[Cite as M-N North Chase II, L.L.C. v. Rowe, 2011-Ohio-4071.]


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

MN NORTH CHASE II, LLC                                    C.A. No.   25694

        Appellee

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
KENNETH ROWE                                              AKRON MUNICIPAL COURT
                                                          COUNTY OF SUMMIT, OHIO
        Appellant                                         CASE No.   10 CVF 05439

                                DECISION AND JOURNAL ENTRY

Dated: August 17, 2011



        DICKINSON, Judge.

                                           INTRODUCTION

        {¶1}    M-N North Chase II LLC sued Kenneth Rowe for unpaid rent after Mr. Rowe

vacated an apartment before his lease expired. Mr. Rowe answered, alleging that he had been let

out of the lease early. North Chase served Mr. Rowe with requests for admissions, which Mr.

Rowe did not answer on time. The municipal court granted summary judgment to North Chase

based on the admissions. Mr. Rowe has appealed, assigning as error that the municipal court

incorrectly granted summary judgment to North Chase. We reverse because the trial court did

not give Mr. Rowe an opportunity to file a response to North Chase’s motion for summary

judgment.

                                                 FACTS

        {¶2}    Mr. Rowe signed a one-year lease for an apartment, which he completed without

incident. According to Mr. Rowe, shortly after he renewed his lease, he received a letter from
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the owner of the building, telling him that it could not accept a subsidized housing voucher he

had presented. The owner also, allegedly, told Mr. Rowe that, if he could find a facility that

would accept the voucher, it would let him out of the lease early. According to Mr. Rowe, he

found another apartment, complied with the conditions of release set out in the letter, and moved

out of the apartment.

       {¶3}    In June 2010, North Chase sued Mr. Rowe for breach of contract, alleging that he

had not paid any rent for the last eight months of his lease. Mr. Rowe answered, alleging that he

had been released from the lease. On August 6, 2010, North Chase served Mr. Rowe with

discovery requests, including requests for admissions, interrogatories, and requests for

production of documents. The requests for admissions gave Mr. Rowe 28 days to answer them,

the minimum required under Rule 36(A) of the Ohio Rules of Civil Procedure. On August 11,

2010, the municipal court entered a pretrial order, providing for discovery to be completed by

September 20, for motions for summary judgment to be filed by September 30, and for responses

to motions for summary judgment to be filed by October 18.

       {¶4}    On September 9, 2010, North Chase served Mr. Rowe with a motion for summary

judgment, but did not file it. On September 13, it moved for leave to file its motion for summary

judgment. On September 20, Mr. Rowe served his answers to North Chase’s discovery requests

and filed them with the court. In his responses to North Chase’s requests for admissions, Mr.

Rowe admitted that he signed a one-year lease, but denied that he owed North Chase anything

because he had terminated the lease in accordance with a letter he received from the leasor.

       {¶5}    On October 25, 2010, the municipal court held a final pretrial conference. Mr.

Rowe did not appear for the conference. That same day, North Chase filed, and the trial court

granted, the motion for summary judgment that it certified it had served on September 9. In its
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journal entry, the court noted that Mr. Rowe had not responded to North Chase’s requests for

admissions on time. It, therefore, deemed the requests admitted, even though Mr. Rowe had

responded to the requests over a month earlier and within the time allowed for discovery. The

court awarded North Chase judgment for the entire eight months of rent and late fees, without

considering whether North Chase had a duty to mitigate its damages.

                                     SUMMARY JUDGMENT

        {¶6}    Mr. Rowe’s assignment of error is that the municipal court incorrectly granted

summary judgment to North Chase. He has argued that the lease he signed was not with North

Chase but with an entity called “the Waterford at Portage Trail.” He has also argued that he

complied with all the conditions he had received regarding being let out of the lease early.

        {¶7}    We do not need to reach Mr. Rowe’s substantive arguments because we conclude

that the trial court violated his right to due process when it granted North Chase’s motion for

summary judgment without giving him an opportunity to respond to it. Under Rule 56(C) of the

Ohio Rules of Civil Procedure, a motion for summary judgment “shall be served at least fourteen

days before the time fixed for hearing. The adverse party, prior to the day of hearing, may serve

and file opposing affidavits.” The trial court scheduled a final pretrial conference for Monday,

October 25, 2010, and a bench trial for Friday, October 29, 2010.        It granted North Chase’s

motion for summary judgment on October 25, the same day North Chase filed it and still four

days before the day set for trial.

        {¶8}    “As applied to summary judgment, procedural due process requires that a non-

moving party have an opportunity to respond before the adjudication of a motion for summary

judgment.” Village of Harbor View v. Jones, 10th Dist. Nos. 10AP-356, 10AP-357, 2010-Ohio-

6533, at ¶37; State ex rel. Thernes v. United Local Sch. Bd. Dist. of Educ., 7th Dist. No. 07 CO
                                                  4


45, 2008-Ohio-6922, at ¶45.         “[Civil Rule 56’s] procedural fairness requirements place

significant responsibilities on all parties and judges to ensure that summary judgment should be

granted only after all parties have had a fair opportunity to be heard.” Hooten v. Safe Auto Ins.

Co., 100 Ohio St. 3d 8, 2003-Ohio-4829, at ¶34.

       {¶9}    Although North Chase served Mr. Rowe with its motion for summary judgment in

September 2010, Mr. Rowe did not have an obligation to respond to the motion until the court

granted North Chase leave to file and North Chase actually filed the motion with the court. See

Capital One Bank v. Toney, 7th Dist. No. 06 JE 28, 2007-Ohio-1571, at ¶47 (concluding

nonmoving party “had no obligation to respond to the merits of summary judgment motion until

the trial court granted [moving party] leave to file such motion”); Brengman v. Glass, 10th Dist.

No. 92AP-522, 1992 WL 249603 at *1 (Oct. 1, 1992). The court, however, gave Mr. Rowe no

opportunity to respond to the motion after its filing, entering its ruling only one minute later.

We, therefore, conclude that the municipal court violated Mr. Rowe’s due process rights.

       {¶10} Because Mr. Rowe failed to answer North Chase’s requests for admissions on

time, we must consider whether the municipal court’s error was harmless. Under Rule 61 of the

Ohio Rules of Civil Procedure, “[n]o error . . . in anything done . . . by the court or any of the

parties is ground for . . . setting aside . . . a judgment or order, unless refusal to take such action

appears to the court inconsistent with substantial justice.”

       {¶11} Because Mr. Rowe did not receive any time to respond to North Chase’s motion

for summary judgment after it was filed, he did not have the opportunity to ask the court for an

extension of the requests for admissions deadline, to move to withdraw his admissions, or to

argue that, notwithstanding the facts deemed admitted, North Chase was not entitled to judgment
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as a matter of law.     We, therefore, conclude that the municipal court’s error in awarding

judgment to North Chase was not harmless. Mr. Rowe’s assignment of error is sustained.

                                         CONCLUSION

       {¶12} The municipal court should have given Mr. Rowe an opportunity to respond to

North Chase’s motion for summary judgment after North Chase filed it. The judgment of the

Akron Municipal Court is reversed, and this matter is remanded for proceedings consistent with

this opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

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

Court, 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(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.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT
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CARR, P. J.
MOORE, J.
CONCUR

APPEARANCES:

KENNETH ROWE, pro se, Appellant.

SARAH S. GRAHAM, Attorney at Law, for Appellee.
