Opinion
C.A. CASE NO. 17046, T.C. CASE NO. 97-6535
January 8, 1999
RICHARD B. REILING, Atty. Reg. No. 0066118, Attorney for Plaintiff-Appellee.
DOUGLAS B. GREGG, Atty. Reg. No. 0014660, Attorney for Defendant-Appellant.
Nellie Jane Patrick is appealing from the summary judgment against her on a note and mortgage she executed in favor of John R. Ensley.
After Ensley filed suit on his note and mortgage, Patrick responded with an answer in the form of a letter in which she questioned the consideration behind the note, but did not dispute the existence of the note and mortgage.
Ensley filed for summary judgment. Patrick ignored the motion and did not respond with anything. The magistrate duly granted summary judgment to Ensley on the ground that the adverse party had failed to respond by affidavit or otherwise, citing Savransky v. City of Cleveland (1983), 4 Ohio St.3d 118.
Patrick then filed, pro se, objections to the report and decision of the magistrate, raising a number of objections that had never been raised to the magistrate and were not supported by any evidence either.
The trial court adopted the magistrate's decision and report, stating:
In this case, the Magistrate granted summary judgment in favor of Plaintiff because Defendant failed to respond to Plaintiff's motion for summary judgment. Plaintiff put forth evidence of the promissory note and the mortgage security as evidence of the debt owed by Defendant. Furthermore, Defendant never denied the existence of the promissory note and mortgage, nor did she deny the fact that the amount of the promissory note was never paid. This evidence, coupled with the fact that Defendant did not respond to the motion for summary judgment with countering evidence, was sufficient to show that a genuine issue of material fact did not exist for trial. Therefore, there was no genuine issue of material fact that Defendant owed the debt and that she was in default of that debt. Therefore, summary judgment in favor of Plaintiff was appropriate in this case. The issues raised by Defendant in this objection are inappropriate in a review of the Magistrate's decision granting summary judgment.
Patrick, on appeal, still pro se, presents the following two assignments of error:
FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY ADOPTING A MAGISTRATES REPORT GRANTING SUMMARY JUDGMENT WITHOUT INDEPENDENTLY REVIEWING AND ACTING UPON THE APPELLANTS FACTUAL OBJECTIONS TO SAME.
SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN VALIDATING A NOTE BASED UPON THE UNSUPPORTED AND ERRONEOUS ALLEGATIONS CONTAINED IN AN AFFIDAVIT ATTACHED TO A MOTION FOR SUMMARY JUDGMENT.
Unfortunately for her, Patrick's appeal is subject to the same infirmities as were her objections to the magistrate's report. She allowed summary judgment to be entered against her. She failed to respond in any way to Ensley's motion for summary judgment. It is too late for her to argue now, on appeal, issues she failed to timely raise at the trial level, and summary judgment was properly entered against her. Civ.R. 56(E). Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. The trial court made the only decision it could make in this case and, clearly, summary judgment was appropriate based upon the undenied existence of the note and mortgage and the failure of any payment therefore.
The assignments of error are overruled, and the judgment is affirmed.
BROGAN, J. and WOLFF, J., concur.
Copies mailed to:
Richard B. Reiling Douglas B. Gregg Hon. David A. Gowdown