Velocity Invests., L.L.C. v. Kunzler , 2023 Ohio 1689 ( 2023 )

[Cite as Velocity Invests., L.L.C. v. Kunzler, 2023-Ohio-1689.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
VELOCITY INVESTMENTS, LLC :
ASSIGNEE OF PROSPER FUNDING :
LLC ASSIGNEE OF WEBBANK : C.A. No. 2022-CA-56
:
Appellee : Trial Court Case No. 2022CV0246
:
v. : (Civil Appeal from Common Pleas
: Court)
LARRY KUNZLER :
:
Appellant
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OPINION
Rendered on May 19, 2023
...........
MICHAEL T. BROFMAN, ERIC S. PETERSON, ANTHONY N. BARONE, VIKTORIYA
DYRDA, Attorneys for Appellee
LARRY KUNZLER, Pro Se Appellant
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LEWIS, J.
{¶ 1} Defendant-Appellant Larry Kunzler appeals from a judgment of the Greene
County Common Pleas Court granting summary judgment to Plaintiff-Appellee Velocity
Investments, LLC (“Velocity”). For the following reasons, we affirm the judgment of the
trial court.
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I. Facts and Course of Proceedings
{¶ 2} On May 9, 2022, Velocity filed a complaint alleging that it had acquired all
right, title, and interest in and to a claim originally owed by Kunzler to WebBank and that
Kunzler currently owed $7,377.85 on that claim. Velocity attached to its complaint a copy
of the written agreement between WebBank and Kunzler. According to the case
information form filed with the complaint, this case was a re-filing of a previous case
(Greene C.P. No. 2019 CV 0590) that had been dismissed.
{¶ 3} Kunzler was served with the complaint on June 3, 2022. He did not file an
answer to the complaint. On August 15, 2022, Velocity filed a motion for summary
judgment. Attached to its motion were documents showing the assignment of
WebBank’s claim to Prosper Funding, LLC, and then to Velocity; Velocity also attached
copies of requests for admissions that it had served on Kunzler. According to Velocity,
Kunzler had not provided timely responses to these requests for admissions. Kunzler
did not file a response to the motion for summary judgment.
{¶ 4} On September 21, 2022, the trial court granted the motion for summary
judgment and entered judgment in favor of Velocity in the amount of $7,377.85, plus
interest and court costs. Kunzler filed a timely notice of appeal.
II. The Trial Court Did Not Err in Granting Summary Judgment to Velocity
{¶ 5} Pursuant to Civ.R. 56(C), summary judgment may be granted when the
moving party demonstrates that (1) there is no genuine issue of material fact, (2) the
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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. State ex rel. Grady v. State Emp. Relations Bd.,
78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997). Appellate review of summary judgment
is de novo. Helton v. Scioto Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162, 703 N.E.2d
841 (4th Dist.1997). “We review the judgment independently and without deference to
the trial court's decision.” (Citation omitted.) Id.{¶ 6} Kunzler filed a pro se brief that does not comply with App.R. 16. For
example, he fails to make a statement of the assignments of error and statement of the
issues presented for review. App.R. 16(A)(3)-(4). Moreover, he primarily relies on
several documents attached to his brief that were not in the trial court’s record. These
facts severely limit our ability to address Kunzler’s appeal.
{¶ 7} Generally, Kunzler contends that the trial court erred by granting judgment
against him. Contrary to the trial court’s finding, Kunzler states that he did respond to
the complaint filed by Velocity Investments within the 28 days provided for in the
summons that accompanied the complaint. As proof of this, Kunzler attaches to his brief
a copy of what appears to be a shipment receipt from The UPS Store in Fairborn, Ohio.
This receipt shows the shipment going to Javitch Block LLC in Cleveland, Ohio, which is
the name of the law firm that represents Velocity. In the response letter attached as
Exhibit 5 to his appellate brief, which apparently was included in the mailing to Javitch
Block LLC, Kunzler explains that he made an agreement with Velocity during a previous
case, Case No. 2019 CV 0590. According to this agreement, Kunzler was to pay $155
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per month for 48 months starting in June 2020. But then the case was dismissed by the
trial court when neither party submitted an agreed judgment entry in the time required by
the court. According to Kunzler, he stopped making payments under the agreement
when the previous case was dismissed. Kunzler attached to his appellate brief a copy
of the order dismissing the previous action.
{¶ 8} Kunzler concludes his appellate brief by stating:
And now, after almost two years, the Plaintiff comes again filing the
same motion. Only this time, I have no defense. I had no clue I could be
tried for the same thing twice. It doesn’t seem right. Nevertheless, the
Plaintiff’s claim that I did not dispute or answer their requests are false. I did
respond, and in the appropriate time frame, refer back to Exhibits 5 and 6.
Appellant asks the court to reverse the final judgment against the
Defendant in Case No. 2022 CV 0246 the matter of Velocity Investments,
LLC vs. Larry Kunzler.
{¶ 9} Under well-established law, appellate courts are limited to the record before
the trial court and cannot consider documents or matters that are not in the record.
Chase Manhattan Mtge. Corp. v. Locker, 2d Dist. Montgomery No. 19904, 2003-Ohio-
6665, ¶ 10. Therefore, in deciding Kunzler’s appeal, we are confined to reviewing the
record that was before the trial court at the time it issued its opinion granting summary
judgment to Velocity.
{¶ 10} When the trial court ruled on the summary judgment motion, Kunzler had
filed neither an answer to the complaint nor a response to the summary judgment motion.
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The evidence before the trial court established that Velocity was an assignee of a debt
originally incurred between Kunzler and WebBank. Further, Velocity provided the trial
court with a copy of discovery requests served on Kunzler, including requests for
admissions. Velocity represented to the trial court that Kunzler had failed to timely
respond to the request for admissions and contended that the matters therein should be
deemed admitted. A number of these requests for admissions covered the existence of
the debt, the amount of the debt, and Kunzler’s legal obligation to pay the debt. “It is well
established that summary judgment may be granted based on a matter that is admitted
through unanswered requests for admissions.” (Citations omitted.) Natl. Collegiate
Student Loan Trust 2005-3 v. Demers, 2d Dist. Clark No. 2018-CA-93, 2019-Ohio-1475,
¶ 17. However, we are troubled by the fact that Velocity failed to provide an affidavit
averring that its requests for admission went unanswered. Even more troubling is that
these discovery requests attached to Velocity’s motion appear to have been served on
Kunzler in a previous case involving these parties, not in the current litigation. Indeed,
the discovery requests note a case number of 2019 CV 0590 and a service date of
October 30, 2019. The complaint in the current action was filed over 30 months after
this service date.
{¶ 11} Despite the troubling nature of the requests for admissions submitted in
support of Velocity’s motion for summary judgment, we cannot conclude that the trial court
erred in granting the motion. Kunzler filed neither an answer to Velocity’s complaint nor
a response to the motion for summary judgment. The allegations in the complaint and
the other information presented with Velocity’s motion for summary judgment were
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sufficient to establish Velocity’s claim against Kunzler. Therefore, the assignment of
error is overruled.
III. Conclusion
{¶ 12} Having overruled Kunzler’s assignment of error, the judgment of the trial
court is affirmed.
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TUCKER, J. and HUFFMAN, J., concur.