IN TF-iE SUPREME COURT OF OHIO

Clareshire Condominium Unit Owners'Association,

Plaintiff-Appellee

Vs.

Julie M. Montilla, et aL,Defendants-Appellants

)))))))))

Court of Appeals of OhioEighth Appellate District

Judgment of September 12, 2013

Case No. CA 11 -97024

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MEMORANDUM IN SUPPORT OF.T[TI2ISDICTION

Richard A. MedlarAppellant PRO SESuite 10324625 Clareshire Ct.North Olmsted, Ohio 44070440/454-5231

Leonard CuilliAttorney for AppelleeKeith D Weiner & Associates, Co., LPA75 Public Square, 4" floorCleveland, 01-144113216/771-6500

SEP 3,0 2013

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CLERK OF COURTSUPREME' GOURT OF C

MEMORANDUM IN SUPPORT OF JURISDICTION

TABLE OF CONTENTS

Statement of basis for Appeal

Statement of case

Statement of facts

Arguments

Motion to show cause and standing (case # 11-97024)

Court ofAppeals Judgment (case # 11-97024)

Court ofAppeals Judgment (case # 07-9046 1)

Statement of Service

1

2

5

5

Appendix I

Appendix 2

Appendix 3

6

STATEMENT OF BASIS FOR APPEAL

• Substantial Constitutional Questions concerning the Ohio Constitution and the 5`h & 14t'

Amendments to the United States Constitution. "Co wit: Due Process Right's. The Trial Court

and Plaintiff are attempting to deprive the Appellant of Property without Due Process.

• Issue of public or great general interest: Keeping others from maliciously taking people's

homes.

• Appeal of Right: the right to appeal to a higher court for a review of a lower court's

Judgment.

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STATEMENT OF THE CASE

On 29 September 2004, Plaintiff-Appellee Clareshire Condominium Unit Owner's Association

(hereinaffter referred to as "Appellee") filed a complaint for Foreclosure upon a proposed-valid lien on

the property of Defendant-Appellant Julie M. Montilla, now deceased and represented through

Defendant-Appellant Estate of Julie M. Montilla (hereinafter referred to collectively as "Appellants").

(T.d. 1). Appellant Montilla filed an Answer and Counterclaim on 22 July 2005. (T.d. 36). Appellant

Montilla died and a Suggestion of Death was filed. (T.d. 86).

In the Interim, on 2 June 2005, Appellant Montilla filed a Motion to Dismiss Appellee's

Complaint. (T.d. 31). Appellee filed an opposition on 24 June 2005 (T.d. 33). A response was tiled on

3

5 July 2005. (T.d.34). The trial court denied the motion on 13 July 2005 (T.d. 35).

Each party filed various amended and revised pleadings over the course of this action.

Throughout the pendency of this matter, various motions were also filed with the trial court.

On 21 September 2005, Appellants propounded discovery requests upon Appellee. (T,d. 47).

Subsequently, Appellants attempted to compel Appellee to respond to these discovery requests without

success. Finally, the trial court compelled Appellee to respond (T.d. 78).

Playing more tricks, Appellee filed a motion to compel Appellants to refile and resend the

discovery requests because the period of time had been so long and Appellee lost the documents. (T.d,

79). The trial court granted this request and required Appellants to refile the discovery requests (T.d.

82). Appellants did so.

However, prior to Appellee answering the discovery requests, Appellee filed a Motion for

Summery Judgment. (T.d. 84). Appellants requested additional time to respond since, as of that time,

Appellee had yet to respond to the discovery requests.

Still receiving no response, Appellants were forced to file a Motion to Dismiss, Motion to

Compel and/or Motion in Limine (T.d. 96). Again, while the trial court granted the Motion to Compel,

2

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a Appellee was given even mo(e time to submit discovery responses. (T.d. 99). Appellants' other motions

were denied. (T. d. 99).

Prior thereto, on 22 December 2006, Appellants had no choice but to file a Brief in Opposition

to the Motion for Summary Judgment (T.d. 97). Appellants requested leave to file a supplemental

opposition upon a discovery response. (T.d. 97).

