Yeager v. Moody ( 2014 )

[Cite as Yeager v. Moody, 2014-Ohio-2931.]
STATE OF OHIO, CARROLL COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
ANN M. YEAGER, )
)
PLAINTIFF-APPELLANT, )
) CASE NO. 13 CA 884
V. )
) OPINION
PAUL MOODY AND VISTA WINDOW )
CO., )
)
DEFENDANTS-APPELLEES. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Carroll County, Ohio
Case No. 11CVH26833
JUDGMENT: Reversed in part
Affirmed in part
APPEARANCES:
For Plaintiff-Appellant Ann Yeager, Pro-se
3546 Steubenville Road, SE
Amsterdam, Ohio 43903
For Defendant-Appellee Attorney Jennifer L. Thomas
Paul Moody 26 Second Street SE
P.O. Box 235
Carrollton, Ohio 44615
For Defendant-Appellee Attorney Douglas W. Ross
Vista Window Company, LLC 1129 Niles-Cortland Road, SE
Warren, Ohio 44484
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
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Dated: June 20, 2014
[Cite as Yeager v. Moody, 2014-Ohio-2931.]
DONOFRIO, J.
{¶1} Plaintiff-appellant Ann Yeager appeals a decision of the Carroll County
Common Pleas Court dismissing her claims against defendants-appellees Paul
Moody and Vista Window Company for lack of standing.
{¶2} Proceeding pro se, Yeager sued Paul Moody (d.b.a. PJ Moody
Builders) and Vista Window Company arising out of the purchase and installation of
windows in her mother’s home. She set forth numerous claims each stemming from
her general allegation that Vista defectively designed and manufactured the
windows, and that Moody defectively installed them.
{¶3} Initially, the trial court dismissed Yeager’s complaint for failure to pay
the filing fee and for problems regarding her affidavit of indigence. Yeager appealed
and this court reversed and remanded finding that she was entitled to notice and a
hearing with respect to her status as an indigent prior to dismissal. Yeager v. Moody,
7th Dist. No. 11 CA 874, 2012-Ohio-1691.
{¶4} Following remand and in October 2012, Vista and Moody each filed
motions for summary judgment. Vista defended its manufacture of the windows,
pointed out that another company designed the windows, and argued that Yeager
lacked standing to bring her mother’s claim. Its motion was well-supported with
Yeager’s responses to interrogatories, numerous exhibits, and an affidavit from John
Matulek, Vista’s national service manager who inspected the windows in response to
the lawsuit. Moody defended its installation of the windows and supported its motion
with numerous exhibits as well as Yeager’s responses to interrogatories.
{¶5} Yeager filed numerous motions to delay trial and extend the time to
respond to the summary judgment motions for an indefinite period while she pursued
further discovery and prepared for trial.
{¶6} Yeager never responded to the motions and on December 20, 2012,
the trial court granted judgment in favor of Moody and Vista and dismissed Yeager’s
complaint. The court acknowledged that there may be genuine issue of material fact
concerning the installation of the windows by Moody, but that Vista had presented
unrebutted evidence that the windows were not defectively manufactured.
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Nevertheless, the court found that, concerning all of Yeager’s claims, she lacked
standing to pursue them since the windows were purchased and installation of the
windows in Yeager’s mother’s home was directed by Yeager’s mother and not her.
This appeal followed.
{¶7} Still proceeding pro se, Yeager sets forth eight assignments of error in
an appellate brief from which it is difficult to discern comprehensible arguments. As
Yeager’s first two assignments or error concern her standing to bring the underlying
action and are largely dispositive of this appeal, they will be addressed together.
They state, respectively:
Trier-of-fact erred—in granting defendants’ summary
judgments—by reducing plaintiff’s proper standing—from general
contractor to agent.
Trier-of-fact erred—in granting defendants’ summary
judgments—by nullifying contract between plaintiff and property-owner-
parent.
{¶8} An appellate court reviews a trial court’s decision on a motion for
summary judgment de novo. Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio
St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, at ¶ 24. Summary judgment is properly
granted when: (1) there is no genuine issue as to any material fact; (2) the moving
party is entitled to judgment as a matter of law; and (3) 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. Harless v. Willis Day Warehousing Co., 54
Ohio St.2d 64, 66, 375 N.E.2d 46 (1976); Civ.R. 56(C).
