Garfield Estates, L.L.C. v. Whittington , 2021 Ohio 211 ( 2021 )

[Cite as Garfield Estates, L.L.C. v. Whittington, 2021-Ohio-211.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
GARFIELD ESTATES, L.L.C., :
Plaintiff-Appellee, :
No. 109654
v. :
FALICIA WHITTINGTON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; REVERSED
IN PART; REMANDED
RELEASED AND JOURNALIZED: January 28, 2021
Civil Appeal from the Garfield Heights Municipal Court
Case No. CVF-1902801
Appearances:
Powers Friedman Linn, P.L.L., and Rachel E. Cohen, for
appellee.
Falicia Whittington, pro se.
EILEEN A. GALLAGHER, J.:
Defendant-appellant Falicia Whittington, pro se, appeals from the
trial court’s decision granting summary judgment in favor of plaintiff-appellee
Garfield Estates, L.L.C. (“Garfield Estates”) on its claims arising out of Whittington’s
alleged breach of a lease agreement. Whittington contends that the trial court erred
in entering summary judgment in favor of Garfield Estates because genuine issues
of material fact exist as to (1) “the accurate amount to be paid * * * related to
[Garfield Estates’] claim” and (2) whether alleged “faulty plumbing” and the
condition of the apartment following repairs from a “flood” breached an implied
warranty of habitability owed to Whittington. For the reasons that follow, we affirm
the trial court as to Whittington’s liability for breach of the lease agreement but find
that genuine issues of material fact exist as to the amount of damages to which
Garfield Estates is entitled for breach of the lease agreement. We, therefore, reverse
the trial court’s damages award and remand for further proceedings.
Procedural and Factual Background
On January 5, 2017, Whittington entered into a written lease
agreement (the “lease agreement”) with ZG Properties L.L.C. (“ZG Properties”) for
an apartment unit in the Garfield Villa Apartments located at 5210 East 88th Street
in Garfield Heights, Ohio 44125 (the “property”). According to the lease agreement,
Garfield Estates was the owner of the property and ZG Properties was the “owner’s
agent.” The lease agreement indicated that the initial lease term was from
December 1, 2016 to November 30, 2017. The lease automatically renewed for an
additional one-year term unless either party gave 60 days prior written notice to the
other of its intent to terminate the lease at the expiration of the then-existing term.
According to the lease agreement, the monthly rent was $460 plus a $10 trash fee.
Whittington also agreed to pay a utility cost recovery fee of $10, subject to
adjustment based on actual utility costs, at the expiration of the lease agreement and
the lease agreement authorized the landlord to charge a $75 late fee for any rental
payment made late, subject to a three-day or five-day grace period depending on the
method of payment.
On August 30, 2019, Garfield Estates filed a complaint against
Whittington, asserting claims for breach of the lease agreement and money due on
account. Garfield Estates alleged that Whittington had vacated the property in
September 2018, that at the time she vacated the property she was “in breach of the
lease agreement and the Ohio Revised Code” and that, as a result of “said breach,”
Whittington owed Garfield Estates $1,877.93 for failure to pay monthly rent and
“other contractual charges” set forth in the lease agreement. Copies of the lease
agreement and a statement of account, dated April 12, 2019, were attached to the
complaint. The statement of account listed the monthly rent as being $665 and
indicated that the lease term was from January 17, 2018 to December 31, 2018. The
statement of account also listed a “[m]ove [i]n” date of January 17, 2018, a “[n]otice”
date of September 1, 2018 and a “[m]ove [o]ut” date of September 10, 2018.
On November 19, 2019, Whittington filed an answer and “counter
claims.” She admitted that she was a former tenant of the property and had a written
lease agreement but otherwise denied the allegations of the complaint. With respect
to her “counter claims,” Whittington alleged that “faulty plumbing” had resulted in
two “floods” on the property. Whittington alleged that she had been moved to
another apartment on the premises following the first “flood” and that repairs were
not timely made following the second “flood.” She asserted that the “flood” and
incomplete repairs “caused unsuitable accommodations” and “provoked [sic] the
diminution-in-value rule in favor of a ‘reduction-in-use’ measure of damages.”