Notwithstanding, on 2 April 2007, the magistrate granted Appellee's Motion for Summary

Judgment on all counts. (T.d. 98). Appellants filed an objection to the Magistrate's Decision on 3 May

2007. (T.d. 107).

Defendant Third Federal Savings and Loan Association, named as a party of interest in the

foreclosure, filed an objection as to the priority of claims set forth in the Magistrate's Decision. (T.d.

106). The trial court granted the rewording requested by DefendantThird Federal. (T.d. 110)

On 28 August 2007, the trial court denied Appellants' objections and entered final judgment.

(T.d. 112). Appellants timely appealed the matter to this Court on 25 September 2007 (T.d. 115). On

21 August 2008 this Court "Reversed and Remanded" that appeal (CA-07-90461).

On I November 2006 the Estate was "opened" in Probate Court (2006 EST 0119602 ). On 23

March 2007 Appellee filed a claim in Probate Court. On 8 May 2007 the Fiduciary, Richard A. Medlar

(hereinafter referred to as Appellant Mediar), denied the claim that did not comply with Probate law.

On 25 August 2008 the property was transferred to Appellant Medlar in accordance with Appellant

Montilla's will. On 13 April 2009 the Probate Court again agreed that the Appellee's claims were

without merit and closed the Estate. The Appellee is attempting to personally steal Appellant Medlar's

"E-Iome" by suing an entity that no longer exists. In the fall of2010 the Appellee's stated in the "annual

owners' ►:neeting" that they "have a buyer for the property".

On 14 June 2010 the Appellee again filed a second Motion for Summery Judgment. (T.d. 167).

3

On 21 June 2011 the trial court again approved the Appellees' Motion for Sumary Judgment, after

numerous filings and pleadings (T.d. 207). On 6 July 2011 the trial court issued an Order of sale to the

Cuyahoga County Sheriff (T.d. 210). On 11 July Appellant Medlar filed the latest Appeal (T.d. 211). On

15 July 2011. the trial court approved the fi.nal sale (T.d. 213). On 20 July 2011 Appell;4nt filed a Motion

for Stay of Judgment with the trial court (T.d. 218) which was denied by said court on 22 July 2011. On

20 July Appellant also filed with the Appellate Court a Motion for Immediate Injunction. The Appellate

Court issued a Stay Pending Resolution of the Appeal on 16 August 2011. The trial cpurt refused to

acknowledge the Appellate Court's jurisdiction. On 31 August 2011, the last business day prior to sale

the Appellant went to the Appellate Court in person to get the sale stopped. The Appellate Court's

Attorney telephoned the trial court and the sale was withdrawn (T.d. 223).

On 12 October the Appellant notified the Trial and Appellate courts that he had filed for Chapter

13 bankruptcy protection. The case was Stay'd pending U.S. Bankruptcy Court's lifting of that court's

stay. On 29 February 2012 The court dismisses the appeal for lack of a final, appealable order. On 9

April 2012 Appellant filed Motion to Re-instate the Appeal. On 30 April the Appellate Court granted

the motion. On ] 0 May 2012 Appellee files claim based on this case in U.S. Bankruptcy Court. On 5

November 2012 the Appellee notified the Appellate Court of the Bankruptcy Court's,order lifting their

automatic stay. On 9 November 2012 the Appellate notified the Appellate court of his appeal of the

bankruptcy court's order lifting the stay with the United States Bankruptcy Appllate Panel. U.S.

Appellate Court case is currently pending (BAP case # 12-8052). ,

On 1 August 2013 a mediation conference was held by order of the Appellate Court. On 6

August 2013 the Appellant was order to show cause and standing. On 12 August 2013 the Appellant

filed "Motion to Show Cause and Standing" (Appendix 1) with the Appellate Court. Apd on 12 August

2013 Appellant filed Notice of Appearance as correct Defendant with the Trial Court. On 12 September

2013 the Appellate CoLu-t dismissed the case. On 16 September 2013 the Appellant filed a "Motion to

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Intervene" with the Trial Court. And lastly on 23 September 2013 Appellee filed an,OPposition Brief

to Appellant's Motion to Intervene. I have not yet received a copy of said brief as of 27 September

2013.

