Grange Mutual Casualty Co. v. Robert Klatt
| Decision Date | 18 March 1997 |
| Docket Number | 96APE07-888,97-LW-1349 |
| Parties | Grange Mutual Casualty Company, Plaintiff-Appellee, v. Robert Klatt, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
APPEAL from the Franklin County Court of Common Pleas.
Arthur G. Wesner, for appellee.
Michael P. Jackson, for appellant.
Defendant-appellant, Robert Klatt, appeals from a judgment of the Franklin County Court of Common Pleas (1) granting the motion of plaintiff-appellee, Grange Mutual Casualty Company ("Grange"), for summary judgment on the issue of liability, (2) adopting over defendant's objections a magistrate's decision calculating damages due to Grange and (3) dismissing defendant's counterclaims for failure to state a claim upon which relief can be granted. Defendant also appeals the trial court's failure to specify uncontroverted facts, pursuant to Civ.R. 56(D).
Grange filed a complaint against defendant, alleging defendant owed Grange on an account which arose from a collision that occurred on April 14, 1982 between defendant and Grange's insured. According to Grange, following the incident, Grange paid its insured the sum of $4,311.38 for the damage caused to her automobile, and claimed a right of subrogation in the same amount. Grange's complaint further alleges defendant agreed in writing on June 21, 1983, to reimburse Grange for the full sum, payable in monthly installments of $20. Over the next eleven years, defendant made payments totalling $2,500; attached to Grange's complaint were copies of Grange's records journalizing the payments defendant made. Finally, the complaint alleges that after January 28, 1994, defendant failed to make the monthly installments, leaving the sum of $1,811.38 due under the terms of his agreement with Grange.
In a combined answer and counterclaim, defendant admitted his involvement in the collision, as well as the payment of $2,500 to Grange; defendant denied all other allegations. As a defense, defendant claimed the agreement at issue was not an account; he further asserted Grange failed to attach to the complaint the required written documents to support a claim on the alleged agreement. Finally, by way of counterclaim, defendant asserted Grange engaged in an abuse of process, invaded defendant's privacy, and intentionally caused defendant severe emotional distress.
On July 31, 1995, Grange filed a motion for summary judgment on the issue of liability on an account. The trial court granted the motion and set the matter for hearing before a magistrate on the issue of damages. In response, defendant filed a motion pursuant to Civ.R. 56(D) requesting the trial court file an entry specifying the uncontroverted facts. The trial court did not rule on defendant's Civ.R. 56(D) motion.
Following a hearing, the magistrate determined the interest due Grange should be calculated by applying R.C. 1343.03 to allow Grange to recover interest at ten percent per annum on the balance remaining due at the time of defendant's last payment. Accordingly, the magistrate decided defendant should pay Grange the remaining $1,811.38 due on the account as well as ten percent interest on the sum, calculated from January 28, 1994. The trial court adopted the magistrate's decision over both parties' objections and rendered judgment in accordance with its calculations.
Finally, on the date set for trial on defendant's counterclaims, the trial court granted Grange a time extension to file a Civ.R. 12 motion. Instead, Grange filed a Civ.R. 56 motion for summary judgment on defendant's counterclaims. In a decision and entry dated July 8, 1996, the trial court found Grange was prohibited from filing a Civ.R. 56 motion without leave of court, but granted Grange's motion, treating it as a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted.
Defendant appeals, assigning the following errors:
Defendant's first assignment of error claims the trial court erred in granting summary judgment in favor of Grange on the issue of liability. In its decision, the trial court relied on Grange's allegations of an account and stated, "Defendant has presented no legally admissible evidence that he does not owe some amount to Plaintiff." (Decision, September 5, 1995, p. 2.) The trial court thus determined reasonable minds could only conclude defendant "owes [Grange] some money." (Decision, p. 2.)
In accordance with Civ.R. 56, the evidence must be construed most strongly in favor of the nonmoving party; summary judgment should be granted only if no genuine issue of fact exists, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to but one conclusion, which is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. A motion for summary judgment first forces the moving party to inform the court of the basis of the motion and to identify portions in the record which demonstrate the absence of a genuine issue of material fact. Dresher v. Burt (1996), 75 Ohio St.3d 280, 296. If the moving party makes that showing, the nonmoving party then must produce evidence on any issue for which the party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, paragraph three of the syllabus (Celotex v. Catrett [1986], 477 U.S. 371, approved and followed).
The trial court granted summary judgment to Grange on the issue of liability, predicated on an account cause of action. An account is:
"*** merely a pleading device used to consolidate several different claims one party has against another; an action on an account is appropriate where the parties have conducted a series of transactions, for which a balance remains to be paid." (Emphasis added.)
AMF, Inc. v. Mravec (1981), 2 Ohio App.3d 29, 31, citing Dykeman v. Johnson (1910), 83 Ohio St. 126. Grange's cause of action involves one claim between the parties on the single instrument signed by defendant on June 21, 1983; it is predicated on one transaction, rather than several, between the parties.
Specifically, the transaction here is the "installment agreement" allegedly signed by defendant, in which defendant agreed to pay Grange $4,311.38. Although defendant admits paying $2,500 pursuant to that agreement, it is not a "series of transactions" merely because a monthly payment schedule was created. Regardless of whether a trial court would construe the "installment agreement" as an installment contract or a promissory note, it does not fall within the accepted definition of an "account." Thus Grange was not entitled to summary judgment for liability on an account.
Defendants second assignment of error contends the trial court erred in failing to issue a journal entry as required by Civ.R. 56(D): defendant contends that having granted Grange's motion for summary judgment, the trial court was required to issue an entry specifying the uncontroverted facts. Although the trial court never acknowledged defendant's motion, a trial court's failure to rule on a motion is treated as though the court overruled it. State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69 Ohio St.3d 217, 223; see, also, Stover v. Wallace (Feb. 15, 1996), Franklin App. No. 95AP-743, unreported (1996 Opinions 524, 529).
Having determined, however, the trial court erred in granting summary judgment as to liability on an account, defendant's second assignment of error asserted in IB is rendered moot. See App.R. 12(A). Thus, we decline to resolve whether Civ.R. 56(D) places a mandatory duty on the trial court to issue an entry specifying uncontroverted facts in these circumstances.
Despite the trial court's error, the record shows uncontroverted facts following that ruling which nonetheless support the court's ultimate decision.
Specifically, as a result of the hearing before the magistrate following the trial court's ruling on liability, the magistrate found (1) defendant negligently caused damages in the amount of $4,311.38 to the automobile of Grange's insured, Cynthia S. Baesman, (2) pursuant to Baesman's policy, Grange paid Baesman $4,211.38, and (3) Grange contacted defendant, who admitted his negligence, signed a promissory note in the amount of $4,311.38, and paid on the note, leaving a balance of $1,811.38.
Defendant objected to the factual determinations of the magistrate, but provided no transcript "[b]ecause Grange submitted no evidence on these points ***." (Defendant's Objections to Magistrate's Report, p. 1.) Despite defendant's contentions to the contrary, defendant was obliged to provide the trial court a transcript of the proceedings before the magistrate. Civ.R. 53 mandates:
"*** Any objection to a finding of fact shall be supported by a transcript of all the evidence submitted to the magistrate relevant to that fact or an affidavit of that evidence if a transcript is not available. ***" Civ.R. 53(E)(3)(b).
Even though defendant asserts Grange presented no evidence to support the magistrate's findings, the trial court could not determine the validity of defendant's assertion without a transcript. Because defendant failed to present the requisite transcript, defendant waived any error in the magistrate's factual...
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