[Cite as Stanley v. Gore, 2016-Ohio-3233.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


Pamela Stanley,                                    :

                 Plaintiff-Appellee,               :
                                                                    No. 15AP-722
v.                                                 :            (M.C. No. 2015 CVG 3813)

Leonard P. Gore, II,                               :           (REGULAR CALENDAR)

                 Defendant-Appellant.              :




                                             D E C I S I O N

                                       Rendered on May 31, 2016


                 On brief: David K. Lowe, for appellee.

                 On brief: Mark S. Gutentag, for appellant.

                       APPEAL from the Franklin County Municipal Court

DORRIAN, P.J.
        {¶ 1} Defendant-appellant, Leonard P. Gore, II, appeals the June 29, 2015
decision and judgment entry of the Franklin County Municipal Court granting summary
judgment in favor of plaintiff-appellee, Pamela Stanley. For the following reasons, we
affirm the judgment of the trial court.
I. Facts and Procedural History
        {¶ 2} This matter concerns a lease agreement between appellee and appellant, the
lessor and lessee, respectively, for a property on Mound Street located in Columbus, Ohio.
The agreement provided that the term of the lease would be two years commencing on
May 6, 2014. The agreement required a monthly rental payment of $2,400. Appellant
was responsible for all gas, electric, sewer, water, light, heat, power, telephone, and other
services on the leased property. Appellant was also required to "keep and maintain and
No. 15AP-722                                                                               2


make all necessary repairs and replacements to the leased property and to the pipes,
heating system, plumbing system, window glass, fixtures, and all other appliances and
appurtenances belonging thereto," in addition to other portions of the property listed by
the agreement. (Motion for Summary Judgment, exhibit B at 4.) The agreement reflected
that it was signed by the parties on May 6, 2014.
       {¶ 3} On February 2, 2015, appellee filed a complaint in the trial court asserting a
claim for the eviction of appellant from appellee's property. Appellee also asserted a claim
for damages, alleging that appellant owed rent in the amount of $3,800, late charges in
the amount of $1,400, damages to the property in the amount of $5,500, and unspecified
damages for payment of utilities. On February 23, 2015, appellee dismissed her claim for
eviction, but continued to assert her claim for unpaid rent, damages to the property, and
utilities. On February 27, 2015, appellant filed a document asserting that appellee illegally
evicted him from the property, admitting that he owed $3,800 in rent, and denying any
damages to the property.
       {¶ 4} On May 15, 2015, appellee filed a motion for summary judgment. In the
memorandum in support of her motion, appellee asserted that her damages exceeded the
$15,000 jurisdictional limit of the court, but waived any claim for damages above that
amount. On May 29, 2015, appellant filed a document responding to appellee's motion
for summary judgment. On June 4, 2015, appellee filed a reply. On June 29, 2015, the
trial court granted appellee's motion for summary judgment.
II. Assignment of Error
       {¶ 5} Appellant appeals and assigns the following single assignment of error for
our review:
               THE TRIAL COURT ERRED IN GRANTING PLAINTIFF/-
               APPELLEE'S MOTION FOR SUMMARY JUDGMENT.

III. Discussion
       {¶ 6} In his sole assignment of error, appellant asserts that the trial court erred in
granting appellee's motion for summary judgment because (1) the trial court failed to
consider appellant's memorandum contra the motion for summary judgment, and
(2) appellee breached the lease agreement by failing to arbitrate the dispute as required
under the terms of the agreement.
No. 15AP-722                                                                               3


