[Cite as Union Bank Co. v. Lampert, 2014-Ohio-4427.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                             AUGLAIZE COUNTY



THE UNION BANK COMPANY,

        PLAINTIFF-APPELLEE,

        v.                                              CASE NO. 2-13-32

PATRICK A. LAMPERT, ET AL.,

        DEFENDANTS-APPELLANTS,
        -and-
                                                        OPINION
APRIL BOWERSOCK, AUGLAIZE
COUNTY TREASURER, ET AL.,

        DEFENDANTS-APPELLEES.


                Appeal from Auglaize County Common Pleas Court
                          Trial Court No. 2012 CV 0084

                                    Judgment Affirmed

                           Date of Decision: October 6, 2014



APPEARANCES:

        Richard A. Boucher and Julia C. Kolber for Appellants

        Jerry M. Johnson and Christine M. Bollinger for Appellee,
                The Union Bank Company
Case No. 2-13-32


PRESTON, J.

        {¶1} Defendants-appellants, Thomas G. and Diane L. Kloeppel, Thomas J.

and Jill E. Kloeppel, New Vision Feeds, Inc. (“New Vision”), Kloeppel Cattle

Company (“KCC”), and KLK Cattle Company (“KLK”) (collectively, the

“Appellants”), appeal the November 27, 2013 judgment entry of foreclosure of the

Auglaize County Court of Common Pleas.1 For the reasons that follow, we affirm.

        {¶2} On March 19, 2012, plaintiff-appellee, The Union Bank Company

(“Union Bank”), filed a “complaint for foreclosure, replevin, and money

judgment” against the Appellants and other defendants, some of whom defaulted

by not filing answers, others of whom ultimately disclaimed their interests or were

dismissed from the case, and others of whom have not appealed the trial court’s

judgment entry of foreclosure. (Doc. No. 1). (See also Doc. No. 218). Union

Bank alleged that various combinations of the Appellants were in default on 19

promissory notes, and it sought to foreclose on various parcels and sought replevin

on various items of personal property securing the notes. (Doc. No. 1).

        {¶3} On May 31, 2012, the Appellants filed their respective answers to

Union Bank’s complaint and their respective bad-faith counterclaims against

Union Bank. (Doc. Nos. 79, 80, 81, 83, 84).

1
  Patrick A. and Jamie E. Lampert (collectively, the “Lamperts”) originally joined the Appellants in the
appeal of the trial court’s November 27, 2013 judgment entry. (See Doc. No. 221). However, the
Lamperts’ appeal was dismissed by this court pursuant to the Lamperts’ “Notice of Dismissal of Appeal as
to Lampert Parties’ [sic] Only,” filed September 25, 2014.


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       {¶4} On January 25, 2013, Union Bank filed motions for summary

judgment as to the Appellants. (Doc. Nos. 125, 126, 127, 129, 130). In those

motions, Union Bank argued that it was entitled to judgment as a matter of law

based on the Appellants’ default on various promissory notes.

       {¶5} On June 26, 2013, the Appellants filed responses in opposition to

Union Bank’s motions for summary judgment against them. (Doc. Nos. 174, 175,

176, 177, 178). In their responses in opposition, the Appellants argued that Union

Bank failed to demonstrate how or when the Appellants defaulted on the notes,

that the Appellants did not receive proper notice prior to a declaration of default or

acceleration, and that the affidavit supporting Union Bank’s motions for summary

judgment was executed by an individual without personal knowledge of the facts

of the case or the information in the affidavit. (See id.).

       {¶6} On June 26, 2013, Union Bank filed a reply in support of its motions

for summary judgment against the Appellants. (Doc. No. 186).

       {¶7} On July 23, 2013, the trial court filed a “summation and opinion”

granting Union Bank partial summary judgment. (Doc. No. 191). The trial court

concluded that there was no genuine issue of material fact that the Appellants were

in default on the notes and that Union Bank was entitled to judgment in its favor.

