Eagle Loan Co. of Ohio, Inc. v. Phoenix

[Cite as Eagle Loan Co. of Ohio, Inc. v. Phoenix, 2019-Ohio-2258.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

Eagle Loan Company of Ohio, Inc. Court of Appeals No. L-18-1177

Appellee Trial Court No. CI0201704384

v.

David Phoenix DECISION AND JUDGMENT

Appellant Decided: June 7, 2019

*****

Howard B. Hershman, for appellee.

David Phoenix, pro se.

*****

OSOWIK, J.

{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common

Pleas which granted the motion for summary judgment by the appellee. For the reasons

set forth below, this court affirms the judgment of the trial court.
 {¶ 2} On October 10, 2017, plaintiff-appellee, Eagle Loan Company of Ohio, Inc.,

filed a complaint against pro se defendant-appellant, David Phoenix, setting forth two

claims: default on a promissory note resulting in monetary damages to appellee of

$2,741.39 plus interest and costs and possession of appellant’s Mercedes Benz vehicle

which secured the promissory note. Appellant generally denied the allegations and

attached a number of exhibits to his answer, as subsequently amended. Pursuant to the

trial court’s scheduling order, appellee filed a motion for summary judgment which it

supplemented after appellant filed an amended answer. On August 2, 2018, the trial

court journalized its judgment entry granting appellee’s motion.

{¶ 3} Appellant then filed this pro se appeal setting forth four assignments of

error:

I. The Trial Court Erred when it granted summary judgment in favor

of appellee without considering the discovery requests of appellant.

II. The Trial Court Erred when it ruled in favor of appellee’s action

without jurisdiction.

III. The Trial Court Erred when it ruled in favor or appellee with

evidence of an assignment in violation of Ohio Administrative Code

1301:8-2-12(F) (sic).

IV. The Trial Court Erred when it ruled against appellant without

complete adjudication of all issues involved.

2.
 1. Standard of Review

{¶ 4} Our review of trial court summary judgment determinations is de novo,

employing the same Civ.R. 56 standard as trial courts. Levy v. Huener, 6th Dist. Lucas

No. L-17-1081, 2018-Ohio-119, ¶ 11, citing Grafton v. Ohio Edison Co., 77 Ohio St.3d

102, 105, 671 N.E.2d 241 (1996).

{¶ 5} According to Civ.R. 56(C), summary judgment may be granted only:

[I]f the pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence, and written stipulations 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 rule. A summary judgment shall not be rendered unless it

appears from the evidence or stipulation, and only from the evidence or

stipulation, 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 or

stipulation construed most strongly in the party’s favor.

{¶ 6} When seeking summary judgment, a party must specifically delineate the

basis upon which the motion is brought and identify those portions of the record that

demonstrate the absence of a genuine issue of material fact. Levy at ¶ 12, citing Dresher

v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996).

3.
 Supporting and opposing affidavits shall be made on personal

knowledge, shall set forth such facts as would be admissible evidence, and

shall show affirmatively that the affiant is competent to testify to the

matters stated in the affidavit. Sworn or certified copies of all papers or

parts of papers referred to in an affidavit shall be attached to or served with

the affidavit.

Civ.R. 56(E).

{¶ 7} When a properly supported motion for summary judgment is made, an

adverse party may not rest on mere allegations or denials in the pleadings, but must

respond with specific facts showing that there is a genuine issue of material fact for trial.

Id. A material fact is one which would affect the outcome of the suit under the applicable

substantive law. Levy at ¶ 12, citing Russell v. Interim Personnel, Inc., 135 Ohio App.3d

301, 304, 733 N.E.2d 1186 (6th Dist.1999). To determine if a genuine issue exists, we

inquire whether the evidence in dispute is sufficient to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law. Wall v.

Firelands Radiology, 106 Ohio App.3d 313, 322-323, 666 N.E.2d 235 (6th Dist.1995).

