[Cite as Sherrills v. Tyus, 2012-Ohio-2068.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97502
DENISE SHERRILLS
PLAINTIFF-APPELLEE
vs.
NATALIE R. TYUS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-743735
BEFORE: Blackmon, A.J., Stewart, J., and Jones, J.
RELEASED AND JOURNALIZED: May 10, 2012
ATTORNEY FOR APPELLANT
Jeffrey F. Slavin
The Standard Building
Suite 1810
1370 Ontario Street
Cleveland, Ohio 44113
APPELLEE PRO SE
Denise Sherrills
21149 North Street
Euclid, Ohio 44117
PATRICIA ANN BLACKMON, A.J.:
{¶1} Appellant Natalie Tyus appeals the trial court’s decision granting summary
judgment in favor of Denise Sherrills, and assigns the following error for our review:
I. The judgment of the trial court granting the appellee’s motion for
summary judgment and denying the appellant’s motion for summary
judgment was an abuse of discretion.
{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s
decision. The apposite facts follow.
{¶3} In August 2008, Tyus was involved in a motor vehicle collision. Sherrill, a
passenger in Tyus’s car, suffered permanent injuries and disfigurement. On November 7,
2008, the Cuyahoga County Grand Jury indicted Tyus on one count each of aggravated
vehicular assault, vehicular assault, and two counts of driving under the influence of alcohol
or drugs. Tyus pleaded not guilty at her arraignment and several pretrials followed.
{¶4} On March 13, 2009, pursuant to a plea agreement with the state, Tyus pleaded
guilty to an amended count of attempted vehicular assault and one count of driving under the
influence of alcohol or drugs. The state nolled the remaining charges. On April 9, 2009,
the trial court sentenced Tyus to two years of community control sanctions and ordered her
to pay restitution to Sherrills in the amount of $83,000.
{¶5} On or about October 4, 2010, in exchange for terminating her community
control sanctions, Tyus executed a cognovit note in favor of Sherrills, promising to pay the
restitution amount of $83,000. As a result, on October 13, 2010, the trial court terminated
Tyus’s community controlled sanctions.
{¶6} On December 16, 2010, Sherrills filed a complaint against Tyus seeking to
recover on the cognovit note. In her complaint, Sherrills alleged that Tyus was in default on
the note and that she had paid only $200 of the restitution amount the trial court ordered.
{¶7} On June 29, 2011, Tyus filed a motion for summary judgment, arguing that
Sherrills was time barred from seeking civil damages because the complaint was filed more
than two years after the accident. Tyus also argued that the restitution ordered had been
satisfied because Sherrills had received a $50,000 settlement from the insurance company.
On August 19, 2011, the trial court denied Tyus’s motion for summary judgment.
{¶8} On August 26, 2011, Sherrills filed a motion for summary judgment, which
Tyus opposed. On October 28, 2011, the trial court granted Sherrills’s motion for
summary judgment and entered judgment against Tyus for $82,800, plus interests.
Summary Judgment
{¶9} In the sole assigned error, Tyus argues the trial court erred when it granted
summary judgment in favor of Sherrills.
{¶10} We review an appeal from summary judgment under a de novo standard of
review. Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist. 2000), citing
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio
Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th
Dist. 1997). Accordingly, we afford no deference to the trial court’s decision and
independently review the record to determine whether summary judgment is appropriate.
{¶11} Under Civ.R. 56, summary judgment is appropriate when, (1) no genuine
issue as to any material fact exists, (2) the party moving for summary judgment is entitled to
judgment as a matter of law, and (3) when viewing the evidence most strongly in favor of
the nonmoving party, reasonable minds can reach only one conclusion that is adverse to the
nonmoving party.
{¶12} The moving party carries an initial burden of setting forth specific facts that
demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d
280, 292-293, 662 N.E.2d 264 (1996). If the movant fails to meet this burden, summary
judgment is not appropriate; if the movant does meet this burden, summary judgment will be
appropriate only if the nonmovant fails to establish the existence of a genuine issue of
material fact. Id. at 293.
{¶13} In the instant case, the cornerstone of Tyus’s argument is that the $50,000
Sherrills received from the insurance company satisfies the restitution order and relieves
Tyus of any obligation under the cognovit note. We disagree.
{¶14} The guidelines for financial sanctions and the payment of restitution are set
forth in R.C. 2929.18. State v. Perkins, 3d Dist. No. 13–09–15, 2009-Ohio-6722. The statute
provides that “(A) * * * [f]inancial sanctions that may be imposed pursuant to this section
include, but are not limited to, the following: (1) Restitution by the offender to the victim of
the offender’s crime * * * in an amount based on the victim’s economic loss.” R.C.
2929.18.
{¶15} The statute further specifies that “the amount the court orders as restitution
shall not exceed the amount of the economic loss suffered by the victim as a direct and
proximate result of the commission of the offense.” R.C. 2929.18(A)(1). State v. Portentoso,
173 Ohio App.3d 297, 2007-Ohio-5490, 878 N.E.2d 76 (3d Dist.), ¶ 8; State v. Didion, 173
Ohio App.3d 130, 2007-Ohio-4494, 877 N.E.2d 725 (3d Dist.), ¶ 16.
{¶16} Initially, we note there is no dispute that the trial court ordered Tyus to pay
restitution in the amount of $83,000, and no dispute that Sherrills received a $50,000
settlement from the insurance company. We also note that the record reveals that Sherrills
received the insurance settlement on April 6, 2009 and that the trial court ordered restitution
three days later on April 9, 2009.
{¶17} In addition, we note that Tyus has not provided this court with a transcript of
the hearing when restitution was ordered. Thus, there is no proof that the trial court did not
consider the $50,000 insurance settlement Sherrills received three days prior to the
restitution hearing.
{¶18} Moreover, Sherrills maintained in her pleadings below and in her brief to this
court that she was permanently disfigured and incurred approximately $124,000 in medical
expenses. Thus, it is plausible, given that the restitution hearing was three days after
Sherrills received the settlement, that the trial court considered the $50,000 when it ordered
Tyus to pay $83,000 in restitution.
{¶19} As such, the trial court did not err when it granted summary judgment in favor
of Sherrills, because, viewed from any angle, Sherrills has not received the restitution
ordered. Accordingly, we overrule the sole assigned error.
{¶20} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE
MELODY J. STEWART, J., and
LARRY A. JONES, SR., J., CONCUR