However, the trial court noted that the balances owed on some of the notes were

unclear and said that Union Bank “must prove the accounting as to each note, the


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Case No. 2-13-32


payments, the interest rates, and the balance owed.” (Id.). The trial court set those

“remaining issues” for trial, but also granted the parties “further leave to file

motions for summary judgment, limited to the remaining issues ONLY, however,

on or before August 29, 2013.” (Emphasis sic.) (Id.).

       {¶8} On August 29, 2013, Union Bank filed a “second motion for summary

judgment as to accounting, payments, interest rates, balance owed and

counterclaims of the defendants.” (Doc. No. 200).

       {¶9} On September 25, 2013, the Appellants filed a response in opposition

to Union Bank’s second motion for summary judgment. (Doc. No. 209). The

Appellants argued that Union Bank “misappropriated funds received on behalf of

Defendants, making payments on accounts not associated with funds received and

paying off loans due later in time than others.” (Id.). They also argued that Union

Bank made unauthorized advances on at least one loan and charged unreasonable

legal fees on two loans. (Id.). Finally, the Appellants argued that these alleged

misdeeds on the part of Union Bank demonstrated that summary judgment was not

appropriate on the Appellants’ bad-faith counterclaims. (Id.).

       {¶10} On October 7, 2013, Union Bank filed a “supplement” to its second

motion for summary judgment. (Doc. No. 211). Attached to the supplement was

“a summary matching Debtors and Loans with an aggregate amount due of each

Debtor.” (Emphasis sic.) (Id.).


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       {¶11} That same afternoon, the Appellants filed a “supplemental response”

to Union Bank’s second motion for summary judgment. (Doc. No. 212). The

Appellants reiterated their “position that [Union Bank] caused the defaults by

misapplying payments and charging unnecessary and erroneous late fees, charges

and legal fees.” (Id.). Attached to the Appellants’ supplemental response was a

table containing the amounts reflecting “the principal amounts of the loans,

interest charges and all fees up until April, 2010,” except that the Appellants

subtracted “[a]ll fees, late charges and legal fees,” which they argued had “never

been proven to this Court to be reasonable.” (Id.).

       {¶12} On October 11, 2013, the trial court filed a judgment entry granting

partial summary judgment in Union Bank’s favor.        (Doc. No. 214).      In that

judgment entry, the trial court incorporated its July 23, 2013 “summation and

opinion” and granted judgment in Union Bank’s favor for specific amounts against

the Appellants and on the Appellants’ counterclaims.       (Id.).   The trial court

concluded that two genuine issues of material fact remained—whether Union

Bank had the right to obtain judgment on one loan to the Lamperts and whether

Union Bank’s claim for legal fees was fair, just, and reasonable. (Id.). The trial

court set the two remaining issues for trial. (Id.).

       {¶13} On November 22, 2013, Union Bank, the Lamperts, and all of the

Appellants, except Diane L. Kloeppel and Jill E. Kloeppel, filed a stipulation


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Case No. 2-13-32


resolving the two remaining issues for trial. (Doc. No. 217). (See also Doc. No.

218). In the stipulation, the parties agreed that the amount of legal fees requested

by Union Bank was reasonable. (Doc. No. 217). They also agreed that the

Lamperts had a home equity loan with Union Bank that was not in default and

under which Union Bank was not pursuing foreclosure. (Id.).

        {¶14} On November 27, 2013, the trial court filed its judgment entry of

foreclosure that is the subject of this appeal. (Doc. No. 218). In rejecting the

Appellants’ arguments that genuine issues of material fact remained as to Union

Bank’s claims and the Appellants’ bad-faith counterclaims, the trial court relied

heavily on a “Forbearance and Reaffirmation Agreement” (“Agreement”) into

which Thomas J. Kloeppel, Thomas G. Kloeppel, Patrick A. Lampert, New

Vision, KCC, and KLK entered with Union Bank on September 28, 2010. (Id.).

