[Cite as R & R Takhar Oil Co., Inc. v. PN & SN Mann, L.L.C., 2011-Ohio-4548.]




          IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

R&R TAKHAR OIL CO. INC.                            :

        Plaintiff-Appellee                         :     C.A. CASE NO. 24444

vs.                                                :     T.C. CASE NO. 09CV5134

PN & SN MANN LLC, et al.                           :     (Civil Appeal from
                                                                                        Common
                                                         Pleas Court)
        Defendant-Appellants                       :

                                     . . . . . . . . .

                                         O P I N I O N

                 Rendered on the 9th day of September, 2011.

                                     . . . . . . . . .

Peter J. Jerardi, Jr., Atty. Reg. No. 0007409, 130 W. Second Street,
Suite 800, Dayton, OH 45402
     Attorney for Plaintiff-Appellee

Keith A. Fricker, Atty. Reg. No. 0037355, 7460 Brandt Pike, Huber
Heights, OH 45424
     Attorney for Defendant-Appellant

                                     . . . . . . . . .

VUKOVICH, J. (BY ASSIGNMENT):

        {¶ 1} Defendant-appellant Parmjit Singh appeals the decision of

the Montgomery County Common Pleas granting summary judgment to

plaintiff-appellee R&R Takhar Oil Company, Inc.                                 Appellant argues

that, since he was pro se, the court should have construed his
                                                                    2

filings more strongly in his favor in determining whether he

presented a genuine issue of material fact for trial.             As

appellant’s response to summary judgment was not supported by

evidence as required by Civ.R. 56 but merely made general denials

and requests for more proof, the court properly granted summary

judgment.

                       STATEMENT OF THE CASE

      {¶ 2} On January 27, 2006, appellee [the supplier] entered into

a contract to deliver gasoline to a gas station in Botkins, Ohio

run by PN & SN Mann, LLC.   The members of this LLC were Navjit Kaur

and appellant Singh.    This contract was signed by both Kaur and

Singh and was also personally guaranteed by Singh.       On November

27, 2007, the supplier entered into a contract to deliver gasoline

to the LLC’s Fairborn, Ohio location.     This contract was signed

and personally guaranteed by Singh.

      {¶ 3} On June 19, 2009, the supplier filed a complaint against

the LLC, Singh, and Kaur alleging that $262,355.84 was due for

gasoline delivered to the Fairborn location and $8,838.16 was due

for gasoline delivered to the Botkins location.       The contracts

were attached to the complaint.     Singh and Kaur filed a pro se

answer asking for individual proof regarding the two locations.1


  1
   The answer did not purport to be filed on behalf of the LLC.
Notably, although later filings purported to be filed pro se on
behalf of the LLC, members of an LLC are not permitted to represent
                                                                    3

     {¶ 4} On November 2, 2009, the supplier filed a motion for

summary judgment.   In support, the supplier attached the affidavit

of its president, who stated that records of gasoline sales,

invoicing, and payment are kept in the ordinary course of business

by the supplier, including those related to this LLC.            The

affidavit then stated that the unpaid invoices, after applying all

payments and credits, total $8,838.16 for the Botkins location and

$262,355.84 for the Fairborn location.     It also provided the total

gallons used for each location.

     {¶ 5} On November 3, the LLC, Singh, and Kaur filed a document

stating that the supplier’s demands should be rejected as they are

baseless and because the proof was not provided until the motion

for summary judgment was filed.   Although they did not attempt to

engage in discovery, they complained about the lack of specifics

regarding delivery, consignment, loads, and payments.           They

attached what was essentially a copy of their answer.2

     {¶ 6} On November 6, the defendants asked that the November 3

filing be accepted as an amended answer.    They also mentioned that



the LLC in common pleas court as this constitutes the unauthorized
practice of law. See Disciplinary Counsel v. Kafele, 108 Ohio
St.3d 283, 2006-Ohio-904, ¶18.
   2
     They added a statement that there was no agreement in which the
supplier became the seller in writing for the Fairborn location;
however, this was placed under their argument for the supplier’s
third claim for relief, which dealt with liquidated damages, a claim
later dismissed by the supplier.
                                                                    4

they disputed the affidavit of the supplier’s president regarding

the amounts due as the amount of gallons “is huge amount.”      They

then asked the court to compare their contracts with those of other

Marathon gas stations but did not provide such to the court.

     {¶ 7} On November 24, the supplier filed a reply, stating that

the defendants’ response was no more than a general denial and was

not in the form required by Civ.R. 56.      The supplier urged that

the only pieces of Civ.R. 56 evidence properly before the court

were the contracts and the affidavit regarding the amounts due.

     {¶ 8} On December 2, the defendants refiled their November 6

filing, this time attaching affidavits and copies of invoices. No

contemporaneous leave was sought to add attachments to the prior

filing (which was already a request to amend two prior filings).

The affidavits of both Singh and Kaur state:

     {¶ 9} “1.    That I am member of PN&SN Mann LLC

     {¶ 10} “2.   That 1,439,011 gallons of gasoline delivered by R&R

Takhar Oil Co at location 10 west Dayton Drive. Fairborn, Ohio from

which unpaid invoices of $262,355.84 claimed by the Plaintiff is

rejected and opposed.”

     {¶ 11} On December 28, 2010, the court granted summary judgment

on the supplier’s claim for unpaid gasoline.3    The court noted that


        3
         The court denied summary judgment as to the supplier’s
   claim for liquidated damages, and the supplier then dismissed
                                                                   5

the non-movant cannot rest on the mere allegations or denials of

its pleading but must set forth specific facts showing there is

a genuine issue for trial.       The court then found that the

defendant’s responses were not in the form required by Civ.R. 56.

