Lehrer v. McClure , 2013 Ohio 4690 ( 2013 )

[Cite as Lehrer v. McClure, 2013-Ohio-4690.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
RICHARD LEHRER, ET AL : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiffs-Appellees : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2013CA00039
RALPH MCCLURE, ET AL :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Case No. 2012CV02680
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 21, 2013
APPEARANCES:
For Plaintiffs-Appellees For Defendant-Appellant
ANDREW ZUMBAR JANA DELOACH
526 East Main Street P.O. Box 2385
Alliance, OH 44601 Akron, OH 44309
[Cite as Lehrer v. McClure, 2013-Ohio-4690.]
Gwin, P.J.
{¶1} Appellant appeals the January 28, 2013 judgment entry of the Stark
County Common Pleas Court granting appellees’ motion for summary judgment,
ordering foreclosure of the Parkway Property, and granting judgment in the amount of
$128,987.16 with interest from the date of judgment at the statutory rate.
Facts & Procedural History
{¶2} On January 7, 2010, appellant Ralph McClure and appellees Richard and
Debra Lehrer entered into a land installment contract for the premises located at 707
Parkway Boulevard, Alliance, Ohio. The contract provided that appellant would pay
appellees a total of $264,900.00 for the real estate according to the following terms:
$10,000 payable immediately as a down payment and thirty-eight (38) monthly
installments of $7,266.88 commencing February 2010 that included interest at the rate
of five (5) percent per annum. Further, under the section of the contract entitled
“Contract Price and Payment,” it states that, “In the event that any installment shall
become overdue for a period in excess of fifteen (15) days, a late charge of five (5)
percent of the delinquent installment may be charged by the Vendor * * *.” The contract
also provides if “any installment payment is not made when due, or within thirty (30)
days thereafter * * * the unpaid balance shall become due at the option of the Vendor,
or Vendor may initiate forfeiture of Vendee’s interests and retain all installment
payments as liquidated damages and may retake possession of the property as
provided by law.”
{¶3} Appellant paid the $10,000 down payment and made monthly payments
through September of 2011. In October of 2011, appellant ceased paying the monthly
Stark County, Case No. 2013CA00039 3
installment payments. In a letter dated December 2, 2011 and served via certified mail,
appellees notified appellant that he was delinquent in payment and that if he failed to
bring the matter current in thirty (30) days, appellees would initiate a forfeiture and
foreclosure of the land installment contract. Appellant failed to make further payment on
the contract. On June 15, 2012, in a letter served by certified mail, counsel for
appellees notified appellant the land installment contract between appellant and
appellees was forfeited unless appellant fully and completely performed the terms of the
contract within ten (10) days of the date he received the letter. Appellant did not make
any further payments on the land installment contract.
{¶4} Appellees filed a complaint for foreclosure of land installment contract and
breach of contract on August 23, 2012. In the complaint, appellees sought a judgment
of forfeiture, order of foreclosure, sale of the premises, and judgment for all sums due
under the land installment contract, which totaled approximately $150,000. Appellant
filed his answer to the complaint on September 25, 2012. On October 18, 2012, the trial
court issued a case management and trial order setting a discovery cut-off date of
December 10, 2012 and a dispositive motion deadline of December 14, 2012. The case
management order specified that “responses to dispositive motions are due within 14
days of filing dispositive motions, unless otherwise ordered by the Court.”
{¶5} On December 14, 2012, appellees filed a motion for summary judgment
alleging there were no genuine issues of material fact and they were entitled to
forfeiture of the land installment contract and monetary damages of $128,987.16 on
their breach of contract claim. The affidavit of Richard Lehrer was attached to the
motion for summary judgment and stated he had personal knowledge of the facts set
Stark County, Case No. 2013CA00039 4
forth therein. The affidavit stated appellant was in breach of the land installment
contract for failing to pay the monthly payments since October of 2011 and that
appellees are “owed the sum of $128,987.16 under the terms of the Land Installment
Contract” from appellant. The trial court issued a judgment entry establishing a briefing
schedule for appellees’ motion for summary judgment on December 20, 2012. In the
judgment entry, the trial court gave appellant until January 3, 2013 to file a response to
the motion for summary judgment. Appellant did not file a response to appellees’
motion for summary judgment. On January 28, 2013, the trial court issued a judgment
entry granting appellees’ motion for summary judgment for the forfeiture of the land
installment contract, ordered the foreclosure of the Parkway property, and granted
judgment on appellees’ breach of contract claim against appellant in the amount of
$128,987.16 with interest from the date of judgment.
{¶6} Appellant appeals the January 28, 2013 judgment entry and assigns the
following error:
{¶7} “I. THE TRIAL COURT ERRED IN GRANTING THE APPELLEE’S
MOTION REGARDING DAMAGES, FIRST, BECAUSE IT HELD NO EVIDENTIARY
HEARING REGARDING DAMAGES, AND, SECONDLY, BECAUSE SAID DAMAGES
EXCEEDED THE PURCHASE PRICE OF THE PROPERTY IN ISSUE AND THE
AMOUNT PERMITTED BY R.C. 5313.07.”