{¶9} Of particular relevance to this appeal, Civ.R. 56(E), provides, in part:
When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere
allegations or denials of the party's pleadings, but the party's response,
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by affidavit or as otherwise provided in this rule, must set forth specific
facts showing that there is a genuine issue for trial. If the party does not
so respond, summary judgment, if appropriate, shall be entered against
the party.
{¶10} The situation presented by this case is very similar to the one presented
to this court in Sky Bank v. Hill, 7th Dist. No. 03 MA 114, 2004-Ohio-3046. Hill too
involved a pro se litigant who failed to respond to a summary judgment motion. This
court first pointed out that “[a]lthough courts usually make certain allowances for pro
se litigants, they are ultimately held to the same standards of conduct and are
presumed to have the same knowledge of the law as litigants who are represented by
counsel.” Id. at ¶ 9, citing Kilroy v. B.H. Lakeshore Co., 111 Ohio App.3d 357, 363,
676 N.E.2d 171 (8th Dist.1996) and Meyers v. First Natl. Bank, 3 Ohio App.3d 209,
210, 444 N.E.2d 412 (1st Dist.1981).
{¶11} In response to appellant’s failure to respond to a summary judgment
motion filed by the opposing party, this court went on to observe:
It is evident from the record that Appellants fell far short of their
burden in this matter. At no point did Appellants offer any real response
to the motion for summary judgment. Appellants were required, to avoid
summary judgment, to raise a question of fact in this matter. They never
responded in any way to the request. Even if we construe their motion
for dismissal as some kind of responsive filing, Appellants were
absolutely required to present some evidence (affidavits,
interrogatories, etc.) which cast doubt on the evidence introduced by
Appellee. The rambling arguments of Appellants' themselves is wholly
insufficient. Thus, the trial court was left with no choice, having no other
evidence before it than that offered by Appellee, to grant Appellee's
motion for summary judgment.
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Id. at ¶ 12.
{¶12} Therefore, like in Hill, based on Yeager’s failure to respond to Vista’s
and Moody’s motions for summary judgment, the trial court was left with no choice,
having no other evidence before it than that offered by Vista and Moody, but to grant
their motions for summary judgment.
{¶13} As already indicated, if the nonmovant does not respond to the motion,
summary judgment, if appropriate, shall be entered against the party. Civ.R. 56(E). In
other words, despite the nonmovant’s failure to respond to the summary judgment
motion, summary judgment must still be otherwise appropriate in order for the trial
court to grant the motion. And, here, summary judgment was appropriate.
{¶14} “A person who is not a real party in interest generally lacks standing to
invoke the jurisdiction of the court to litigate a matter before that court.” Natl. City
Mtge. v. Piccirilli, 7th Dist. No. 08 MA 230, 2011-Ohio-4312, ¶ 23, citing State ex rel.
Dallman v. Court of Common Pleas, Franklin Cty. (1973), 35 Ohio St.2d 176, 178,
298 N.E.2d 515. The concept of standing is addressed by Ohio’s Rules of Civil
Procedure. Civ.R. 17(A) requires that an action be brought “in the name of a real
party in interest.” This means one who is “directly benefited or injured by the outcome
of the case rather than merely having an interest in the action itself.” State ex rel.
Sinay v. Sodders, 80 Ohio St.3d 224, 226, 685 N.E.2d 754 (1997). An injury in fact is
one that is specific, traceable to the subject matter of the suit, and capable of being
redressed by the court. Fair Hous. Advocates Assn., Inc. v. Chance, 9th Dist. No.
07CA0016, 2008-Ohio-2603, at ¶ 5.
{¶15} “The purpose of [the real party in interest] rule is so the defendant can
avail himself of evidence and defenses that the defendant has against the real party
in interest, to assure the defendant of the finality of the judgment, and to protect the
defendant against another suit brought by the real party in interest on the same
matter. When an action is prosecuted in the name of the real party in interest, and
that party is awarded judgment, the party against whom the judgment is awarded is
protected from the possibility of multiple judgments against him.” (Internal Citations
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Omitted.) Myers v. Evergreen Land Dev. Ltd., 7th Dist. No. 07 MA 123, 2008-Ohio-
1062, at ¶ 13.
{¶16} In this case, Yeager has no standing because she has not suffered any
injury or damages. The windows were purchased from a retailer by her mother and
paid for by her mother. They were installed in her mother’s home. The installer,
Moody, was paid by her mother.
