[Cite as Ingram v. Davis, 2014-Ohio-4387.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 101087



                               WILLIAM W. INGRAM
                                                      PLAINTIFF-APPELLANT

                                                vs.

                                        ALLEN DAVIS
                                                      DEFENDANT-APPELLEE




                                             JUDGMENT:
                                              AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-13-813226


        BEFORE: Celebrezze, P.J., Jones, J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED: October 2, 2014
FOR APPELLANT

William W. Ingram, pro se
2829 East 127th Street
Cleveland, Ohio 44120


ATTORNEY FOR APPELLEE

John F. Albu
2009 Mayview Avenue
Cleveland, Ohio 44109
FRANK D. CELEBREZZE, JR., P.J.:

          {¶1} Appellant, William W. Ingram, pro se, brings this appeal from the grant of

summary judgment in favor of appellee, Allen Davis, for breach of a settlement

agreement and fraud.        Ingram makes several amorphous arguments that are only

marginally discernable by this court.    After a thorough review of the record and law, we

affirm.

                             I. Factual and Procedural History

          {¶2} Several civil cases resulted from a landlord-tenant (with option to purchase)

relationship between Ingram as the tenant and prospective purchaser and Davis as the

landlord owner. In an effort to terminate this litigation, on September 6, 2012, the

parties executed a settlement agreement with mutual releases and a purchase agreement.

The settlement agreement called for Ingram to dismiss with prejudice several cases

pending in the Cleveland Municipal Court, this court, the federal bankruptcy court for the

northern district of Ohio, and the Sixth Circuit Court of Appeals. The parties also agreed

to release any and all claims against each other.   It provides:

          IN CONSIDERATION OF THE FOREGOING, WILLIAM INGRAM
          EXPRESSLY DECLARES AND AGREES THAT THIS IS A FULL
          AND FINAL SETTLEMENT OF ALL THE CASES IDENTIFIED
          HEREIN ABOVE, “WITH PREJUDICE” and does with this instrument
          dismiss with prejudice, all the above identified cases and agrees that the
          parties hereto have compromised and settled their respective claims with
          prejudice and, hereby remise, release and forever discharge each other[,]
          their successors, assigns, heirs, executors, and also any and all other
          persons, associations and corporations, whether herein named or referred to
          or not, and who together with THE PARTIES, may be jointly or severally
          liable, from any and all manner of actions, rights, suites, covenants,
          contracts, agreements, judgments, claims, counter claims[,] cross claims,
       past, present, and future and demands whatsoever in law or equity,
       including claims for contribution arising from and by reason of any and all
       known, unknown, foreseen and unforseen damages and the consequences
       thereof, including all causes of action thereof.

(Emphasis sic.)

       {¶3} The purchase agreement, executed in conjunction with the settlement

agreement, specified that Ingram would purchase the property located at 915 London

Road in Cleveland, Ohio, for a sale price of $27,000 with credits of $9,750 toward the

purchase price.    Ingram was required to pay $17,250 to Davis in exchange for a

quitclaim deed to the property.       The agreement also specified that Ingram would

withhold $200 to pay the final water bill.   Ingram paid $17,250 via certified check, and

the deed was executed and recorded.

       {¶4} On September 4, 2013, Ingram filed a complaint seeking $10,256 in

compensatory damages as well as punitive damages relating to the breach of purchase

agreement.   On October 2, 2013, Davis filed an answer raising several defenses and

appearing to seek dismissal of the complaint within his answer without making arguments

relating to Civ.R. 12(B).

       {¶5} On October 9, 2013, Ingram filed a motion for default judgment claiming

Davis failed to answer or failed to serve him at a proper address.   The trial court denied

the motion, but Ingram continued to file motions for default judgment.      On November

12, 2013, Ingram also filed a motion to compel Davis to produce documents. This

motion was denied because Ingram had not sought discovery directly from Davis. Davis

filed for summary judgment on December 3, 2013, arguing that Ingram’s claims were the
subject of the prior settlement agreement and that Ingram agreed in that settlement to

release those claims.    After a few rounds of replies and sur-replies, the trial court, on

February 7, 2014, granted Davis’s motion for summary judgment. Ingram then filed the

instant appeal, assigning eight errors for review:

       I. [The trial] court erred [by] not entertaining breach of contract to enforce a
       fraud claim whether it have [sic] or have [sic] jurisdiction over
       unconditionally settle [sic] & dismissed an [sic] a joint settlement
       adjudicating all claims[.]1

       II. [The trial] court erred [and] abuse[d] its discretion denying all appellant
       [sic] discovery request [sic] for the court to look at all the evidence to
       review cause [sic] a judgment entry sign[ed] by a judge with no evidence of
       time stamp or Journalization or certification is insufficient to support a
       claim of res judicata.

