 [Cite as Taylor v. Taylor, 2014-Ohio-1450.]




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

 CLARA TAYLOR                                      :
                                                   :     Appellate Case No.   2013-CA-43
         Plaintiff-Appellant                       :
                                                   :     Trial Court Case No. 2012-CV-795
 v.                                                :
                                                   :
 SUSAN M. TAYLOR                                   :     (Civil Appeal from
                                                   :     (Common Pleas Court)
         Defendant-Appellee                        :
                                                   :

                                               ...........

                                               OPINION

                               Rendered on the 4th day of April, 2014.

                                               ...........

THOMAS J. BUECKER, Atty. Reg. No. 0020487, 306 West High Street, P.O. Box 1215, Piqua,
Ohio 45356
       Attorney for Plaintiff-Appellant

FRANK J. PATRIZIO, Atty. Reg. No. 0055468, 123 Market Street, P.O. Box 910, Piqua, Ohio
45356
      Attorney for Defendant-Appellee

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

WELBAUM, J.

       {¶ 1}        In this case, we are asked to decide whether the trial court erred when it
                                                                                                 2


granted summary judgment and dismissed a complaint seeking payment on an alleged debt. We

find that, under the circumstances of this case, the trial court did not err in granting summary

judgment and dismissing the complaint. Accordingly, the judgment of the trial court will be

affirmed.



                                 I. FACTS AND COURSE OF PROCEEDINGS

       {¶ 2}             Plaintiff-Appellant, Clara Taylor, brought this action against her former

daughter-in-law, Defendant-Appellee, Susan M. Taylor.1 Clara sought a judgment in the trial

court against Susan in the amount of $32,680.19, as repayment for bills that Clara allegedly paid

directly to creditors of her son, Larry, and his former wife, Susan, during their marriage.

       {¶ 3}             In consideration for these payments, Larry signed a promissory note payable to

Clara. See Doc. #8, Exhibit A, p.7. However, Susan filed an un-refuted affidavit in support of

summary judgment, which stated the following facts. First, Susan was not present at any

meetings when Clara and Larry discussed Clara’s payment of the bills. In addition, while Susan

was aware of the payments after Clara made them, Susan never asked Clara to pay any bills on

her behalf, and she never agreed to repay any money to Clara.

       {¶ 4}           After considering the evidence, the trial court granted summary judgment in

favor of Susan. The court noted in passing that the trial court in the divorce decision had

previously found that the money provided by Clara Taylor was “ ‘not a marital debt’ ” because

Susan could not be obligated to “ ‘pay for monies advanced that she did not know about or agree

to, prior to its occurrence.’ ” Trial Court Doc. #10, p. 3, quoting Decision, Taylor v. Taylor,

         1
            For purposes of convenience, we will refer to the parties by their first names.
                                                                                           3


Miami C.P. Case No. 11DR296, Exhibit to Motion for Summary Judgment, Trial Court Doc. #8,

Exhibit B, pp. 6-7. The Decision in the divorce action stated that Larry’s mother (Clara) testified

concerning the loan. Id.

        {¶ 5}    Clara claims that the trial court erred in granting summary judgment and

dismissing her complaint. We disagree, and affirm.



                                 II. ASSIGNMENT OF ERROR

        {¶ 6} Clara’s sole assignment of error states that:

                The trial court committed prejudicial and reversible error when it granted

        Appellee’s Motion for Summary Judgment on Count One given there are genuine

        issues of factual dispute in the record and the Appellee is not entitled to judgment

        as a matter of law.



                                      A. LEGAL ANALYSIS

{¶ 7}     Initially, we note that we review a summary judgment de novo, by independently

assessing the judgment without deference to the trial court's determination. Koos v. Cent. Ohio

Cellular, Inc., 94 Ohio App.3d 579, 588, 641 N.E.2d 265 (8th Dist.1994), citing Brown v. Scioto

Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). “As a result,

this court applies the same summary judgment standard as the trial court and must affirm the trial

court's judgment if any valid grounds are found on appeal to support it * * * .” Coventry Twp. v.

Ecker, 101 Ohio App.3d 38, 41-42, 654 N.E.2d 1327 (9th Dist.1995).

{¶ 8}     Pursuant to Civ.R. 56(C):
[Cite as Taylor v. Taylor, 2014-Ohio-1450.]
                 Summary judgment shall be rendered forthwith if the pleadings,

        depositions, answers to interrogatories, written admissions, affidavits, transcripts

        of evidence, and written stipulations of fact, if any, timely filed in the action, show

        that there is no genuine issue as to any material fact and that the moving party is

        entitled to judgment as a matter of law.

