IN THE SUPREME COURT OF OHIO BONNIEVILLE TOWERS CONDOMINIUM ) CASE NO.: 2008-1293 OWNERS ASSOCIATION, INC. ) ) Appellee ) ON APPEAL FROM THE CUYAHOGA ) COUNTY COURT OF APPEALS, vs. ) EIGHTH APPELLATE DISTRICT ) CASE NO.: CA-07-089838 PAUL ANDREWS, et al. ) ) Appellants ) ) APPELLEE'S MEMORANDUM IN RESPONSE Kevin R. McMillan (0069428) Attorney for Appellee, Counsel of Record 25550 Chagrin Boulevard, Suite 403 Beachwood, OH 44122 (216)595-8222 (216)595-8230 - fax kmcmillan@kmslawfirm.com Avery H. Fromet (0030012) Attorney for Appellee 25550 Chagrin Boulevard, Suite 403 Beachwood, OH 44122 (216)595-8222 (216)595-8230 - fax JUL 3 12008 CLERK OF COURT SUPREM COURT OF pnfo Z. Elise L. Farrell (0022256) Attorney for Appellants P.O. Box 21162 South Euclid, OH 44121 216-339-8415 ATTORNEYS AT 1.AW 25550 CHAGRIN BOULEVARD, SUITE 403 ' BEAOHWOOD, OHIO 44122 TELEPHONE (216) 595-8222 FAx f2161 595-8230
TABLE OF CONTENTS Table of Authorities. :............................................... :..... i Brief Statement of the Case... I Law and Argument... 2 I. This Case Does Not Present Issues of Public or Great General Interest, or Involve Substantial Constitutional Issues... 2 II. Neither the Court of Appeals nor the Trial Court Found that Andrews Waived the Issue of the Sufficiency of Service of Process, but Rather They Correctly Determined that He Failed to Rebut the Presumption of Ordinary Mail Service Upon Him.................................. 3 III. Appellants' Res Judicata, Collateral Estoppel, and Election of Remedy Arguments are Inapposite Because the Referenced Common Pleas Case Was a Foreclosure Judgment upon a Different Parcel of Property Owned by Andrews and the Arguments are also an Impermissible Collateral Attack upon the Judgment Underlying the Judgment Lien... 4 IV. The Trial Court Did Not Change the Summary Judgment Hearing Date...... 4 V. Appellants' Summary Judgment Arguments Did Not Raise a Genuine Issue of Material Fact............................ 5 Conclusion... 6 Certificate of Service...................................................... 6 PAGE ATTORNEYS AT LAW 25550 CiHAGRIN BOULEVARD, SUITE 403 ' BEAGHWOOD, 01110 44122 TELEPHONE 12I61 595-8222 FAx 1216I 595-8230
TABLE OF AUTHORITIES CASES PAGE Bonnieville Towers Condominium Owners Association v. Andrews, Cuyahoga App. No. 86868, 2006-Ohio-2219... 1 Bonnieville Towers Condominium Owners Association v. Andrews, Cuyahoga App. No. 89838, 2008-Ohio-1833... Gliozzo v. University Urologist, Inc., 114 Ohio St. 3d. 141, 2007-Ohio-3762... RULE Local Rule 11... ATTORNEYSATLAW 25550 CHAGRIN 130ULEVARD, SUITE 403 ' BEAOHWOOD, OHIO 44122 'TELEPHONE (216) 595-8222 FAx 12161595-8230
BRIEF STATEMENT OF THE CASE This case relates to Appellee Bonneville Towers Condominium Owners Association, Inc.'s attempt to foreclose upon its Judgment Lien which arose out of a Default Judgment against Paul Andrews in the Euclid Municipal Court for unpaid maintenance fees and other assessments. On May 11, 2004, Bonneville obtained a Default Judgment against Andrews in the Euclid Municipal Court in the amount of $10,829.48, plus interest and court costs. Appellant Andrews made no direct appeal from this decision. Shortly thereafter, on June 8, 2004, Bonneville filed its Judgment Lien upon realty owned by Andrews, including that located at 3914 Bluestone Road, Cleveland Heights, Ohio. On September 8, 2004, Bonneville filed a Complaint to foreclose upon the Judgment Lien in the Cuyahoga County Court of Common Pleas. On November 26, 2004, Andrews filed a Notice of Appearance and requested a continuance to file his Answer. On December 30, 2004, Andrews filed his Answer. On May 6, 2005, while the within foreclosure Complaint was pending in the Cuyahoga County Court of Common Pleas, Andrews filed a Motion to Vacate the Default Judgment entered by the Euclid Municipal Court. The Motion to Vacate the Judgment was denied by the Euclid Municipal Court. Andrews appealed this decision of the Euclid Municipal Court to the Eighth District Court of Appeals. On May 4, 2006, the Eighth District Court of Appeals affirmed the decision of the Euclid Municipal Court.' 'See Bonnieville Towers Condominium Owners Associatton v. Andrews, Cuyahoga App. No. 86868, 2006-Ohio-2219. -1- ATTORNEVSATLAw 25550 CiHAORIN BOULEVARD, SUITE 403 ' BEAGHw00D, OHIO 44122 ' TELEPHONE (216) 595-8222 ' FAx (216) 595-8230
