Pollard v. Elber

• Decision Date: 09 November 2018
• Docket Number: No. E-17-050,E-17-050
• Citation: 2018 Ohio 4538,123 N.E.3d 359
• Parties: Shirley Gilliam Elber POLLARD, Appellant v. Bonnie Ellen ELBER, Executrix of the Estate of the Decedent Othmar Elber, Appellee
• Court: Ohio Court of Appeals

123 N.E.3d 359

2018 Ohio 4538

Shirley Gilliam Elber POLLARD, Appellant

v.Bonnie Ellen ELBER, Executrix of the Estate of the Decedent Othmar Elber, Appellee

No. E-17-050

Court of Appeals of Ohio, Sixth District, Erie County.

Decided: November 9, 2018

Warren W. Ruggles and West M. Ruggles, Norwalk, for appellant.

Michael B. Jackson, for appellee.

DECISION AND JUDGMENT

MAYLE, P.J.

{¶ 1} Appellant, Shirley Pollard, appeals the August 4, 2017 judgment of the Erie County Court of Common Pleas granting summary judgment to appellee, Bonnie Elber ("Elber"), the executor of the estate of John Othmar Elber ("Othmar"), and dismissing Pollard's complaint. For the following reasons, we affirm, in part, and reverse, in part.

I. Background and Facts

{¶ 2} Othmar died in August 2015. In February 2016, Pollard presented a claim to Othmar's estate for $167,045.39 plus interest for unpaid child support, $40,000 for improper disposition of Othmar's real estate, and $120,000 for fraud related to the transfer of the real estate. The estate rejected the claim in full.

{¶ 3} Pollard then filed a complaint in the trial court alleging that Othmar's estate owed her money based on child support that Othmar failed to pay while he was alive ("the civil litigation"). Attached to the complaint were two judgment entries from the Erie County Court of Common Pleas, Domestic Relations Division, that were issued in Pollard and Othmar's divorce case ("the divorce litigation"). The first, issued on October 4, 1974, ordered Othmar to pay child support in the amount of $70 per week, plus poundage. Of the support amount, $20 per week was to be applied to Othmar's arrearages. The second judgment entry, issued on June 24, 1975, noted that Othmar was $8,288.06 in arrears on his child support obligation. In her responses to requests for production of documents, Pollard stated that she had not received any child support payments "[f]rom the date of the child support order per the pleadings to the present * * *."

{¶ 4} Elber filed a motion for summary judgment based on laches, speculative damages, and waiver. She also sought summary judgment on the issue of prejudgment interest. In support of her motion, Elber submitted: (1) two judgment entries and the docket sheet (which appears to be incomplete) from the divorce litigation; (2) two letters from Pollard to Othmar and one letter from Othmar to one of Pollard and Othmar's children; and (3) Pollard's responses to Elber's requests for production of documents and interrogatories. Other than the discovery responses, none of the documents are certified or incorporated into an affidavit.

{¶ 5} In her memorandum in opposition, Pollard argued that Elber's claim of laches was not supported by the facts of the case; Pollard could, in fact, determine her damages; Elber's waiver argument misconstrues the law; and Pollard was entitled under the common law to prejudgment interest. In support of her arguments, Pollard attached as exhibits: (1) portions of Elber's responses to requests for production of documents; (2) three judgment entries from the divorce litigation that were not certified or incorporated into an affidavit; and (3) a certified copy of a balance sheet from 1978 showing that the predecessor of the Erie County Child Support Enforcement Agency did not collect any child support payments from Othmar or disburse any child support payments to Pollard. Pollard also asked the court to strike the letters attached to Elber's motion because they were irrelevant and unauthenticated.

{¶ 6} In her reply, Elber reiterated the arguments from her motion and asked the court to take judicial notice of the records in the divorce litigation. She also attached as exhibits five additional judgment entries from the divorce litigation that were neither certified nor incorporated into an affidavit.

{¶ 7} In response to Elber's request for the trial court to take judicial notice of the divorce litigation, Pollard filed a motion to consolidate the civil litigation with the divorce litigation and objected to the court taking judicial notice of the divorce litigation file.

