[Cite as Smith v. Cbert Properties, L.L.C., 2019-Ohio-12.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 LEAH N. SMITH                                          :
                                                        :
          Plaintiff-Appellant                           :    Appellate Case No. 28058
                                                        :
 v.                                                     :    Trial Court Case No. 2017-CV-5205
                                                        :
 CBERT PROPERTIES, LLC                                  :    (Civil Appeal from
                                                        :     Common Pleas Court)
          Defendant-Appellee                            :
                                                        :

                                                ...........

                                                OPINION

                             Rendered on the 4th day of January, 2019.

                                                ...........

RONALD J. KOZAR, Atty. Reg. No. 0041903, 40 N. Main Street, Suite 2830, Dayton,
Ohio 45423
      Attorney for Plaintiff-Appellant

JENNIFER R. GREWE, Atty. Reg. No. 0092329, 33 W. First Street, Suite 600, Dayton,
Ohio 45402
      Attorney for Defendant-Appellee

                                              .............
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HALL, J.

       {¶ 1} Leah Smith appeals from a judgment of the Montgomery County Court of

Common Pleas, which entered summary judgment for CBert Properties, LLC, on Smith’s

claims for negligence, conversion, and a violation of R.C. 5321.04(A)(8). We conclude

that Smith’s own affidavit was sufficient to establish that a genuine issue of material fact

existed as to her claims for negligence and conversion. But no genuine issue of fact

existed as to the alleged statutory violation, and CBert was entitled to judgment as a

matter of law on that claim. Consequently the trial court’s judgment is affirmed in part and

reversed in part.

                             I. Facts and Procedural History

       {¶ 2} In 2015, Smith moved into apartment four of an apartment building in

Kettering, Ohio, which was owned by CBert and managed by Oberer Management

Services. Each apartment in the building was assigned two basement storage units (a

large unit and a small unit), each labelled with the corresponding apartment number.

Accordingly, Smith was assigned Storage Unit #4. (We will refer to the storage units

collectively for the most part.)

       {¶ 3} The following year, CBert evicted the tenant living in apartment one. Several

items were left in Storage Unit #1. CBert notified the former tenant that the items should

be removed by a certain date. After that date, when the items had not been removed,

CBert hired a waste removal company to clean out Storage Unit #1 and dispose of the

items found inside, which the company did.

       {¶ 4} Smith claims that the items removed from Storage Unit #1 were actually hers.

She says that the building manager had given her permission use Storage Unit #1. Smith
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sued CBert for negligence, conversion, and a violation of R.C. 5321.04(A)(8), which

requires a landlord to give a tenant notice of entry. CBert moved for summary judgment

on all three claims. It supported the motion with an affidavit from Barbara Hargraves, the

District Property Manager for Oberer. Hargraves averred that each tenant was permitted

to use only the storage spaces assigned to his or her apartment and that CBert never

permitted tenants to use other storage units. Hargraves specifically averred that Smith

was permitted to use only Storage Unit #4 and that she was not authorized to use any

other storage unit. Hargraves also averred that CBert did not know that Smith had put

items in Storage Unit #1.

       {¶ 5} Smith opposed summary judgment with her own affidavit. She averred that,

when she moved in, one of the storage units assigned to her apartment contained items

from another tenant. She asked the building manager, Kim Larkin, if she could use

Storage Unit #1, which was empty, and, according to Smith, Larkin agreed. Smith

included with her affidavit a photograph of Storage Unit #1 taken by CBert before it was

cleaned out. While there was a prominent “1” high on the door frame, there was also a

smaller and fainter handwritten “4” on the frame lower down. Smith says that she does

not know who wrote it.

       {¶ 6} The trial court sustained CBert’s motion for summary judgment, concluding

that Smith’s affidavit was self-serving and insufficient to establish a genuine issue of

material fact for trial.

       {¶ 7} Smith appeals.

