Howard v. Popok & Renehan ( 2012 )

[Cite as Howard v. Popok & Renehan, 2012-Ohio-3170.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BONNIE D. HOWARD, JUDGES:
EXECUTOR OF THE ESTATE OF Hon. William B. Hoffman, P.J.
JAMES M. HOWARD AND HOWARD Hon. Sheila G. Farmer, J.
INDUSTRIES, INC. Hon. John W. Wise, J.
Appellants Case No. 11-CA-116
-vs-
OPINION
POPOK & RENEHAN
Appellee
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 07 CV 01248,
09 CV 00 790
JUDGMENT: Vacated and Remanded
DATE OF JUDGMENT ENTRY: July 12, 2012
APPEARANCES:
For Appellee For Appellants
THOMAS H. PYPER MICHAEL HRABCAK
Pyper & Nordstrom, LLC HEIDI A. SMITH
7601 Paragon Rd., Suite 301 Hrabcak & Company, L.P.A.
Dayton, Ohio 45459 67 East Wilson Bridge Road, Suite 100
Worthington, Ohio 43085
Licking County, Case No. 11-CA-116 2
Hoffman, P.J.
{¶1} Appellants Bonnie D. Howard, Executor of the Estate of James M.
Howard, and Howard Industries, Inc. appeal the October 28, 2011 Judgment Entry of
the Licking County Court of Common Pleas in favor of Appellee Popok & Renehan.
STATEMENT OF THE CASE
{¶2} At all times relevant herein, James Howard, decedent, Robert B. Howard,
and Cynthia H. Peterson were the sole shareholders of Howard Industries, Inc. James
Howard acted as President, CEO, CFO, Treasurer, and Secretary of Howard Industries,
Inc. from May, 1997, until December 26, 2006, when he passed away. At all times
relevant, James Howard dominated the corporate affairs of Howard Industries, Inc. He
provided Appellee Popok & Renehan, an accounting firm, with the information upon
which Popok & Renehan would rely when compiling Howard Industries' financial
information and tax returns.
{¶3} Upon James Howard's passing, the remaining shareholders and directors
filed the within action against the Estate of James M. Howard and Bonnie Howard,
alleging among other things misuse of corporate assets for personal benefit. The
Estate then filed a derivative claim alleging accounting malpractice against Appellee
Popok & Renehan ("Popok").
{¶4} On April 20, 2011, Popok filed a motion for summary judgment. On May 9,
2011, Howard Industries, Inc. filed a memorandum contra the motion for summary
judgment. On May 23, 2011, the Estate of James M. Howard filed a memorandum in
opposition. On May 25, 2011, Popok filed a reply.
Licking County, Case No. 11-CA-116 3
{¶5} Via Judgment Entry of October 28, 2011, the trial court granted summary
judgment in favor of Appellee Popok & Renehan.
{¶6} Appellants now appeal, assigning as their sole error:
{¶7} “I. THE TRIAL COURT ERRED IN DETERMINING THERE WERE NO
GENUINE ISSUE OF MATERIAL FACT FOR TRIAL.”
{¶8} This matter is before the Court upon a ruling on a motion for summary
judgment. Civ.R. 56(C) provides, in pertinent part:
{¶9} "Summary judgment shall be rendered forthwith if the pleading,
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 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, such party being entitled to have the evidence or stipulation construed most
strongly in the party's favor."
{¶10} Pursuant to the above rule, a trial court may not enter summary judgment
if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,
674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264(1996).
{¶11} The trial court's October 28, 2011 Judgment Entry reads,
Licking County, Case No. 11-CA-116 4
{¶12} "Significantly, it should be noted the Estate of James Howard did not
respond to Popok & Renehan's Motion for Summary Judgment. Moreover, Howard
Industries' Memo Contra fails to set forth specific facts showing a genuine issue for trial.
As a result, the Court finds that Popok & Renehan's Motion for Summary Judgment is
well taken, and hereby granted."
{¶13} Upon review of the trial court's docket, it is clear the Estate of James
Howard did file a Memorandum in Opposition to the motion for Summary Judgment,
with certification of service on May 23, 2011. The trial court found the absence of a
response “significant”, and did so incorrectly.
{¶14} We believe, the material facts in this matter should be reviewed in the first
instance by the trial court considering all materials properly submitted herein. As a
result, we vacate the judgment of the trial court granting summary judgment in favor of
Appellee, and remand the matter to the trial court to redetermine the summary judgment
motion.
By: Hoffman, P.J.
Farmer, J. and
Wise, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ John W. Wise _____________________
HON. JOHN W. WISE
Licking County, Case No. 11-CA-116 5
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BONNIE D. HOWARD, :
EXECUTOR OF THE ESTATE OF :
JAMES M. HOWARD AND HOWARD :
INDUSTRIES, INC. :
Appellants :
:
-vs- : JUDGMENT ENTRY
:
POPOK & RENEHAN :
:
Appellee : Case No. 11-CA-116
For the reason stated in our accompanying Opinion, we vacate the judgment of
the trial court granting summary judgment in favor of Appellee, and remand the matter
to the trial court for redetermination in accordance with the law and our opinion. Costs
to be divided.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ John W. Wise______________________
HON. JOHN W. WISE