[Cite as Bishopsgate Properties, L.L.C. v. Heiland, 2011-Ohio-4707.]


STATE OF OHIO                     )                         IN THE COURT OF APPEALS
                                  )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

BISHOPSGATE PROPERTIES, LLC                                 C.A. No.   10CA009854

        Appellee

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
ERIC HEILAND                                                COURT OF COMMON PLEAS
                                                            COUNTY OF LORAIN, OHIO
        Appellant                                           CASE No.   10CV165790

                                 DECISION AND JOURNAL ENTRY

Dated: September 19, 2011



        BELFANCE, Presiding Judge.

        {¶1}     Defendant-Appellant Eric Heiland appeals from the entries of the Lorain County

Court of Common Pleas awarding summary judgment to Plaintiff-Appellee Bishopsgate

Properties, LLC (“Bishopsgate”). For the reasons set forth below, we reverse.

                                                      I.

        {¶2}     On January 10, 2010, Bishopsgate filed a complaint for forcible entry and

detainer, unpaid rent, and declaratory relief against Mr. Heiland. Bishopsgate asserted in its

complaint that it was the legal owner of the real property at 1226 West 11th Street in Lorain

(“the property”), that Mr. Heiland was “unlawfully and forcibly” detaining the property, and that

Mr. Heiland failed to pay rent. Bishopsgate sought “process and restitution[,]” fair market rent

of the property, and declarations related to Mr. Heiland’s and Bishopsgate’s respective rights in

the property, including declarations to quiet title. Mr. Heiland filed an answer along with several

defenses. Thereafter, Bishopsgate moved for summary judgment. Mr. Heiland responded in
                                                2


opposition.   Additionally, Bishopsgate filed a preliminary judicial report for the property.

Subsequently, the trial court entered judgment in favor of Bishopsgate and against Mr. Heiland.

The trial court awarded Bishopsgate $2500 plus statutory interest for rent due and ordered Mr.

Heiland to vacate the premises. In addition, the trial court declared Bishopsgate to be the sole

owner of the property. It further found that Mr. Heiland had no right to possession of the

property or contractual rights in the property, that Mr. Heiland unlawfully and forcibly detained

possession of the property, and that Mr. Heiland was a tenant at will. Mr. Heiland then filed a

motion for relief from judgment pursuant to Civ.R. 60(B). After filing a notice of appeal, Mr.

Heiland requested and received a stay of judgment. In addition he filed a supplemental motion

for relief from judgment. Upon motion from Mr. Heiland, this Court remanded the matter to the

trial court so that it could rule on Mr. Heiland’s pending Civ.R. 60(B) motions. As the trial court

has ruled upon Mr. Heiland’s motions for relief from judgment, we turn to addressing the merits

of his appeal. Mr. Heiland has appealed pro se, raising two assignments of error for our review.

                                                II.

                                  ASSIGNMENT OF ERROR I

       “The Trial Court erred in Applying the Standard of Review For Summary
       Judgment to the Prejudice of The Defendant-Appellant.”

       {¶3}    Essentially Mr. Heiland asserts that the trial court erred in granting summary

judgment as there remained genuine issues of material fact. Specifically, Mr. Heiland alleges

that ownership interests, equitable interests, and damages for rent were in dispute. We agree that

the trial court erred in granting summary judgment.

       {¶4}    We review an award of summary judgment de novo. Grafton v. Ohio Edison Co.

(1996), 77 Ohio St.3d 102, 105. “Pursuant to Civ.R. 56(C), summary judgment is appropriately

rendered when ‘(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the
                                                  3


moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that

reasonable minds can come to but one conclusion, and viewing such evidence most strongly in

favor of the party against whom the motion for summary judgment is made, that conclusion is

adverse to that party.’” Turner v. Turner (1993), 67 Ohio St.3d 337, 339-340, quoting Temple v.

Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.

       {¶5}    On a motion for summary judgment, the moving party has the burden of

demonstrating that no genuine issues of material fact exist. Dresher v. Burt (1996), 75 Ohio

St.3d 280, 292. The burden then shifts to the nonmoving party to provide evidence showing that

a genuine issue of material fact does exist. Id. at 293.

       {¶6}    As we conclude that Mr. Heiland presented sufficient evidence to raise genuine

issues of material fact with respect to both ownership and possession of the property, we likewise

conclude that Bishopsgate was not entitled to summary judgment on its claims.

