Ross Cowen v. Jonathan Lucas, 97-LW-2104

• Decision Date: 30 June 1997
• Docket Number: 97-LW-2104,96CA2456
• Parties: Ross Cowen, et al., Plaintiffs-Appellants v. Jonathan Lucas, Defendant-Appellee Case
• Court: Ohio Court of Appeals

Ross Cowen, et al., Plaintiffs-Appellants v. Jonathan Lucas, Defendant-Appellee

No. 96CA2456.

97-LW-2104 (4th)

Court of Appeals of Ohio, Fourth District Scioto

June 30, 1997

Richard W. Campbell, Portsmouth, Ohio, for Appellants.

Law Offices of Stanley C. Bender, John R. Haas, Portsmouth, Ohio for Appellee.

DECISION

Harsha J.

Ross and Patricia Cowen appeal from a grant of summary judgment by the Scioto County Court of Common Pleas in favor of appellee Jonathan Lucas. They assign the following errors for our review:

I. "THE TRIAL COURT COMMITTED ERROR TO THE PREJUDICE OF PLAINTIFFS-APPELLANTS IN THAT IT GRANTED SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS-APPELLEE, [SIC] WITHOUT A HEARING AND WITHOUT GIVING PLAINTIFF-APPELLANTS [SIC] FOURTEEN DAYS NOTICE OF THE DATE THE COURT WOULD DECIDE THE MOTION, AS REQUIRED BY CIVIL RULE 56(C)."

II. "THE TRIAL COURT COMMITTED ERROR TO THE PREJUDICE OF PLAINTIFFS-APPELLANTS IN THAT IT RELIED ON MATTERS OUTSIDE THE RECORD IN VIOLATION OF CIVIL RULE 56(C)."

III. "THE TRIAL COURT COMMITTED ERROR TO THE PREJUDICE OF PLAINTIFFS-APPELLANTS BY GRANTING SUMMARY JUDGMENT WHERE THERE ARE GENUINE ISSUES OF MATERIAL FACTS IN DISPUTE, AND DEFENDANT-APPELLEE WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW."

In February of 1996, the Cowens filed a complaint against Lucas alleging a continuing nuisance from appellee's failure to maintain and repair the gutters and downspouts on his property which caused extensive water damage to appellants' property. Appellants further alleged that due to the negligence of appellee in not curing a roach problem on his property, their property has become infested with roaches and they have sustained both personal injuries and property damages. Appellee filed an answer denying the substantive allegations of the complaint and raising numerous affirmative defenses.

On July 3, 1996, appellee filed a motion for summary judgment. In his motion, appellee admitted the allegations set forth in appellants, complaint, but argued that he was not liable based upon the doctrine of "landlord out of possession and control." The trial court never set a date for hearing on appellee's motion. Appellants failed to respond to appellee's motion. On August 6, 1996, the trial court granted appellee's motion for summary judgment. Appellants filed a Civ.R. 60(B)(1) motion for relief from judgment. We note that the trial court did not rule on appellants, Civ.R. 60(B) motion. Although this appeal involves some of the arguments raised in that motion, this appeal does not involve any ruling on the Civ.R. 60(B) motion; nor does the filing of that motion divest this court of jurisdiction over the Cowens, subsequently filed notice of appeal of summary judgment. See, generally, Whiteside, Ohio Appellate Practice, (1995-1996), Section 1.09.

In their first assignment of error, appellants contend that the trial court erred by granting appellee's summary judgment motion without a hearing on the matter and without giving appellants fourteen days, notice of the date the court would decide the motion as required by Civ.R. 56(C). Appellee argues that Local R. V(D) automatically gives notice of the non-oral hearing date twenty-eight days from the date the summary judgment motion is filed and served. Thus, he contends that the trial court did not err in granting the motion when more than twenty-eight days had passed since he served the motion and appellants failed to respond. Interpretation of court rules presents us with a legal question which we independently analyze without deference to the trial court's decision. Mosley v. Stevenson (Apr. 30, 1993), Scioto App. No. 92CA2079, unreported.