                                      II. Analysis

       {¶ 8} The sole assignment of error alleges that the trial court erred by entering
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summary judgment for CBert. Under Civ.R. 56, “summary judgment is appropriate when

(1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment

as a matter of law, and (3) reasonable minds can come to but one conclusion and that

conclusion is adverse to the nonmoving party, who is entitled to have the evidence

construed most strongly in his or her favor.” (Citation omitted.) Armstrong v. Best Buy Co.,

99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088, ¶ 15. “We review summary

judgment decisions de novo, which means that we apply the same standards as the trial

court.” (Citations omitted.) GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio App.3d 127, 2007-

Ohio-2722, 873 N.E.2d 345, ¶ 16 (2d Dist.).

                         The negligence and conversion claims

       {¶ 9} There were two relevant issues as to the negligence and conversion claims.

One was whether CBert authorized Smith, through the building manager, to use Storage

Unit #1, and the other issue was whether CBert knew that items in Storage Unit #1

belonged to Smith.

       {¶ 10} The trial court concluded that the affidavit supporting CBert’s summary-

judgment motion established that there was no genuine issue as to these issues. In the

affidavit, Hargraves averred that “CBERT does not ever permit tenants to use storage

units which do not correlate with their apartment unit. For example, Unit #4 would not be

permitted to use any storage unit except for Large Storage Unit #4 and Small Storage

Unit #4.” (Hargraves Aff. ¶ 7.) Hargraves specifically stated that “Smith was only permitted

to use Large Storage Unit #4 and Small Storage Unit #4 during the term of her tenancy”

(Id. at ¶ 13) and that “Smith was not authorized by CBERT or Oberer to use any other

storage unit” (Id. at ¶ 14.) Finally, Hargraves said that “[a]t no time prior to [the waste-
                                                                                          -5-


removal company] cleaning out Large Unit #1 and Small Unit #1, was CBERT aware or

put on notice that Smith claimed to have any items in Large Storage Unit #1 and Small

Storage Unit #1.” (Id. at ¶ 23.) Smith’s affidavit was the only evidence opposing summary

judgment. The trial court concluded that it alone could not establish a genuine issue as to

the material facts because it was merely self-serving. The court criticized Smith for not

obtaining deposition testimony from Larkin.

       {¶ 11} “An otherwise competent affidavit is not invalid for the sole reason that it is

executed by a party and submitted to aver facts in opposition to summary judgment. To

the contrary, a party’s affidavit is competent to create a genuine issue of material fact if

made on personal knowledge.” (Citation omitted.) Fifth Third Mtge. Co. v. Berman, 10th

Dist. Franklin No. 11AP-637, 2012-Ohio-4411, ¶ 17. Civ.R. 56 imposes no corroboration

requirement. We note too that Civ.R. 56(C) states that “the party against whom the motion

for summary judgment is made * * * [is] entitled to have the evidence or stipulation

construed most strongly in that party’s favor.” To the extent that Smith’s affidavit did not

present mere conclusory assumptions but set forth matters within her personal

knowledge, it could be considered.

       {¶ 12} We think that Smith’s affidavit did present more than conclusory

assumptions and set forth matters within her personal knowledge. Smith stated that she

“asked [Kim Larkin] if I could just use the empty [storage unit] associated with Apartment

One and Kim said yes.” (Smith Aff. ¶ 3.) Smith’s lease indicated that Larkin was an

employee of Oberer, which managed the apartment building for CBert. This means that

if Larkin gave Smith permission, CBert effectively gave her permission to use Storage

Unit #1. This averment, along with the photograph showing a “4” written on the door frame
                                                                                           -6-


of Storage Unit #1, was sufficient, on its face, to rebut Hargraves’s averment that Smith

was not authorized to use Storage Unit #1. Compare Sacksteder v. Gisslen, 197 Ohio

App.3d 484, 2011-Ohio-6319, 968 N.E.2d 11, ¶ 34 (2d Dist.) (concluding that the

nonmovant’s averment that the movant “asked me to make some of the improvements”

was sufficient to rebut the movant’s averment that “I never requested that [nonmovant]

make improvements”). Smith’s averment was also sufficient to rebut Hargraves’s

averment that CBert was not aware that Smith had put items in Storage Unit #1.

       {¶ 13} We further note that most of our jurisprudence regarding a “self-serving

affidavit” is in postconviction relief cases where the trial court, under appropriate

circumstances, may determine that such an affidavit lacks credibility. See e.g. State v.

