Woods Cove v. Brazil

[Cite as Woods Cove v. Brazil, 2019-Ohio-4348.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
WOODS COVE III, L.L.C., :
Plaintiff-Appellee, :
No. 107889
v. :
LESLIE BRAZIL, JR., ET AL., :
Defendants-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 24, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-17-875581
Appearances:
David T. Brady and Brian S. Gozelanczyk, for appellee.
Gary Cook, for appellants.
LARRY A. JONES, SR., P.J.:
Defendants-appellants, Leslie Brazil, Jr., and Leslie Brazil, III,
(“collectively Brazil”) appeal the trial court’s granting of summary judgment in favor
of substitute-plaintiff-appellee Rolland Petranovich (“Petranovich”) and the
dismissal of Brazil’s counterclaims against Woods Cove III, L.L.C. and cross-claims
against Cuyahoga County Treasurer W. Christopher Murray, II (“Treasurer”)
(collectively referred to as “Woods Cove”). Finding no merit to the appeal, we affirm.
In 2017, Woods Cove filed a complaint for foreclosure of Brazil’s
equitable and statutory redemption rights and sale of property located at 2290
North Taylor Road in Cleveland Heights to satisfy the tax liens represented by two
tax certificates that Woods Cove held. Brazil filed numerous counter- and cross-
claims against Woods Cove; he also sought class certification pursuant to Civ.R. 23.
While the case was pending, the tax certificates were transferred to
REI Holdings, L.L.C., and then to Rolland Petranovich, who was substituted as
party-plaintiff. Petranovich moved for summary judgment, which Brazil opposed.
The court granted Petranovich’s motion for summary judgment and dismissed
Brazil’s counter- and cross-claims.
Brazil was also involved in separate litigation against Woods Cove.
See Stewart v. Woods Cove, II, L.L.C., Cuyahoga C.P. No. CV-15-855010 (“Stewart
I”). In that case, Brazil and another plaintiff, Eddie Stewart, filed suit against Woods
Cove. The trial court dismissed the plaintiffs’ complaint in October 2016; the
plaintiffs appealed, and this court reversed the trial court’s decision. Stewart v.
Woods Cove II, L.L.C., 2017-Ohio-8314, 99 N.E.3d 956, ¶ 4 (8th Dist.). The case
was remanded to the trial court. In August 2018, the plaintiffs filed a Civ.R. 41(A)
notice of dismissal.
In the instant appeal, Brazil raises the following assignments of error:
I. Reviewing appellees’ motion for summary judgment de novo, the
record is clear and convincing that the trial court erred to the
prejudice of the appellant by granting appellees’ motion for summary
judgment.
II. Reviewing appellees’ motion for summary judgment de novo, the
record is clear and convincing that the trial court erred to the
prejudice of the appellant by granting appellees’ motion to dismiss
counterclaims and cross claims.
In the first assignment of error, Brazil contends that the trial court
erred in granting summary judgment.
This court reviews an award of summary judgment de novo. Grafton
v. Ohio Edison Co., 77 Ohio St. 3d 102, 105, 671 N.E.2d 241 (1996). “We apply the
same standard as the trial court, viewing the facts in the case in the light most
favorable to the non-moving party and resolving any doubt in favor of the non-
moving party.” Thompson v. Lyndhurst, 8th Dist. Cuyahoga No. 107695, 2019-
Ohio-3277, ¶ 19, citing Viock v. Stowe-Woodward Co., 13 Ohio App. 3d 7, 12, 467
N.E.2d 1378 (6th Dist.1983).
Pursuant to Civ.R. 56(C), summary judgment is appropriate when:
(1) no genuine issue as to any material fact remains to be litigated; (2) the moving
party is entitled to judgment as a matter of law; and (3) it appears from the evidence
that reasonable minds can come to but one conclusion, and viewing such evidence
most strongly in favor of the party against whom the motion for summary judgment
is made, that conclusion is adverse to that party. Temple v. Wean United, Inc., 50
Ohio St. 2d 317, 327, 364 N.E.2d 267 (1977).