Whittington attached copies of what purport to be photos of the apartment following
the flood and “[l]etters * * * submitted to [the] property manager [c]oncerning the
unreasonable living conditions and intent to vacate” to her answer and
counterclaims.1 Whittington made no demand for affirmative relief on her “counter
claims” but requested that Garfield Estates’ complaint be dismissed with prejudice
at its cost. Garfield Estates filed a reply, denying the allegations of Whittington’s
“counter claims.”
On November 26, 2019, Garfield Estates served interrogatories, a
request for the production of documents and a request for admissions upon
Whittington. Attached to the request for admissions were copies of the lease
agreement and statement of account. The request for admissions included requests
to admit the following:
REQUEST FOR ADMISSION NO. 1: Exhibit “1,” a copy of which was
served with these Requests, is an itemization of rents, charges, and
damages alleged to be owed by you to Plaintiff (hereinafter referred to
as the “Statement of Account”).
REQUEST FOR ADMISSION NO. 2: Exhibit “2,” a copy of which was
served with these Requests, is a true and accurate copy of the written
rental agreement between you and Plaintiff (hereinafter the “Rental
Agreement”).
1
The copies of the letters that exist in the record are illegible and the copies of the
photographs that exist in the record are largely indecipherable or inscrutable.
REQUEST FOR ADMISSION NO. 5: The prices charged for the items
as shown in the Statement of Account were the agreed prices to be
charged and paid.
REQUEST FOR ADMISSION NO. 8: The computations by which the
balance claimed by Plaintiff was computed are accurate.
REQUEST FOR ADMISSION NO. 9: The balance herein sued for is
due and owing by you to Plaintiff.
REQUEST FOR ADMISSION NO. 10: Plaintiff fulfilled its obligations
to you as agreed to in the Rental Agreement.
REQUEST FOR ADMISSION NO. 13: Your actions with respect to the
premises which are the subject of this action violate the Rental
Agreement and §5321.05 of the Ohio Revised Code.
REQUEST FOR ADMISSION NO. 14: Except as may be shown in the
Complaint or the Statement of Account, you are not entitled to any
credits, offsets or deductions.
REQUEST FOR ADMISSION NO. 16: There are no facts upon which
you rely as evidence of or a basis for a defense against any of Plaintiff’s
claims.
REQUEST FOR ADMISSION NO. 18: There are no facts upon which
you rely as evidence of or a basis for any claim against Plaintiff.
The request specified a response time of 28 days after service. Whittingham did not
object to or respond to Garfield Estates’ discovery requests and did not request an
extension of time within which to respond to the requests.
On January 16, 2020, Garfield Estates filed a motion for leave to file
a motion for summary judgment instanter on its claims against Whittington. The
following day, the trial court granted Garfield Estates’ motion for leave. Garfield
Estates’ motion for summary judgment was based entirely on Whittington’s failure
to respond to its request for admissions. Based on the unanswered request for
admissions, Garfield Estates argued that each request for admission was deemed
admitted, that there were no material facts in dispute and that it was entitled to
judgment against Whittington in the amount of $1,877.93 plus postjudgment
interest and costs. In support of its motion, Garfield Estates submitted an affidavit
from its attorney,2 attaching copies of the unanswered discovery requests.3
On January 30, 2020, Whittington filed an “opposition motion to
[Garfield Estates’] motion for leave to file summary judgment instanter” (the
“opposition”). She asserted that (1) issues of material fact were “unresolved where
uninhabited laws raised just cause to vacate of subject matter premises [sic],” (2)
Garfield Estates had failed to “refute [her] counter claims,” (3) she had made “no
admissions * * * as to allegations made in Plaintiff’s complaint,” (4) Garfield Estates
had not shown good cause for leave to file a motion for summary judgment and (5)
granting Garfield Estates leave to file a motion for summary judgment “would cause
prejudice to [her] right to [a] fair trial.” Whittington did not submit any evidence in
support of her opposition and did not otherwise point to any evidence of specific
facts in the record that she contended established a genuine issue of material fact
for trial. Rather, she simply recited the summary judgment standard and asserted
2 In its motion for summary judgment, Garfield Estates asserted that it had
attached affidavits from both Garfield Estates and its counsel in support of the motion.