Henry, 2017-Ohio-7427, 96 N.E.3d 1139, ¶ 20 (2d Dist.). The issue has also occasionally

arisen in the civil context, where we have held that a self-serving affidavit that contradicts

the same witness’s earlier sworn testimony “should be given no weight.” Kaplun v.

Brenner, 2d Dist. Montgomery No. 17791, 2000 WL 234707, *4. However, this is not a

postconviction case and the affidavit did not contradict prior testimony. The trial court

cited Dalzell v. Rudy Mosketti, L.L.C., 2d Dist. Clark No. 2015-CA-93, 2016-Ohio-3197, ¶

23, for the proposition that a self-serving affidavit containing no more than bald

contradictions of the moving party’s evidence is insufficient to avoid summary judgment.

But in that case the affidavit did contradict, in part, the plaintiff’s earlier deposition

testimony, and it additionally contained unsupported conclusory allegations that the

defendants had knowledge of a defective picnic table. The affidavit here was more than

a bald contradiction of the affidavit submitted by the defense in support of summary

judgment.
                                                                                           -7-


       {¶ 14} Smith’s affidavit alone was sufficient to create a genuine issue of material

fact as to whether CBert authorized her to use Storage Unit #1 and whether CBert was

aware that Smith was storing items there. Smith had no obligation to obtain testimony

from Larkin. Summary judgment on the negligence and conversion claims was not

appropriate.

                                    The statutory claim

       {¶ 15} Smith’s third claim is that CBert violated R.C. 5321.04(A)(8) by entering the

storage unit without notice. R.C. 5321.04(A)(8) requires a landlord, “[e]xcept in the case

of emergency or if it is impracticable to do so, [to] give the tenant reasonable notice of the

landlord’s intent to enter and enter only at reasonable times.” We do not believe this

provision applies to basement storage units.

       {¶ 16} R.C. 5321.04(A)(8) does not specify where, exactly, a landlord may not

enter without notice, but the immediately preceding provision does. R.C. 5321.04(A)(7)

prohibits a landlord from “abus[ing] the right of access conferred by division (B) of section

5321.05 of the Revised Code.” Division (B) of that section gives a landlord the right to

enter the “dwelling unit” for various reasons. We think that R.C. 5321.04(A)(8) is talking

about this right of entry too. R.C. 5321.04(A)(7) prohibits a landlord from abusing the right

of entry into a dwelling unit, and when a landlord does exercise the right of entry, R.C.

5321.04(A)(8) requires that the entry be at a reasonable time (absent an emergency) and

requires the landlord to tell the tenant beforehand about the entry into the dwelling unit.

       {¶ 17} We do not think that a basement storage unit divided by framing and

chicken wire is a “dwelling unit.” R.C. 5321.01(F) defines “dwelling unit” as “a structure or

the part of a structure that is used as a home, residence, or sleeping place by one person
                                                                                        -8-


who maintains a household or by two or more persons who maintain a common

household.” Based on this definition, the Eighth District has held that a landlord does not

violate R.C. 5321.04(A)(7) by entering a storage locker in the laundry room of an

apartment building, because the locker is not a “dwelling unit.” Gibson v. Shephard, 2017-

Ohio-1157, 87 N.E.3d 846, ¶ 39-40 (8th Dist.). Similarly, we do not think that CBert

violated R.C. 5321.04(A)(8) by entering Storage Unit #1 without notice, because the

storage unit is not a “dwelling unit.”

       {¶ 18} Therefore, CBert was entitled to summary judgment on Smith’s claim that it

violated R.C. 5321.04(A)(8).

                                         III. Conclusion

       {¶ 19} The trial court erred when it entered summary judgment for CBert on

Smith’s claims for negligence and conversion; the assignment of error is sustained and

the trial court’s judgment is reversed as to those claims. The trial court’s judgment is

affirmed as to the claim based on R.C. 5321.04(A)(8).

                                         .............



WELBAUM, P.J. and TUCKER, J., concur.


Copies sent to:

Ronald J. Kozar
Jennifer R. Grewe
Hon. Erik R. Blaine
