[Cite as U.S. Bank Trust, N.A. v. Antoine, 2019-Ohio-3868.]


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

U.S. BANK TRUST, N.A., AS TRUSTEE,                            C.A. No.   28990
ETC.

        Appellee
                                                              APPEAL FROM JUDGMENT
        v.                                                    ENTERED IN THE
                                                              COURT OF COMMON PLEAS
SHAUNNAH R. ANTOINE, aka                                      COUNTY OF SUMMIT, OHIO
SHUNNAH ANTOINE, et al.                                       CASE No.   CV-2017-06-2537

        Appellant

                                 DECISION AND JOURNAL ENTRY

Dated: September 25, 2019



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Shaunna Antoine, appeals from the judgment of the

Summit County Court of Common Pleas granting summary judgment to Plaintiff-Appellee, U.S.

Bank Trust, N.A., on its complaint in foreclosure. For the reasons that follow, this Court affirms.

                                                      I.

        {¶2}     U.S. Bank filed its complaint in foreclosure on June 19, 2017, alleging that Ms.

Antoine had defaulted on a note and seeking to enforce the mortgage securing U.S. Bank’s

interest in the subject property located at 1082 Roslyn Avenue in Akron, Ohio. On August 15,

2017, Ms. Antoine appeared pro se to file a motion to dismiss the complaint. In her motion, Ms.

Antoine argued that she had not been served with the complaint because she temporarily moved

from the 1082 Roslyn Avenue address to 1212 Arnold Street in Akron, Ohio. Subsequently,
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U.S. Bank filed a praecipe to serve Ms. Antoine at the 1212 Arnold address listed in her motion.

The trial court denied Ms. Antoine’s motion and ordered her to file a responsive pleading.

       {¶3}    The trial court held a pretrial conference on August 31, 2017, and issued an order

establishing a deadline requiring that “[a]ll dispositive motions shall be filed on or before

November 1, 2017.” (Emphasis sic.) U.S. Bank filed a motion for summary judgment on

October 3, 2017. Counsel for U.S. Bank certified that a copy of the motion was sent to Ms.

Antoine by ordinary U.S. mail at the 1212 Arnold Street address. On October 18, 2017, the trial

court granted the motion for summary judgment and entered a decree of foreclosure.

       {¶4}    Counsel for Ms. Antoine appeared and filed a Civ.R. 60(B) motion to vacate on

October 26, 2017. In the motion, Ms. Antoine argued that U.S. Bank failed to certify that a copy

of the motion had been served on her in any manner and, in fact, failed to serve her with a copy

of the motion. On this basis, Ms. Antoine argued that she was unable to demonstrate why U.S.

Bank was not entitled to summary judgment. Additionally, Ms. Antoine asserted that timing of

the trial court’s ruling on the motion for summary judgment deprived her of an opportunity to

file her own dispositive motion. Ms. Antoine also argued that she had a meritorious defense to

present because “she believes that [U.S. Bank] has failed to demonstrate that they are the real

party in interest or that she is in privity with [U.S. Bank] in any manner which would allow [U.S.

Bank] to pursue this action[].”

       {¶5}    Ms. Antoine appealed the judgment entry and decree of foreclosure to this Court

on November 17, 2017. While the first attempted appeal was pending, the trial court issued an

order denying Ms. Antoine’s motion for relief from judgment. However, the trial court lacked

jurisdiction to rule on Ms. Antoine’s Civ.R. 60(B) motion to vacate while an appeal from the

judgment was pending before this Court. Kowalski v. Smith, 9th Dist. Wayne No. 10CA0038,
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2011-Ohio-2709, ¶ 4, quoting Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc., 70 Ohio

St.3d 141, 147 (1994) (During the pendency of an appeal, the trial court is divested of

jurisdiction to consider a Civ.R. 60(B) motion unless the reviewing court confers jurisdiction

through an order remanding the matter for the purpose of considering the motion.). “When a

trial court acts beyond its jurisdiction while an appeal is pending, its order is void.” Kitson v.

Gordon Food Serv., 9th Dist. No. 15CA0078–M, 2016–Ohio–7079, ¶ 6.