However, only an affidavit from counsel was attached to the motion.
3 In her affidavit, Garfield Estates’ attorney averred that copies of the discovery
requests had been served on Whittington and that Whittington had not responded to
Garfield Estates’ request for admissions or requested an extension of time within which
to respond to the request for admissions.
that (1) Garfield Estates had failed to set forth specific facts demonstrating its
entitlement to summary judgment and refuting her “counter claims” and (2) “the
face of both the complaint and the counter claims demonstrates that genuine issues
of material facts exists.”
On March 10, 2020, the trial court granted Garfield Estates’ motion
for summary judgment, finding that no genuine issues of material fact existed as to
its claims against Whittington. The trial court entered judgment in favor of Garfield
Estates and against Whittington in the amount of $1,877.93, plus interest at 5
percent from the date of judgment and costs.
Whittington appealed, raising the following two assignments of error
for review:
First Assignment of Error: The trial court erred and abused its
discretion by determining that no genuine issues of material fact exist
as to Plaintiff’s, Garfield Estates L.L.C.[’s], claims against Defendant,
Falicia Whittington.
Second Assignment of Error: The trial court erred and abused its
discretion by failing to consider Appellant, Falicia Whittington[’s]
related counter-claim and evidence as genuine issue of material fact.
Whittington’s assignments of error are interrelated. We, therefore,
address them together.
Law and Analysis
Jurisdiction
Before we can review the merits, we will first consider whether we
have jurisdiction to hear this appeal. Our appellate jurisdiction is limited to
reviewing orders that are both final and appealable. See Article IV, Section 3(B)(2),
Ohio Constitution; R.C. 2505.02, 2505.03. “If an order is not final and appealable,
then an appellate court has no jurisdiction to review the matter and the appeal must
be dismissed.” Assn. of Cleveland Firefighters, # 93 v. Campbell, 8th Dist.
Cuyahoga No. 84148, 2005-Ohio-1841, ¶ 6. This court has a duty to examine, sua
sponte, potential deficiencies in jurisdiction. See, e.g., Arch Bay Holdings, L.L.C. v.
Goler, 8th Dist. Cuyahoga No. 102455, 2015-Ohio-3036, ¶ 9, citing Saikus v. Ford
Motor Credit Co., 8th Dist. Cuyahoga No. 77802, 2001 Ohio App. LEXIS 1696, 6
(Apr. 12, 2001); see also Scanlon v. Scanlon, 8th Dist. Cuyahoga No. 97724, 2012-
Ohio-2514, ¶ 5 (“In the absence of a final, appealable order, the appellate court does
not possess jurisdiction to review the matter and must dismiss the case sua
sponte.”).
Ordinarily, where a matter involves multiple claims and parties, “[a]n
order which adjudicates one or more but fewer than all the claims or the rights and
liabilities of fewer than all the parties must meet the requirements of R.C. 2505.02
and Civ. R. 54(B) in order to be final and appealable.” Noble v. Colwell, 44 Ohio
St.3d 92, 540 N.E.2d 1381 (1989), syllabus. Pursuant to Civ.R. 54(B), to be final and
appealable, a judgment involving fewer than all claims or parties must include the
trial court’s express determination that there is “no just reason for delay.” Absent
such a determination, a decision that adjudicates fewer than all claims of all parties
“shall not terminate the action as to any of the claims or parties” and “is subject to
revision at any time before the entry of judgment adjudicating all the claims and the
rights and liabilities of all the parties.” Civ.R. 54(B). Where, however, pending
unresolved claims “touch upon the very same facts, legal issues and circumstances”
as resolved claims, even a Civ.R. 54(B) certification does not render a summary
judgment order final and appealable. See, e.g., Altenheim v. Januszewski, 8th Dist.
Cuyahoga No. 105860, 2018-Ohio-1395, ¶ 3-7, 10-12; Rae-Ann Suburban, Inc. v.