STATEMENT OF FACTS

The Complaint is an attempt to foreclose upon a property through and third party, the Estate,

which no longer exists. The original complaint was based on bogus and improper liens. Defendant

Montilla, prior to her death, set forth this argument in various motions all of which were denied by the

trial court. Defendant Montilla also produced evidence in the form of cancelled checks proving that she

was not in arrears but in fact had overpaid. The trial court has had copies of this evidence in their

possession for years and had failed to act upon it. The entire case is a knowingly malicious prosecution

by the Plaintiff. The Defendants have suffered irreperable fmancial hardship due to this fact. Should a

Plaintiffs Board member who tried to purchase the property three times, which Mz. Montilla refused,

succeed in using the courts to steal said property it will be a Travesty of Justice.

ARGUMENT

The Right of Due Process in inalienable. It is stated in both the United States and Ohio

Constitutions. It has been upheld by both the Ohio Supreme Court and the United States Supreme

Court on vastly numerous occasions. It has been a bedrock principle of this nation for over 222 years.

The Appellant is being denied that Right repeatedly, The Plaintiff, throut;h use of the Ohio Court's, has

repeatedly blocked the Appellant's attempts to exert that Right. And both the Txail Coitrt and Appellate

Court have overlooked the Appellant's Rights.

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Respeptfully submitted,

Richard A. MedlarAppellant PRO SESuite 10324625 Clareshire Ct...North Olrnsted, Ohio 44070440/454-5231

Statement of Service

A copy of this filing has been sent via regular U.S.P.S. on this 27 day of September 2013 to thefollowing:

LEONARD A CUILLIATTORNEY FOR APPELLEEKEITH D. WETNER & ASSOCIATES, CO., L.P.A.75 PUBLIC SQUARE, 4TH FLOORCLEVELAND, OH 44113

BRYAN F. HEGYESATTORNEY FOR DEFENDANT THIRD FEDERAL SAVINGS & LOANJONES & HEGYES CO., LPA38040 EUCLID AVE.WILLOUGHBY, OH 44060

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fA Alk /

IN THE COURT OF APPEALSEIGHTH APPELLATE DISTRICT

CUYAHOGA COUl*1TY, OHIO

Clareshire CondominiumAssociation,

Vs.

ow Sfl L ED,4'Rr OF ;PPEAL;

- ApAO 12 2013 l7

Clerk of Courts ^3Cuyahoga County, Otti^e

Case No. CA-l 1-097024

Julie M. Montilla, et aL, `Defendant - Appellants MOTION TO SHOW CAUSE AND

STANDING

Now comes the Appellant and states that the Appeal is not being made as Fiduciary but rather as

Widower of the Defendant, Estate Heir, Property Owner and Party of Interest..

• O.R.C. 4705.01 states that:

No person shall be permitted to practice as an attorney and counselor at law, or tocommence, conduct, or defend any action or proceeding in which the person is not aparty concerned, either by using or subscribing the person's own name, or the name ofanother person, unless the person has been admitted to the bar by ordpr of the supremecourt in compliance with its prescibed and published rules.

As the current property owner I most defnutely qualify as "a party concerned" as per

O.R.C. 4705.01 and therefor :C DO have legal standing to defend my property against the

foreclosure action.

• The foreclosure action was brought "et al". The Defendant and Myself were married

October 13, 2003, almost one year prior to the commencement of the original action.

• I have personal ownership interest in, and Title to, the property.

• 1 am,1n accordance with Julie Montilla's will, the one and only heir to her estate and

likewise the property.

• The "Association" has used the Foreclosure action as the sole basis for filing a claim against

me personally in U.S. Bankruptcy Court (Case # 11-17909) and likewise has claimed me

as the Defendant.

• The property in question transferred to me on or about August 25, 2008 as.per Probate Law.

4 The`Foreclosure Court has named, and referred to, myself as defendant since February 26,

2009.

For the above stated causes this Appeal does not qualify as the unauthorized pfactice of law and

I have all legal authority to persue this appeal.

Appellant, PRO S^E- .Richard A. Medlar24625 Clareshire Ct. #103North Olmsted, OH 44070Appellant, Title Holder and Estate Heir.

