[Cite as Brickner v. Wittwer, 2011-Ohio-39.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STEVEN M. BRICKNER,
PLAINTIFF-APPELLANT, CASE NO. 6-10-12
v.
BENJAMIN M. WITTWER, ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Hardin County Municipal Court
Trial Court No. CVF 0900633
Judgment Affirmed
Date of Decision: January 10, 2011
APPEARANCES:
John T. Barga and Susan M. Jones for Appellant
John A. Kissh, Jr. and Sharri Rammelsberg for Appellees
Case No. 6-10-12
ROGERS, P.J.
{¶1} Plaintiff-appellant, Steven M. Brickner, appeals the judgment of the
Hardin County Municipal Court awarding him monetary compensation for
damages sustained to one of his rental properties and unpaid rent. On appeal,
Brickner argues that the trial court erred when it overruled his motion for
summary judgment, and that the trial court erred when its judgment entry did not
include the specific oral pronouncements made by the court during the bench trial.
Based on the following, we affirm the judgment of the trial court.
{¶2} Defendants-appellees, Benjamin M. Wittwer, Brandon B. Rainier,
and Jeffrey M. Busching, entered into a one-year lease to rent Brickner’s property
located at 320 Liberty Street in Ada, Ohio. During the first week in March 2009,
while the lease was in effect, Wittwer, Rainier, and Busching travelled out town
for Spring Break, leaving the rental property unoccupied. Prior to leaving town,
they turned off the thermostat which caused the water in the pipes to freeze and
burst. As a result, the broken pipes leaked a significant amount of water into
Brickner’s rental property.
{¶3} Upon returning to the premises on March 8, 2009, the appellees
discovered standing water throughout the house and called Brickner to report the
damage. Brickner arrived at the property and observed running water flowing out
of several walls which had completely soaked the carpeted areas. Brickner offered
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to house the appellees in another residence while he repaired the water damage.
The appellees declined Brickner’s offer and chose to live with a friend.
{¶4} During the remainder of March and April 2009, Brickner worked to
repair the damage caused by the broken pipes. Brickner notified the appellees that
the repairs on the rental residence would be completed by the first week of May
2009, and that the appellees could move back onto the premises at that time. In
mid-April 2009, the appellees notified Brickner in writing that they would not
return to the rental residence, claiming that they had been constructively evicted.
The appellees returned their keys to Brickner the same day.
{¶5} In October 2009, Brickner filed a complaint for monetary damages
against Wittwer, Rainier, and Busching. Brickner alleged that the appellees were
responsible for $5,194.07 in damages to the rental premises, and $840.44 for
unpaid utilities. Brickner also claimed that each of the appellees owed him
$1,125.00 for unpaid rent in addition to accrued late fees and penalties for the
remainder of the lease, which comprised of the months of March, April, May, June
and July of 2009. Appellees Wittwer and Rainier jointly filed an answer to the
complaint and also asserted a counterclaim. Wittwer and Rainier’s counterclaim
alleged that Brickner “unlawfully” evicted them from the premises and claimed
they were owed damages due to their displacement. Appellee Busching filed his
answer separate from Wittwer’s and Rainier’s asserting the affirmative defense of
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contributory negligence and a counterclaim for the refund of rent and his security
deposit.
{¶6} Brickner subsequently served each appellee with a request for
admissions pursuant to Civ.R. 36. Appellee Busching responded to the request,
however, Appellees Wittwer and Rainier failed to answer or object to the requests.
Consequently, Brickner filed a Notice of Admitted Facts as to Appellees Wittwer
and Rainier with the trial court.
{¶7} In April 2010, Brickner filed a motion for summary judgment
against Appellees, Wittwer and Rainier, which the trial court ultimately overruled.
The case proceeded to bench trial in June 2010. On July 22, 2010, the trial court
entered its judgment in favor of Brickner. The trial court found that the water
damage to the premises was due to the appellees’ action of turning down the
thermostat during the winter, which caused the pipes to freeze and burst.
However, the trial court also found that the appellees gave proper notice of
termination as stated in the parties’ lease, and therefore were only responsible for
March and April 2009 rent. The trial court awarded Brickner monetary damages
in the amount of $2,416.51 plus court costs and interest.
{¶8} It is from this judgment that Brickner now appeals, asserting the
following assignments of error for our review.
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Assignment of Error No. I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR
WHEN IT DENIED PLAINTIFF-APPELLANT’S MOTION
FOR SUMMARY JUDGMENT AGAINST DEFENDANT-
APPELLEES [SIC] BENJAMIN M. WITTWER AND
BRANDON B. RAINIER FILED ON APRIL 13, 2010.
Assignment of Error No. II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR
WHEN ITS WRITTEN ENTRY, DATED JULY 22, 2010,
FILED SEVEN (7) WEEKS AFTER THE CONCLUSION OF
THE TRIAL, DID NOT REDUCE TO WRITING THE TRIAL
COURT’S DECISION AS ANNOUNCED IN OPEN COURT
ON JUNE 1, 2010 AT THE CONCLUSION OF THE BENCH
TRIAL.
First Assignment of Error
{¶9} In his first assignment of error, Brickner argues that the trial court
erred when it denied his motion for summary judgment against Appellees Wittwer
and Rainier. Specifically, Brickner maintains that because Wittwer and Rainier
failed to respond to his requests for admissions, there was no genuine issue of
material fact as to the validity of his claim for monetary damages against them.
{¶10} An appellate court reviews a summary judgment order de novo.
Hillyer v. State Farm Mut. Auto. Ins. Co. (1999), 131 Ohio App.3d 172, 175.