Wolfe, 8th Dist. Cuyahoga No. 107536, 2019-Ohio-1451, ¶ 12-19.
In this case, the trial court’s March 10, 2020 judgment entry granting
Garfield Estates’ summary judgment motion expressly disposed of Garfield Estates’
claims against Whittington but did not expressly dispose of Whittington’s “counter
claims” against Garfield Estates. The entry simply states: “This Court finds that no
genuine issues of material facts exist as to Plaintiff’s claims against Defendant and
therefore grants Plaintiff’s Motion for Summary Judgment. Judgment is hereby
rendered in favor of the Plaintiff, Garfield Estates, L.L.C., and against Defendant,
Falicia Whittington * * *.” The trial court’s judgment entry does not contain Civ.R.
54(B) language.
However, even if all claims involving all parties are not expressly
adjudicated by the trial court, “if the effect of the judgment as to some of the claims
is to render moot the remaining claims or parties, then compliance with Civ.R. 54(B)
is not required to make the judgment final and appealable.” Gen. Accident Ins. Co.
v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 21, 540 N.E.2d 266 (1989); see also Wise v.
Gursky, 66 Ohio St.2d 241, 243, 421 N.E.2d 150 (1981) (“[A] judgment in an action
which determines a claim in that action and has the effect of rendering moot all other
claims in the action as to all other parties to the action is a final appealable order
pursuant to R.C. 2505.02, and Civ.R. 54(B) is not applicable to such a judgment.”).
Under Civ.R. 8(A), a counterclaim must contain: (1) a short and plain
statement of the claim showing that the party is entitled to relief and (2) a demand
for judgment for the relief to which the party claims to be entitled. Whittington’s
“counter claims” arguably do not meet both those requirements. Furthermore, even
if Whittington’s “counter claims” met the requirements of Civ.R. 8(A), it is clear that
the trial court’s ruling on Garfield Estates’ claims in effect determined Whittington’s
“counter claims,” rendering them moot. Accordingly, we have jurisdiction to hear
this appeal.
Standard of Review
We review summary judgment rulings de novo, applying the same
standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671
N.E.2d 241 (1996). We accord no deference to the trial court’s decision and conduct
an independent review of the record to determine whether summary judgment is
appropriate.
Under Civ.R. 56, summary judgment is appropriate when no genuine
issue exists as to any material fact and, viewing the evidence most strongly in favor
of the nonmoving party, reasonable minds can reach only one conclusion that is
adverse to the nonmoving party, entitling the moving party to judgment as a matter
of law.
On a motion for summary judgment, the moving party carries an
initial burden of identifying specific facts in the record that demonstrate his or her
entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293,
662 N.E.2d 264 (1996). If the moving party fails to meet this burden, summary
judgment is not appropriate; if the moving party meets this burden, the nonmoving
party must then point to evidence of specific facts in the record demonstrating the
existence of a genuine issue of material fact for trial. Id. at 293. If the nonmoving
party fails to meet this burden, summary judgment is appropriate. Id.In this case, Garfield Estates asserted two claims: (1) a claim for
breach of the lease agreement and (2) a claim for money owed on account. An action
on an account is not a separate claim but, rather, “a pleading device ‘used to
consolidate several claims which one party has against another.’” Kwikcolor Sand
v. Fairmount Minerals Ltd., 8th Dist. Cuyahoga No. 96717, 2011-Ohio-6646, ¶ 13,
quoting AMF, Inc. v. Mravec, 2 Ohio App.3d 29, 440 N.E.2d 600 (8th Dist. 1981),
paragraph one of the syllabus. An action on account “simplifies pleadings by
allowing a party to advance, as one claim, claims for separate breaches of contract
based on a series of transactions by providing a summary of accounting for the
transactions.” Kwikcolor Sand at ¶ 13. Thus, Garfield Estates’ claim for money
owed on account — like its claim for breach of the lease agreement — is really a claim
for breach of contract. See, e.g., Schottenstein, Zox & Dunn Co., L.P.A. v. Reineke,
9th Dist. Medina No. 10CA0138-M, 2011-Ohio-6201, ¶ 18 (‘“An action on an account
is an action for a breach of contract.”’), quoting AMF at paragraph two of the
syllabus; Hiram College v. Courtad, 162 Ohio App.3d 642, 2005-Ohio-4331, 834
N.E.2d 432, ¶ 7-8 (11th Dist.) (“In an action on account, the account must show: (1)
the defendant’s name, (2) a beginning balance, (3) an itemized list of credits and
debits, and (4) a means of determining an amount alleged to be owed. * * * ‘[I]n the
absence of a contractual relationship between two parties, an action on an account
cannot be maintained by one against the other.’ An action on an account does not
alleviate the plaintiff's burden of showing that the defendant was bound to pay the
amounts listed on the account.”), quoting Laurelwood Hosp. v. Lorenzo, 11th Dist.