{¶ 8} Although appellant is pro se, he must still follow the same rules and

procedures as attorneys. HSBC Bank USA, N.A. v. Takats, 6th Dist. Lucas No. L-14-

1155, 2015-Ohio-3077, ¶ 9. We may afford pro se appellant reasonable leeway in the

construction of pleadings in the interests of justice. Id. The principles of reasonable

leeway for appellant’s pro se brief do not extend to this court conjuring up questions

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never squarely asked or constructing full-blown claims from convoluted reasoning.

Kenwood Gardens Ass’n., LLC v. Shorter, 6th Dist. Lucas No. L-10-1315, 2011-Ohio-

4135, ¶ 8. Nor does reasonable leeway extend to crafting well-articulated claims from

poorly drafted arguments. HSBC Bank United States NA v. Beins, 6th Dist. Lucas No.

L-13-1067, 2014-Ohio-56, ¶ 6. Ultimately, a pro se litigant may not be given any greater

rights than a party represented by counsel and bears the consequences of any litigation

mistakes. Id. at ¶ 7.

{¶ 9} Pursuant to App.R. 16(A)(3), appellant is required to state the assignments

of error presented for review, with reference to the place in the record where each error is

reflected. Pursuant to App.R. 16(D) and 6th Dist.Loc.App.R. 10(C), appellant is required

to reference to the record to the volumes and page number of transcript. The record on

appeal is limited to the original papers and exhibits filed in the trial court, the transcript

of proceedings and certified copies of the docket and journal entries prepared by the trial

court clerk. App.R. 9(A).

2. Subject-matter Jurisdiction

{¶ 10} Appellant’s second assignment of error challenges the trial court’s

“jurisdiction.” Appellant argues his jurisdictional challenge shifted the burden of proof

to appellee. Appellant argues “Appellee has failed to come forth with any redressible

injury, or proof of causation. * * * ‘Causation’ means that there be some reasonable

connection between [the] negligent act or omission of defendant and damage which

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plaintiff has suffered.” Appellant further argues appellee violated Civ.R. 10(D) by failing

to “establish the existence of a valid assignment agreement.”

{¶ 11} In response, appellee argues the trial court at all times had subject-matter

jurisdiction. Appellee argues the trial court had subject-matter jurisdiction in a civil

action for contract damages and for a possession of the collateral.

{¶ 12} Subject-matter jurisdiction, which goes to the power of the trial court to

adjudicate the merits of a case, may be challenged at any time. Pratts v. Hurley, 102

Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11. We review de novo the question

of law whether a trial court had subject-matter jurisdiction. Cirino v. Ohio Bur. of

Workers’ Comp., 153 Ohio St.3d 333, 2018-Ohio-2665, 106 N.E.3d 41, ¶ 17.

Ohio’s common pleas courts are endowed with “original jurisdiction

over all justiciable matters * * * as may be provided by law.” Jurisdiction

has been “provided by law” in R.C. 2305.01, which states that courts of

common pleas have “original jurisdiction in all civil cases in which the sum

or matter in dispute exceeds the exclusive original jurisdiction of county

courts.” This court has long held that the court of common pleas is a court

of general jurisdiction, with subject-matter jurisdiction that extends to “all

matters at law and in equity that are not denied to it.”

(Citations omitted.) Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-

4275, 21 N.E.3d 1040, ¶ 20; Ohio Constitution, Article IV, Section 4(B).

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 {¶ 13} We reviewed the record and find the trial court had subject-matter

jurisdiction in this matter, which involves claims of default on a promissory note

and possession of the collateral, a vehicle.

{¶ 14} Appellant’s second assignment of error is not well-taken.

3. Standing

{¶ 15} Appellant’s third assignment of error appears to challenge appellee’s

standing to file its complaint. Appellant argues the trial court’s judgment is void because

appellee was not the real party in interest to enforce the loan. Appellant argues appellee

violated “Ohio Administrative Code 1301:8-9-12(F)” (sic) because it was not “TEXAS

CAPITAL BANK N.A.” as shown in exhibit “C” attached to his appellate brief.

