Davie v. First Baptist Church of Greater Cleveland

[Cite as Davie v. First Baptist Church of Greater Cleveland, 2016-Ohio-7713.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104004
ERICA DAVIE
PLAINTIFF-APPELLANT
vs.
FIRST BAPTIST CHURCH OF
GREATER CLEVELAND, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-14-833834
BEFORE: S. Gallagher, J., E.A. Gallagher, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: November 10, 2016
FOR APPELLANT
Erica Davie, pro se
3367 Milverton Road
Shaker Heights, Ohio 44120
ATTORNEY FOR APPELLEES
Dennis R. Fogarty
Davis & Young
1300 East 9th Street, Suite 1950
Cleveland, Ohio 44114
SEAN C. GALLAGHER, J.:
{¶1} Erica Davie appeals the denial of a motion for relief from judgment and the
granting of summary judgment in favor of First Baptist Church of Greater Cleveland,
Jane Pernicone, and Jeff Gordon (collectively “the Church”). Finding no merit to any of
the arguments raised, we affirm.
{¶2} Davie enrolled her children in the Church’s day-care program. Davie was
not a member of the congregation, which enjoyed a 10 percent discount on tuition.
Davie, however, did not pay full tuition. She received assistance from Cuyahoga
County, and as part of that, Davie only paid a nominal fee to the Church. The county
paid the rest. The county required Davie to periodically update her financial status in
order to retain benefits. Further, the Church has a strict policy on failure to pay — any
account two weeks past due will result in a restriction placed on the account, precluding
attendance the following week, all of which can occur without notice.
{¶3} Davie failed to keep her assistance status up to date. The county sent notice
that her benefits were being discontinued. Davie nonetheless continued her children’s
enrollment in the day care. Ultimately, Davie’s account with the Church became
approximately $1,800 overdue, and the Church precluded the children from attending the
program effective the following week. The debt was never satisfied, and the Church
wrote it off as uncollectible. In addition, Davie never attempted to rectify the issue with
the county or seek to have the children re-enrolled in the program.
{¶4} Instead, Davie sued the Church, claiming the exclusion of her children was
racially or religiously motivated. The Church filed a motion for summary judgment,
setting out the above undisputed facts based on (1) excerpts from Davie’s and her
husband’s depositions; (2) an affidavit executed by Pernicone authenticating (a) a copy of
the parent handbook, which provides the Church’s termination for nonpayment policy, (b)
an invoice demonstrating the amount owed by Davie for services rendered for each of
Davie’s children, and (c) the letter notifying Davie that her account was two weeks past
due and her children were not able to continue their attendance; and (3) an affidavit from
Gordon generally denying Davie’s allegations. Davie objected to the evidence attached
to the motion, complaining that the deposition excerpts and documents attached to the
affidavit were not permitted under Civ.R. 56(C). The Church, in response to Davie’s
motion to strike, filed the complete deposition transcripts for the trial court’s
consideration under Civ.R. 32(A).
{¶5} Davie belatedly filed a brief in opposition to summary judgment,
accompanied with a request for leave, attaching many of the same documents that the
Church attached to its motion for summary judgment. The trial court denied the request
as moot upon granting summary judgment in favor of the Church. Davie immediately
filed a motion for relief from judgment, in which she also included a proposed brief in
opposition to the motion for summary judgment. Davie’s attorney notified the trial court
that the original response deadline was missed because of a family emergency, and the
attorney was granted leave to withdraw. In the abundance of caution, in resolving the
motion for relief from judgment, the trial court considered Davie’s brief in opposition and
held that Davie failed to demonstrate any basis to support her claims against the Church
as required under Civ.R 60(B). The motion for relief from judgment was then denied.
{¶6} In this appeal, Davie claims that the trial court improperly considered
evidence outside the scope of Civ.R. 56(C) and, in the alternative, erred in denying her
request for relief from final judgment. We find no merit to either claim.
{¶7} In considering a motion for summary judgment, a trial court may consider
“the relevant portions” of the pleadings, depositions, answers to discovery, affidavits,
transcripts, and stipulations of fact. Civ.R. 56(C). Further, any document authenticated
in a properly framed affidavit may also be considered. Rhodes v. Sinclair, 7th Dist.
Mahoning No. 08-MA-23, 2012-Ohio-5848, ¶ 50, citing Biskupich v. Westbay Manor
Nursing Home, 33 Ohio App.3d 220, 222, 515 N.E.2d 632 (8th Dist.1986). The relevant
documents and deposition excerpts attached to the Church’s motion for summary
judgment complied with Civ.R. 56(C). The only documents arguably outside the scope
of the rule were those authenticated by affidavit, a permissible practice. Rhodes. In
addition, all the documents attached to Pernicone’s affidavit were also introduced as
evidence in, and attached to, Davie’s depositions. The evidentiary material was properly
considered by the trial court for summary judgment purposes.
{¶8} In response, Davie claims that the depositions were not properly
authenticated, that neither she nor her husband had seen the depositions or waived their
right to reading the transcript, that the depositions filed with the court had not been served
under Civ.R. 5, and that portions of the depositions were omitted. Her claims are
without merit because according to the record, (1) the filed transcripts were complete; (2)
the transcripts included the court reporter’s notarization and Davie’s and her husband’s
express waivers of the right to the reading under Civ.R. 30(E); and (3) the notices of
filing the deposition transcripts included the required certificate of service under Civ.R.
5(B)(3).
{¶9} Finally, in challenging the denial of her motion for relief from judgment,
Davie focuses solely on an explanation for the belated response to the motion for
summary judgment. In order to prevail on a motion for relief from judgment pursuant to
Civ.R. 60(B), however, the movant must also demonstrate a meritorious defense or claim
if relief is granted. GTE Automatic Elec., Inc. v. ARC Industries, 47 Ohio St.2d 146,
150-151, 351 N.E.2d 113 (1976). Simply demonstrating excusable neglect is not
sufficient. Even if we determined that her belated response was a product of excusable
neglect, Davie has not provided us any basis to conclude that the trial court erred in
determining that she failed to present a meritorious claim for relief on the allegations in
her complaint. App.R. 16(A)(7); Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20,
520 N.E.2d 564 (1988). We, therefore, cannot conclude that the trial court abused its
discretion in denying Davie’s motion based on the arguments advanced in the current
appeal.
{¶10} Having overruled both assigned errors as presented, we affirm.
It is ordered that appellees recover from appellant 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.
SEAN C. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and
MARY J. BOYLE, J., CONCUR