To succeed on a summary judgment motion, the movant bears the
initial burden of demonstrating that there are no genuine issues of material fact
concerning an essential element of the opponent’s case. Dresher v. Burt, 75 Ohio
St.3d 280, 292, 662 N.E.2d 264 (1996). If the movant satisfies this burden, the
nonmoving party ‘“must set forth specific facts showing that there is a genuine issue
for trial.”’ Id. at 293, quoting Civ.R. 56(E).
With the above-mentioned standard in mind, we now consider the
trial court’s decision to grant summary judgment in favor of Petranovich.
Brazil contends that Petranovich did not support his motion for
summary judgment with proper evidence. Specifically, he argues that Petranovich’s
affidavit was not made with the requisite personal knowledge needed for it to
adequately support the motion for summary judgment. We find this contention to
be without merit.
Civ.R. 56(C) provides an exclusive list of materials that a trial court
may consider when deciding a motion for summary judgment. State ex rel. Varnau
v. Wenninger, 12th Dist. Brown No. CA2009-02-010, 2011-Ohio-3904, ¶ 7. Those
materials are “pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written stipulations of fact.”
Civ.R. 56(C). To be considered in a summary judgment motion, an affidavit “shall
be made on personal knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to testify as to
the matters stated in the affidavit.” Civ.R. 56(E).
Personal knowledge is defined as “knowledge of the truth in regard to
a particular fact or allegation, which is original, and does not depend on information
or hearsay.” Re v. Kessinger, 12th Dist. Butler No. CA2007-02-044, 2008-Ohio-
167, ¶ 32. Absent evidence to the contrary, an affiant’s statement that his or her
affidavit is based on personal knowledge will suffice to meet the requirement of
Civ.R. 56(E). Churchill v. G.M.C., 12th Dist. Butler No. CA2002-10-263, 2003-
Ohio-4001, ¶ 11; Papadelis v. First Am. Savs. Bank, 112 Ohio App. 3d 576, 579, 679
N.E.2d 356 (8th Dist.1996). Additionally, in the absence of a specific statement,
personal knowledge may be inferred from the contents of an affidavit. Bank One,
N.A. v. Swartz, 9th Dist. Lorain No. 03CA008308, 2004-Ohio-1986, ¶ 15.
Petranovich averred that (1) he is the holder of the tax certificates; (2)
basic information can be found on the face of the tax certificates; (3) there are
amounts due and owing on the certificates; (4) a notice of intent to foreclose was
filed and the date and information contained thereon is easily identifiable from the
face of the notice; (5) he has not received payment in full to redeem the certificate.
Brazil did not provide evidence to controvert Petranovich’s
averments. Thus, we find no error.
Brazil makes no other supported arguments why summary judgment
should not have been granted in Petranovich’s favor. Accordingly, the first
assignment of error is overruled.
In the second assignment of error, Brazil argues that the trial court
erred by granting the motion to dismiss his counter- and cross-claims.
As mentioned, Brazil filed an answer and numerous counter- and
cross-claims against Woods Cove. The counter- and cross-claims are identical to the
claims he previously filed in Stewart I.1 The complaint was filed in that case on
1 The claims in both cases read as follows:
Count I — the tax lien certificate enabling statute violates the Takings
Clauses of the Ohio and United States Constitutions;
Count II — the tax lien certificate enabling statute is unconstitutional as an
impermissible delegation of legislative authority;
Count III — the tax certificate sale/purchase agreements between the
Treasurer and Woods Cove II and Woods Cove III are unconstitutional as
violating the Equal Protections Clauses of the Ohio and United States
Constitutions;
Count IV — the tax certificate sale/purchase agreements between the
Treasurer and Woods Cove are unconstitutional as violative of appellants’
procedural due process rights;
Count V — the tax certificate sale/purchase agreements between the
Treasurer and Woods Cove were not subject to Ohio’s competitive bidding
process;
Count VI — violation of 42 U.S.C. 1983 by virtue of defendants’ conduct
pursuant to R.C. [Chapter] 5721;
Count VII — violation of Ohio’s Consumer Sales Practices Act (“OCSPA”)
(against Woods Cove only);
Count VIII — violation of Ohio’s Civil Rights Statute (“OCRA”) (against
Woods Cove only);
Count IX — Writ of Mandamus (against the Treasurer only);
Count X — violation of the federal Truth in Lending Act (“TILA”) (against
Woods Cove only).
