R & R Takhar Oil Co., Inc. v. PN & SN Mann, L.L.C. , 2011 Ohio 4548 ( 2011 )

[Cite as R & R Takhar Oil Co., Inc. v. PN & SN Mann, L.L.C., 2011-Ohio-4548.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
R&R TAKHAR OIL CO. INC. :
Plaintiff-Appellee : C.A. CASE NO. 24444
vs. : T.C. CASE NO. 09CV5134
PN & SN MANN LLC, et al. : (Civil Appeal from
Common
Pleas Court)
Defendant-Appellants :
. . . . . . . . .
O P I N I O N
Rendered on the 9th day of September, 2011.
. . . . . . . . .
Peter J. Jerardi, Jr., Atty. Reg. No. 0007409, 130 W. Second Street,
Suite 800, Dayton, OH 45402
Attorney for Plaintiff-Appellee
Keith A. Fricker, Atty. Reg. No. 0037355, 7460 Brandt Pike, Huber
Heights, OH 45424
Attorney for Defendant-Appellant
. . . . . . . . .
VUKOVICH, J. (BY ASSIGNMENT):
{¶ 1} Defendant-appellant Parmjit Singh appeals the decision of
the Montgomery County Common Pleas granting summary judgment to
plaintiff-appellee R&R Takhar Oil Company, Inc. Appellant argues
that, since he was pro se, the court should have construed his
2
filings more strongly in his favor in determining whether he
presented a genuine issue of material fact for trial. As
appellant’s response to summary judgment was not supported by
evidence as required by Civ.R. 56 but merely made general denials
and requests for more proof, the court properly granted summary
judgment.
STATEMENT OF THE CASE
{¶ 2} On January 27, 2006, appellee [the supplier] entered into
a contract to deliver gasoline to a gas station in Botkins, Ohio
run by PN & SN Mann, LLC. The members of this LLC were Navjit Kaur
and appellant Singh. This contract was signed by both Kaur and
Singh and was also personally guaranteed by Singh. On November
27, 2007, the supplier entered into a contract to deliver gasoline
to the LLC’s Fairborn, Ohio location. This contract was signed
and personally guaranteed by Singh.
{¶ 3} On June 19, 2009, the supplier filed a complaint against
the LLC, Singh, and Kaur alleging that $262,355.84 was due for
gasoline delivered to the Fairborn location and $8,838.16 was due
for gasoline delivered to the Botkins location. The contracts
were attached to the complaint. Singh and Kaur filed a pro se
answer asking for individual proof regarding the two locations.1
1
The answer did not purport to be filed on behalf of the LLC.
Notably, although later filings purported to be filed pro se on
behalf of the LLC, members of an LLC are not permitted to represent
3
{¶ 4} On November 2, 2009, the supplier filed a motion for
summary judgment. In support, the supplier attached the affidavit
of its president, who stated that records of gasoline sales,
invoicing, and payment are kept in the ordinary course of business
by the supplier, including those related to this LLC. The
affidavit then stated that the unpaid invoices, after applying all
payments and credits, total $8,838.16 for the Botkins location and
$262,355.84 for the Fairborn location. It also provided the total
gallons used for each location.
{¶ 5} On November 3, the LLC, Singh, and Kaur filed a document
stating that the supplier’s demands should be rejected as they are
baseless and because the proof was not provided until the motion
for summary judgment was filed. Although they did not attempt to
engage in discovery, they complained about the lack of specifics
regarding delivery, consignment, loads, and payments. They
attached what was essentially a copy of their answer.2
{¶ 6} On November 6, the defendants asked that the November 3
filing be accepted as an amended answer. They also mentioned that
the LLC in common pleas court as this constitutes the unauthorized
practice of law. See Disciplinary Counsel v. Kafele, 108 Ohio
St.3d 283, 2006-Ohio-904, ¶18.
2
They added a statement that there was no agreement in which the
supplier became the seller in writing for the Fairborn location;
however, this was placed under their argument for the supplier’s
third claim for relief, which dealt with liquidated damages, a claim
later dismissed by the supplier.
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they disputed the affidavit of the supplier’s president regarding
the amounts due as the amount of gallons “is huge amount.” They
then asked the court to compare their contracts with those of other
Marathon gas stations but did not provide such to the court.
{¶ 7} On November 24, the supplier filed a reply, stating that
the defendants’ response was no more than a general denial and was
not in the form required by Civ.R. 56. The supplier urged that
the only pieces of Civ.R. 56 evidence properly before the court
were the contracts and the affidavit regarding the amounts due.
{¶ 8} On December 2, the defendants refiled their November 6
filing, this time attaching affidavits and copies of invoices. No
contemporaneous leave was sought to add attachments to the prior
filing (which was already a request to amend two prior filings).
The affidavits of both Singh and Kaur state:
{¶ 9} “1. That I am member of PN&SN Mann LLC
{¶ 10} “2. That 1,439,011 gallons of gasoline delivered by R&R
Takhar Oil Co at location 10 west Dayton Drive. Fairborn, Ohio from
which unpaid invoices of $262,355.84 claimed by the Plaintiff is
rejected and opposed.”
{¶ 11} On December 28, 2010, the court granted summary judgment
on the supplier’s claim for unpaid gasoline.3 The court noted that
3
The court denied summary judgment as to the supplier’s
claim for liquidated damages, and the supplier then dismissed
5
the non-movant cannot rest on the mere allegations or denials of
its pleading but must set forth specific facts showing there is
a genuine issue for trial. The court then found that the
defendant’s responses were not in the form required by Civ.R. 56.