NOTICE OF SERVICE IlaA copy of this filing has been sent via regular U.S.P.S. on thisAh day ofAugust 2013 to the

following:

LEONARD A CUILLIKEITH D. WEINER & ASSOCIATES, CO., L.P.A.75 PUBLIC SQUARE, 4TH FLOORCLEVELAND, OH 44113

BRYAN F. REGYE SJONES & T-IEG^.'ES CO., LPA38040 EUCLID AVE.WILLOUGHBY, OH 44094

R

♦

IN THE COURT OF COMMON PLEASCUYAHOGA CC)UNTY, OHIQ' t t

{ LED

Clareshire Condominium Unit Owners'Association,

Plaintiff,

Vs.

Julie M. Montilla

))))))))

Case No. CV 04 54411pi AUG 12 A 1j; 21A'

Judge Deena R. CalabjMs^ ^ti^ o F Go uRT-5riJYANOGA COUNTY

Magistrate Gail D. Baker

NOTICE OF APPEARANCEDefendant.

Now comes the Property Owner and hereby gives notice that all further notipe and copies of

pleadings, papers, and other material relevant to this action should be directed to and served upon the

undersigned in accordance with apilicable law.

Richard A, MedlarSuite 103 '24625 Clareshire Ct.North Olmsted, Ohio 44070

NOTICE OF SERVICE

lv2A copy of this filing has been sent via regular U.S.P. S. on this 1^th day ofAugust 2013 to the

following:

LEONARD A CUILLIKEITH D. WEINER & ASSOCIATES, CO., L.P.A.75 PUBLIC SQUARE, 4TH FLOORCI.r VELAND, OH 44113

BRYAN F. HEGYESJONES & HEGYES CO., LPA38040 EUCLID AVE.WILLOZ.IGHBY, U.t-I44060

AP'^^C-Av,x 2

Court of ppiaI,5 Dt ebioEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINTONNo. 97a24

CLARESHIRE COURT CONDOMINIUMUNIT 0►WNERS' ASSOCIATICI ►N

PLAINTTFF-APPELLEE

vs.

JULIE M. MONTILLA, ET AL.

DEFENDANTS-APPELLANTS

JUDGMENT:DISMISSED

Civil Appeal from theCuyahoga County Common Pleas Court

Case No. CV-544136

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

RELEASED AND JOURNALIZED: September 12, 2013

SEP 13 2013

EXHBT^. ;.; . ._ . ^. r

FOR APPELLANT

Richard A. Med.iar, pro se24625 Clareshire Ct. #103North Olmsted, OH 44070

ATTORNEYS FOR APPELLEES

Clareshire Court CondominiumUnit (3wners' Association

Dean W. KanellisLeonard A. CuilliKeith D. Weiner & Associates Co.75 Public Square, 4th FloorCleveland, OH 44113

Third Federal Savings and LoanAssociation

Bryan F. HegyesJones & Hegyes Co., L.P.A.38040 Euclid AvenueWilloughby, OH 44094

FILED AND JOURNALIZED

PER APP,R, 22(C)

SEP 19, 2013

C NTY CLERKOF C t1 T F APPEALSBY Deputy

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4

t

EILEEN A, GALLAGHER, J.:

{11} Richard A. Medlar appeais from the decision of the trial court

granting summary judgment in favor of the Clareshzre Court Condominium

Unit Owners' Associ.ation. For the reasons enunciated below, the within appeal

is hereby dismissed.

{¶2} Clareshire Court filed a complaint against Julie M. Montilla and

Third Federal Savings and Loan seeking to foreclose on three certificates of lien

for unpaid common expenses. Montilla filed an answer disputing the alleged

expenses and fees and asserted a variety of counterclaims, including intentional

infliction of emotional distress. Montilla died during the pendency of the

proceedings and the trial court, upon motion of the defendant, substituted her

estate as the defendant herein.

{^3} Clareshire Court moved for summary judgment, the estate

responded and the trial court found in favor of Clareshire Court. The estate filed

a notice of appeal from the first judgment, Clareshire Court, Condo. Unit Owners

v. Montilla, 8th Dist. Cuyahoga No. 90461, 2008-Ohio-4242. This court

determined that the trial court did not err in ruling on the parties' discovery

dispute and that there was no evidence demonstrating Montilla's intentional

infliction of emotional distress claim. However, this court held that genuine

issues of material fact remained as to the amount owed by Montilla and/or

Clareshire Court. The court reversed and remanded the matter for further

proceedings.

