[Cite as Bank of Am., N.A. v. Smith, 2020-Ohio-2797.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



BANK OF AMERICA, N.A.                                      JUDGES:
                                                           Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                                 Hon. John W. Wise, J.
                                                           Hon. Patricia A. Delaney, J.
-vs-
                                                           Case No. 19 CA 00117
LUANN L. SMITH

        Defendant-Appellant                                OPINION




CHARACTER OF PROCEEDING:                                Civil Appeal from the Court of Common
                                                        Pleas, Case No. 19 CV 00166


JUDGMENT:                                               Affirmed



DATE OF JUDGMENT ENTRY:                                 May 4, 2020



APPEARANCES:

For Plaintiff-Appellee                                  For Defendant-Appellant

YALE R. LEVY                                            LUANN L. SMITH
KATHLEEN M. SMITH                                       PRO SE
LEVY & ASSOCIATES, LLC                                  1720 Laura Lane
4645 Executive Drive                                    Reynoldsburg, Ohio 43068
Columbus, Ohio 43220
Licking County, Case No. 19 CA 00117                                                    2


Wise, J.

      {¶1}   This matter is before the Court upon an appeal filed by Appellant Luann L.

Smith from the Licking County Court of Common Pleas. Ms. Smith challenges the trial

court’s Judgment Entry that granted Appellee Bank of America, N.A.’s (“BOA”) Motion for

Summary Judgment on October 16, 2019.

                 FACTUAL BACKGROUND AND PROCEDURAL HISTORY

      {¶2}   BOA commenced this action against Ms. Smith to recover money alleged

to be due on an account in the amount of $28,351.05. Ms. Smith breached the account’s

agreement by failing to make required payments. BOA initially filed this action in the

Franklin County Court of Common Pleas on July 30, 2018. However, BOA was unable to

perfect service on Ms. Smith and subsequently learned that she resided in Licking

County. On February 12, 2019, BOA moved to transfer the case to Licking County.

      {¶3}   Thereafter, BOA successfully served Ms. Smith with a copy of the

Summons and Complaint. Ms. Smith filed an Answer on April 18, 2019, denying all

allegations set forth in the Complaint. BOA moved for leave to file a Motion for Summary

Judgment and a Motion for Summary Judgment on June 11, 2019. Ms. Smith responded

by filing a “Complaint for Declaratory and Injunctive Relief; Response to Motion for

Summary Judgment[.]” In a Judgment Entry issued on October 16, 2019, the trial court

struck Ms. Smith’s “Complaint for Declaratory and Injunctive Relief; Response to Motion

for Summary Judgment” because:

              [D]efendant is a defendant, not a plaintiff, filing a complaint, it is

      outside of the timeframe in which the defendant would file a counterclaim or

      a crossclaim and is filing in the existing action. Further, the defendant seeks
Licking County, Case No. 19 CA 00117                                                     3


       to respond to the summary judgment motion by creating a genuine dispute

       between the parties by virtue of this declaratory and injunctive relief

       complaint and the essence of the complaint appears to be that a sham

       document of sorts promising payment in the future has been sent to plaintiff.

              Accordingly, the Court finds the Response to Motion for Summary

       Judgment filed October 9, 2019, shall be stricken.

       {¶4}   (Judgment Entry, Oct. 16, 2019, at 3)

       {¶5}   Via a separate Entry also issued on October 16, 2019, the trial court granted

BOA’s summary judgment motion.

       {¶6}   Ms. Smith timely filed her Notice of Appeal. She did not set forth an

assignment of error as required by App.R. 16(A)(3), but presents an “Issue on Appeal”

for our consideration.

                                  ASSIGNMENT OF ERROR

       {¶7}   “I. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT

AGAINST APPELANT WITHOUT REVIEWING THE EVIDENCE IN THE LIGHT MOST

FAVORABLE TO THE APPELLANT AND WITHOUT VIEWING THE EVIDENCE MOST

FAVORABLE TO THE PARTY AGAINST WHOM THE JUDGMENT WAS GRANTED

AND GIVING THAT PARTY THE BENEFIT OF ALL REASONABLE INFERENCES

DEDUCIBLE FROM THE EVIDENCE.”