Judgment was entered against the LLC and Singh jointly and
severally in the sum of $271,194 and against Kaur jointly and
severally in the amount of $8,838.16.
{¶ 12} At this point, the defendants retained counsel for the
first time, and a timely appeal was filed. Two extensions were
filed by counsel solely on behalf of defendant-Singh. On April
25, 2011, a brief was filed on behalf of Singh alone. Thus, the
judgment against the LLC and the $8,838.16 judgment against Kaur
are not being protested. We thus proceed, using “appellant” to
refer only to Singh.
ASSIGNMENT OF ERROR
{¶ 13} Appellant’s sole assignment of error alleges:
{¶ 14} “THE TRIAL COURT ERRED IN GRANTING IN PART PLAINTIFF’S
MOTION FOR SUMMARY JUDGEMENT.”
{¶ 15} Appellant admits that he did not specifically defend the
summary judgment in the manner called for by the Civil Rules and
this claim, disposing of all claims. The court also dismissed
counterclaims that the defendants attempted to file after the
summary judgment motion, response, and reply were filed. That
decision is not being appealed.
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admits that he merely relied on a blanket denial. Appellant
essentially argues that, because he was pro se, the court should
have found that there could be a genuine issue for trial.
{¶ 16} Summary judgment can be granted where there remains no
genuine issue of material fact for trial in that, after construing
the evidence most strongly in favor of the nonmovant, reasonable
minds can only conclude that the moving party is entitled to
judgment as a matter of law. Byrd v. Smith, 110 Ohio St.3d 124,
2006-Ohio-3455, ¶10, citing Civ.R. 56(C). The initial burden of
showing that there is no genuine issue of material fact falls upon
the party who files for summary judgment. Id., citing Dresher v.
Burt (1996), 75 Ohio St.3d 280, 294, 662 N.E.2d 264. Thereafter,
the nonmovant may not rest upon mere allegations or denials of the
party's pleadings but must respond by setting forth specific facts
showing that there is a genuine issue for trial. Id., citing
Civ.R. 56(E). If the nonmoving party does not respond in the
proper fashion, summary judgment can be entered against that party.
Civ.R. 56(E).
{¶ 17} Here, it is not disputed that the supplier met its initial
burden for summary judgment. The contracts were attached to the
complaint and were proper summary judgment evidence. ODJFS v.
Amatore, Mahoning App. No. 09MA159, 2010-Ohio-2848, ¶38, citing
Inskeep v. Burton, Champaign App. No. 2007CA11, 2008-Ohio-1982,
7
¶17, citing Civ.R. 10(C). Moreover, the affidavit of the
supplier’s president was attached to the summary judgment motion,
swearing that the amounts claimed were actually due according to
the records kept in the ordinary course of business and providing
the gallons used at each location.
{¶ 18} Appellant responded to the motion by citing to his answer
with minor amendments and generally denying liability. Appellant
referenced the affidavit attached to the summary judgment motion
and basically asked for the supplier to be required to provide more
proof; essentially asking the court to conduct the discovery that
was the obligation of appellant. No affidavits or other Civ.R.
56 material were attached. The contents of this filing were
admittedly insufficient to meet the reciprocal burden of
countering a summary judgment motion. See American Express
Centurian Bank v. Banaie, Mahoning App. No. 10MA9, 2010-Ohio-6503,
¶5, 12-17 (after contract was attached to complaint and evidence
provided on amounts due, defendant entered only a general denial
and complaints about lack of record of account). Thereafter, the
supplier filed a reply, noting this problem and pointing out that
summary judgment was appropriate. It was at this point, that
appellant filed a document with affidavits and invoices attached.
However, there are multiple problems with this filing.
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{¶ 19} First, the invoices cannot be considered as they are not
proper evidence under Civ.R. 56 without an accompanying affidavit
or deposition for instance swearing to what they are. See Civ.R.
56(C), (E). See, also, Hager v. Waste Tech. Indus., Columbiana
App. No. 2000-CO-45, 2002-Ohio-3466, ¶92.
{¶ 20} As for the affidavits, they are unclear: it is unknown
whether appellant “rejected and opposed” the contract, the amount
claimed to have been delivered, the claim that fuel was delivered,
or the amount charged for the delivery. Thus, the affidavits still
merely constitute a general denial, as appellant seems to concede
on appeal. That is, the mere rejection of the plaintiff’s claim
does not meet the nonmovant’s burden to set forth specific facts
to show there is a genuine issue for trial. See McGuire v. Lovell
(1999), 85 Ohio St.3d 1216, 1218.
{¶ 21} In any event, appellant’s response to summary judgment
had already been submitted and a reply had already been filed. Plus,
appellant’s filing with the affidavits attached was not a timely
response to summary judgment. See Mont. Cty. Loc.R. 2.01 V A 3
b (4)(a); 2.05 II B 1 a-b. Finally, appellant termed this filing
a refiled document, but he did not seek contemporaneous leave,
provide an explanation, or disclose that new evidence was attached.
{¶ 22} For all of these reasons, the trial court’s decision
entering summary judgment in favor of the supplier in the amount
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sought for actual damages on the contract is upheld. This
assignment of error is overruled, and the trial court’s judgment
is affirmed.
FAIN, J. And DONOVAN, J., concur.
(Hon. Joseph J. Vukovich, Seventh District Court of Appeals,
sitting by assignment of the Chief Justice of the Supreme Court
of Ohio.)
Copies mailed to:
Peter J. Jerardi, Jr., Esq.
Keith A. Fricker, Esq.
Hon. Frances E. McGee