Appellant essentially argues appellee lacks standing because it assigned the promissory

note to “TEXAS CAPITAL BANK N.A.”

{¶ 16} In response, appellee argues it had standing and is the real party in interest

in the promissory note upon which it obtained judgment. Appellee argues nothing in the

record indicates the subject promissory note was assigned to a third party.

{¶ 17} Standing is a fundamental concept, a “jurisdictional requirement,” that a

party must have some real interest in the subject matter of the action. (Citations omitted.)

Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979

N.E.2d 1214, ¶ 22. The issue of standing may be raised at any time during the pendency

of the proceedings. Id. Standing is to be determined as of the filing of the complaint. Id.

at ¶ 27. No specific documents are necessary to establish standing due to the particular

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facts of each case. Deutsche Bank Natl. Trust Co. v. Holden, 147 Ohio St.3d 85, 2016-

Ohio-4603, 60 N.E.3d 1243, ¶ 30-31.

{¶ 18} We reviewed the record and find appellant’s reliance on exhibit “C” and

the administrative code are misplaced. The exhibit “C” attached to appellant’s brief did

not point to where in the record it is found nor where any assignment clause exists for our

review. Nor could we confirm appellant’s reliance on “Ohio Administrative Code

1301:8-9-12(F).” Even if “Ohio Administrative Code 1301:8-9-12(F)” once existed, any

rules under Ohio Adm.Code 1301:8-9 were rescinded effective September 25, 2009.

{¶ 19} Appellee states in its complaint appellant defaulted on a promissory note

resulting in monetary damages to appellee. Paragraph one of the complaint states, “On

the date indicated therein defendant, David Phoenix, executed and delivered to plaintiff a

promissory note, a copy of which is attached hereto and marked Exhibit A.” Attached to

the complaint are the promissory note and security agreement, each dated May 31, 2016,

which identify appellant as borrower, appellee as payee, and appellant’s vehicle as the

collateral. In his November 13, 2017 “Answer to Complaint,” appellant admitted the

allegation of paragraph one of the complaint. Although it is unclear in the record where

appellant filed his amended complaint, a proposed “Defendant Amended Answer to

Complaint” was attached to his April 25, 2018 motion for leave to file it. In his proposed

amended complaint appellant denied the prior admission, but explained, “Defendant is

not in default, plaintiff has shown not (sic) proof of default or a correct accounting

showing debits and credits in this transaction.” We find that based on the foregoing,

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appellant does not dispute the existence of the loan transaction documents with appellee

because he was disputing the amount of damages appellee claimed was due from the

alleged default.

{¶ 20} We reviewed the record and found the appellee had standing to bring the

complaint in this matter.

{¶ 21} Appellant’s third assignment of error is not well-taken.

4. Summary Judgment Analysis

{¶ 22} Appellant’s first assignment of error challenges the trial court’s grant of

summary judgment because a genuine issue of material fact exists regarding the trial

court’s failure to consider his discovery requests. Appellant argues, “The defendants

(sic) motions for dismissal and or summary judgment before any discovery had been

taken and without providing plaintiff an opportunity to conduct discovery effectively

nullifies Rule 56 of the Federal Rules of Civil Procedure.” Appellant argues he must

receive a full opportunity to conduct discovery to successfully defeat a motion for

summary judgment. Appellant further argues the trial court erred by prematurely

granting summary judgment to appellee because “[i]t was an abuse of discretion to deny

discovery in this case. The Trial Court appellee (sic) failed to prove any injury or

causation and the insufficient evidence does not cure this defect.”

{¶ 23} In response, appellee argues appellant’s claim of outstanding discovery

demands do not raise genuine issues of material fact to defeat summary judgment.

Appellee argues its summary judgment motion was timely filed pursuant to Civ.R. 56.

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Appellee further argues, “Defendant never made a request to suspend consideration of the

motion for summary judgment to conduct further discovery.”