       {¶6}    This Court dismissed the attempted appeal for lack of a final appealable order on

January 3, 2018. The trial court issued an amended judgment entry and decree of foreclosure on

February 27, 2018. Ms. Antoine appealed the amended judgment entry and subsequent order of

sale, and presents one assignment of error for our review.

                                                II.

                                      Assignment of Error

       The trial court erred as a matter of law, abused its discretion, and violated
       [Ms. Antoine]’s due process rights when it granted summary judgment in
       this case prior to its deadline for the parties to file dispositive motions.

       {¶7}    In her assignment of error, Ms. Antoine contends that the trial court erred by

setting a dispositive motion deadline, and then ruling on U.S. Bank’s motion for summary

judgment before the dispositive motion deadline and “essentially ending the case before [Ms.

Antoine] * * * had an opportunity to file any dispositive motions[.]”

       {¶8}    Civ.R. 56(A) permits a party seeking affirmative relief to move for summary

judgment, after the action has been set for pretrial or trial, only with leave of court. Similarly,

Civ.R. 56(B) states that when an action has been set for pretrial or trial, a defending party may

file a motion for summary judgment only with leave of court. The trial court issued an order that
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gave leave to both Ms. Antoine and U.S. Bank to file dispositive motions as of September 1,

2017, and through the established deadline of November 1, 2017.

       {¶9}    On October 3, 2017, less than a month before the deadline for filing a dispositive

motion, U.S. Bank filed its motion for summary judgment. The version of Civ.R. 56 then in

effect provided:

       The motion shall be served in accordance with Civ.R. 5. Unless otherwise
       provided by local rule or by order of the court, the adverse party may serve
       responsive arguments and opposing affidavits within twenty-eight days after
       service of the motion, and the movant may serve reply arguments within fourteen
       days after service of the adverse party’s response.

(Emphasis added.) Civ.R. 56(C), effective Jul. 1, 2015 to Jul. 1, 2019. The trial court’s order

establishing the dispositive motion deadline did not otherwise dictate a response time or hearing

date for dispositive motions, nor did it purport to alter any party’s obligation to timely respond to

an opposing party’s dispositive motion.        However, Summit County Local Rule 7.14(C)(1)

provides that “[a] party opposing a motion for summary judgment made pursuant to [Civ.R.] 56

may file a brief in opposition with accompanying evidentiary materials (as permitted by [Civ.R.]

56(C) within fourteen (14) days of service of the motion.”

       {¶10} The fourteen days provided by Loc.R. 7.14(C)(1) passed without a response from

Ms. Antoine in opposition to the motion. The trial court granted U.S. Bank’s motion on October

18, 2017—fifteen days after U.S. Bank filed the motion. Nonetheless, Ms. Antoine argues that

the ruling was “premature” and contends that the trial court abused its discretion when it

“resolved the issues pending before the court without even taking into consideration [Ms.

Antoine]’s ability to file motions or [her] position.”

       {¶11} “[A] trial court has the inherent power to control its own docket and the progress

of proceedings in its court.” Pavarini v. City of Macedonia, 9th Dist. Summit No. 20250, 2001
                                                 5


WL 390070, *3 (Apr. 18, 2001). Accordingly, this Court reviews docketing decisions—such as

the trial court’s procedural decisions regarding the filing, hearing, and disposition of a motion for

summary judgment—for an abuse of discretion. See id., see also GMAC Mtge., L.L.C. v. Jacobs,

196 Ohio App.3d 167, 2011-Ohio-1780, ¶ 7 (reviewing a trial court’s denial of a motion for an

extension of time for an abuse of discretion), McLemore v. Mosley, 9th Dist. Lorain No.

97CA006852, 1998 WL 470024, *2 (holding that a trial court does not abuse its discretion by

ruling without an oral hearing once the matter is ripe for review), Galland v. Meridia Health

Sys., Inc., 9th Dist. Summit No. 21763, 2004-Ohio-1416, ¶ 6 (reviewing a denial of Civ.R. 56(F)

motion to defer ruling on summary judgment to allow for discovery for an abuse of discretion).

An abuse of discretion involves more than an error of law or judgment; a trial court abuses its

discretion when it acts unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219 (1983).

