[Cite as Sanderfer v. Cuyahoga Metro. Hous. Auth., 2017-Ohio-1552.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104720


                             DARNELLA SANDERFER

                                                          PLAINTIFF-APPELLANT

                                                    vs.

CUYAHOGA METROPOLITAN HOUSING AUTHORITY


                                                          DEFENDANT-APPELLEE




                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-15-844724

        BEFORE: Jones, J., Stewart, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: April 27, 2017
ATTORNEY FOR APPELLANT

Steven J. Moody
3751 Prospect Avenue, Floor 3
Cleveland, Ohio 44115


ATTORNEYS FOR APPELLEE

Adrian D. Thompson
Taft Stettinius & Hollister, L.L.P.
3500 BP Tower
200 Public Square
Cleveland, Ohio 44114
LARRY A. JONES, SR., J.:

      {¶1} Plaintiff-appellant, Darnella Sanderfer (“Sanderfer”), appeals the trial court’s

decision to grant summary judgment in favor of defendant-appellee, Cuyahoga

Metropolitan Housing Authority (“CMHA”). We affirm.

      {¶2} Sanderfer worked for CMHA as a maintenance worker from 2004 until she

was terminated in December 2011. Sanderfer initially filed suit against CMHA on May

30, 2013, but dismissed her complaint in April 2014. She refiled her complaint on April

24, 2015, alleging sexual harassment and a hostile work environment.

      {¶3} During the pretrial process, the trial court held a case management conference

and issued a trial order on January 11, 2016. Counsel for both parties signed the trial

order and the order was entered on the docket.   Paragraph three of the trial order stated:

      Unless otherwise ordered, motions for summary judgment, if any, may only
      be filed with leave of Court in accordance with Civ.R. 56(B) and not later
      than 10 days after the discovery deadline * * *. Said motions are to be filed
      instanter with a motion for leave. Responses to motions for summary
      judgment are due within 10 days after the filing of the Motion for Leave and
      Motion for Summary Judgment whether or not the Court has issued a ruling
      on the Motion for Leave.

      {¶4} On April 18, 2016, CMHA moved for leave to file a motion for summary

judgment and attached to it a motion for summary judgment with a memorandum in

support of the motion. Sanderfer did not oppose the motion.

      {¶5} On June 8, 2016, the court issued a judgment entry stating that Sanderfer’s

time to oppose CMHA’s motion for summary judgment had elapsed and granting summary
judgment in favor of CMHA.

       {¶6} Sanderfer appealed and raises the following assignments of error for our

review:

       I. The trial court erred by instituting a rule for summary judgment that
       requires responding to a summary judgment motion within 10 days which is
       in conflict with the Ohio civil rules prior to the July 15, 2015 amendment of
       procedure rule 56 which requires the court [to] allow at least 14 days to
       respond.

       II. The trial court erred by granting the defendant’s motion for summary
       judgment without a leave of court in violation of civil rule 56.

       III.   The trial court erred by issuing a default summary judgment.

       {¶7} In the first assignment of error, Sanderfer argues that the trial court erred by

giving her only ten days to respond to the motion for summary judgment instead of the 14

days as required by Civ.R. 56.

       {¶8} Sanderfer did not raise in the trial court her issue of a perceived conflict

between the trial court’s trial order and Civ.R. 56.       It is well established that “[a]n

appellate court will not consider any error which could have been brought to the trial

court’s attention, and hence avoided or otherwise corrected.” Schade v. Carnegie Body

Co., 70 Ohio St.2d 207, 210, 436 N.E.2d 1001 (1982). Thus, a party waives and may not

raise on appeal any error that arises during the trial court proceedings if that party fails to

bring the error to the court’s attention, by objection or otherwise, at a time when the trial

court could avoid or correct the error.       Goldfuss v. Davidson, 79 Ohio St.3d 116,

121-123, 679 N.E.2d 1099 (1997). A party’s failure to object waives all but plain error.

Id.
       {¶9} Even if Sanderfer had brought the issue to the court’s attention, however, there

was no error because the court’s trial order did not conflict with Civ.R. 56. Both the

former version of Civ.R. 56(C) and the current version of Civ.R. 56(C), effective July 1,

2015, provide that

       [u]nless 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.

       {¶10} Sanderfer claim was that the trial court had to allow her 14 days to respond to

CMHA’s motion for summary judgment but the court order allowed her only ten days to

respond, and therefore, the trial court’s order conflicted with the Civil Rules.           But

Civ.R.56(C), by its express terms, actually gives a responding party 28 days in which to

respond to a motion for summary judgment, “unless otherwise provided for by local rule or

by order of the court.”   The order of the court in this case, which counsel for both parties

signed, was that responsive motions were due ten days after the filing of a motion for

summary judgment. CMHA filed its motion for summary judgment on April 18, 2016.