{¶ 24} Appellant did not identify in the record what discovery requests he made

pursuant to applicable civil rules of procedure that were still pending as of the trial

court’s July 31, 2018 decision. Nor did appellant identify how those allegedly

outstanding discovery requests evidenced a genuine issue of material fact to defeat

summary judgment. We find the record shows the trial court’s November 20, 2017

scheduling order set October 5, 2018, as the filing deadline for motions for summary

judgment. The scheduling order separately set trial for April 8, 2019, with discovery to

be completed by March 25, 2019. Appellee timely filed its motion for summary

judgment on April 12, 2018. Civ.R. 56(A)-(B).

{¶ 25} “Clearly a promissory note is a designation which is universally understood

as an instrument for the payment of money.” Burke v. State, 104 Ohio St. 220, 223, 135

N.E. 644 (1922). We review a promissory note, which is a written contract between the

parties, de novo as a matter of law. Bay Coast Properties v. Natl. City Bank, 6th Dist.

Huron No. H-05-015, 2006-Ohio-2348, ¶ 13. The rules of contract interpretation apply to

the interpretation of promissory notes. Cranberry Fin., LLC v. S&V Partnership, 186

Ohio App.3d 275, 2010-Ohio-464, 927 N.E.2d 623, ¶ 9 (6th Dist.). Where the contract

terms are clear and unambiguous, there is no issue of fact to be determined because the

interpretation is a matter of law. Id. As such, summary judgment is appropriate in

breach-of-contract cases. Hinsch v. Root Learning, Inc., 6th Dist. Lucas No. L-12-1192,

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2013-Ohio-3371, ¶ 55. It is well-settled a promissory note is the primary evidence of the

debt of the obligation of the maker, and the security interest in, for example, a vehicle, is

merely the security for payment of the note. Washer v. Tontar, 128 Ohio St. 111, 113,

190 N.E. 231 (1934). To support a breach of contract claim, appellee must present

evidence of a contract, performance by appellee, breach by appellant, and damage or loss

to appellee. McCormick v. Credit Acceptance Corp., 6th Dist. Lucas No. L-16-1111,

2017-Ohio-5687, ¶ 18.

{¶ 26} In support of its motion for summary judgment, appellee attaches an

affidavit by John Schramm with personal knowledge acquired as an assistant branch

manager for appellee. Mr. Schramm avers, among other facts, appellant entered into a

promissory note with appellee on May 31, 2016, which was secured by appellant’s 2000

Mercedes Benz CL 5. The affidavit attaches copies maintained as business records of the

promissory note, security agreement and certificate of title to appellant’s vehicle. Mr.

Schramm further avers appellant’s payments ended February 7, 2017, as evidenced by the

attached “printoff * * * showing the account history for the loan made to David

Phoenix.” The attachment is identified as a “History Card” from May 3, 2016, through

April 29, 2017, and itemizes entries for “Date Paid,” “This Payment Was Due,” “Balance

Before Payment, “Paid on Late Charge,” “Paid on Escrow,” “Paid on Other,” “Paid on

Interest,” Paid on Principal,” “Total Payment, and “Balance After Payment.” The

promissory note shows appellant borrowed the principal amount of $2,907.36 from

appellee and agreed to make 18 monthly payments totaling $3,539.87, with the final

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payment due December 15, 2017. The promissory note also shows appellant granted a

security interest in the subject vehicle as collateral for the repayment of the indebtedness.

{¶ 27} On May 8, 2018, appellee sought leave to file a supplemental summary

judgment memorandum in response to appellant’s proposed amended answer so that all

issues could be addressed by summary judgment. The trial court granted the motion.

Appellee then argues appellant failed to plead material facts to support his new, vague

defenses. Appellee further argues the applicable law for the subject lending transaction is

pursuant to R.C. 1321.01 through 1321.21 and the applicable law for the subject security

interest in the vehicle is pursuant to R.C. Chapter 1309.

{¶ 28} We find appellee points to Mr. Schramm’s affidavit and attachments

thereto as evidence of each element of the breach of contract claim and the claim for

possession of the vehicle which secured appellant’s indebtedness to appellee. We find

the record shows appellee filed a properly supported motion for summary judgment.

