[Cite as Lehrer v. McClure, 2013-Ohio-4690.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                       JUDGES:
RICHARD LEHRER, ET AL                          :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                      Plaintiffs-Appellees     :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 2013CA00039
RALPH MCCLURE, ET AL                           :
                                               :
                    Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Stark County Court of
                                                   Common Pleas, Case No. 2012CV02680

JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            October 21, 2013



APPEARANCES:

For Plaintiffs-Appellees                           For Defendant-Appellant

ANDREW ZUMBAR                                      JANA DELOACH
526 East Main Street                               P.O. Box 2385
Alliance, OH 44601                                 Akron, OH 44309
[Cite as Lehrer v. McClure, 2013-Ohio-4690.]


Gwin, P.J.

        {¶1}    Appellant appeals the January 28, 2013 judgment entry of the Stark

County Common Pleas Court granting appellees’ motion for summary judgment,

ordering foreclosure of the Parkway Property, and granting judgment in the amount of

$128,987.16 with interest from the date of judgment at the statutory rate.

                                         Facts & Procedural History

        {¶2}    On January 7, 2010, appellant Ralph McClure and appellees Richard and

Debra Lehrer entered into a land installment contract for the premises located at 707

Parkway Boulevard, Alliance, Ohio. The contract provided that appellant would pay

appellees a total of $264,900.00 for the real estate according to the following terms:

$10,000 payable immediately as a down payment and thirty-eight (38) monthly

installments of $7,266.88 commencing February 2010 that included interest at the rate

of five (5) percent per annum.             Further, under the section of the contract entitled

“Contract Price and Payment,” it states that, “In the event that any installment shall

become overdue for a period in excess of fifteen (15) days, a late charge of five (5)

percent of the delinquent installment may be charged by the Vendor * * *.” The contract

also provides if “any installment payment is not made when due, or within thirty (30)

days thereafter * * * the unpaid balance shall become due at the option of the Vendor,

or Vendor may initiate forfeiture of Vendee’s interests and retain all installment

payments as liquidated damages and may retake possession of the property as

provided by law.”

        {¶3}    Appellant paid the $10,000 down payment and made monthly payments

through September of 2011. In October of 2011, appellant ceased paying the monthly
Stark County, Case No. 2013CA00039                                                        3


installment payments. In a letter dated December 2, 2011 and served via certified mail,

appellees notified appellant that he was delinquent in payment and that if he failed to

bring the matter current in thirty (30) days, appellees would initiate a forfeiture and

foreclosure of the land installment contract. Appellant failed to make further payment on

the contract.     On June 15, 2012, in a letter served by certified mail, counsel for

appellees notified appellant the land installment contract between appellant and

appellees was forfeited unless appellant fully and completely performed the terms of the

contract within ten (10) days of the date he received the letter. Appellant did not make

any further payments on the land installment contract.

      {¶4}      Appellees filed a complaint for foreclosure of land installment contract and

breach of contract on August 23, 2012. In the complaint, appellees sought a judgment

of forfeiture, order of foreclosure, sale of the premises, and judgment for all sums due

under the land installment contract, which totaled approximately $150,000.        Appellant

filed his answer to the complaint on September 25, 2012. On October 18, 2012, the trial

court issued a case management and trial order setting a discovery cut-off date of

December 10, 2012 and a dispositive motion deadline of December 14, 2012. The case

management order specified that “responses to dispositive motions are due within 14

days of filing dispositive motions, unless otherwise ordered by the Court.”

      {¶5}      On December 14, 2012, appellees filed a motion for summary judgment

alleging there were no genuine issues of material fact and they were entitled to

forfeiture of the land installment contract and monetary damages of $128,987.16 on

their breach of contract claim. The affidavit of Richard Lehrer was attached to the

motion for summary judgment and stated he had personal knowledge of the facts set
Stark County, Case No. 2013CA00039                                                       4


forth therein.     The affidavit stated appellant was in breach of the land installment

contract for failing to pay the monthly payments since October of 2011 and that

appellees are “owed the sum of $128,987.16 under the terms of the Land Installment

Contract” from appellant. The trial court issued a judgment entry establishing a briefing

schedule for appellees’ motion for summary judgment on December 20, 2012. In the

judgment entry, the trial court gave appellant until January 3, 2013 to file a response to

the motion for summary judgment.          Appellant did not file a response to appellees’

motion for summary judgment. On January 28, 2013, the trial court issued a judgment

entry granting appellees’ motion for summary judgment for the forfeiture of the land

installment contract, ordered the foreclosure of the Parkway property, and granted

judgment on appellees’ breach of contract claim against appellant in the amount of

$128,987.16 with interest from the date of judgment.