Lake No. 93-L-063, 1993 Ohio App. LEXIS 6122, 5-6 (Dec. 17, 1993).
To prevail on a claim for breach of contract, a plaintiff must prove:
(1) the existence of a contract; (2) performance by the plaintiff; (3) breach by the
defendant and (4) resulting damages to the plaintiff. See, e.g., FedEx Corp. Servs.
v. Brandes Internatl. Co., 8th Dist. Cuyahoga No. 108309, 2020-Ohio-3449, ¶ 16;
Osborn Engineering Co. v. K/B Fund IV Cleveland, L.L.C., 8th Dist. Cuyahoga No.
95157, 2011-Ohio-348, ¶ 10. To establish the amount due on an account, a plaintiff
must prove:
(1) a beginning balance (zero, or a sum that can qualify as an account
stated, or some other provable sum); (2) listed items, or an item, dated
and identifiable by number or otherwise, representing charges, or
debits, and credits; and (3) a summarization by means of a running or
developing balance, or an arrangement of beginning balance and items
which permits the calculation of the amount claimed to be due.
Discover Bank v. Pierce, 2d Dist. Montgomery No. 25755, 2014-Ohio-625, ¶ 17,
quoting Discover Bank c/o DFS Servs. L.L.C. v. Lammers, 2d Dist. Greene No. 08
CA 85, 2009-Ohio-3516, ¶ 20; see also Midland Funding, L.L.C. v. Snedeker, 5th
Dist. Licking No. 13-CA-56, 2014-Ohio-887, ¶ 25.
In this case, Garfield Estates moved for summary judgment on its
claims based solely on Whittington’s failure to respond to its request for admissions.
Under Civ.R. 36(A), a party to a lawsuit may serve a written request
for admissions on the opposing party. Unless the trial court modifies the time frame,
the receiving party must answer or object to the admissions within the time period
designated in the request (which must be not less than 28 days after the request for
admissions is served) or the admissions are deemed admitted. Civ.R. 36(A)(1).
Civ.R. 36 is self-enforcing. 6750 BMS, L.L.C. v. Drentlau, 2016-Ohio-
1385, 62 N.E.3d 928, ¶ 13 (8th Dist.). If the requests are not timely answered, they
are automatically admitted and recognized by the trial court as fact unless the trial
court permits a party to withdraw or amend its admissions under Civ.R. 36(B).
Civ.R. 36(B) (“Any matter admitted under this rule is conclusively established unless
the court on motion permits withdrawal or amendment of the admission.”); 6750
BMS at ¶ 13 (“Because the rule is self-enforcing, the trial court has no discretion
whether to deem the matters admitted. * * * If the requests are not answered by the
deadline, they are automatically admitted, and the trial court must recognize them
unless and until a party moves to have the admissions withdrawn.”); Bayview Loan
Servicing, L.L.C. v. St. Cyr, 2017-Ohio-2758, 90 N.E.3d 321, ¶ 15 (8th Dist.)
(“[W]here a party fails to timely respond to the request for admissions, those
admissions become fact.”). A parties’ default admissions under Civ.R. 36(B)
constitute “written admissions” for summary judgment purposes and may be relied
upon to demonstrate the absence of a genuine issue of material fact for trial under
Civ.R. 56(C). See, e.g., Chase Home Fin. L.L.C. v. Dunlap, 4th Dist. Ross No.