                                           ANALYSIS

                                     A. Standard of review

       {¶8}   With regard to summary judgment, this Court applies a de novo standard of

review and reviews the evidence in the same manner as the trial court. Smiddy v.
Licking County, Case No. 19 CA 00117                                                      4


Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). We will not give any

deference to the trial court’s decision. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio

App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). Under Civ.R. 56, a trial court may

grant summary judgment if it determines: (1) no genuine issues as to any material fact

remain to be litigated; (2) the moving party is entitled to judgment as a matter of law; and

(3) it appears from the evidence that reasonable minds can come to but one conclusion

and viewing such evidence most strongly in favor of the party against whom the motion

for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean

United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

       {¶9}   The party seeking summary judgment bears the burden of demonstrating

no issues of material fact exist for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106

S.Ct. 2548, 91 L.Ed.2d 265 (1986). In Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d

264 (1996), the Ohio Supreme Court set forth the applicable summary judgment standard:

              [A] party seeking summary judgment, on the grounds that the

       nonmoving party cannot prove its case, bears the initial burden of informing

       the trial court of the basis for the motion, and identifying those portions of

       the record that demonstrate the absence of a genuine issue of material fact

       on the essential element(s) of the nonmoving party’s claims. The moving

       party cannot discharge its initial burden under Civ.R. 56 simply by making

       a conclusory assertion that the nonmoving party has no evidence to prove

       its case. Rather, the moving party must be able to specifically point to some

       evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates

       that the nonmoving party has no evidence to support the nonmoving party’s
Licking County, Case No. 19 CA 00117                                                       5


         claims. If the moving party fails to satisfy its initial burden, the motion for

         summary judgment must be denied. However, if the moving party has

         satisfied its initial burden, the nonmoving party then has a reciprocal burden

         outlined in Civ.R. 56(C) to set forth specific facts showing that there is a

         genuine issue for trial and, if the nonmovant does not so respond, summary

         judgment, if appropriate, shall be entered against the nonmoving party.

         {¶10} (Emphasis sic.)

         {¶11} Finally, the record on summary judgment must be viewed in the light most

favorable to the party opposing the motion. (Citation omitted.) Williams v. First United

Church of Christ, 37 Ohio St.2d 150, 151, 309 N.E.2d 924 (1974).

         {¶12} Applying this standard, we will address Ms. Smith’s sole assignment of

error.

                           B. Trial court’s granting of summary judgment

         {¶13} Ms. Smith only presents a one-paragraph argument in her “Initial Brief[.]”

Her Reply Brief is titled, “Initial Brief of Appellant Luann L. Smith and Response to

Appellee Bank of America’s Brief[,]” which contains the identical statement of the facts,

standard of review, issue on appeal, legal argument and discussions, and conclusion as

found in her “Initial Brief[.]” Having reviewed these briefs, we believe Ms. Smith is

challenging the trial court’s decision on two grounds. First, the trial court “failed to meet

the standard of review for entry of summary judgment” by “fail[ing] to view the evidence

in the light most favorable to Appellant and fail[ing] to give the benefit of all reasonable

inferences deducible from the evidence to Appellant.” (Smith’s “Initial Brief” at 2-3)

Second, Ms. Smith claims the trial court should have issued findings of fact and
Licking County, Case No. 19 CA 00117                                                         6


conclusions of law under Civ.R. 52 when it issued its summary judgment decision. (Id. at

3)

       {¶14} With regard to Ms. Smith’s claim that the trial court failed to view the

evidence in the light most favorable to her and failed to give her the benefit of all

reasonable inferences, we find Ms. Smith overlooks the fact that she did not properly

respond to BOA’s summary judgment motion thereby demonstrating a genuine issue for

trial. That is, she could not merely rely on the fact that the trial court must view the record

in the light most favorable to the party opposing summary judgment. She had to produce

Civ.R. 56(C) evidence demonstrating a genuine issue remained for trial.

       {¶15} Here, BOA specifically pointed to some evidence attached to its summary

judgment motion that demonstrated Ms. Smith had no evidence to support her claims.