In the within foreclosure case, the trial court granted Bonneville's Motion for Summary Judgment against Andrews on May 3, 2005. Due to a potential dower interest in the property, Bonneville filed an Amended Complaint naming Andrews' wife, Z. Elise L. Farrell, as a New Party Defendant. On February 13, 2007, the trial court granted Bonneville's Motion for Summary Judgment against Farrell. Thereafter, on February 26, 2007, the Magistrate issued a lengthy decision granting foreclosure to Bonneville. On April 12, 2007, the trial court overruled Andrews' and Farrell's objections and adopted the Magistrate's Decision with two minor corrections. Andrews and Farrell appealed the Decision of the trial court to the Eighth District Court of Appeals. The Eighth District Court of Appeals affirmed the trial court's decision.2 Appellants seek Ohio Supreme Court review of this decision. LAW AND ARGUMENT L This Case Does Not Present Issues of Public or Great General Interest, or Involve Substantial Constitutional Issues. As a general matter, this case does not present issues of public or great general interest or involve substantial constitutional issues. Rather, the underlying case seeks foreclosure of a judgment lien upon a piece of real property owned by Andrews related to unpaid maintenance fees and assessments. In fact, Appellants misrepresent much of the record of the trial court and appellate court in an attempt to oversell the otherwise straightforward issues involved in the case. Although Appellants raise multiple issues, many of the issues of which they seeks redress are not subject to review in this case, but rather reflect their ongoing attempt to collaterally attack the ZBonnieville Towers Condominium Owners Association v. Andrews, Cuyahoga App. No. 89838, 2008-Ohio-1833. -2- ATTORNEYS AT LAW 25550 GHAGRIN BOULEVARD, SUITE 403 6 BEAGHWOOD, OHIO 44122 ' TELEPHONE (216) 595-8222 ' rax (216) 595-8230
Euclid Municipal Court judgment underlying the judgment lien. Therefore, Bonneville respectfully requests that this Court decline to exercise jurisdiction to hear the appeal. II. Neither the Court of Appeals nor the Trial Court Found that Andrews Waived the Issue of the Sufficiency of Service of Process, but Rather They Correctly Determined that He Failed to Rebut the Presumption of Ordinary Mail Service Upon Him. Appellants assert that their issue regarding service of process is important for Ohio Supreme Court review because the underlying trial court and court of appeals decision runs counter to the Ohio Supreme Court case Gliozzo v. University Urologists, Inc.,' which held that a Defendant does not waive insufficiency of service of process defenses by appearing in a case and filing an answer so long as the defense of insufficiency of process is maintained by Defendant in its pleadings. However, in the case at hand, neither the trial court or the court of appeals determined that the Andrews waived his insufficiency of service defense. To the contrary, the Eighth District Court of Appeals found that although Defendant did not waive the defense of insufficiency of service of process, that Andrews' assertions regarding process did not rebut the presumption that he was served by ordinary mail. Rather, the court noted that although Andrews recited that he lived in New York during the filing of the Complaint, that he never asserted that he did not receive the summons and complaint mailed to him. Further, the court noted that he entered a timely appearance, moved for an extension of the answer date, filed an answer, and vigorously defended the matter. In addition, the Eighth District Court of Appeals distinguished the line of cases relied upon by Appellant that related to the issue of service of process in default judgment cases-which was not the issue before the court. In any event, this matter does not 3Gliozzo v. University Urologist, Inc., 114 Ohio St. 3d. 141, 2007-Ohio-3762. -3- KABAT, MIELZZNER & SOBEL ATTORNEYS AT I.AW 25550 GHAGRIN 130ULEVARD, SUITE 403 ' BEAGHW00D, OHIO 44122 TELEPHONE 12f6) 595-8222 ' FAx (2161 595-8230