Appellants cite General Motors Acceptance Corp. v. Stratton (June 28, 1989), Highland App. No. 694, unreported, in which this court held that although Civ.R. 56 does not require an oral hearing on a motion for summary judgment, the trial court must give fourteen days' notice of the date it will decide a motion for summary judgment. In Burchfield v. Warncke and Adams County Hospital (Mar. 25, 1996), Adams App. No. 95CA593, unreported, we stated that "[t]he fourteen day notice alerts the non-moving party that all evidentiary material in opposition to the motion must be submitted to the trial court by the date set for consideration of the motion." However, in this case, the Scioto County Court of Common Pleas has adopted local rules automatically setting forth the time in which all evidentiary material in opposition to the motion must be filed. Local Rule V(A)(2) provides that "[m]otions, including motions for summary judgment, shall be submitted and determined upon the motion papers hereinafter referred to without oral argument unless specifically requested and allowed by the court." Rule V(D)(3) states that "if no oral hearing has been scheduled the opposition package shall be served within 28 days after the service of the motion package." Further, Rule V(D)(4)provides that "the failure to serve an opposition package in accordance with this subsection (D) may be construed by the court as an admission that the motion should be granted."

This court has previously decided that "where a trial court's local rules clearly state that materials opposing a summary judgment motion must be filed within twenty-eight days when no oral hearing is requested, the trial court is not under a duty to set a non-oral hearing date and may rule on the motion after the time for filing opposing materials has passed." Mosley, supra. Here, no oral hearing was requested and appellants failed to respond to appellee's summary judgment motion. More than twenty-eight days passed before the trial court granted appellee's motion. Thus, we conclude that the trial court did not err in granting summary judgment in favor of appellee without a hearing and without giving appellants fourteen days' notice. Accordingly, appellants' first assignment of error is overruled.

Appellants argue in their second assignment of error that the trial court committed prejudicial error when deciding appellee's summary judgment motion in that it relied on matters outside the record in violation of Civ.R. 56(C). Civ.R. 56(C) provides:

"Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admission, affidavits, transcripts of evidence in the pending case, and written stipulation of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this ruled. ..."

In his motion for summary judgment, appellee refers to testimony given by Ross Cowen in his deposition of November 1995, which was taken prior to the filing of this action. Appellee concedes that Cowen's deposition was never filed in the trial court. However, appellants' failed to object to the deposition testimony included in appellee's motion. Failure to object to the court's consideration of the evidence submitted in support of a motion for summary judgment constitutes waiver of any alleged error in the consideration of the evidence. Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78; Cassidy v. U.S. Health Co. (Mar. 18, 1994), Scioto App. No. 2158, unreported. A trial court may consider evidence other than the evidence specified in Civ.R. 56(C) where no objection has been raised. Id. Further, it is unclear whether the trial court considered the excerpts to the deposition. A court is presumed to have considered only relevant, material and competent evidence. Wilkerson v. Eaton Corp. (Mar. 10, 1994), Cuyahoga App. No. 65182, unreported. Thus, we reject appellants' second assignment of error.

In appellants' third assignment of error, they argue that the trial court erred in granting summary judgment in favor of appellee because there existed genuine issues of material fact and appellee was not entitled to judgment as a matter of law. In reviewing a summary judgment, the lower court and the appellate court utilize the same standard, i.e., we review the judgment independently and without deference to the trial court's determination. Midwest Specialties Inc. v. Firestone Co. (1988), 42 Ohio App.3d 6, 8. Summary judgment is appropriate when the following have been established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence construed most strongly in its favor. Bostic v. Connor (1988), 37 Ohio St. 144, 146; cf., also, State ex rel. Coulverson v. Ohio Adult Parole Auth. (1991), 62 Ohio St.3d 12, 14; Civ.R. 56(C). The burden of showing that no genuine issue exists as to any material fact falls upon the moving party in requesting summary judgment. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Additionally, a motion for summary judgment forces the nonmoving party to produce evidence on any issue for which (1) that party bears the burden of production at trial, and (2) for...