Judgment was entered against the LLC and Singh jointly and

severally in the sum of $271,194 and against Kaur jointly and

severally in the amount of $8,838.16.

     {¶ 12} At this point, the defendants retained counsel for the

first time, and a timely appeal was filed.     Two extensions were

filed by counsel solely on behalf of defendant-Singh.       On April

25, 2011, a brief was filed on behalf of Singh alone.     Thus, the

judgment against the LLC and the $8,838.16 judgment against Kaur

are not being protested.   We thus proceed, using “appellant” to

refer only to Singh.

                       ASSIGNMENT OF ERROR

     {¶ 13} Appellant’s sole assignment of error alleges:

     {¶ 14} “THE TRIAL COURT ERRED IN GRANTING IN PART PLAINTIFF’S

MOTION FOR SUMMARY JUDGEMENT.”

     {¶ 15} Appellant admits that he did not specifically defend the

summary judgment in the manner called for by the Civil Rules and



   this claim, disposing of all claims. The court also dismissed
   counterclaims that the defendants attempted to file after the
   summary judgment motion, response, and reply were filed. That
   decision is not being appealed.
                                                                     6

admits that he merely relied on a blanket denial.          Appellant

essentially argues that, because he was pro se, the court should

have found that there could be a genuine issue for trial.

     {¶ 16} Summary judgment can be granted where there remains no

genuine issue of material fact for trial in that, after construing

the evidence most strongly in favor of the nonmovant, reasonable

minds can only conclude that the moving party is entitled to

judgment as a matter of law.    Byrd v. Smith, 110 Ohio St.3d 124,

2006-Ohio-3455, ¶10, citing Civ.R. 56(C).     The initial burden of

showing that there is no genuine issue of material fact falls upon

the party who files for summary judgment.     Id., citing Dresher v.

Burt (1996), 75 Ohio St.3d 280, 294, 662 N.E.2d 264.     Thereafter,

the nonmovant may not rest upon mere allegations or denials of the

party's pleadings but must respond by setting forth specific facts

showing that there is a genuine issue for trial.         Id., citing

Civ.R. 56(E).   If the nonmoving party does not respond in the

proper fashion, summary judgment can be entered against that party.

Civ.R. 56(E).

     {¶ 17} Here, it is not disputed that the supplier met its initial

burden for summary judgment.    The contracts were attached to the

complaint and were proper summary judgment evidence.        ODJFS v.

Amatore, Mahoning App. No. 09MA159, 2010-Ohio-2848, ¶38, citing

Inskeep v. Burton, Champaign App. No. 2007CA11, 2008-Ohio-1982,
                                                                      7

¶17, citing Civ.R. 10(C).        Moreover, the affidavit of the

supplier’s president was attached to the summary judgment motion,

swearing that the amounts claimed were actually due according to

the records kept in the ordinary course of business and providing

the gallons used at each location.

     {¶ 18} Appellant responded to the motion by citing to his answer

with minor amendments and generally denying liability.       Appellant

referenced the affidavit attached to the summary judgment motion

and basically asked for the supplier to be required to provide more

proof; essentially asking the court to conduct the discovery that

was the obligation of appellant.        No affidavits or other Civ.R.

56 material were attached.       The contents of this filing were

admittedly   insufficient   to   meet    the   reciprocal   burden   of

countering a summary judgment motion.          See American Express

Centurian Bank v. Banaie, Mahoning App. No. 10MA9, 2010-Ohio-6503,

¶5, 12-17 (after contract was attached to complaint and evidence

provided on amounts due, defendant entered only a general denial

and complaints about lack of record of account).      Thereafter, the

supplier filed a reply, noting this problem and pointing out that

summary judgment was appropriate.        It was at this point, that

appellant filed a document with affidavits and invoices attached.

However, there are multiple problems with this filing.
                                                                   8

     {¶ 19} First, the invoices cannot be considered as they are not

proper evidence under Civ.R. 56 without an accompanying affidavit

or deposition for instance swearing to what they are.    See Civ.R.

56(C), (E).    See, also, Hager v. Waste Tech. Indus., Columbiana

App. No. 2000-CO-45, 2002-Ohio-3466, ¶92.

     {¶ 20} As for the affidavits, they are unclear:   it is unknown

whether appellant “rejected and opposed” the contract, the amount

claimed to have been delivered, the claim that fuel was delivered,

or the amount charged for the delivery.   Thus, the affidavits still

merely constitute a general denial, as appellant seems to concede

on appeal.    That is, the mere rejection of the plaintiff’s claim

does not meet the nonmovant’s burden to set forth specific facts

to show there is a genuine issue for trial.   See McGuire v. Lovell

(1999), 85 Ohio St.3d 1216, 1218.

     {¶ 21} In any event, appellant’s response to summary judgment

had already been submitted and a reply had already been filed. Plus,

appellant’s filing with the affidavits attached was not a timely

response to summary judgment.    See Mont. Cty. Loc.R. 2.01 V A 3

b (4)(a); 2.05 II B 1 a-b.   Finally, appellant termed this filing

a refiled document, but he did not seek contemporaneous leave,

provide an explanation, or disclose that new evidence was attached.

     {¶ 22} For all of these reasons, the trial court’s decision

entering summary judgment in favor of the supplier in the amount
                                                               9

sought for actual damages on the contract is upheld. This

assignment of error is overruled, and the trial court’s judgment

is affirmed.



FAIN, J. And DONOVAN, J., concur.

(Hon. Joseph J. Vukovich, Seventh District Court of Appeals,
sitting by assignment of the Chief Justice of the Supreme Court
of Ohio.)


Copies mailed to:

Peter J. Jerardi, Jr., Esq.
Keith A. Fricker, Esq.
Hon. Frances E. McGee