(¶4} Proceedings resumed at the trial court. However, on the day of the

scheduled trial, the court stayed the proceedings because of the Chapter 7

Bankruptcy filing of Richard A. Medlar, fiduciary for the estate of Montilla. We

acknowledge that the court's journal entry of April 21, 2009 denotes Medlar as

a defendant, however, this is incorrect. Medlar never intervened as a party and

was, therefore, not a defendant in the within matter. He was appointed a

fiduciary through the Cuyahoga County Probate Court in November, 2006. The

court reinstated the case once Medlar's bankruptcy petition was dismissed and

Medlar began filing documents as fiduciary of the estate,

{¶5) Clareshire Court filed a second motion for summary judgment,

which Medlar, "the Fiduciary of the Estate" opposed. The magistrate hearing

the instant matter filed a recommendation that summary judgment be entered

in favor of Clareshire Court on the claims set forth in the amended complaint

and to Clareshire Court on the counterclaim of the estate. Medlar, this time

styling himself as "the property owner" and as fiduciary for the estate, filed

objections to the magistrate's decision.' The trial court overruled Medlar's

'There is no evidence before this court that Richard Medlar is owner of anyproperty, let alone the real property at issue in this case.

objections, adopted the magistrate's decisioxi and entered judgment in favor of

Clareshire Court.

M} Medlar appealed, raising the following three assignznents of error:

The trial court erred to the prejudice of Appellants by failing todismiss Appellee's causes of action due to failure to respond todiscovery requests for well over one (1) year.

The trial court erred to the prejudice of Appellants by grantingAppellee's Motion for Summary Judgment on all counts and claims.

The trial court erred to the prejudice of Appellants by affirming theMagistrate's Decision.

{¶7} Prior to addressing the merits of the instant appeal, this court will

again note that Medlar never intervened as a party to the action and that he

brought the appeal pro se as fiduciary of the estate. Thus, this court issued a

sua sponte order requiring Medlar to show cause why this case should not be

dismissed for lack of standing and/or for the unauthor.ized practice of law. This

court removed the case from the active docket pending the outcome of the

motion. Medlar responded, arguing that he had standing to bring the appeal,

and as the "Widower of the Defendant, Estate Heir, Property Owner and Party

of Interest" he was not engaging in the unauthorized practice of law.2

2Again, there is nothing before this court that demonstrates that Richard Medlaris the surviving spouse or estate heir. We only have evidence that letters testamentarywere issued by the probate court to Mr. Medlar as "fiduciary."

(¶$) We disagree with Medlar's arguments and for the reasons that

follow, dismiss the instant appeal.

{¶9} As noted above, Medlar did not file a motion. to intervene in

accordance with Civ.R. 24(C). In State ex rel. Jones v. Wilson, 48 Ohio St.2d

349, 358 N.E.2d 605 (1976) and State ex rel. Lipson v. Hunter, 2 Ohio St.2d 225,

208 N.E.2d 133 (1965), the Ohio Supreme Court held that a person who is not

a party to an action and has not attempted to intervene as a party is without

capacity to appeal. Further, in In re McAuley, 63 Ohio App.2d 5, 408 N.E.2d

697 (8th Dist.1979), this court noted that merely being allowed to appear in an

action and to submit a brief in the trial court does not make the real party in

interest a party in the proceedings. To become a party in the proceedings, the

real party in interest must file a Civ.R. 24motxon to intervene. .Td.

{¶ 101 Although Medlar filed motions with the trial court, he never moved

the court to intervene pursuant to Civ.R. 24. Thus, under the circumstances,

we find that Medlar has no capacity to appeal.

{¶11} Further, the instant appeal was not filed by 1trTedlar as a pro se

litigant or with the assistance of legal counsel licensed to practice law within

the state of Ohio. To the contrary, this appeal was filed by ":Richard A. Medlar,

the Fiduciary for the Estate of Julie M. Montilla." Medlar acknowled.ges that

he is not a licensed member of the bar within the state of Ohio.

