Fifth Third Bank v. Schaffer , 2013 Ohio 5702 ( 2013 )

[Cite as Fifth Third Bank v. Schaffer, 2013-Ohio-5702.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Fifth Third Bank, :
Plaintiff-Appellee, :
No. 13AP-118
v. : (C.P.C. No. 12CV008873)
Rodney F. Schaffer, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 24, 2013
Yale R. Levy and Krishna K. Velayudhan, for appellee.
Rodney F. Schaffer, pro se.
APPEAL from the Franklin County Court of Common Pleas.
T. BRYANT, J.
{¶1} Defendant-appellant, Rodney F. Schaffer, filed an appeal from a judgment
of the Franklin County Court of Common Pleas, which granted the summary judgment
motion of plaintiff-appellee, Fifth Third Bank ("Fifth Third"). For the following reasons,
we affirm.
{¶2} On July 12, 2012, Fifth Third served a complaint and summons upon
appellant by certified mail at 5988 Oswald Street, Westerville, Ohio. Fifth Third alleged
that it is the owner of a promissory note appellant executed on March 24, 2006, with a
principal amount of $495,000, plus interest. Fifth Third demanded judgment against
appellant in the sum of $547,013.90, plus interest at 2.75 percent from May 11, 2012,
costs expended and other proper relief.
{¶3} On August 8, 2012, appellant filed an answer stating that he did not
believe he owed any outstanding debts to Fifth Third. On November 12, 2012, Fifth
Third served its first set of requests for admissions upon appellant, by ordinary mail at
No. 13AP-118 2
5988 Oswald Street, Westerville, Ohio. On December 26, 2012, Fifth Third filed a
motion for summary judgment and served appellant by ordinary mail at 5988 Oswald
Street, Westerville, Ohio. Fifth Third alleged that, since appellant failed to respond to
its request for admissions, the admissions are deemed admitted, establish the facts
conclusively, and Fifth Third is entitled to judgment as a matter of law. On February 6,
2013, the trial court granted Fifth Third's motion for summary judgment.
{¶4} Appellant filed a notice of appeal on February 13, 2013 and raised the
following assignment of error:
PROPER SERVICE WAS NEVER ESTABLISHED, THE
ADDRESS USED FOR SERVICE BY THE APPELLEE WAS
INCORRECT AS THE APPELLANT HAD NOT LIVED
THERE FOR OVER TWO YEARS THEREFORE DUE TO
LACK OF SERVICE, THE COURTS SHOULD NOT BE ABLE
TO GRANT SUMMARY JUDGEMENT IN FAVOR OF
APPELLEE AS OF THIS DATE (4/05/13)
{¶5} By his assignment of error, appellant contends that proper service of Fifth
Third's motion for summary judgment was never accomplished. Appellant argues that
the line of credit was secured by property located at 1370 Wingate Drive, Delaware,
Ohio, and the house was foreclosed in 2010 and should have paid any outstanding liens.
{¶6} To prevail on a motion for summary judgment, the moving party must
demonstrate that: (1) there is no genuine issue of 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 when viewing the evidence most strongly in favor of the nonmoving party
and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); Hudson v.
Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, ¶ 29. Appellate review of a trial
court's ruling on a motion for summary judgment is de novo. Id. Such review is
independent and without deference to the trial court's determination. Brown v. Scioto
Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711 (4th Dist.1993). Thus, "[w]hen reviewing
a trial court's ruling on summary judgment, the court of appeals conducts an
independent review of the record and stands in the shoes of the trial court." Mergenthal
v. Star Banc Corp., 122 Ohio App.3d 100, 103 (12th Dist.1997).
{¶7} Pursuant to Civ.R. 5(B)(2)(c), a party may serve a motion by mailing it to
the person's last known address by United States mail. Edney v. Life Ambulance Serv.,
No. 13AP-118 3
Inc., 10th Dist. No. 11AP-1190, 2012-Ohio-4305, ¶ 7. If this method of service is utilized,
service is considered complete upon mailing. Civ.R. 5(B)(2)(c). "Where a party follows
the Ohio Civil Rules of Procedure, courts presume proper service unless the
presumption is rebutted with sufficient evidence." Paasewe v. Wendy Thomas 5 Ltd.,
10th Dist. No. 09AP-510, 2009-Ohio-6852, ¶ 22. This presumption of proper service
" 'may only be rebutted by producing sufficient evidence, such as an affidavit, that the
responding party never received service.' " White v. Stotts, 3d Dist. No. 1-10-44, 2010-
Ohio-4827, ¶ 45, quoting JP Morgan Chase Bank v. Ritchey, 11th Dist. No. 2006-L-247,
2007-Ohio-4225, ¶ 40. " '[U]nsworn statements, such as bare allegations in an
appellate brief, do not constitute evidence and are not sufficient to rebut the
presumption of proper service.' " Paasewe at ¶ 22, quoting Poorman v. Ohio Adult
Parole Auth., 4th Dist. No. 01CA16, 2002-Ohio-1059.
{¶8} In this case, the trial court record contains no evidence that appellant no
longer resided at the 5988 Oswald Street address. Appellant stated he had not resided
there for two years, but there is no evidence that appellant informed the court he had
moved to Las Vegas, Nevada, which is the address on his brief. Appellant did not
provide an affidavit or any written documentation to support his contention. Moreover,
the complaint was served by certified mail, and appellant received it. The trial court's
decision was sent to the Oswald address, and appellant must have received it because he
filed his notice of appeal seven days later. Appellant failed to rebut the presumption of
proper service.
{¶9} As there was no evidence in the record to rebut Fifth Third's evidence, the
trial court did not err in granting Fifth Third's motion for summary judgment.
Appellant's assignment of error is not well-taken.
{¶10} For the foregoing reasons, appellant's assignment of error is overruled,
and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
TYACK and DORRIAN, JJ., concur.
T. BRYANT, J., retired, formerly of the Third Appellate
District, assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).
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