The trial court granted the motion on June 8, 2016, 51 days after CMHA filed the motion.

During that 51 days, Sanderfer did not respond to CMHA’s motion or otherwise ask for an

extension of time in which to respond.      Therefore, Sanderfer’s argument that the court

did not give her the proper amount of time in which to file her response holds no merit.

       {¶11} In light of the above, the first assignment of error is overruled.

       {¶12} In the second assignment of error, Sanderfer claims that the trial court erred
by granting CMHA’s motion for summary judgment without leave of court. Sanderfer

claims that she did not respond to CMHA’s motion for summary judgment because the

trial court had not yet ruled on whether CMHA could file its motion for summary

judgment.

       {¶13} Again, paragraph three of the court’s January 11, 2016 trial order provided:

       Unless otherwise ordered, motions for summary judgment, if any, may only
       be filed with leave of Court in accordance with Civ.R. 56(B) and not later
       than 10 days after the discovery deadline * * *. Said motions are to be filed
       instanter with a motion for leave. Responses to motions for summary
       judgment are due within 10 days after the filing of the Motion for Leave and
       Motion for Summary Judgment whether or not the Court has issued a ruling
       on the Motion for Leave.

       {¶14} The trial order clearly stated that responsive motions were due within ten

days after the filing of a summary judgment motion “whether or not the court has issued a

ruling on the motion to leave.”

       “[A] court may, in its sound discretion, consider a motion for summary
       judgment that has been filed, without express leave of the court, after the
       action has been set for trial. Furthermore, where the acceptance of a
       motion occurs by the grace of the court, the decision to accept is by itself
       leave of court.”

Meyer v. Wabash Alloys, L.L.C., 8th Dist. Cuyahoga No. 80884, 2003-Ohio-4400, ¶ 16,

quoting Lachman v. Wietmarschen, 1st Dist. Hamilton No. C-020208, 2002-Ohio-6656.

       {¶15} The record does not reflect that the court expressed to the parties that it

would rule on a motion to leave before considering an accompanying motion for summary

judgment.   Thus, we consider what the record does reflect, which is that the January 11,

2016 trial court order required a party opposing a summary judgment motion to file its
responsive motion within ten days, regardless of whether the court had ruled on the motion

to leave.

       {¶16} The second assignment of error is overruled.

       {¶17} In the third assignment of error, Sanderfer argues that the trial court granted

CMHA a “default” summary judgment without considering the evidence or conducting

any reasoning or analysis.

       {¶18} In granting summary judgment, the trial court stated:

       In accordance with Paragraph 3 of this Court’s Trial Order, issued on
       January 11, 2016 and signed by both parties at the case management
       conference, all responses to motions for summary judgment were due within
       10 days of filing whether or not the court has issued a ruling on the motion
       for leave. As more than 30 days have passed since Defendant’s Motion for
       Summary Judgment was filed, Plaintiff’s response time for said Motion has
       lapsed. Therefore, Defendant’s Motion for Summary Judgment, filed
       4/18/2016, remains unopposed. In construing the evidence most strongly in
       favor of the Plaintiff, the court finds that as to Plaintiff Sanderfer’s claims
       against Defendant, there is no genuine issue as to any material fact,
       reasonable minds could only find in favor of said Defendant, and said
       Defendant is entitled to judgment as a matter of law. Therefore, Defendant’s
       Motion for Summary Judgment is granted and Plaintiff’s claims against
       Defendant are dismissed with prejudice.

       {¶19} Sanderfer does not support her claim that the trial court failed to consider the

evidence in the case.    Moreover, Civ.R. 52 does not require a trial court to issue findings

of fact or conclusions of law when deciding a motion pursuant to Civ.R. 56.1

       {¶20} In determining whether a summary judgment is warranted, a court must

determine whether (1) no genuine issue as to any material fact exists, (2) the party moving


       1
         Civ.R. 52 states: “Findings of fact and conclusions of law required by this rule * * * are
unnecessary upon all other motions including those pursuant to * * * Civ.R. 56.”
for summary judgment is entitled to judgment as a matter of law, and (3) in viewing the

evidence most strongly in favor of the non-moving party, conclude that reasonable minds

can only reach one conclusion, which is adverse to the non-moving party. Temple v.

Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1997). The trial court’s

judgment entry granting summary judgment sufficiently supports its finding in favor of

CMHA.

      {¶21} The third assignment of error is overruled.

      {¶22} Judgment affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.

      It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

MELODY J. STEWART, P.J., and
ANITA LASTER MAYS, J., CONCUR