       III. [The trial] court erred in calculating time answer [sic] to complaint was
       not send [sic] to addreess [sic] where appellant live [sic] prior to filing the
       complaint an [sic] allowing appellee to proceed without showing of
       excusable neglect[.]

       IV. [The trial] court erred granting summary judgment after CMC hearing
       an [sic] pretrail [sic] were set allowing appellee [to] file summary judgment
       without requesting leave of court[.]

       V. [The trial] court erred in determining in favor of the non moving party
       opposing the motion because condition [sic] were not met showing a
       genuine issue of material fact exists[;] fraud in the release terms disguising
       terms an [sic] concealing terms claiming funds were given on an earlier
       transaction to avoid paying appellant his funds[.]

       VI. [The trial] court erred in determining the evidence, [sic] evidence shows
       genuine issue of material fact exsits [sic] municipal court judgment states
       other matters are mention [sic] but accordingly the case being resolve [sic]


          The trial court did exercise jurisdiction over this case, so this assignment of error is
       1


overruled out of hand.
      but execution of the terms remaining in contest preclude summary judgment
      terms remaining in contest[.]

      VII. [The trial] court erred not [sic] giving a summary judgment hearing to
      determine the issue before granting summary judgment[.]

      VIII. [The trial] court erred [sic] summary judgment can not be used

      without evidence showing condition were [sic] met or condition not met in

      a settlement.

                                 II. Law and Analysis

                               A. Summary Judgment

      {¶6} The trial court granted Davis’s motion for summary judgment.

             “Civ.R. 56(C) specifically provides that before summary judgment
      may be granted, it must be determined that: (1) No genuine issue as to any
      material fact remains 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).

      {¶7} It is well established that the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial with specific

reference to admissible evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct.

2548, 91 L.Ed.2d 265 (1986); Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d

798 (1988).   The nonmoving party has a reciprocal burden of specificity and cannot rest

on mere allegations or denials in the pleadings.   Dresher v. Burt, 75 Ohio St.3d 280,
293, 662 N.E.2d 264 (1996). The nonmoving party must set forth “specific facts” by the

means listed in Civ.R. 56(C) showing a genuine issue for trial exists. Id.

       {¶8} This court reviews the lower court’s granting of summary judgment de novo.

 Brown v. Scioto Cty. Commrs., 87 Ohio App.3d 704, 622 N.E.2d 1153 (4th Dist.1993).

An appellate court reviewing the grant of summary judgment must follow the standards

set forth in Civ.R. 56(C). “The reviewing court evaluates the record * * * in a light most

favorable to the nonmoving party. * * * [T]he motion must be overruled if reasonable

minds could find for the party opposing the motion.” Saunders v. McFaul, 71 Ohio

App.3d 46, 50, 593 N.E.2d 24 (8th Dist.1990).

       {¶9} Ingram’s complaint is unclear as to all the causes of action, but a fraud claim

and a breach of contract claim are apparent.    Ingram alleges that Davis committed fraud

by replacing a page of the settlement agreement that was filed with the court in the earlier

actions.   Ingram did not offer any evidence to support his claim, such as an alternate

version of the first page of the agreement he executed or even a valid affidavit.

Ingram’s fraud claim is entirely unsupported in the record.   Therefore, the trial court did

not err in granting summary judgment on that issue.

       {¶10} Ingram’s breach of contract claim asserts that Davis breached the purchase

agreement by failing to give him certain credits and by failing to give him $200 to satisfy

the final water bill.   Ignoring for the moment the settlement agreement Ingram executed,

the purchase agreement called for Ingram to withhold $200 for the water bill.       Instead,

Ingram tendered the full amount. Under the precise terms of the agreement, the onus was
on Ingram to retain $200 to satisfy the water bill.2 Beyond that, Ingram did not support

his claim that Davis did not satisfy the water bill at the time of transfer. No admissible

evidence, such as properly authenticated account statements from any water department,

was supplied by Ingram in the record documenting that a balance was owed at the time of

transfer.

       {¶11} Ingram’s claim that Davis breached the agreement by failing to satisfy any

bill for water and sewer at the time of transfer is wholly unsupported.        Therefore, the

trial court did not err in granting summary judgment on this breach of contract claim.

       {¶12} Ingram also argues that certain rental payments that were to be credited

toward the purchase of the home were not given to him.               However, the purchase

agreement set forth all the credits to which Ingram was entitled.     If there were additional

credits, those should have been set forth in the purchase agreement.         Ingram received

$9,750 in credits, which accounted for all the credits that were due according to the terms

of the purchase agreement.     Ingram agreed to the terms set forth in that agreement.       If

the basis for these credits is from a previous agreement, then Ingram released any claim

when he signed the purchase agreement.