Accordingly, a reviewing court will not reverse an otherwise correct judgment
merely because the lower court utilized different or erroneous reasons as the basis
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for its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distr.
Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶25, citing State ex rel. Cassels v.
Dayton City School Dist. Bd. of Ed., 69 Ohio St.3d 217, 222, 1994-Ohio-92.
Summary judgment is appropriate when, looking at the evidence as a whole: (1)
there is no genuine issue as to any material fact; (2) 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; and, therefore, (3) the moving party is
entitled to judgment as a matter of law. Civ.R. 56(C); Horton v. Harwick
Chemical Corp., 73 Ohio St.3d 679, 686-687, 1995-Ohio-286. If any doubts exist,
the issue must be resolved in favor of the nonmoving party. Murphy v.
Reynoldsburg, 65 Ohio St.3d 356, 358-59, 1992-Ohio-95.
{¶11} The party moving for summary judgment has the initial burden of
producing some evidence which demonstrates the lack of a genuine issue of
material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107. In doing
so, the moving party is not required to produce any affirmative evidence, but must
identify those portions of the record which affirmatively support his argument. Id.
at 292. The nonmoving party must then rebut with specific facts showing the
existence of a genuine triable issue; he may not rest on the mere allegations or
denials of his pleadings. Id.; Civ.R. 56(E).
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{¶12} In the present case, the trial court denied Brickner’s motion for
summary judgment against Appellees Wittwer and Rainier in its May 4, 2010
Judgment Entry. In June 2010, the case proceeded to a bench trial. Despite
Brickner’s contention that he was entitled to judgment as a matter of law, it is
evident from the record that the issue of damages remained a genuine issue of
material fact before the trial court. In making its damages determination, the trial
court reviewed the rental lease to construe the parties’ rights and responsibilities
under the agreement. The trial court also reviewed several documents evidencing
the damages allegedly suffered by both parties as a result of the broken water
pipes, including documentation that Brickner’s insurance had already
compensated him for a significant amount of the water damage repair. The trial
court ultimately awarded Brickner a lump sum which included the damage caused
by the broken pipes, specifically the sum not reimbursed by his insurance, and
other incidental damages caused by the appellees while living in the rental
residence. The trial court also determined that the appellees properly terminated
their tenancy in mid-April 2009 in accordance with the lease, which provided for a
month-to-month tenancy. Consequently, the trial court found that the appellees
were only responsible for the unpaid rent for the months of March and April 2009,
and not for the remaining five months of the lease as Brickner’s complaint alleged.
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{¶13} Moreover, in Continental Ins. Co. v. Whittington (1994), 71 Ohio
St.3d 150, the Supreme Court of Ohio held that when a motion for summary
judgment is denied because the trial court found that there were material issues of
fact, an ensuing trial will moot (or render harmless) any error in that decision.
Continental Ins. Co. v. Whittington (1994), 71 Ohio St.3d 150, 156. As the Court
noted in Continental, Civ.R. 61 provides that no error in any ruling is ground for
disturbing a judgment unless the refusal to do so appears to the court to be
inconsistent with substantial justice. Id. at 155-156 (finding that substantial justice
was done where the full and complete development of the facts at trial [as opposed
to the limited factual evidence elicited in discovery] showed a genuine issue for
the trier of fact). See, also, Bobb Forest Prods., Inc. v. Morbank Indus., Inc., 151
Ohio App.3d 63, 2002-Ohio-5270, ¶ 41 (stating that even if certain issues were
purely legal, if other genuine issues of material fact were presented at trial, which
would leave the verdict unaffected, then any error is harmless).
{¶14} Our review of the record reveals that substantial justice was done at
the trial court level following the trial on the merits. The evidence adduced at trial
revealed the existence of genuine issues of material fact concerning the issues
raised in Brickner’s motion for summary judgment with regard to the appropriate
amount of damages owed to him by Appellees Wittwer and Rainier. As such, the
trial mooted any error in the trial court’s prior decision to deny summary
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judgment. Accordingly, we conclude that the trial court’s denial of Brickner’s
motion for summary judgment did not constitute reversible error.
{¶15} Brickner’s first assignment of error is, therefore, overruled.
Second Assignment of Error
{¶16} In his second assignment of error, Brickner argues that the trial court
erred when it entered judgment via its July 2010 judgment entry because the entry
differs significantly from the trial court’s decision announced in open court at the
conclusion the June 2010 bench trial. Brickner maintains that the July 2010
judgment entry should have included the oral pronouncements made by the trial
court at the bench trial.
{¶17} It is well established that a trial court speaks only through its journal
entries and not by oral pronouncement. State v. King (1994), 70 Ohio St.3d 158,
162; Glick v. Glick (1999), 133 Ohio App.3d 821, 831; In re Adoption of
Klonowski (1993), 87 Ohio App.3d 352, 357. Accordingly, a judge’s written or
oral pronouncement is not recognized as an action of a court unless it is entered
upon the journal. Boyle v. Pub. Adjustment & Constr. Co. (1950), 87 Ohio App.
264, 268. On appeal, Brickner cites no authority to support his contention that the
trial court’s judgment entry must conform to the oral pronouncements made by the
trial court.
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{¶18} Based on the foregoing authority, the trial court did not enter
judgment until the journalizing of its July 2010 judgment entry. Therefore, the
parties are bound by the decision rendered in that judgment entry and not the oral
pronouncements made during the bench trial.
{¶19} Brickner’s second assignment of error is, therefore, overruled.
{¶20} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, J., and WILLAMOWSKI, J., concur.
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