        {¶ 9}      Accordingly, summary judgment is appropriate only under the following

circumstances: (1) no genuine issue of material fact remains to be litigated; (2) the moving party

is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of

the non-moving party, reasonable minds can come to but one conclusion, that conclusion being

adverse to the non-moving party. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66,

375 N.E.2d 46 (1978).          Because summary judgment is a procedural device to terminate

litigation, courts should award it cautiously after resolving all doubts in favor of the non-moving

party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59, 604 N.E.2d 138 (1992), citing

Norris v. Ohio Std. Oil Co., 70 Ohio St.2d 1, 2, 433 N.E.2d 615 (1982).

        {¶ 10}     When a party moves for summary judgment on the ground that the non-moving

party cannot prove its case, the movant “bears the initial responsibility of informing the trial court

of the basis for the motion, and identifying those portions of the record before the trial court

which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving

party's claim.” Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). “[I]f the

moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden

outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial

and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered

against the nonmoving party.” Id. at 293-294.
                                                                                          5


       {¶ 11}    In arguing that summary judgment was not warranted, Clara relied on portions

of an apparent transcript of testimony of an unidentified witness that was attached to her

memorandum in opposition to the motion for summary judgment . At the top of the first page of

the alleged transcript, the following is written in cursive: “Transcript of the trial in Taylor v.

Taylor, 11 DR 296.” However, the trial court noted that no such transcript had been filed in the

case before it. The court, therefore, declined to consider the evidence because it did not comply

with Civil Rule 56(C), which requires that a transcript must be filed in the case when the court

decides a motion for summary judgment. See Doc. #10, pp. 2-3.

       {¶ 12}    The trial court was correct in holding that the form of Clara’s document did not

satisfy the requirements of Civ.R. 56.     Specifically, a transcript must be filed or must be

otherwise authenticated.   See, e.g., Wholesale Builders Supply Inc. v. Greene-Source Dev.,

L.L.C., 8th Dist. Cuyahoga No. 99711, 2013-Ohio-5129, ¶ 9; Gordon v. Dziak, 8th Dist.

Cuyahoga No. 88882, 2008-Ohio-570, ¶ 19, fn. 4; and Elridge v. City of Cleveland, 8th Dist.

Cuyahoga No. 83776, 2004-Ohio-3604, ¶16. Materials must comply with Civ.R.56(C) or (E) to

be considered as evidence when the court decides a summary judgment motion.

       {¶ 13}    In this regard, we have explained that under Civ.R. 56(E):

                “When a motion for summary judgment is made and supported as provided

       in this rule, an adverse party may not rest upon the mere allegations or denials of

       the party's pleadings, but the party's response, by affidavit or as otherwise

       provided in this rule, must set forth specific facts showing that there is a genuine

       issue for trial.    If the party does not so respond, summary judgment, if

       appropriate, shall be entered against the party.” (Emphasis sic.) Deutsche Bank

       Trust Co. v. Ziegler, 2d Dist. Montgomery No. 25744, 2014-Ohio-471, ¶ 17.
                                                                                            6


       {¶ 14}    As an additional matter, we note that Clara has attached the same unfiled

transcript to her brief. We cannot consider matters that are not part of the record before the trial

court, and then decide the appeal on the basis of the new matter. Cincinnati Ins. v. Jacob, 2d

Dist. Montgomery No. 25407, 2013-Ohio-2573, ¶ 13, citing State v. Ishmail, 54 Ohio St.2d 402,

377 N.E.2d 500 (1978), syllabus. See, also, Phung v. Waste Management, Inc., 23 Ohio St.3d

100, 102, 491 N.E.2d 1114 (1986) (noting that appellate courts “may not assume as true or even

consider facts alleged in a party's brief or attachments thereto.”) (Citation omitted.)

       {¶ 15}    Notably, Susan’s factual assertions in support of her summary judgment motion

were undisputed. These materials indicate that Susan did not participate in any discussions with

Clara about paying their family’s bills. Susan also did not agree to a loan, nor did she agree to

repay the expenditures. In addition, Susan had no knowledge of Clara’s payments until after the

fact. Accordingly, the trial court did not err in granting summary judgment in Susan’s favor.

Clara’s sole assignment of error, therefore, is overruled.

                                          III. Conclusion

        {¶ 16} Clara’s sole assignment of error having been overruled, the judgment of the trial
court is affirmed.

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


FROELICH, P.J., and HALL, J.,        concur.



Copies mailed to:

Thomas J. Buecker
Frank J. Patrizio
Hon. Christopher Gee