See Stewart, 2017-Ohio-8314, 99 N.E.3d 956, at ¶ 31.
March 7, 2016. The Stewart I defendants subsequently filed a motion to dismiss.
On October 17, 2016, the trial court granted the defendants’ motion, which Stewart
and Brazil appealed.
On February 17, 2017, Woods Cove filed the instant foreclosure
action, Cuyahoga C.P. No. CV-17-875581. On March 24, 2017, Brazil filed his
counter- and cross-claims. Woods Cove moved to dismiss those claims on April 21,
and June 26, 2017.
On October 26, 2017, this court reversed Stewart I and remanded the
case to the trial court. On December 12, 2017, the trial court in this case granted
Woods Cove’s motion to dismiss. On August 2, 2018, the Stewart I plaintiffs filed a
Civ.R. 41(A) notice of dismissal.
In its motion to dismiss in this case, Woods Cove informed the trial
court that the counter- and cross-claims Brazil raised are identical to those claims
he raised in Stewart I. When the trial court granted the motion to dismiss in the
instant case, Stewart I had been already reversed by this court; Brazil’s claims in
Stewart I and the instant case were pending at the same time.2
In Siggers v. Rudd, 8th Dist. Cuyahoga No. 53935, 1988 Ohio App.
LEXIS 3037 (July 28, 1988), the two parties were involved in an automobile
accident. Siggers filed suit against Rudd, and Rudd counterclaimed in Cuyahoga
2Because Stewart I was on appeal at the time Brazil filed his counter- and cross-
claims in this case, the claims appear to be an attempt to obtain a more favorable ruling
from a different trial court. Had this court affirmed Stewart I, the claims would have
been barred by res judicata.
C.P. No. 99008. Before Case No. 99008 was disposed of, Rudd filed suit against
Siggers in Cuyahoga C.P. No. 118896, alleging the same claims he had filed as
counterclaims in Case No. 99008. Case No. 99008 was settled and dismissed;
Rudd’s counterclaims were dismissed for failure to prosecute. Then, in the case
Rudd filed against Siggers, Case No. 118896, Siggers obtained a default judgment
against Rudd. Rudd filed a motion to vacate the judgment, which the trial court
denied. Rudd appealed.
On appeal, Rudd argued that the trial court abused its discretion in
retaining jurisdiction over an action subsequently filed while a prior action,
concerning identical parties and issues of fact and law, was pending in the same
court before another trial judge. This court agreed:
When Siggers’ complaint was filed, an action was already pending in
Common Pleas Court under Case No. 99008 involving the same
parties and the same automobile collision. The newly-filed complaint
was a duplication of the counterclaim in Case No. 99008 and should
have been refiled in that case or transferred to or consolidated with
that case. This was not done because the designation sheet for the
newly-filed complaint did not disclose that a related case was pending
or previously filed. Siggers’ newly-filed complaint was therefore
subject to dismissal or, at a minimum, subject to being transferred to
and consolidated with Case No. 99008.
Id. at 4. This court reversed the trial court’s denial of Rudd’s motion for relief from
judgment. Id. at 5.
The procedural posture of this case differs from Siggers, but we find
the case instructive for the general premise that duplicative lawsuits are generally
prohibited under Ohio law. See also Secrest v. Std. Oil Co., 118 Ohio App. 270, 271,
194 N.E.2d 68 (10th Dist.1963) (“[A] counterclaim cannot be used to set up a cause
of action which is already pending between the parties.”).
In this case, at the time that Brazil filed his counter- and cross-claims
against Woods Cove, his claims in the Stewart I case had been dismissed but were
on appeal. This court reinstated his claims in Stewart I prior to the dismissal of the
counter- and cross-claims in the instant case. Although the trial court in this case
did not state its reasons for granting Woods Cove’s motion to dismiss, the trial court
did not err in granting the motion because Brazil was attempting to plead claims
identical to those that were pending in Stewart I.
The second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
LARRY A. JONES, SR., PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
MICHELLE J. SHEEHAN, J., CONCUR