The trial court entered judgment in favor of Union Bank and against the

Appellants for specific amounts, and it set forth the priority of liens on the various

real and personal property securing the promissory notes.2 (Id.). Based on the

parties’ stipulation, the trial court also awarded Union Bank reasonable attorney

fees in the amount of $49,492.92.3 (Id.).




2
  No money judgment was entered against Diane L. Kloeppel and Jill E. Kloeppel; however, they both
executed mortgages against real property that was the subject of the trial court’s judgment, and Jill E.
Kloeppel executed consumer security agreements against personal property that was the subject of the trial
court’s judgment.
3
  On appeal, the Appellants do not challenge the trial court’s award of attorney fees.

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       {¶15} The Appellants filed their notice of appeal on December 20, 2013.

(Doc. No. 221). They raise three assignments of error for our review. We will

first address together the second and third assignments of error, followed by the

first assignment of error.

                             Assignment of Error No. II

       The trial court erred in granting summary judgment when
       genuine issues of fact remained as to whether appellee misled
       appellants into entering into loans and forced the default of the
       loans by applying payments in an arbitrary manner.

                             Assignment of Error No. III

       The trial court erred in granting summary judgment in favor of
       appellee on appellant’s [sic] counterclaim [sic] for bad faith.

       {¶16} In their second assignment of error, the Appellants argue that there is

a genuine issue of fact concerning whether Union Bank “improperly applied

payments in the ordinary course of business, heedlessly causing a default and/or

payment arrearage.” (Appellants’ Brief at 9). Specifically, the Appellants argue

that in June and July 2010, Union Bank received funds belonging to KCC and

applied those funds not to KCC’s debts, but to the accounts of three of the

Appellants—New Vision, Thomas G. Kloeppel, and KLK—a third-party family

member, and an insurance company. The Appellants also argue that Union Bank

“paid off loans that were not due at the time of payment instead of paying off

notes that had already matured and were due and payable. (Id.). The Appellants


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argue “that but for [Union Bank’s] misappropriation of funds Appellants would

not owe the amounts claimed by [Union Bank] and that the accounting by [Union

Bank] fails to take into consideration miscalculations it caused by the

misappropriation.” (Id. at 11).

       {¶17} The Appellants make many of the same arguments under their third

assignment of error, this time in support of their assertion that genuine issues of

fact exist as to their bad-faith counterclaims. They again argue that a genuine

issue of fact exists concerning whether Union Bank “improperly applied payments

in the ordinary course of business, heedlessly causing a default and/or payment

arrearage.” (Id. at 13). The Appellants argue that “[o]n a minimum of two

separate occasions, [Union Bank] failed to use funds paid directly to [Union Bank]

on behalf of one Appellant to pay off that Appellant’s debts” and that Union Bank

“failed to obtain authorization from Appellants to pay on loans not held by

Appellants, but rather held by family members or associate companies.” (Id. at

13-14). Finally, the Appellants argue that Union Bank “paid off loans that were

not due at the time of payment instead of paying off notes that had already

matured” and that “there were advancements made on loans that were not

authorized by Appellants.” (Id. at 14).

       {¶18} We review a decision to grant summary judgment de novo. Doe v.

Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there


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is no genuine issue of material fact, the moving party is entitled to judgment as a

matter of law, and reasonable minds can reach but one conclusion when viewing

the evidence in favor of the non-moving party, and the conclusion is adverse to the

non-moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist.

Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).

         {¶19} Before addressing the Appellants’ arguments under their second and

third assignments of error, we will address the deficiencies of the Appellants’

brief.    First, although the Appellants’ second assignment of error contains a

statement that a genuine issue of fact “remained as to whether appellee misled

appellants into entering into loans,” they make no arguments related to that

assertion. (Appellants’ Brief at 7-12). “[P]ursuant to App.R. 12(A)(2), ‘[t]he

court may disregard an assignment of error presented for review if the party

raising it fails to identify in the record the error on which the assignment of error is

based or fails to argue the assignment separately in the brief, as required under

App.R. 16(A).’” Wasinski v. PECO II, Inc., 3d Dist. Crawford Nos. 3-08-14 and

3-08-16, 2009-Ohio-2615, ¶ 15, quoting App.R. 12(A)(2).              Therefore, under

App.R. 12(A)(2), we decline to address the Appellants’ bald assertion—

unsupported by argument or citations to the record—that a genuine issue of fact

remained concerning whether Union Bank misled them “into entering into loans.”