       {¶6}      Appellant appeals the January 28, 2013 judgment entry and assigns the

following error:

       {¶7}      “I. THE TRIAL COURT ERRED IN GRANTING THE APPELLEE’S

MOTION REGARDING DAMAGES, FIRST, BECAUSE IT HELD NO EVIDENTIARY

HEARING REGARDING DAMAGES, AND, SECONDLY, BECAUSE SAID DAMAGES

EXCEEDED THE PURCHASE PRICE OF THE PROPERTY IN ISSUE AND THE

AMOUNT PERMITTED BY R.C. 5313.07.”

                                                  I.

       {¶8}      Appellant stipulates to the finding that he breached the terms of the land

installment contract.     However, appellant argues the trial court erred in awarding

appellees damages of $128,987.16. We disagree.
Stark County, Case No. 2013CA00039                                                      5

                                      Summary Judgment

      {¶9}   Civ.R. 56 states, in pertinent part:

              “Summary judgment shall be rendered forthwith if 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 of 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 mostly

      strongly in the party’s favor. A summary judgment, interlocutory in

      character, may be rendered on the issue of liability alone although there is

      a genuine issue as to the amount of damages.”

      {¶10} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474

N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the
Stark County, Case No. 2013CA00039                                                    6

applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301,

733 N.E.2d 1186 (6th Dist. 1999).

        {¶11} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court.      Smiddy v. The

Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review

the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d

1243.

        {¶12} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the

record which demonstrates absence of a genuine issue of fact on a material element of

the non-moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264

(1996). Once the moving party meets its initial burden, the burden shifts to the non-

moving party to set forth specific facts demonstrating a genuine issue of material fact

does exist. Id. The non-moving party may not rest upon the allegations and denials in

the pleadings, but instead must submit some evidentiary materials showing a genuine

dispute over material facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791

(12th Dist. 1991).

        {¶13} The facts relied upon in a motion for summary judgment must be

presented by the type of evidence listed in Civil Rule 56(C), which includes “pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact.” Civ.R. 56(C). “Supporting and opposing

affidavits shall be made on personal knowledge, shall set forth such facts as would be
Stark County, Case No. 2013CA00039                                                    7


admissible in evidence, and shall show affirmatively that the affiant is competent to

testify to the matters stated in the affidavit.” Civ.R. 56(E).

                                        Insufficient Evidence

       {¶14} Appellant first argues the trial court erred in determining the amount of

damages because appellees failed to meet their initial burden regarding damages in

their summary judgment motion. We disagree.

       {¶15} The affidavit provided by appellees attached to their motion for summary

judgment is of evidentiary quality and value pursuant to Civ.R. 56(C). The affidavit

states that Richard Lehrer has personal knowledge as to all the facts set forth in the

affidavit. The affidavit sets forth the following facts: The last payment received from

appellant by appellees was in September 2011; since October 2011 to the present

appellant has not made any payment to appellees under the terms of the Land

Installment Contract; appellant has failed to pay appellees the amount of $128,987.16

which amount is truly and lawfully due and owing from appellant to appellees; and

appellees are owed the sum of $128,987.16.             This amount corresponds with the

complaint filed by appellees as the complaint states that appellant “owes the entire

balance remaining due and owing under the terms of the Land Installment Contract,

which totals approximately $150,000.” Richard Lehrer’s affidavit also states that the

required statutory notices were sent to appellant and appellant failed to respond to the

statutory notices.    Thus, appellees met their evidentiary burden in their summary

judgment motion.

       {¶16} As appellees met their evidentiary burden to establish there is no issue of

material fact with regard to the default of appellant and the amount due and owing
Stark County, Case No. 2013CA00039                                                      8


under the terms of the land installment contract, appellant has the reciprocal burden to

point to evidentiary material that suggests summary judgment is not warranted.

However, despite appellant’s receipt of the briefing schedule and case management

order set by the trial court, no contrary Civ.R. 56(C) evidence was presented by

appellant to indicate he did not default on the land installment contract or that the

amount in Richard Lehrer’s affidavit was incorrect. Appellant did not state he paid a

different amount, that the interest rate or late fees were incorrect, or provide any other

specific facts with regards to the amount of damages to refute Richard Lehrer’s affidavit.

Accordingly, we find there is no genuine issue of material fact remaining to be litigated

with regards to appellant’s default on the land installment contract and the amount due

and owing to appellees pursuant to the land installment contract.

                                         R.C. 5313.07

      {¶17} Appellant next contends the trial court erred in its award of damages

because the amount awarded exceeds the amount permitted by R.C. 5313.07. We

disagree.

      {¶18} R.C. 5313. 07 provides as follows:

             If the vendee of a land installment contract has paid in accordance

      with the terms of the contract for a period of five years or more from the

      date of the first payment or has paid toward the purchase price a total sum

      equal to or in excess of twenty percent thereof, the vendor may recover

      possession of his property only by use of a proceeding for foreclosure and

      judicial sale of the foreclosed property as provided in section 2323.07 of

      the Revised Code. Such action may be commenced after expiration of the
Stark County, Case No. 2013CA00039                                                        9


       period of time prescribed by sections 5313.05 and 5313.06 of the Revised

       Code. In such an action, as between the vendor and vendee, the vendor

       shall be entitled to proceeds of the sale up to and including the unpaid

       balance due on the land installment contract.