involve a matter of public or great general interest or a substantial constitutional question as it relates to a narrow set of facts and does not even engage the issues decided in Gliozzo. III. Appellants' Res Judicata, Collateral Estoppel, and Election of Remedy Arguments are Inapposite Because the Referenced Common Pleas Case Was a Foreclosure Judgment upon a Different Parcel of Property Owned by Andrews and the Arguments are also an Impermissible Collateral Attack upon the Judgment Underlying the Judgment Lien Appellants assert res judicata, collateral estoppel and election of remedy as issues which involve great public interest. However, in this case, Bonneville is seeking to foreclose upon the Bluestone residence of Andrews to satisfy a judgment lien received in the Euclid Municipal Court. In 2002, Bonneville filed another foreclosure case in the Cuyahoga County Court of Common Pleas, seeking foreclosure judgment upon a different parcel of real property owned by Andrews. Quite simply, and as the Eighth District Court of Appeals found, res judicata does not bar the present action seeking to foreclose upon another residence to satisfy its valid judgment lien. As is clear from Appellants' Memorandum in Support of Jurisdiction, Appellants simply seek to collaterally attack the Euclid Municipal Court judgment, which had already been affirmed by the Eighth District Court of Appeals. Therefore, Appellants' argument of resjudicata, collateral estoppel and election of remedies does not raise an issue of great public and general concern. IV. The Trial Court Did Not Change the Summary Judgment Hearing Date The trial court did not violate the Appellants' constitutional rights by changing an important hearing date, because it did not change the summary judgment hearing date. Appellants misrepresent the record of the Court. Quite simply, the Trial Court created a dispositive motion cut off date of February 19, 2007. Bonneville filed its Motion for Summary -4- ATTORNEYS AT I.AW 25550 GHAGRIN BOULEVARD. SUITE 403 ' BEAGHWOOD, OHIO 44122 ' TELEPHONE (216) 595-8222 ' FAX (216) 595-8230
Judgment on January 2, 2007. Therefore, pursuant to local rule, Appellants' Response Brief was due within 30 days. Therefore, the Trial Court did not err in issuing its decision on February 13, 2007, six days prior to the dispositive motion deadline. Therefore, not only does Appellants' issue not raise any substantial constitutional question or question of public or great general interest, it is not even based on an accurate reflection of the record. V. Appellants' Summary Judgment Arguments Did Not Raise a Genuine Issue of Material Fact Next, Appellants request that this Court accept jurisdiction of this case based upon its arguments related to summary judgment. Quite simply, in the case at hand, the trial court granted Summary Judgment and the court of appeals affirmed Summary Judgment in this case which seeks to foreclose upon a judgment lien. The court noted that Bonneville had a valid judgment lien and had met the requisite elements to foreclose upon the Bluestone property. The Eighth District Court of Appeals further noted that Appellants' affirmative defenses all sought to collaterally attack the underlying Euclid Municipal Court judgment, and therefore, did not raise a genuine issue of material fact. "Local Rule 11(I)(1) ("A party opposing a motion for summaryjudgment... may file a brief in opposition... within thirty (30) days of service of the motion."). -5- ATTORNEYS AT LAW 25550 GHAGRIN BOULEVARD, SUITE 403 '.BEAGHWOOD,OH10 44122 ' TELEPHONE (216) 595-8222 ' FAx (216) 595-8230
CONCLUSION For all of the foregoing reasons, Appellee respectfully requests that this Court decline jurisdiction of the within Appeal. Respectfully submitted, Kevin R. McMillan (0069428) Attorney for Appellee 25550 Chagrin Blvd., Suite 403 Beachwood, Ohio 44122 (216) 595-8222 (216) 595-8230 - fax CERTIFICATE OF SERVICE A copy of the foregoing was sent via regular U.S. Mail on this ^ day of July, 2008 to the following: Z. Elise L. Farrell, Attorney for Appellants, P.O. Box 21162, South Euclid, Ohio 44121. 1 Kevin R. McMillan -6- KABAT, M IELZINER & SOBEL ATTORNEYS AT LAW 25550 CHAGRIN BOULEVARD, SUITE 403 ' BEACAVVOOD, OHIO 44122 'TELEPHONE [216) 595-8222 ' FAx (216) 595-8230