I.
{¶8} Appellant stipulates to the finding that he breached the terms of the land
installment contract. However, appellant argues the trial court erred in awarding
appellees damages of $128,987.16. We disagree.
Stark County, Case No. 2013CA00039 5
Summary Judgment
{¶9} Civ.R. 56 states, in pertinent part:
“Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed
in the action, show that there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law. No evidence or
stipulation may be considered except as stated in this rule. A summary
judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, 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, that
party being entitled to have the evidence or stipulation construed mostly
strongly in the party’s favor. A summary judgment, interlocutory in
character, may be rendered on the issue of liability alone although there is
a genuine issue as to the amount of damages.”
{¶10} A trial court should not enter a summary judgment if it appears a material
fact is genuinely disputed, nor if, construing the allegations most favorably towards the
non-moving party, reasonable minds could draw different conclusions from the
undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St. 2d 427, 424 N.E.2d 311
(1981). The court may not resolve any ambiguities in the evidence presented. Inland
Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St. 3d 321, 474
N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the
Stark County, Case No. 2013CA00039 6
applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App. 3d 301,
733 N.E.2d 1186 (6th Dist. 1999).
{¶11} When reviewing a trial court’s decision to grant summary judgment, an
appellate court applies the same standard used by the trial court. Smiddy v. The
Wedding Party, Inc., 30 Ohio St. 3d 35, 506 N.E.2d 212 (1987). This means we review
the matter de novo. Doe v. Shaffer, 90 Ohio St. 3d 388, 2000-Ohio-186, 738 N.E.2d
1243.
{¶12} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis of the motion and identifying the portions of the
record which demonstrates absence of a genuine issue of fact on a material element of
the non-moving party’s claim. Drescher v. Burt, 75 Ohio St. 3d 280, 662 N.E.2d 264
(1996). Once the moving party meets its initial burden, the burden shifts to the non-
moving party to set forth specific facts demonstrating a genuine issue of material fact
does exist. Id. The non-moving party may not rest upon the allegations and denials in
the pleadings, but instead must submit some evidentiary materials showing a genuine
dispute over material facts. Henkle v. Henkle, 75 Ohio App. 3d 732, 600 N.E.2d 791
(12th Dist. 1991).
{¶13} The facts relied upon in a motion for summary judgment must be
presented by the type of evidence listed in Civil Rule 56(C), which includes “pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact.” Civ.R. 56(C). “Supporting and opposing
affidavits shall be made on personal knowledge, shall set forth such facts as would be
Stark County, Case No. 2013CA00039 7
admissible in evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated in the affidavit.” Civ.R. 56(E).
Insufficient Evidence
{¶14} Appellant first argues the trial court erred in determining the amount of
damages because appellees failed to meet their initial burden regarding damages in
their summary judgment motion. We disagree.
{¶15} The affidavit provided by appellees attached to their motion for summary
judgment is of evidentiary quality and value pursuant to Civ.R. 56(C). The affidavit
states that Richard Lehrer has personal knowledge as to all the facts set forth in the
affidavit. The affidavit sets forth the following facts: The last payment received from
appellant by appellees was in September 2011; since October 2011 to the present
appellant has not made any payment to appellees under the terms of the Land
Installment Contract; appellant has failed to pay appellees the amount of $128,987.16
which amount is truly and lawfully due and owing from appellant to appellees; and
appellees are owed the sum of $128,987.16. This amount corresponds with the
complaint filed by appellees as the complaint states that appellant “owes the entire
balance remaining due and owing under the terms of the Land Installment Contract,
which totals approximately $150,000.” Richard Lehrer’s affidavit also states that the
required statutory notices were sent to appellant and appellant failed to respond to the
statutory notices. Thus, appellees met their evidentiary burden in their summary
judgment motion.
{¶16} As appellees met their evidentiary burden to establish there is no issue of
material fact with regard to the default of appellant and the amount due and owing
Stark County, Case No. 2013CA00039 8
under the terms of the land installment contract, appellant has the reciprocal burden to
point to evidentiary material that suggests summary judgment is not warranted.
However, despite appellant’s receipt of the briefing schedule and case management
order set by the trial court, no contrary Civ.R. 56(C) evidence was presented by
appellant to indicate he did not default on the land installment contract or that the
amount in Richard Lehrer’s affidavit was incorrect. Appellant did not state he paid a
different amount, that the interest rate or late fees were incorrect, or provide any other
specific facts with regards to the amount of damages to refute Richard Lehrer’s affidavit.
Accordingly, we find there is no genuine issue of material fact remaining to be litigated
with regards to appellant’s default on the land installment contract and the amount due
and owing to appellees pursuant to the land installment contract.
R.C. 5313.07
{¶17} Appellant next contends the trial court erred in its award of damages
because the amount awarded exceeds the amount permitted by R.C. 5313.07. We
disagree.