       {¶19} Appellant contends the $128,987.16 amount is greater than the unpaid

balance due on the land installment contract. The land installment contract, attached to

appellees’ motion for summary judgment and verification of which was included in

Richard Lehrer’s affidavit, states that the original balance of the contract is $264,900,

payable in one down payment of $10,000 and thirty-eight (38) installments of $7,266.88,

which includes an interest rate of five percent per year. Also the “Contract Price and

Payment” section of the land installment contract provides that vendor may charge an

additional late charge fee of five percent of the delinquent installment for any installment

overdue for a period in excess of fifteen (15) days. In this case, the land installment

contract itself defines the “contract price and payment” to include the down payment,

monthly installment payments, interest, and late charges. Thus, the “unpaid balance

due on the land installment contract” is the unpaid portion of the contract price as

specifically provided for in the land installment contract.

       {¶20} In Richard Lehrer’s affidavit, he states that appellees are “owed the sum of

$128,987.16 under the terms of the Land Installment Contract” from appellant and that

$128,987.16 is the amount “truly and lawfully due and owing from Defendant to

Plaintiff.” The affidavit thus provides that the unpaid balance due on the land installment

contract is $128,987.16. Appellant failed to provide any contrary Civ.R. 56(C) evidence

that the unpaid balance due on the land installment contract as stated in Richard
Stark County, Case No. 2013CA00039                                                    10


Lehrer’s affidavit was incorrect or did not represent the unpaid balance due on the land

installment contract. Accordingly, there is no genuine issue of material fact as to the

unpaid balance due on the land installment contract.

       {¶21} Based on the foregoing, we find the trial court did not err in granting

summary judgment to appellees or in awarding the amount of damages set forth in

Richard Lehrer’s affidavit.

                                         Evidentiary Hearing

       {¶22} Appellant argues the trial court erred in failing to hold an evidentiary

hearing regarding damages. We disagree.

       {¶23} It is within the trial court’s discretion to decide whether an evidentiary

hearing on damages is necessary. Buckeye Supply Co. v. Northeast Drilling Co., 24,

Ohio App.3d 134, 136, 493 N.E.2d 964 (1985). Generally a reviewing court will not

reverse a trial court’s decision regarding its determination of damages absent an abuse

of discretion. Kaufman v. Byers, 159 Ohio App.3d 238, 823 N.E.2d 530, 2004-Ohio-

6346 (11th Dist. 2004). To find an abuse of discretion, this court must determine that

the trial court’s decision was unreasonable, arbitrary, or unconscionable and not merely

an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983). When applying the abuse of discretion standard, this Court may

not substitute its judgment for that of the trial court. Id.

       {¶24} Upon review, we find appellant’s argument in support of a damages

hearing to be unpersuasive. As discussed above, appellees submitted an affidavit with

their motion for summary judgment specifically stating the total amount due and owing

under the terms of the land installment contract is $128,987.16. The trial court utilized
Stark County, Case No. 2013CA00039                                                    11


this amount in awarding damages. This amount comports with appellees’ complaint

that stated the balance remaining due and owing under the land installment contract

was approximately $150,000. Appellant was given notice of the filing of the motion for

summary judgment and the briefing schedule set by the trial court. However, appellant

failed to present any evidence in response to appellees’ motion for summary judgment

to dispute the amount provided by Richard Lehrer in his affidavit or request a hearing on

damages. Accordingly, we find the trial court did not abuse its discretion in failing to

hold an evidentiary hearing regarding damages.

      {¶25} For the foregoing reasons, appellant’s assignment of error is overruled

and the January 28, 2013 judgment of the Stark County Common Pleas Court is

affirmed.

By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur



                                             _________________________________
                                             HON. W. SCOTT GWIN

                                             _________________________________
                                             HON. JOHN W. WISE

                                             _________________________________
                                             HON. CRAIG R. BALDWIN




WSG:clw 1004
[Cite as Lehrer v. McClure, 2013-Ohio-4690.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


RICHARD LEHRER, ET AL                           :
                                                :
                         Plaintiffs-Appellees   :
                                                :
                                                :
-vs-                                            :       JUDGMENT ENTRY
                                                :
RALPH MCCLURE, ET AL                            :
                                                :
                                                :
                       Defendant-Appellant      :       CASE NO. 2013CA00039




       For the reasons stated in our accompanying Memorandum-Opinion, the January 28,

2013 judgment of the Stark County Common Pleas Court is affirmed.              Costs to

appellant.




                                                    _________________________________
                                                    HON. W. SCOTT GWIN


                                                    _________________________________
                                                    HON. JOHN W. WISE


                                                    _________________________________
                                                    HON. CRAIG R. BALDWIN