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       {¶20} We also note that, aside from authorities setting forth the de novo

standard of review of summary-judgment decisions and two inapposite cases

discussing “bad faith” under different statutes, the Appellants cite no authorities in

support of their arguments under their second and third assignments of error.

Namely, the Appellants do not explain how the alleged “genuine issues of fact”

are material in light of the substantive law governing this case.

       {¶21} “In deciding a summary judgment case, it is ‘[t]he substantive law

[that] determines whether a genuine issue of material fact remains.’” Matthews v.

Exigence of Fremont, L.L.C., 6th Dist. Sandusky No. S-13-012, 2013-Ohio-5907,

¶ 31, quoting Jones v. Wheelersburg Local School Dist., 4th Dist. Scioto No.

12CA3513, 2013-Ohio-3685, ¶ 28. See also Heffner Investments, Ltd. v. Piper, 3d

Dist. Mercer Nos. 10-07-09 and 10-07-10, 2008-Ohio-2495, ¶ 15 (“‘As to

materiality, the substantive law will identify which facts are material.’”), quoting

Turner v. Turner, 67 Ohio St.3d 337, 340 (1993) and Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986). Indeed, “[t]he first step in

determining whether there were any genuine issues of material fact is an

examination of applicable substantive law * * *.” Orndorff v. ALDI, Inc., 115

Ohio App.3d 632, 635 (9th Dist.1996), citing Anderson at 248. The Appellants

offer no arguments concerning this first step under their second and third

assignments of error, and we will not supply arguments for them. See Camp v.


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Case No. 2-13-32


Star Leasing Co., 10th Dist. Franklin No. 11AP-977, 2012-Ohio-3650, ¶ 67 (“It is

not the duty of this court to construct legal arguments in support of an appellant’s

appeal.”); Reid v. Plainsboro Partners, III, 10th Dist. Franklin Nos. 09AP-442 and

09AP-456, 2010-Ohio-4373, ¶ 25, 28 (stating that an appellate court “may not

construct legal arguments for” an appellant).

        {¶22} Nevertheless, we hold that no genuine issues of fact remain as to

whether Union Bank “forced the default of the loans by applying payments in an

arbitrary manner” or as to whether Union Bank acted in “bad faith.” Underlying

each assignment of error is the Appellants’ assertion that Union Bank misapplied

payments or otherwise mishandled their loan accounts.                         Dispositive of both

assignments of error is the Agreement between Union Bank and Thomas J.

Kloeppel, Thomas G. Kloeppel, Patrick A. Lampert, New Vision, KCC, and KLK.

(Agreement, Doc. No. 1, Ex. 46; Doc. No. 186, Ex. 46).4

        {¶23} The Appellants allege that the misapplication of payments leading to

default occurred in June and July 2010. However, the record reflects that the

Agreement was executed approximately two or three months later, on September

28, 2010. In the Agreement, the signing Appellants acknowledged that they were


4
  It appears that Union Bank never properly authenticated the Agreement under Civ.R. 56, although it did
attach the Agreement to its complaint and its June 26, 2013 reply in support of its initial motions for
summary judgment. The Appellants did not object, and the trial court considered the Agreement. Even
though it was not properly authenticated under Civ.R. 56, the trial court, in its discretion, was free to
consider the Agreement absent an objection from the Appellants. Bader v. Ferri, 3d Dist. Allen No. 1-13-
01, 2013-Ohio-3074, ¶ 13. Therefore, we too will consider the Agreement for purposes of our review,
despite its apparent noncompliance with Civ.R. 56. Id. at ¶ 14.