{¶17} Yeager’s claim that she was an independent contractor for her mother
fails for two reasons. First, she did not present any evidence of such a relationship
and the payments made by her mother to the retailer and installer belies this claim.
Second, even if she was acting as an independent contractor, she still did not
demonstrate how she suffered any injury or damages.
{¶18} In sum, the trial court properly entered summary judgment in Vista’s
and Moody’s favor where, after construing the evidence most strongly in Yeager’s
favor, there was no genuine issue as to any material fact, Vista and Moody were
entitled to judgment on Yeager’s complaint as a matter of law, and reasonable minds
could come to but one conclusion, and that conclusion was adverse to Yeager.
{¶19} Accordingly, appellant’s first and second assignments of error are
without merit.
{¶20} Yeager’s third, fourth, fifth, sixth, and seventh assignments of error
state, respectively:
Trier-of-fact erred—in granting defendants’ summary
judgments—by failing to review evidence in Exhibit thumb drive, and
whole testimony of each parties’ interrogatories.
Trier-of-fact erred—in granting defendants’ summary
judgments—by failing to consider depositions of plaintiff’s five fact &
expert witnesses—whereby, for knowledge—trier could have, sua
sponte reversed his decision—or denied defendants’ summary
judgments.
-6-
Trier-of-fact erred—in denying plaintiff extension of time—to file
affirmative summary judgment motion—which said Civil Rule requires
deposition & affidavits—to prove.
Trier-of-fact erred—in failing to grant plaintiff relief from case-
management schedule—move trial to a date considering—plaintiff’s
substantive rights—by failing to find case-management-conference’s
meeting-of-minds—was subject to contract law—which, for contract
law’s ‘failure to consider’—afforded plaintiff right to relief, from said
agreed trial date.
Trier-of-fact erred—in failing to review sufficiency of P/A
evidence—remitted (6-8-12) in thumb drive exhibit of 94 videos. Said
videos sufficed CR34’s required actions for providing land entry. In
nexus, Vista’s actual scant viewing—at land entry, proved said video
exhibits fulfilled land entry. TOF therefore—erred in granting Vista land-
entry costs. Question whether error—rises to level of abuse of
discretion.
{¶21} Each of these assignments of error is directed towards the merits of
Yeager’s claims, assuming she had standing. However, standing is a jurisdictional
prerequisite which, if found lacking, precludes reaching the merits of a suit. Fed.
Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979
N.E.2d 1214, ¶ 23. Because Yeager lacked standing to bring this action, these
assignments of error are rendered moot. App.R. 12(A)(1)(c).
{¶22} Yeager’s eighth and final assignment of error states:
Trier-of-fact erred—in citing plaintiff’s socio-economic status in
10-2-2012 order—in nexus with facts beyond plaintiff’s control; and
erred in assessing indigent plaintiff costs—in 12-10-12 order—which
conflicted with 4-23-12 order (waiving plaintiff costs)—where plaintiff’s
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financial status did not change—during proceedings (or second
appeals).
{¶23} In an entry filed after this court’s remand, the trial court, on March 30,
2012, noted that Yeager had subsequently filed other documents which satisfied it
that she may file the action as an indigent without paying a filing fee. In a later entry
dated October 2, 2012, the trial court stated, “The court notes with some concern that
the plaintiff repeatedly asserts her indigency as a reason for her failure to comply with
applicable procedural rules, while she reports that she purchased expensive windows
and proposes video depositions for which she must compensate both a court reporter
and a videographer.”
{¶24} This entry seems to indicate that the trial court may have been
questioning Yeager’s indigency status or having second thoughts about its previous
finding of her indigency. However, it never filed a subsequent judgment entry finding
that Yeager was not indigent or explicitly revoking her indigency status. Nonetheless
(and perhaps simply the result of an oversight), in its October 10, 2012 entry
disposing of this case, the trial court noted that the case was dismissed with
prejudice “at plaintiff’s costs.” Therefore, based on the trial court’s undisturbed finding
of Yeager’s indigency, the court’s entry disposing of this case and assessing costs
against Yeager was in error.
{¶25} Accordingly, Yeager’s eighth assignment of error has merit.
{¶26} That portion of the trial court’s judgment assessing Yeager costs is
reversed and, based on the trial court’s March 30, 2012 finding of Yeager’s
indigency, modified to reflect that no costs are assessed against Yeager. The
judgment, in all other respects, is affirmed.
Vukovich, J., concurs.
DeGenaro, P.J., concurs.