       {¶13} Ingram also claims that he must be reimbursed by Davis for rent he paid to

live at another address because at the time the property was sold to him there was a lease

agreement with another tenant to live in the home.             The purchase agreement, a


          Ingram also makes an incomprehensible argument about “water rents” that Davis owes to
       2


him totaling thousands of dollars.
single-page document that bears Ingram’s signature, indicates that Ingram would take the

property subject to the existing lease. Ingram was put on notice of the existing tenant

and agreed to respect the existing lease with that tenant.

       {¶14} Therefore, the trial court did not err in granting summary judgment on this

breach of contract claim.

                                    B. Procedural Issues

       {¶15} Ingram argues the trial court erred in allowing Davis to file a summary

judgment motion and ruling on it.

       {¶16} “There is a basic due process right that ‘defense counsel be afforded the

reasonable opportunity to prepare his case.’ State v. Sowders, 4 Ohio St.3d 143, 144, 447

N.E.2d 118 (1983). Nevertheless, the court retains control over the disposition of its

trial docket * * *.”         State v. Schwarzman, 8th Dist. Cuyahoga No. 100337,

2014-Ohio-2393, ¶ 3.

       {¶17} As Loc.R. 21 provides, the trial court, at the first case management

conference, may set dates by which discovery must be complete and motions submitted.

The rule provides in part:

       For the purpose of insuring the readiness of cases for pretrial and trial, the
       following procedure shall be in effect. Within ninety (90) days after suit is
       filed, the case shall be set by the Court for a Case Management Conference
       to establish case management procedures to prepare the case for an
       effective final pretrial. At that time the Court will take appropriate action on
       the service, leaves to plead, time limitations for discovery, scheduling a date
       for the pretrial hearing and any other steps warranted under the
       circumstances.
       {¶18} The trial court’s November 12, 2013 journal entry clearly sets out a

discovery schedule and a cut-off date for motions for summary judgment of December 6,

2013. Davis filed his motion for summary judgment on December 3, 2013. Ingram’s

assignment of error related to the timeliness of Davis’s summary judgment motion, and

the need to request leave of the court is contradicted by the record.

       {¶19} Accordingly, the trial court did not err in ruling on Davis’s motion for

summary judgment.

       {¶20} Ingram also argues that the trial court erred in ruling on the motion without

holding a hearing.

       {¶21} Loc.R. 11(I)(2) specifies that “[u]nless otherwise ordered by the Court,

motions for summary judgment shall be heard on briefs and accompanying evidentiary

materials (as permitted by civil rule 56 ([C])) without oral argument.” See also Loc.R.

11(A) (“[m]otions, in general, shall be submitted and determined upon the motion papers.

Oral arguments of motions may be permitted on application and proper showing”).

       {¶22} The trial court is not required to hold an oral hearing, and Ingram never

requested one in his numerous responses to Davis’s motion. The trial court properly

determined the issue after giving the appropriate time for response under the local rule.

See Loc.R. 11(I)(1) (30 days to respond).

       {¶23} The Ninth District came to the same conclusion, noting “‘a trial court is not

required to set or hold a hearing prior to ruling on a motion for summary judgment.

Rather, “the non-moving party is entitled simply to sufficient notice of the filing of the
motion (pursuant to) Civ.R. 5 and an adequate opportunity to respond (pursuant to) Civ.R.

56(C).”’”   Marino v. Oriana House, Inc., 9th Dist. Summit No. 23389, 2007-Ohio-1823,

¶ 12, quoting Ralston v. Difiglio, 9th Dist. Summit No. 19875, 2000 Ohio App. LEXIS

3334, *6 (Jul. 26, 2000), quoting Brown v. Akron Beacon Journal Publishing Co., 81

Ohio App.3d 135, 139, 610 N.E.2d 507 (8th Dist.1991).

       {¶24} Therefore, the trial court did not commit any procedural error when it ruled

on Davis’s motion for summary judgment.

                                     III. Conclusion

       {¶25} Ingram’s claims of error in this case are not supported in the record. Even

giving Ingram the benefit of the doubt — that his entire suit was not barred by res

judicata because of the prior settlement agreement — his claims fail to demonstrate that a

genuine issue of material fact exists in the case that would entitle him to relief after Davis

properly demonstrated that he was entitled to summary judgment because he did not

breach the purchase agreement or commit fraud.         Therefore, the trial court’s grant of

summary judgment in Davis’s favor is affirmed.

       {¶26} Judgment affirmed.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the common pleas court 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.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

LARRY A. JONES, SR., J., and
EILEEN A. GALLAGHER, J., CONCUR
