[Cite as United States of Am. v. English, 2012-Ohio-1882.]


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

UNITED STATES OF AMERICA                                     C.A. No.   11CA0016
ACTING THROUGH THE RURAL
DEVELOPMENT, UNITED STATES
DEPARTMENT OF AGRICULTURE
                                                             APPEAL FROM JUDGMENT
        Plaintiff                                            ENTERED IN THE
                                                             COURT OF COMMON PLEAS
        v.                                                   COUNTY OF WAYNE, OHIO
                                                             CASE No.   10-CV-0148
SCOTT ENGLISH, et al.

        Defendants-Appellants

        and

WAYNE SAVINGS COMMUNITY BANK

        Defendant-Appellee

                                 DECISION AND JOURNAL ENTRY

Dated: April 30, 2012



        WHITMORE, Presiding Judge.

        {¶1}     Defendant-Appellants, Scott and Abbie English (“the Englishes”), appeal from

the judgment of the Wayne County Court of Common Pleas, entering a decree of foreclosure and

judgment in favor of Appellee, Wayne Savings Community Bank (“Wayne Savings”). This

Court reverses.

                                                       I

        {¶2}     The Englishes executed two different mortgage notes for the same property in two

different amounts on the same day; one to United States of America acting through the Rural

Development, United States Department of Agriculture (USDA) and one to Wayne Savings.
                                                2


Subsequently, the Englishes defaulted on both notes. On February 22, 2010, the United States of

America acting through the Rural Development, United States Department of Agriculture

(USDA) filed an action for foreclosure and a money judgment against the Englishes, as well as

Wayne Savings and several other entities with potential interests in the property. Wayne Savings

answered and filed a cross-claim against the Englishes, seeking a judgment for the note due and

payable to it. The Englishes received two leaves to plead before filing their answer and a request

for mediation on May 21, 2010. Subsequently, the Englishes filed for Chapter 7 bankruptcy, and

this case was removed from the trial court’s active docket.

       {¶3}    The trial court reactivated this case in February 2011. On March 18, 2011,

Wayne Savings filed a motion for summary judgment against the Englishes. On March 24,

2011, the trial court entered a judgment entry and decree of foreclosure. The judgment entry

declared the rights and obligations of all the parties, designated the lien held by Wayne Savings

as first in priority, and ordered a judgment in favor of Wayne Savings, to be paid from proceeds

of the sale, in the amount of $15,933.21, plus interest. All of the parties, with the exception of

the Englishes, approved the judgment entry before its journalization.

       {¶4}    The Englishes now appeal from the trial court’s judgment and raise one

assignment of error for our review.

                                                II

                                      Assignment of Error

       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT
       GRANTED PREMATURELY AND WITHOUT NOTICE APPELLEE’S
       MOTION FOR SUMMARY JUDGMENT.

       {¶5}    In their sole assignment of error, the Englishes argue that the trial court erred by

granting summary judgment in favor of Wayne Savings. We agree.
                                                3


       {¶6}    This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civ.R. 56(C), a motion for summary

judgment “shall be served at least fourteen days before the time fixed for hearing.” Accord

Wayne County Court of Common Pleas, Loc.R. 4(C)(1) (providing that the trial court will fix a

hearing date in accordance with Civ.R. 56(C) upon the filing of a motion for summary

judgment). The opposing party may then serve and file opposing affidavits. Civ.R. 56(C).

        As 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.           [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.

(Internal citations and quotations omitted.) M-N North Chase II, L.L.C. v. Roe, 9th Dist. No.

25694, 2011-Ohio-4071, ¶ 8. An oral hearing on a motion for summary judgment is not

necessary, but “if an oral hearing is not held, the non-moving party should receive notice of the

date its brief is due or notice ‘of the date on which the motion [for summary judgment] is

deemed submitted for decision.’” Bank of New York v. Brunson, 9th Dist. No. 25118, 2010-

Ohio-3978, ¶ 9, quoting Hooten v. Safe Auto Ins. Co., 100 Ohio St.3d 8, 2003-Ohio-4829, ¶ 17.

It is reversible error for a trial court to prematurely grant a motion for summary judgment

without first providing the non-moving party with an opportunity to respond. Brunson at ¶ 10.

       {¶7}    The trial court here granted judgment in favor of Wayne Savings six days after

Wayne Savings moved for summary judgment. The record before us does not demonstrate that

the court set the matter for hearing or gave the Englishes notice of a date on which their brief in

opposition would be due. See Brunson at ¶ 9, quoting Hooten at ¶ 17. Moreover, the court

granted the motion for summary judgment before the fourteen-day period set forth by Civ.R.

56(C) elapsed. In prematurely ruling on Wayne Savings’ motion, the court failed to ensure that
                                                 4


the Englishes had an opportunity to be heard. The Englishes are correct in their assertion that the

trial court erred by granting summary judgment in favor of Wayne Savings under the

circumstances. Accordingly, their sole assignment of error is sustained, and the trial court’s

judgment is reversed. The matter is remanded to the trial court “to allow [the Englishes] time to

respond to [Wayne Savings’] motion for summary judgment, and to allow for any timely

response by [Wayne Savings], before the trial court issues a ruling on [Wayne Savings’]

motion.” Brunson at ¶ 10.

                                                III

       {¶8}    The Englishes’ sole assignment of error is sustained. The judgment of the Wayne

County Court of Common Pleas is reversed, and the cause is remanded for further proceedings

consistent with the foregoing 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 Court of Common

Pleas, County of Wayne, 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.
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      Costs taxed to Appellee.




                                              BETH WHITMORE
                                              FOR THE COURT



CARR, J.
MOORE, J.
CONCUR.


APPEARANCES:

GREGORY R. SAIN, Attorney at Law, for Appellants.

DANIEL G. FINDLEY, Attorney at Law, for Appellee.