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Case No. 2-13-32


“in default of the terms of the Promissory Notes described in the attached Exhibit

A as well as additional Promissory Notes which are not a part of this Agreement *

* *” and that “but for this Agreement, the Debtors would presently be obligated to

immediately pay the Promissory Notes described on the attached Exhibit A.”

(Agreement at 1). The Appellants who signed the Agreement also agreed “that,

subject to the defenses filed by the Debtors in the Shelby County litigation, as of

June 21, 2010, the outstanding principal amount of, and accrued but unpaid

interest on, the obligations was no less than [$3,831,039.04].” (Id. at 1-2).

       {¶24} “Exhibit A” to the Agreement listed 18 promissory notes. (Id. at 11-

12). Union Bank sued the Appellants under 9 of those 18 promissory notes,

alleging that the Appellants were in default on them. (Doc. No. 1). As for the

remaining 10 promissory notes that Union Bank included in its complaint but did

not list in Exhibit A to the Agreement, each one contained a “cross-collateralize,

cross-default” provision that made the default of one promissory note a default of

all other indebtedness of the Appellants signing the promissory note:

       CROSS-COLLATERALIZE, CROSS-DEFAULT. This loan is

       herein cross-collateralized and cross-defaulted with all other

       indebtedness of each and every borrower and/or guarantor

       hereunder, whether such debt now exists or is entered into in the




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Case No. 2-13-32


       future and any and all renewals, extensions or modifications of

       same.

(Emphasis sic.) (Doc. No. 200, Thompson Aff., Exs. 1, 3, 5, 8, 14, 30, 32, 34, 36,

38). Each one of these 10 promissory notes predated the September 28, 2010

Agreement. (See id.). Therefore, under the provisions in the promissory notes, the

Appellants’ acknowledgement that they were in default on the promissory notes

listed in Exhibit A to the Agreement also served as an acknowledgement that they

were in default on the 10 promissory notes not listed in Exhibit A.

       {¶25} The Appellants do not dispute the validity of the Agreement. Nor do

they argue that they preserved from “the Shelby County litigation” any defenses

relevant to this issue. Rather, they argue that Union Bank’s “mistakes do not just

disappear because they happened before a Forbearance Agreement was entered

into by the parties.”    (Appellants’ Reply Brief at 3-4).       According to the

Appellants, “It is not relevant when the misapplication of payments occurred, but

simply that they did occur.” (Emphasis sic.) (Id. at 3). We disagree.

       {¶26} By executing the Agreement and acknowledging that they were in

default of the promissory notes on which Union Bank eventually sued them—

whether by operation of the Agreement’s terms, for the promissory notes listed in

Exhibit A, or by operation of the “cross-collateralize, cross-default” clauses, for

the promissory notes not listed in Exhibit A—and by agreeing that they owed a


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minimum sum of $3,831,039.04, the Appellants cut off any arguments they may

have had concerning the alleged bad-faith misapplication of payments that

occurred before execution of the Agreement. See Graubard Mollen Dannet &

Horowitz v. Edelstein, 173 A.D.2d 230, 231, 569 N.Y.S.2d 639 (1991)

(concluding that the defendants “waived their present defenses and ratified their

obligations under the Promissory Note and Guaranty by soliciting and accepting

an extension of time to fulfill their obligations to the plaintiff and in executing a[n]

* * * Agreement acknowledging their indebtedness to the plaintiff, at a time when

the defendants were aware of the plaintiff’s alleged antecedent fraud”); S.E.C. v.