Consequently, the burden shifts to appellant to respond with specific facts showing that

there is a genuine issue of material fact for trial. Appellant does not meet his burden by

resting on mere allegations or denials in the pleadings. Civ.R. 56(E).

{¶ 29} Appellant repeatedly argues on appeal he is entitled to an “accounting,” but

does not show what genuine issues of material facts arise from the accounting already

provided by appellee other than his unilateral disagreement with it. In fact, the record

shows appellant never filed any opposition to appellee’s motion for summary judgment,

despite extensions of time from the trial court to do so.

12.
 {¶ 30} We liberally reviewed the record for appellant’s discovery-related requests,

which appellant argues on appeal were necessary to oppose summary judgment.

{¶ 31} First, we find on April 25, 2018, appellant filed a “Notice Demand for

Verified Copy of Account” in which he demanded “a copy of the alleged account on

which the complaint is founded” and “a full verified statement of the items that make up

the total of plaintiff’s demand * * *.” That day appellant also filed a “Motion for

Extension of Time to Respond to Plaintiff Summary Judgment Motion” claiming he had

until May 2019 in which to conduct discovery “necessary to oppose a motion for

summary judgment.” Appellant requested until May 30, 2018, “to respond to Eagle Loan

Company’s motion for summary judgment,” and the trial court granted appellant’s

motion. Appellant did not file anything in the record by May 30, 2018.

{¶ 32} Then on June 4, 2018, appellant filed “Defendant Motion for Leave to File

Late Reply” explaining he had faulty printer and computer problems. Appellant

requested “an order from the court granting leave to file Amended Answer attached

respectfully.” However, on April 27, 2018, the trial court previously granted appellant

leave to file an amended answer. Nevertheless, the trial court granted appellant until

June 21, 2018, to file his amended answer. The record does not show appellant filed his

amended answer pursuant to the trial court’s order. However, appellee concedes

appellant’s amended answer was filed instanter upon the trial court’s order.

{¶ 33} Separately, on June 21, 2018, appellee filed a memorandum questioning the

purpose of appellant’s motion. Appellee stated in its memorandum:

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 Whether this is considered as an actual motion seeking a decision of

the court or is simply the reason defendant intended to give the court as

justification for his opposition to summary judgment being granted,

plaintiff’s response is that the matter is not material to the resolution of this

case or the motion for summary judgment * * *.

{¶ 34} In his July 6, 2018 “Defendant’s Reply to Plaintiff Memorandum

Regarding Motion for Leave to File Late Response to Summary Judgment and Motion to

Preclude Evidence of Account,” appellant states his “motion to preclude account is due to

plaintiffs (sic) failure to come forth with evidence of an accurate and verified accounting

in this matter. * * * There is a genuine issue of material fact as to the amount of damages

suffered as a result of a breach of contract [which] precludes summary judgment.”

Appellant further argues “discovery has not yet been completed in this matter, the

accounting in this matter is certainly material to the damages plaintiff claims and the

proof of the accounting as well as other discovery in this matter will certainly preclude

summary judgment in favor of plaintiff.” Appellant requested a “continuance” to

appellee’s summary judgment motion “as it is filed prematurely as discovery has just

begun.” See Maschari v. Tone, 103 Ohio St.3d 411, 2004-Ohio-5342, 816 N.E.2d 579,

¶ 20. Thus, we find appellant’s demands for an “accounting” was the focus of his

foregoing pleadings.

{¶ 35} Second, we also find on June 4, 2018, appellant filed in the record

“Defendant’s Motion for Temporary Restraining Order” requesting an order “staying

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repossession and sale of his vehicle, and all proceedings to enforce the sale of

defendant’s private property. * * * A temporary restraining order is requested due to the

sentimental value attached to the vehicle.” Appellee opposed the motion, and on July 6,

2018, appellant requested a hearing on his motion. In his hearing request, appellant

argues appellee is not the real party in interest because the promissory note, which he

acknowledges executing, “has been altered and so changed and the original has been

requested via discovery.” Appellant then states, “A hearing is requested to see if a

temporary restraining order is appropriate in this matter to prevent unlawful repossession

of the vehicle in question.” On July 31, 2018, the trial court denied appellant’s motion

for a temporary restraining order concurrently with granting appellee’s motion for

summary judgment.