       {¶12} Ms. Antoine has not cited to any authority to support her contention that she had a

substantive right to file a dispositive motion through November 1, 2017. We note that, “[a]s

applied to summary judgment, procedural due process requires that a nonmoving party have an

opportunity to respond before the adjudication of a motion for summary judgment.” M-N N.

Chase II, L.L.C. v. Roe, 9th Dist. Summit No. 25694, 2011-Ohio-4071, ¶ 8, quoting Village of

Harbor View v. Jones, 10th Dist. Franklin No. 10AP-356, 2010-Ohio-6533, ¶ 37. However,

once the required filings are in the record, the trial court is free to rule on a pending motion for

summary judgment. See McLemore; Galland at ¶ 7 (“It is well settled that, when a party fails to

request a continuance, or when such a continuance is not supported by affidavits pursuant to

Civ.R. 56(F), a trial court is free to consider a motion for summary judgment.”).
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       {¶13} While it is clear that the trial court was required to provide Ms. Antoine with the

opportunity to respond to U.S. Bank’s motion for summary judgment, Ms. Antoine has failed to

establish that the permissive leave to file provided her with any vested right to file a summary

judgment motion under the circumstances of this case. The parties had leave to file a motion for

summary judgment as early as September 1, 2017. U.S. Bank submitted its motion on October

3, 2017. The trial court entered judgment effectively terminating the case on October 18, 2017:

fourteen days before the leave to file dispositive motions would have otherwise expired. Thus,

the record shows that the trial court afforded Ms. Antoine the fourteen days required by Loc.R.

7.14(C)(1) to oppose U.S. Bank’s motion for summary judgment before it proceeded to rule on

the motion.


       {¶14} By granting U.S. Bank’s motion for summary judgment, the trial court made the

determination that no genuine issues of material fact were in dispute and that reasonable minds

could only conclude that U.S. Bank was entitled to judgment as a matter of law. Consequently,

that decision eliminated any basis for Ms. Antoine to move for summary judgment. Had Ms.

Antoine successfully defended U.S. Bank’s motion for summary judgment, the case could have

remained pending and Ms. Antoine would have been free to file her own dispositive motion

through the November 1, 2017 cut-off. However, Ms. Antoine has failed to demonstrate that the

trial court was under any obligation to refrain from ruling on U.S. Bank’s summary judgment

motion. Therefore, we cannot conclude that the trial court abused its discretion by granting

summary judgment and disposing of the matter prior to expiration of the leave granted to the

parties to file dispositive motions.


       {¶15} Regarding the additional arguments Ms. Antoine raised in her merit brief and

during oral argument, this Court remains cognizant of the scope of our review on appeal. As we
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have previously held, “[a]n appellant’s captioned assignment of error ‘provides this Court with a

roadmap on appeal and directs this Court's analysis.’” State v. Pleban, 9th Dist. Lorain No.

10CA009789, 2011–Ohio–3254, ¶ 41, quoting State v. Marzolf, 9th Dist. Summit No. 24459,

2009–Ohio–3001, ¶ 16. Ms. Antoine raised a single assignment of error challenging the trial

court’s decision to enter summary judgment prior to the deadline it set for the parties to file

dispositive motions. Within this assignment of error, Ms. Antoine attempts to raise additional

arguments contending that the trial court abused its discretion and violated her due process rights

by considering the motion U.S. Bank allegedly failed to serve upon her, and that the trial court

erred by granting summary judgment where Ms. Antoine had no opportunity to address the

motion.   These arguments relate not to the assigned error contending that the trial court

prematurely entered judgment and deprived Ms. Antoine of the ability to file dispositive

motions, but rather to the propriety of trial court’s decision to grant summary judgment. This

Court will not address arguments, such as these, that fall outside the scope of an appellant’s

captioned assignment of error. See Pleban at ¶ 41.

       {¶16} Ms. Antoine’s assignment of error is overruled.

                                               III.

       {¶17} Ms. Antoine’s assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.



                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.
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       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, 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(C). 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 Appellant.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



TEODOSIO, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

KANI HARVEY HIGHTOWER, Attorney at Law, for Appellant.

ANN MARIE JOHNSON, Attorney at Law, for Appellee.
