Fantozz v. 250 Centre, Ltd. , 2015 Ohio 3800 ( 2015 )

[Cite as Fantozz v. 250 Centre, Ltd., 2015-Ohio-3800.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
Jo Dee Fantozz, Erie County Treasurer Court of Appeals No. E-14-121
Appellee Trial Court No. 2010 CV 0998
v.
250 Centre, Ltd., et al. DECISION AND JUDGMENT
Appellants Decided: September 18, 2015
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and
Jason R. Hinners, Assistant Prosecuting Attorney, for appellee.
D. Jeffery Rengel and Thomas R. Lucas, for appellants.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a June 1, 2011, summary judgment ruling of the Erie
County Court of Common Pleas, which granted summary judgment to appellee in a
foreclosure action 12 days after the summary judgment filing. For the reasons set forth
below, we reverse the trial court judgment and remand the matter to the trial court for
further proceedings consistent with this decision.
{¶ 2} Appellants, 250 Centre, Ltd., Cecil Weatherspoon, Rose Weatherspoon and
South Bass Island Resort, Ltd., set forth the following two assignments of error:
I. The trial court committed reversible error and abused its
discretion in granting appellee’s motion for Summary Judgment less than
fourteen days after it was filed without allowing appellants an opportunity
to respond.
II. The trial court committed reversible error when it entered an
order of sale on July 15, 2014 without any evidence, determination, or
finding in the court’s record that appellant failed to abide by its delinquent
tax agreement.
{¶ 3} The following undisputed facts are relevant to this appeal. On December 8,
2010, appellee filed a foreclosure complaint against appellants stemming from a
delinquent property tax bill. On February 3, 2011, appellants filed an answer to the
complaint. On May 20, 2011, appellee filed for summary judgment. On June 1, 2011, 12
days after it was filed, the trial court granted summary judgment to appellee. This appeal
ensued.
{¶ 4} In the first assignment of error, appellants claim that the trial court erred in
granting appellee’s motion for summary judgment without furnishing appellants the
requisite 14-day period of time after the summary judgment filing in which to respond.
2.
In support, appellants emphasize that summary judgment proceedings are governed by
Civ.R. 56(C) which mandates, “The motion shall be served at least fourteen days before
the time fixed for hearing. The adverse party, prior to the day of hearing, may serve and
file opposing affidavits.”
{¶ 5} Accordingly, the party opposing summary judgment must be furnished a
minimum period of 14 days in which they may file an opposing brief. In conjunction
with this, Erie County Local Rule 25.01(A), establishes in relevant part:
Motions for summary judgment shall be scheduled for a non-oral
hearing by the party filing the motion by noting the option on the first non-
oral hearing calendar date that is at least 28 days after the date of filing the
motion with the court or the date of service set forth on the certificates of
service attached to the motion, whichever is later. * * * Not later than 14
days before the date of the non-oral hearing, the opposing party(s) shall file
with the court and cause to be served upon the moving party opposing
affidavits, depositions, exhibits and documentation and a memorandum of
authorities opposing the motion.
{¶ 6} Based upon the above-quoted governing state and local rules of civil
procedure pertaining to applicable summary judgment timeframes, this court concurs that
appellants were not properly afforded the requisite time in which to oppose appellee’s
summary judgment filing. On the contrary, a June 1 ruling on a May 20 summary
judgment filing does not comport with Civ.R. 56(C) or Erie County Local Rule 25.01(A).
3.
{¶ 7} Consistently, in Hooten v. Safe Auto Insurance Company, 100 Ohio St. 3d 8,
2003-Ohio-4829, 795 N.E.2d 648, the Ohio Supreme Court clearly held that the non-
moving party in a summary judgment proceeding must receive at least 14 days to oppose
a summary judgment motion.
We are aware that some courts have found that Civ.R. 56(C) itself
provides the parties with sufficient notice of the submission date because it
states that the matter may be deemed submitted 14 days after the summary
judgment motion is served. * * * However, barring a more generous local
rule, Civ.R. 56 gives a “defender” 14 days to prepare a response to the
summary judgment motion. Id. at ¶ 20.
{¶ 8} The court determined that, “This court has found that, pursuant to Civ.R.
56(C), a hearing on a summary judgment motion may not take place until at least 14 days
have passed from service of the motion.” Id. at ¶ 39. It further stated that, “[a] motion
for summary judgment is rarely granted after only 14 days from service of the motion.”
Id. at ¶ 40. See, e.g., Bank of New York v. Brunson, 9th Dist. Summit No. 25118, 2010-
Ohio-3978, ¶ 9-10 (reversing the trial court’s granting of summary judgment after being
on the docket only nine days because Civ.R. 56(C) gives defendant at least 14 days to
oppose summary judgment motion). Lastly, appellee concedes that, “Summary Judgment
was granted two days early.”
4.
{¶ 9} Based upon the foregoing, we find appellants’ first assignment of error to be
well-taken. Given the procedural nature of this matter, we limit our consideration of this
appeal to this timing component of the summary judgment dispute.
{¶ 10} In appellants’ second assignment of error, they maintain that the trial court
committed reversible error when it entered an order of sale on July 15, 2014, without any
evidence, determination, or finding in the court’s record that appellants failed to abide by
the delinquent tax agreement.
{¶ 11} Based upon our determination in response to appellants’ first assignment of
error, the second assignment of error, which is contingent upon our determination in
response to the first assignment of error, is likewise found well-taken.
{¶ 12} On consideration whereof, the judgment of the Erie County Court of
Common Pleas is reversed and remanded back to the trial court for proceedings
consistent with this decision. Appellee is ordered to pay costs of this appeal pursuant to
App.R. 24.
Judgment reversed.
5.
Erie Cty. Treasurer v.
250 Centre, Ltd.
C.A. No. E-14-121
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Stephen A. Yarbrough, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
6.