Bilzerian, 378 F.3d 1100, 1109 (D.C.Cir.2004) (agreeing with the trial court’s

conclusion that by reaffirming his obligations under a note, the defendant waived

any fraud defense he might have had under Florida law). See also BAC Home

Loans Servicing, L.P. v. Haas, 3d Dist. Marion No. 9-13-40, 2014-Ohio-438, ¶ 23,

fn. 3 (“Essentially, a reaffirmation agreement is a new contract that renegotiates or

reaffirms a debtor’s personal liability on the original debt.”). In other words, on

September 28, 2010, the Appellants acknowledged that they were in default on the

promissory notes, even after the alleged bad-faith misapplication of payments that

occurred in June and July 2010. If the Appellants believed they were not in

default—or that Union Bank acted in bad faith and “forced the default”—they




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should have declined to agree they were in default or preserved that issue in the

Agreement. They did not do so.

      {¶27} For the reasons above, there is no genuine issue of fact as to whether

Union Bank “forced the default.”

      {¶28} The Appellants’ second and third assignments of error are overruled.

                           Assignment of Error No. I

      The trial court erred in granting summary judgment when the
      amount of alleged damages was undeterminable.

      {¶29} In their first assignment of error, the Appellants argue that “[i]t was

reversible error for the trial court to grant [Union Bank’s motions for summary

judgment] despite the fact that it was unable to determine from the pleadings and

evidence before it what amount, if any, was due [Union Bank].” (Appellants’

Brief at 5). They argue that “because the alleged amount in default was so

unclear[,] that alone was sufficient to create a dispute of fact to defeat summary

judgment.” (Id. at 6). The Appellants point to the trial court’s statement in its

July 23, 2013 “summation and opinion” that it was necessary for Union Bank “‘to

provide additional or supplemental account summaries regarding the Notes in

default since it is difficult to ascertain exactly what amounts are due and owing to

date and how those amounts were calculated.’” (Id., quoting Doc. No. 191). The

Appellants argue that the “additional or supplemental account summaries”



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provided by Union Bank were not evidence on which the trial court could base

summary judgment.

      {¶30} We again note that, as they failed to do under their second and third

assignments of error, the Appellants have failed to explain how the alleged dispute

of fact described under their first assignment of error is material in light of the

substantive law governing this case. See Matthews, 2013-Ohio-5907, at ¶ 31.

Aside from authorities setting forth the de novo standard of review of

summary-judgment decisions, the Appellants cite only three inapposite cases

concerning the inappropriateness of a cognovit judgment when the note is facially

insufficient to support that judgment. This case does not involve a cognovit

judgment. Once again, we will not supply for the Appellants their arguments

concerning materiality. Speakman, 2014-Ohio-2152, at ¶ 7.

      {¶31} Nevertheless, we hold that the amount in default was not so unclear

so as to “create a dispute of fact to defeat summary judgment.” We note that the

Appellants do not dispute the specific amounts for which the trial court entered

judgment against the Appellants and in favor of Union Bank. Therefore, we will

not address those specific amounts. Rather, the Appellants argue two things.

First, they argue that the trial court based its decision on information other than

evidence properly before the trial court. Second, they argue that the trial court’s




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asking for “additional or supplemental account summaries” demonstrates that the

amount in default was so unclear as to create a genuine issue of fact.

       {¶32} We need not consider the Appellants’ argument that the trial court

considered evidence other than evidence properly before it. The Appellants did

not object to any of the evidence submitted by Union Bank in support of its

motions for summary judgment. “The failure to object to evidence submitted in

support of a motion for summary judgment waives any error in considering that

evidence under Civ.R. 56(C).” Loukinas v. Roto-Rooter Servs. Co., 167 Ohio

App.3d 559, 2006-Ohio-3172, ¶ 22 (1st Dist.). See also Zeallear v. F & W

Properties, 10th Dist. Franklin No. 99AP-1215, 2000 WL 1015345, *5 (July 25,

2000) (“Issues not timely raised in the trial court and presented for the first time

on appeal shall not be considered. * * * Failure to raise * * * objections to

evidence in opposition to summary judgment will constitute waiver of such

arguments.”).   Because the Appellants failed to object to the admission of

evidence in support of Union Bank’s motions for summary judgment, the

Appellants waived that issue, and we will not consider it.