{¶18} R.C. 5313. 07 provides as follows:
If the vendee of a land installment contract has paid in accordance
with the terms of the contract for a period of five years or more from the
date of the first payment or has paid toward the purchase price a total sum
equal to or in excess of twenty percent thereof, the vendor may recover
possession of his property only by use of a proceeding for foreclosure and
judicial sale of the foreclosed property as provided in section 2323.07 of
the Revised Code. Such action may be commenced after expiration of the
Stark County, Case No. 2013CA00039 9
period of time prescribed by sections 5313.05 and 5313.06 of the Revised
Code. In such an action, as between the vendor and vendee, the vendor
shall be entitled to proceeds of the sale up to and including the unpaid
balance due on the land installment contract.
{¶19} Appellant contends the $128,987.16 amount is greater than the unpaid
balance due on the land installment contract. The land installment contract, attached to
appellees’ motion for summary judgment and verification of which was included in
Richard Lehrer’s affidavit, states that the original balance of the contract is $264,900,
payable in one down payment of $10,000 and thirty-eight (38) installments of $7,266.88,
which includes an interest rate of five percent per year. Also the “Contract Price and
Payment” section of the land installment contract provides that vendor may charge an
additional late charge fee of five percent of the delinquent installment for any installment
overdue for a period in excess of fifteen (15) days. In this case, the land installment
contract itself defines the “contract price and payment” to include the down payment,
monthly installment payments, interest, and late charges. Thus, the “unpaid balance
due on the land installment contract” is the unpaid portion of the contract price as
specifically provided for in the land installment contract.
{¶20} In Richard Lehrer’s affidavit, he states that appellees are “owed the sum of
$128,987.16 under the terms of the Land Installment Contract” from appellant and that
$128,987.16 is the amount “truly and lawfully due and owing from Defendant to
Plaintiff.” The affidavit thus provides that the unpaid balance due on the land installment
contract is $128,987.16. Appellant failed to provide any contrary Civ.R. 56(C) evidence
that the unpaid balance due on the land installment contract as stated in Richard
Stark County, Case No. 2013CA00039 10
Lehrer’s affidavit was incorrect or did not represent the unpaid balance due on the land
installment contract. Accordingly, there is no genuine issue of material fact as to the
unpaid balance due on the land installment contract.
{¶21} Based on the foregoing, we find the trial court did not err in granting
summary judgment to appellees or in awarding the amount of damages set forth in
Richard Lehrer’s affidavit.
Evidentiary Hearing
{¶22} Appellant argues the trial court erred in failing to hold an evidentiary
hearing regarding damages. We disagree.
{¶23} It is within the trial court’s discretion to decide whether an evidentiary
hearing on damages is necessary. Buckeye Supply Co. v. Northeast Drilling Co., 24,
Ohio App.3d 134, 136, 493 N.E.2d 964 (1985). Generally a reviewing court will not
reverse a trial court’s decision regarding its determination of damages absent an abuse
of discretion. Kaufman v. Byers, 159 Ohio App. 3d 238, 823 N.E.2d 530, 2004-Ohio-
6346 (11th Dist. 2004). To find an abuse of discretion, this court must determine that
the trial court’s decision was unreasonable, arbitrary, or unconscionable and not merely
an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450
N.E.2d 1140 (1983). When applying the abuse of discretion standard, this Court may
not substitute its judgment for that of the trial court. Id.
{¶24} Upon review, we find appellant’s argument in support of a damages
hearing to be unpersuasive. As discussed above, appellees submitted an affidavit with
their motion for summary judgment specifically stating the total amount due and owing
under the terms of the land installment contract is $128,987.16. The trial court utilized
Stark County, Case No. 2013CA00039 11
this amount in awarding damages. This amount comports with appellees’ complaint
that stated the balance remaining due and owing under the land installment contract
was approximately $150,000. Appellant was given notice of the filing of the motion for
summary judgment and the briefing schedule set by the trial court. However, appellant
failed to present any evidence in response to appellees’ motion for summary judgment
to dispute the amount provided by Richard Lehrer in his affidavit or request a hearing on
damages. Accordingly, we find the trial court did not abuse its discretion in failing to
hold an evidentiary hearing regarding damages.
{¶25} For the foregoing reasons, appellant’s assignment of error is overruled
and the January 28, 2013 judgment of the Stark County Common Pleas Court is
affirmed.
By Gwin, P.J.,
Wise, J., and
Baldwin, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. CRAIG R. BALDWIN
WSG:clw 1004
[Cite as Lehrer v. McClure, 2013-Ohio-4690.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
RICHARD LEHRER, ET AL :
:
Plaintiffs-Appellees :
:
:
-vs- : JUDGMENT ENTRY
:
RALPH MCCLURE, ET AL :
:
:
Defendant-Appellant : CASE NO. 2013CA00039
For the reasons stated in our accompanying Memorandum-Opinion, the January 28,
2013 judgment of the Stark County Common Pleas Court is affirmed. Costs to
appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. CRAIG R. BALDWIN