This evidence included the affidavit of Ryan D. Robinson. In his affidavit, Mr. Robinson

stated he is a “Custodian of Records, authorized Officer, and employee of Plaintiff Bank

of America, N.A. (“BANA”).” (Robinson Affidavit at ¶ 1) Mr. Robinson explained he is

“familiar with the manner and method by which Plaintiff maintains its normal business

books and records, including computer records of defaulted accounts.” (Id.) Mr. Robinson

also confirmed that the “contents of [the] Affidavit are true and accurate based upon [his]

personal knowledge of the processes by which Plaintiff maintains its business books and

records.” (Id. at ¶ 3)

       {¶16} Mr. Robinson’s affidavit also further provides:

               4.   The books and records of Plaintiff show that the Defendant

       opened account with BANA, or a predecessor in interest, for the purpose of

       obtaining an extension of credit (the “Account”) and did thereafter use or
Licking County, Case No. 19 CA 00117                                                       7


       authorize the use of the Account for the acquisition of goods, services, or

       cash advances in accordance with the customer agreement (“Agreement”)

       governing use of the Account. Further, the Defendant has failed to make

       periodic payments as required by the Agreement.

              5. The books and records of Plaintiff show that the Account charged-

       off in the ordinary course of business on 12/30/2017.

              6. The books and records of Plaintiff show that credit has been given

       to the Defendant for all just and lawful offsets, payments, and credits as of

       the date hereof, and there now remains due and owing on account number

       XXXXXXXXXXXX2188 the just and true sum of $28351.05 as of the date

       of this Affidavit.

       {¶17} (Emphasis sic.)

       {¶18} Once BOA satisfied its initial burden by setting forth Civ.R. 56(C) evidence

in the form of Mr. Robinson’s affidavit and various account documents, the burden shifted

to Ms. Smith to set forth evidence showing a genuine issue of material fact existed for

trial. However, in response to BOA’s summary judgment motion, Ms. Smith filed a

“Complaint for Declaratory and Injunctive Relief, Response to Motion for Summary

Judgment[.]” As noted above, the trial court struck this document and Ms. Smith does not

challenge on appeal the trial court’s decision to strike it. Once the trial court struck this

document, Ms. Smith had no evidence before the trial court to meet her burden to show

a genuine issue of material fact existed for trial. Therefore, we conclude the trial court

properly granted BOA’s summary judgment motion. See Pinnacle Credit Servs. LLC v.

Kuzniak, 7th Dist. Mahoning No. 08-MA-111, 2009-Ohio-1021, ¶ 2, where the court found
Licking County, Case No. 19 CA 00117                                                     8


no error in granting summary judgment on a claim where defendant failed to provide any

evidence to create a genuine issue of fact.

       {¶19} With regard to her second issue, Ms. Smith claims the trial court should

have issued findings of fact and conclusions of law along with its summary judgment

decision. We disagree. This Court held in Burdette v. Stevens, 5th Dist. Perry No. 06 CA

22, 2007-Ohio-4604, ¶ 11 that:

              [A] review of the record reveals no such request for findings of fact

       and conclusions of law on the part of appellants. Moreover, Civ.R. 52

       provides that “[f]indings of fact and conclusions of law required by this rule

       and Rule 41(B)(2) are unnecessary upon all other motions including those

       pursuant to Rule 12, Rule 55 and Rule 56.” This language makes it clear

       that findings of fact and conclusions of law are not necessary when a trial

       court rules on a party's motion for summary judgment. As such, the trial

       court did not err when it did not set forth findings of fact and conclusions of

       law.

       {¶20} Likewise, here, Ms. Smith never asked the trial court to prepare findings of

facts and conclusions of law with regard to its summary judgment decision and therefore,

waived this argument for purposes of appeal. “It is well-settled law in Ohio that appellate

courts will not consider as error issues that are raised for the first time on appeal”

Deutsche Bank Natl. Trust Co. v. Hill, 5th Dist. Perry No. 14 CA 00021, 2015-Ohio-1575,

¶ 23. Further, even if Ms. Smith had requested findings of fact and conclusions of law, at

the trial court level, the trial court was not required to comply per Civ.R. 52.
Licking County, Case No. 19 CA 00117                                           9


      {¶21} Ms. Smith’s sole assignment of error is overruled.

      {¶22} For the foregoing reasons, the judgment of the Court of Common Pleas,

Licking County, Ohio, is hereby affirmed.



By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.




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