{¶ 36} Appellant’s request for injunctive relief for a temporary restraining order is

governed by Civ.R. 65(A). A trial court’s decision to grant or deny an injunction is

solely within its discretion, which we review for abuse. Danis Clarkco Landfill Co. v.

Clark Cty. Solid Waste Mgt. Dist., 73 Ohio St.3d 590, 604, 653 N.E.2d 646 (1995).

Abuse of discretion “‘connotes more than an error of law or judgment; it implies that the

court’s attitude is unreasonable, arbitrary or unconscionable.’” Blakemore v. Blakemore,

5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d

151, 157, 404 N.E.2d 144 (1980). We find appellant’s interest in seeking injunctive

relief was to keep his vehicle with sentimental value, not to address a genuine and

15.
material discovery dispute to allow him to oppose summary judgment. We do not find

the trial court abused its discretion when it denied appellant’s request for injunctive relief.

{¶ 37} Third, we find the record contains appellee’s “Motion for Protective Order”

filed on July 26, 2018, pursuant to Civ.R. 26. Appellee admits appellant sent

interrogatories and document production requests to appellee, but “the requests are

apparently issued simply for their value as a tool of harassment and to compound the

expense of litigation.” Appellee further states in its motion:

A number of requests evidence a complete disregard for the fact that

what is requested has already been produced and authenticated in the

affidavit of plaintiff’s affiant in support of the motion for summary

judgment. None of the material requested, beyond what has already been

produced, has any apparent relationship to the case in that the answers

sought or the documents to be produced, would be in service of any claim

or defense asserted by the defendant. * * * It is apparent that the defendant

has taken his direction in this matter from counsel he has found on the

internet and has developed a discovery package, the purpose of which

seems to be directed to obfuscating the issues before the court rather than

illuminating them and placing an unnecessary burden on plaintiff just for

the purpose of harassment. Before plaintiff is required to go through this

exercise, defendant should be required to demonstrate that the information

he seeks has some rational relationship to the claims or defenses that he has

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 advanced; that the information has not already been produced; and

articulate how the requested disclosures would either assist in the proof of a

defense or would lead to other discoverable evidence that would assist in

the proof of a defense.

{¶ 38} Appellant did not oppose the motion. On August 15, 2018, the trial court

denied the motion as moot in light of its decision on summary judgment. A trial court’s

decision on discovery matters, including the grant or denial of a protective order, is

reviewed on appeal for abuse of discretion. Maschari, 103 Ohio St.3d 411, 2004-Ohio-

5342, 816 N.E.2d 579, at ¶ 18-20. We do not find the trial court abused its discretion

when it denied appellee’s motion.

{¶ 39} Despite appellant’s arguments on appeal, we do not find in the record any

denial of discovery by the trial court against appellant. Appellant’s insistence on the

mere existence of outstanding discovery does not necessarily make summary judgment

inappropriate because appellant has the burden to show the facts in dispute must be both

genuine and material as required by Civ.R. 56. Romstadt v. Garcia, 2017-Ohio-7277, 96

N.E.3d 952, ¶ 23 (6th Dist.). In the record appellant repeatedly states he needs a

“verified statement” or “verified accounting” to oppose summary judgment. Pursuant to

Civ.R. 56(E), such accounting was provided by Mr. Schramm’s affidavit attached to

appellee’s motion for summary judgment. Mr. Schramm’s affidavit also attached his

letter dated April 28, 2017, to appellant providing him “a payoff letter, copy of the title

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showing our lien, and a listing of personal property taken at the time of your last loan

with us.”