       {¶7}    We begin with the observation that none of Bishopsgate’s motions, briefs, or

evidentiary materials present any facts explaining how Bishopsgate came to obtain title to the

property or even how Mr. Heiland came to be on the property in the first place. This is of

particular concern to this Court in light of Mr. Heiland’s assertions in his affidavit concerning

fraud which are detailed below. Even Jeannette Shepler’s affidavit, submitted in support of

Bishopsgate’s motion for summary judgment, is nearly devoid of facts or factual allegations.

Instead, the affidavit consists primarily of legal conclusions.   Mr. Heiland correctly objected to

the affidavit on this basis. See Hackathorn v. Preisse (1995), 104 Ohio App.3d 768, 771. Thus,

to the extent the affidavit makes bare legal conclusions, we will disregard it in our review.

       {¶8}    Despite the conclusory nature of Ms. Shepler’s affidavit, it did, along with the

accompanying documents, provide some support for Bishopsgate’s claims. Ms. Shepler averred
                                                 4


in her affidavit that Bishopsgate is the legal owner of the property. As evidence in support of

Bishopsgate ownership, a deed was attached to the affidavit and referenced therein. Ms. Shepler

further stated that Bishopsgate offered to lease the property to Mr. Heiland, but Mr. Heiland

declined. As evidence of Mr. Heiland’s refusal, Ms. Shepler referenced the lease rejected by Mr.

Heiland which was attached to the complaint. Ms. Shepler also averred that a notice to leave the

premises was issued to Mr. Heiland and that said notice was attached to the complaint.

According to the affidavit, Mr. Heiland refused to leave the premises. Ms. Shepler asserted that

fair market value rent for the property is $500 per month.

       {¶9}    Nonetheless, even if we were to conclude that Bishopsgate met its initial burden,

we conclude that Mr. Heiland met his reciprocal burden.

       {¶10} Mr. Heiland averred in his affidavit that Bishopsgate’s title to the property was

defective as Summit Institute, the grantor listed on the deed attached to Bishopsgate’s summary

judgment materials, admitted to being “a sham trust” and was “without capacity and not legally

eligible to hold or transfer property[.]” Mr. Heiland further asserted that he was told by an

attorney for Summit Institute that he could have possession of the property through at least the

end of 2010. In addition, Mr. Heiland stated that he has an interest in the property as he provided

$50,000 of its purchase price. Mr. Heiland also alleges in his affidavit that persons involved

with Bishopsgate and Summit Institute defrauded him and converted his $50,000 investment.

Mr. Heiland’s assertions were not refuted.

       {¶11} Accordingly, based upon the evidence presented to the trial court, there is a

genuine dispute of material fact with respect to whether Mr. Heiland has an ownership interest in

the property. Thus, the trial court’s declarations to the contrary are erroneous at this stage of the

litigation. Further, there is a genuine dispute of material fact concerning whether Mr. Heiland is
                                              5


entitled to possession of the property rendering judgment on Bishopsgate’s forcible entry and

detainer action inappropriate. See Goldstein v. Patel, 9th Dist. Nos. 02CA008183, 02CA008199,

2003-Ohio-4386, at ¶4 (“A forcible entry and detainer action decides the right to immediate

possession of property[.]” ). Moreover, in light of the genuine disputes of material fact with

respect to ownership and possession, we likewise conclude that the award of summary judgment

with respect to the issue of back rent was also erroneous. We sustain Mr. Heiland’s first

assignment of error.

                               ASSIGNMENT OF ERROR II

       “The frauds perpetrated by Plaintiff and Plaintiff’s Counsel ha[v]e so
       corrupted the Defendant[’s] due process rights and seriously prejudice[ed]
       Appellant[], that the Trial Court erred in * * * granting summary judgment
       as a matter of law, damaging the judgment and jurisdiction of the Court.”

       {¶12} Mr. Heiland appears to assert in his second assignment of error that fraud

rendered the trial court’s award of summary judgment void. As our resolution of the first

assignment of error has rendered this assignment of error moot, we decline to address it. See

App.R. 12(A)(1)(c).

                                             III.

       {¶13} In light of the foregoing, we reverse the judgment of the Lorain County Court of

Common Pleas.

                                                                           Judgment reversed
                                                                         and cause remanded.
                                                 6




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of LORAIN, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



CARR, J.
WHITMORE, J.
CONCUR

APPEARANCES:

ERIC HEILAND, pro se Appellant.

ROBERT J. GARGASZ, Attorney at Law, for Appellee.
