
5.