11CA3266, 2013-Ohio-1915, ¶ 16; see also WFG Natl. Title Ins. Co. v. Meehan, 2018-
Ohio-491, 107 N.E.3d 60, ¶ 36 (8th Dist.) (“‘[W]here a party files a written request
for admission, a failure of the opposing party to timely answer the request
constitutes a conclusive admission pursuant to Civ.R. 56(C) in case of a summary
judgment.’”), quoting Klesch v. Reid, 95 Ohio App.3d 664, 674, 643 N.E.2d 571 (8th
Dist.1994).
Civ.R. 36(B) states that “the court may permit withdrawal or
amendment when the presentation of the merits of the action will be subserved
thereby and the party who obtained the admission fails to satisfy the court that
withdrawal or amendment will prejudice the party in maintaining his action or
defense on the merits.” Civ.R. 36 does not require a formal motion or specify a time
within which a request to withdraw or amend admissions must be made. Even
absent a written or oral motion to withdraw, “[c]ourts have accepted * * * various
challenges to the truth of an admission as implicit motions to withdraw.” C.S.J. v.
S.E.J., 8th Dist. Cuyahoga No. 108390, 2020-Ohio-492, ¶ 12; WFG Natl. Title Ins.
at ¶ 38.
In this case, there is nothing in the record to indicate that Whittington
ever made a written or oral motion to withdraw or amend the admissions or
otherwise implicitly moved to withdraw the admissions by contesting or challenging
the truth of the admissions below. Nor has she offered any explanation for her
failure to respond to the request for admissions. In her opposition to the summary
judgment motion, Whittington stated only that “no admissions are made by
defendant as to the allegations made in Plaintiff’s complaint.” She did not address
the default admissions that arose due to her failure to respond to Garfield Estates’
request for admissions.
Based on the default admissions, Whittington admitted that Garfield
Estates “fulfilled its obligations to you as agreed in the Rental Agreement” and that
she “violate[d] the Rental Agreement.” Thus, with respect to the issue of
Whittington’s liability on its claim for breach of the lease agreement, Garfield
Estates met its initial burden under Civ.R. 56(C), i.e., identifying specific facts in the
record that demonstrate its entitlement to summary judgment, on that issue. The
burden then shifted to Whittington to show the existence of a genuine issue of
material fact for trial.
When a moving party properly supports its motion for summary
judgment, the nonmoving party “may not rest upon the mere allegations or denials
of the party’s pleadings.” Civ.R. 56(E). Rather, “the party’s response, by affidavit or
as otherwise provided in [Civ.R. 56], must set forth specific facts showing that there
is a genuine issue for trial.” Id. Although she filed an opposition to Garfield Estates’
summary judgment motion, Whittington did not meet her reciprocal burden on
summary judgment. Dresher, 75 Ohio St.3d at 293, 662 N.E.2d 264. Whittington
did not submit any evidence in support of her opposition and did not otherwise point
to any evidence of specific facts in the record that established a genuine issue of
material fact for trial. Rather, as stated above, she simply asserted that “the face of
both the complaint and the counter claims demonstrates that genuine issues of
material facts exists [sic].” Whittington’s reliance on the allegations of the complaint
and her “counter claims” was not sufficient to preclude summary judgment on the
issue of liability. See, e.g., Papa’s Homes, L.L.C. v. Maple Park Terrace
Condominium Assn., 8th Dist. Cuyahoga No. 109298, 2020-Ohio 5621, ¶ 14.
Therefore, as to the issue of liability on Garfield Estates’ claims, we
find no error by the trial court in entering summary judgment in favor of Garfield
Estates and against Whittington.
However, as to the issue of damages, i.e., the amount due under the
lease agreement, we reach a different conclusion. We find that we find that genuine
issues of material fact exist that precludes summary judgment on that issue.