{¶12} The practice of law includes "the preparation of pleadings and

other papers incident to action and special proceedings and the management of

such actions and proceedings * * * before judges and couris." Disciplinary

Counsel v. Coleman, 88 Ohio St.3d 155, 157, 2000-Ohio-288, 724 N.E.2d 402.

The preparation and filing of an appeal, which necessarily includes an analysis

of the case for appealable issues on behalf of the estate, constitutes the practice

of law and the rendering of legal services.

{¶ 13} R.C. 4705.01 defines the unauthorized practice of law as follows:

No person shall be permitted to practice as an attorney andcounselor at law, or to commence, conduct, or defend any action orproceeding in which the person is not a party concerned, either byusing or subscribing the person's own name, or the name of anotherperson, unless the person has been admitted to the bar by order ofthe supreme court in compliance with its prescribed and pubhshedrules. Except as provided in section 4705.09 of the Revised Code orin rules adopted by the supreme court, admission to the bar shallentitle the person to practice before any court or administrativetribunal without further qualification or license.

{¶14} In In re Jerdine, 8th Dist. Cuyahoga No. 91172, 2008-Ohio-1928,

this court noted that it "possesse[d] the ethical duty to prevent the

unauthorized practice of law" and, after concluding that the relator cvas not

registered to practice law within the state of Ohio, dismissed his complaint for

a writ of mandamus as the unauthorized practice of law.

{¶ 15} Medlar, a nonattorney, filed the instant appeal as the fiduciary for

e "

an estate without the assistance of counsel. This act constitutes the

unauthorized practice of law and mandates that we dismiss the action. See

Jerdine; State ex rel. Jenkins u. 1VIcI'aul, 8th Dist. Cuyahoga No. 74074, 199$

Ohio App. LEXIS 1732 (Apr. 23, 1998).

16} This appeal is hereby dismissed.

It is ordered that appellee recover f.rom appellants costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

EI^T A. G44LAGH/ft JUDGE

LARRY A. JO$ES, SR., P.J., andSEAN C. GALLAGHER, J., CONCUR

i

n

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 90461

CLARESHIRE COURT CONDO. UNIT OWNERS

SEP 2 - 2008F^e

Ttiurt af Appia1z nf ®1in

11-17909F,XHIB IT 7 A

PLAINTIFF-APPELLEE

vs.

JULIE M. MONTILLA, ET AL.

D E F E NDANTS -APP E LI.LANT S

JUDGMENT:REVVE.RSED A.ND REMANDED

Civil Appeal from theCuyahoga County Court of Common Pleas

Case No. CV-544136

BEFORE: Dyke, J., Rocco, P.J., and McMonagle, J.

RELEASED: August 21, 2008

JOURNALIZED: SEP 2 - 2008CA07090461 53376922

111111111111111111111111111111111111111111 0111 1111 IINIRt^0 6 6 5 POO 253

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ATTORNEY FOR APPELLANTS

David N. Patterson, Esq.Patterson & Frost33579 Euclid AvenueWilloughby, Ohio 44094

Richard A. Medlar, Pro Se24625 Clareshire CourtSuite 103North Olmsted, Ohio 44070

ATTORNEYS FOR APPELLEE CLARESHIRE COURT CONDO.

Kim M. Hammond, Esq.Leonard A. Cuilli, Esq.Keith D. Weiner & Associates Co.75 Public SquareFourth FloorCleveland, Ohio 44113

FILED AND J4URNAI.IZEDPER APP. R. 22(E)

SEP 2 - 2008 .GERALD E. Ft1ERS?

CLERK T E C3 I! F APPEJ1Ls

Bv DEP.

ATTORNEY FOR THIRD FEDERAL SAVINGS & LOAN ASSN.