       {¶ 7} An appellate court reviews summary judgment under a de novo standard.
Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995); Koos v. Cent. Ohio
Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994).            Summary judgment is
appropriate only when the moving party demonstrates: (1) no genuine issue of material
fact exists, (2) the moving party is entitled to judgment as a matter of law, and
(3) reasonable minds could come to but one conclusion and that conclusion is adverse to
the party against whom the motion for summary judgment is made, that party being
entitled to have the evidence most strongly construed in its favor. Civ.R. 56(C); State ex
rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183 (1997).
       {¶ 8} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of
informing the trial court of the basis for the motion and of identifying those portions of
the record demonstrating the absence of a genuine issue of material fact. Dresher v. Burt,
75 Ohio St.3d 280, 293 (1996). If the moving party fails to satisfy its initial burden, the
court must deny the motion for summary judgment; however, if the moving party satisfies
its initial burden, summary judgment is appropriate unless the non-moving party
responds, by affidavit or otherwise as provided under Civ.R. 56, with specific facts
demonstrating a genuine issue exists for trial. Id.; Hall v. Ohio State Univ. College of
Humanities, 10th Dist. No. 11AP-1068, 2012-Ohio-5036, ¶ 12, citing Henkle v. Henkle, 75
Ohio App.3d 732, 735 (12th Dist.1991).
       {¶ 9} In this case, the trial court granted summary judgment in favor of appellee
on her claim for breach of the lease agreement. Specifically, appellee asserted that
appellant owed her $12,400 in unpaid rent pursuant to the parties' lease agreement,
damages to the property in an amount exceeding $5,000, and $553 in utility charges. We,
therefore, begin by examining whether appellee, as the moving party, met her burden of
identifying those portions of the record demonstrating the absence of a genuine issue of
material fact.
       {¶ 10} In support of her motion for summary judgment, appellee submitted her
own affidavit, a copy of the lease agreement, copies of water utility bills, the affidavit of
Mark Walters, pictures of damages to the property, and a copy of a bill for HVAC
equipment. In her affidavit, appellee stated that the lease agreement attached to the
motion for summary judgment was a true and accurate copy of the agreement between
No. 15AP-722                                                                                 4


her and appellant. Appellee stated that appellant "stopped paying rent beginning with the
December 2014 rent payment." (Appellee's Affidavit at ¶ 4.) Both appellee's and
appellant's signatures are reflected on the lease agreement. Based on our review of the
record, we find that appellee, with reference to materials of the kind contemplated by
Civ.R. 56(E), met her initial burden of identifying those portions of the record
demonstrating an absence of a genuine issue of material fact.
       {¶ 11} Next, we consider whether appellant's response, by affidavit or as otherwise
provided by Civ.R. 56, sets forth specific facts demonstrating a genuine issue for trial.
Civ.R. 56(E); Dresher at 293. We begin by noting that, contrary to the statement of the
trial court in its June 29, 2015 decision and judgment entry, appellant did file a response
to appellee's motion for summary judgment. Although it was not labeled as such, appellee
does not contest that appellant's filing on May 29, 2015 was a memorandum contra.
However, appellant failed to file an affidavit or other evidentiary materials as
contemplated by Civ.R. 56 in support of his response. Therefore, on independent review
of the record, we find that appellant failed to set forth specific facts demonstrating a
genuine issue of material fact. As a result, any error resulting from the trial court's failure
to consider appellant's memorandum contra was harmless.
       {¶ 12} Finally, appellant contends that the trial court erred by granting summary
judgment because the lease agreement contained a mandatory arbitration clause.
However, appellant failed to raise such argument before the trial court either in his
answer to the complaint or in response to the motion for summary judgment. Therefore,
we decline to consider appellant's argument for the first time on appeal. Brisco v. U.S.
Restoration & Remodeling, Inc., 10th Dist. No. 14AP-533, 2015-Ohio-3567, ¶ 21, citing
Hamilton v. Dayton Corr. Inst., 10th Dist. No. 06AP-469, 2007-Ohio-13, ¶ 8; Open
Container, Ltd. v. CB Richard Ellis, Inc., 10th Dist. No. 14AP-133, 2015-Ohio-85, ¶ 22,
citing State ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276, 278 (1993); Ahmed v.
Wise, 10th Dist. No. 12AP-613, 2013-Ohio-2211, ¶ 28, citing Portage Cty. Bd. of Commrs.
v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, ¶ 112.
       {¶ 13} Accordingly, appellant's sole assignment of error is overruled.
No. 15AP-722                                                                   5


IV. Conclusion
      {¶ 14} Having overruled appellant's sole assignment of error, we affirm the
judgment of the Franklin County Municipal Court.
                                                              Judgment affirmed.

                         KLATT and BRUNNER, JJ., concur.