With respect to the amounts due under the lease agreement, the
default admissions contain contradictory information. The default admissions
include admissions that the copy of the lease agreement attached to Garfield Estates’
request for admissions was a true and accurate copy of the parties’ written lease
agreement, setting forth the obligations between the parties. The default admissions
also include admissions that “[t]he prices charged for the items as shown in the
Statement of Account were the agreed prices to be charged and paid,” “[t]he
computations by which the balance claimed by Plaintiff was computed are accurate,”
“[t]he balance herein sued for is due and owing by you to Plaintiff” and “[e]xcept as
may be shown in the Complaint or the Statement of Account, you are not entitled to
any credits, offsets or deductions.” However, the amounts payable under the terms
of the lease agreement do not match the amounts stated as being owed on the
statement of account, which was the basis for the damages awarded by the trial
court.
According to the lease agreement, the monthly rent was $460 (plus
a $10 trash fee). The statement of account, however, states that the monthly rent
was $665. There is nothing in the record that explains or accounts for this
discrepancy. In addition, according to the lease agreement, the initial lease term
was from December 1, 2016 through November 30, 2017, automatically renewable
for a one-year period unless notice was given. Thus, based on the terms of the lease
agreement, the lease term at issue should be from December 1, 2018-November 30,
2019. The statement of account, however, states that the lease term is from
January 17, 2018 to December 31, 2018. Once again, there is nothing in the record
that explains or accounts for this discrepancy.
The statement of account begins with a $0 balance as of September 1,
2018. For September 2018, the statement of account then lists a monthly rent
charge of $665 rent and a $205 credit for “concessions,” resulting in a net charge of
$460 ($665-$205). There is nothing in the record that explains this “concessions”
credit or what it is for. For September 2018, the statement of account also lists a
“monthly trash charge” and a “late rent fee,” which appear to have been permitted
under the terms of the lease agreement, as well as a $2.93 charge for “electric
09.12.2018 – 09.17.2018 – 6 days” — which is inexplicably after the September 10,
2018 “[m]ove out” date.
For October 2018, the statement of account lists a rent charge of
$665, a “concessions” credit of $205, a “monthly trash charge” of $10, a rent credit
of $665, a “concessions” charge of $205 and a “monthly trash charge” credit of $10,
resulting in a net $0 charge for October 2018. There is nothing in the record that
explains these charges and credits. For November 2018 and December 2018 (which
would have been after the lease term expired), the statement of account lists only
monthly rent charges of $665 for each month.
Garfield Estates, through its use of the default admissions, put forth
contradictory information regarding as the amounts Whittington owed under the
lease agreement. Where default admissions contain contradictory information, a
trial court errs in entering summary judgment. See, e.g., Chase Home Fin., 2013-
Ohio-1915, at ¶ 19 (summary judgment was inappropriate where, due to
contradictory default admissions by the parties, genuine issues of material fact
existed); cf. Ohio CAT v. Stoneman, 2015-Ohio-3546, 41 N.E.3d 833, ¶ 32-35 (11th
Dist.) (appellee, as the moving party, failed to meet its burden of demonstrating the
absence of any genuine issue of material fact and the trial court erred in granting
summary judgment in favor of appellee for $64,877.21 where appellee put forth
contradictory evidence in support of its motion for summary judgment as to the
amount owed by appellant, i.e., the admissions indicated that appellant owed
appellee $60,880 and appellee’s affidavit claimed appellant owed appellee
$64,877.21).
Because the default admissions — the sole evidence Garfield Estates
relied on to support its summary judgment motion — contain contradictory
information regarding its damages, Garfield Estates did not meet its initial burden
under Civ.R. 56(C) of presenting evidence of specific facts that demonstrate the
absence of a genuine issue of material fact on that issue. Accordingly, the trial court
erred to the extent it granted summary judgment in favor of Garfield Estates on the
issue of damages.
Whittington’s assignments of error are sustained in part and
overruled in part. We affirm the trial court as to Whittington’s liability for breach of
the lease agreement. We reverse the trial court’s damages award and remand the
case for further proceedings.
Judgment affirmed in part; reversed in part; remanded.
It is ordered that appellant and appellee shall share equally the costs herein
taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Garfield Heights Municipal
Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
SEAN C. GALLAGHER, P.J., and
LARRY A. JONES, SR., J., CONCUR