{¶ 8} On August 4, 2017, the trial court issued its judgment entry granting summary judgment in Elber's favor and dismissing Pollard's case. After taking judicial notice of "the filings contained in the divorce proceedings as well as the Court's docket reflecting same," the court found that Pollard's complaint was barred by laches. The court determined that Pollard waited at least 29 years before asserting her known right to collect unpaid child support. It also concluded that Pollard had no excuse for the delay because she was aware of Othmar's whereabouts, maintained contact with him, and knew of some of his assets, but did not attempt to secure a judgment for child support while he was alive. The court found unpersuasive Pollard's argument that the delay was excusable because she believed, based on her prior, unsuccessful motions to show cause, that further attempts to collect the child support would have been futile. The court discounted Pollard's excuse because "a previous show cause action by Plaintiff resulted in some funds being collected and released to Plaintiff." Finally, the court determined that Elber was prejudiced by Pollard's delay because Pollard did not provide an affidavit attesting to her claimed damages and was "clearly relying only on the Court's file" to support her claims even though "there are some entries in the Court's file which are not reflected anywhere in the docket." The court concluded that this made it "simply impossible for the Defendant's estate to attempt to generate a defense * * *."

{¶ 9} Despite dismissing Pollard's complaint, the court went on to analyze her claim for prejudgment interest. The court found that the statute providing for prejudgment interest on unpaid child support was enacted in July 1992 and could not be applied retroactively. It also determined that the only way interest could be collected on unpaid child support accruing prior to July 1992 was if the amount had been reduced to a judgment, which Pollard had not done in this case. Finally, the court "found no authority to support the Plaintiff's position that interest can be awarded under a theory of common law."

{¶ 10} Pollard now appeals the trial court's decision, raising five assignments of error.

First Assignment of Error[:] The trial court erred in basing its summary judgment ruling upon documents that were non-evidentiary, i.e. they were either not supported by an affidavit or were not certified and were therefore inadmissible as a matter of law.

Second Assignment of Error[:] The trial court erred by citing statements of counsel as "facts" when there is no evidence in the record to support them.

Third Assignment of Error[:] The trial court erred by taking judicial notice of a file in a different case without having the file properly before it, as it had no jurisdiction to do so.

Fourth Assignment of Error[:] The trial court erred by improperly weighing the evidence, on every occasion finding against appellant, and resolving the questions concerning the evidence in favor of appellee, the moving party.

Fifth Assignment of Error[:] The trial court erred by refusing to consider the question of prejudgment interest at common law, which is occasioned by the loss which a parent sustains by being deprived of child support, and on account of the gain made from its use by the other parent.

II. Law and Analysis

A. Elber's Evidence does not Support Summary Judgment

{¶ 11} In her first three assignments of error, Pollard argues that the trial court based its summary judgment decision on improper evidence. Specifically, she contends that the documents Elber submitted with her motion for summary judgment were not proper under Civ.R. 56(C), the trial court adopted unsupported statements from Elber's counsel as facts, and the trial court improperly took judicial notice of the file from the divorce litigation. Elber responds that the information in the divorce litigation was before the court in the civil litigation because Pollard reopened the divorce case and joined the estate as a party, making the trial court aware of the information from the divorce litigation. Assuming that the information from the divorce litigation was not properly before the trial court after Pollard reopened the divorce case, Elber contends that the court properly took judicial notice of the divorce litigation file. Finally, Elber argues that Pollard waived the issue of judicial notice on appeal by not requesting a hearing under Evid.R. 201(E). We address each issue in turn.

1. The Trial Court Improperly Took Judicial Notice of the Divorce Litigation

{¶ 12} We will first address Pollard's third assignment of error. In it, she contends that the trial court erred by taking judicial notice of the file in the divorce litigation because a court cannot take judicial notice of determinations made in a separate case unless the file in the separate case is before the court. Elber responds that the trial court did not have to take judicial notice of the divorce litigation because the case was already reopened, which put the divorce litigation before the court. Alternatively, Elber contends that the trial court properly took judicial notice of the divorce litigation docket, which was sufficient to justify granting summary judgment. Elber also argues that Pollard waived any objection to the trial court taking judicial notice of the divorce litigation file by failing to request a hearing under Evid.R. 201(E).

{¶ 13} Under Evid.R. 201, a court may take judicial notice of adjudicative facts ("i.e., the facts of the case") when the facts are not subject to reasonable dispute and are either "(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Evid.R. 201(A), (B).

{¶ 14} "Judicial notice allows ...