{¶ 40} It is obvious by his appeal, appellant disagrees with the accounting

received from appellee. However, he does not proffer any evidence beyond that general

disagreement to show there is a genuine issue of material fact requiring a trial. See

CanDo Credit Union v. Pollock, 6th Dist. Lucas No. L-12-1233, 2013-Ohio-3851, ¶ 9.

Similarly, appellant’s claim of pending discovery that appellee is not the real party in

interest does not go beyond his exhibit “C,” which fails to show there is a genuine issue

of material fact requiring a trial. Despite appellant’s insistence otherwise, unnecessary

factual disputes will not preclude summary judgment. Wall, 106 Ohio App.3d at 322,

666 N.E.2d 235.

{¶ 41} We find that in viewing most favorably to appellant the record evidence

allowed by Civ.R. 56, there is no genuine issue as to any material fact, appellee is entitled

to judgment as a matter of law, and reasonable minds can come to but one conclusion,

and that conclusion is adverse to appellant.

{¶ 42} Appellant’s first assignment of error is not well-taken.

5. Complete Adjudication

{¶ 43} Appellant’s fourth assignment of error challenges the trial court’s grant of

summary judgment as an incomplete “adjudication of all issues involved.” Appellant

argues the trial court “must consider the entire record in the action, not just those pieces

of evidence that have been singled out for attention by the parties.” Appellant further

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argues “the trial court erred when it failed to address appellant’s discovery request,”

which he explained was “mainly an accounting.”

{¶ 44} In response, appellee argues the trial court did not err because its summary

judgment decision disposed of all claims pending before it and granted all the relief

appellee requested. Appellee argues both of the counts in the complaint, one for recovery

of money owed on a promissory note and the other for possession of the vehicle that

served as collateral security for the note, were resolved by the trial court’s decision with

no other claims unresolved.

{¶ 45} Civ.R. 56(D) governs summary judgment decisions that do not fully

adjudicate a case:

If on motion under this rule summary judgment is not rendered upon

the whole case or for all the relief asked and a trial is necessary, the court in

deciding the motion, shall examine the evidence or stipulation properly

before it, and shall if practicable, ascertain what material facts exist without

controversy and what material facts are actually and in good faith

controverted. The court shall thereupon make an order on its journal

specifying the facts that are without controversy, including the extent to

which the amount of damages or other relief is not in controversy, and

directing such further proceedings in the action as are just. Upon the trial

of the action the facts so specified shall be deemed established, and the trial

shall be conducted accordingly.

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 {¶ 46} We reviewed the trial court’s July 31, 2018 decision. Although succinct,

the decision disposed of the whole case:

This day this cause came to be hear upon motion of the plaintiff for

summary judgment, and the court finding said motion well taken, the same

is hereby granted. Construing the evidence most strongly in favor of the

defendant, the court finds that reasonable minds could only conclude that

there is no issue as to any material fact and plaintiff is entitled to the

judgment it seeks as a matter of law.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED

(emphasis sic) that plaintiff is granted judgment against defendant, David

Phoenix, in the sum of $2775.60 together with interest at the rate of 25%

per annum from 1/17/18 until paid plus costs upon Count I. The court

further orders that plaintiff have immediate possession of the 2000

Mercedes Benz * * *; that defendant immediately deliver said vehicle to

plaintiff; that upon plaintiff’s request the bailiff or other levying officer

take possession of said vehicle, without bond, and deliver it to plaintiff; and

that the Clerk of Courts, Auto Title Division, transfer title to said vehicle to

plaintiff in order for plaintiff to exercise its rights in said vehicle as a

secured creditor.

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 This is a final appealable order. The clerk is ordered to comply with

Civil Rule 58(B) by serving upon all parties not in default notice of the

judgment in the manner required by Civil Rule 58(B).

{¶ 47} We find the trial court’s decision on summary judgment disposed of, and

fully adjudicated the merits of, all claims before it.

{¶ 48} Appellant’s fourth assignment of error is not well-taken.

6. Conclusion

{¶ 49} On consideration whereof, the judgment of the Lucas County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

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