       {¶33} Moreover, even if we were to consider the Appellants’ argument that

the trial court considered evidence improperly before it, “when a party fails to

object to evidence that is otherwise inadmissible under Civ.R. 56(C), ‘the court

may, but is not required to consider such evidence when it determines whether


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summary judgment is appropriate.’” Bader v. Ferri, 3d Dist. Allen No. 1-13-01,

2013-Ohio-3074, ¶ 13, quoting Armaly v. City of Wapakoneta, 3d Dist. Auglaize

No. 2-05-45, 2006-Ohio-3629, ¶ 17. Because the Appellants failed to object, the

trial court was allowed to consider evidence submitted by Union Bank that may

have otherwise not complied with Civ.R. 56.

      {¶34} Finally, even assuming the trial court requested supplemental

evidence, “supplemental evidence is a permissible tool to support a motion for

summary judgment.” Kisielius v. Kisielius, 3d Dist. Shelby Nos. 17-09-05 and 17-

09-11, 2009-Ohio-4624, ¶ 21, citing Feichtner v. Kalmbach Feeds, Inc., 3d Dist.

Wyandot No. 16-04-09, 2004-Ohio-6048, ¶ 11. And it is well within a trial court’s

discretion to order or allow parties to supplement their arguments in favor of or

against summary judgment. See McElrath v. Trumbull Cty. Children’s Servs. Bd.,

11th Dist. Trumbull No. 93-T-4959, 1994 WL 638193, *4 (Nov. 16, 1994).

Therefore, the Appellants’ argument is meritless.

      {¶35} Similarly meritless is the Appellants’ argument that had there been

no genuine issue of fact, the trial court would not have needed to request

“additional or supplemental account summaries.” Just as they failed to do in

response to Union Bank’s second motion for summary judgment, the Appellants

on appeal fail to suggest how the amounts requested by Union Bank and awarded

by the trial court are incorrect even after the Agreement. Instead, they argue only


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that “the alleged amount in default was so unclear” that a dispute of fact remained

to defeat summary judgment. (Appellants’ Brief at 6). Once Union Bank came

forward with evidence of the amounts in default, it was the Appellants’ burden to

rebut that evidence by pointing the trial court to “specific facts” demonstrating a

genuine issue of fact concerning those amounts. Chase Home Fin., L.L.C. v. Heft,

3d Dist. Logan Nos. 8-10-14 and 8-11-16, 2012-Ohio-876, ¶ 28, quoting Civ.R.

56(E). See also Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The Appellants

failed to do so, and we reject their amorphous, nonspecific argument that a

genuine issue of fact remains because the trial court asked for “additional or

supplemental account summaries.” See Teetors v. Benson Truck Bodies, Inc., 6th

Dist. Sandusky No. S-93-9, 1994 WL 63016, *4 (Feb. 25, 1994) (“[W]e hold that

the mere existence in the voluminous record of a complex case, of evidence

sufficient to show a genuine issue of material fact is not enough to avoid summary

judgment, as the party with the burden of setting forth specific facts must draw the

trial court’s attention to that evidence in some manner. The trial court is under no

obligation to search the record for evidence in support of a party’s position.”). See

also Blount v. Schindler Elevator Corp., 10th Dist. Franklin No. 02AP-688, 2003-

Ohio-2053, ¶ 40, citing Teetors.

       {¶36} In short, Civ.R. 56 “does not exclude ‘factually and legally complex’

cases from resolution by summary judgment when appropriate. Such cases are not


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inappropriate for summary judgment.”       (Emphasis sic.)    Bowes v. Cincinnati

Riverfront Coliseum, Inc., 12 Ohio App.3d 12, 15 (1st Dist.1983). To the extent

the Appellants argue that this case is inappropriate for summary judgment simply

because the record is voluminous and contains multiple promissory notes with

varying parties responsible for each and various collateral securing each, we reject

the Appellants’ argument.

       {¶37} The Appellants’ first assignment of error is overruled.

       {¶38} Having found no error prejudicial to the appellants herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J. and ROGERS, J., concur.

/jlr




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