Bryan F. Hegyes, Esq.38040 Euclid Ave.Willoughby, Ohio 44094

111i^1 f11^111111 IIUM [1II1 flfll (111111i1! 111I ltl1

ANNOUNCEMENT OF'DECISI®NPER APPRR^ 2(H^'I2^lE^D 26(t^

AUG21 2008

GEY3At.10 E. FUERST

GLERK E^f 7P ^ APPEALS

N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D)and 26(A); Loc.App.R. 22. This decision will be journalized and will become thejudgment and order of the court pursuant to App.R. 22(E) unless a motion forreconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days ofthe announcement of the court's decision. The time period for review by the SupremeCourt of Ohio shall begin to run upon the journalization of this court's announcementof decision by the clerk per App.R. 22(E). See, also, S.Ct. Prac.R. II, Section 2(A)(1).

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ANN DYKE, J.:

The estate of Julie M. Montilla appeals from the order of the trial court

that granted summary judgment to Clareshire Court Condominium Owners'

Association ("Clareshire Court") in Clareshire's action for foreclosure upon a

certificate of lien for unpaid association fees. For the reasons set forth below, we

reverse and remand for further proceedings.

On September 29, 2004, Clareshire Court filed a complaint against

Montilla (and naming Third Federal Savings and Loan as mortgage holder) for

foreclosure and marshaling of liens. In relevant part, Clareshire Court alleged

that it had filed three liens against Montilla's parcel from 2001-2003, totaling

approximately $1,500. Copies of each of the three certificates of lien were

appended to the complaint.

In an amended complaint, Clareshire Court asserted that Montilla had

failed to pay $3,424.77 as her reasonable share of common expenses. Clareshire

Court sought this amount plus 8% interest per annum and the current monthly

maintenance fee of $193.78 from the date of the lien forward, and that onAugust

2005, it filed a certificate of lien in this amount.

Montilla filed an answer in which she asserted that Clareshire Court had

relied on erroneous accounting information and erroneous ledger tabulations and

had failed to provide her with documentation. Montilla also asserted a

YK0665 'P00255

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counterclaim for $8,890.62 in overpayments, $7,000 for various accounting and

bookkeeping services, "financial," and punitive damages, and other sums, in

addition to claims for violation of voting rights and intentional infliction of

emotional distress. Montilla died during the pendency of this litigation and her

estate was substituted as the defendant herein.

Clareshire Court moved for summary judgment and argued that iViontilla

did not suffer serious emotional distress in this matter. It also provided an

affidavit from Raymond Ritter, President of Clareshire Court, who averred that

a lien in the amount of $3,424.77 was filed in connection with Montilla's unpaid

common expenses. Clareshire Court also argued that Montilla's allegations were

insufficient to establish intentional infliction of emotional distress and that she

did not suffer serious emotional distress in this matter. The motion did not

specifically address Montilla's claim that the claimed debt was the result of

erroneous accounting information and erroneous ledger tabulations.

Montilla subsequently died and her estate was substituted as a party. The

estate filed a brief in opposition on December 22, 2006 in which it complained

that Clareshire Court had not provided discovery, that the affidavit describing

the certificate of lien was insufficient to establish the substance and validity of

the alleged debt, and that the lien was "bogus and improper." The estate also

asserted that "the conduct of kicking a person out of their own home upon. a

W106 6 5 PGO 256

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spurious lien constitutes extreme and outrageous conduct for purposes of the

emotional distress claim." Finally, the estate complained that the motion did not

address remaining components of her counterclaim, including documented

overpayments,

Thereafter, on March 19, 2007, the court noted that "there are no discovery

issues" and that "the magistrate will rule on Plaintiffs motion for summary

judgment no later than March 23, 2007." One month later, the magistrate

hearing the matter recommended that the trial court enter summary judgment

for Clareshire Court. The estate filed objections in which it asserted that the

affidavit describing the certificate of lien was insufficient to establish the debt,

and that Montilla had forwarded to Clareshire Court checks in the amount of

$575 and $200 in June and July of 2002, which were. never credited to her

account. She further asserted that she was current in her account so the

subsequent late fees and nonpayment fees were improperly charged to her and

the matter should not proceed to foreclosure. To the contrary, according to the

estate, Montilla had overpaid her association dues. The trial court overruled the

estate's objections and entered judgment for Clareshire Court in the amount of

$3,424.77.' The estate now appeals and assigns three errors for our review.

` The judgment entry misidentified the defendant as Julia Montilla rather than herestate which had been substxtuted.

V^L 0 6 6 5 -PG 0 2 5 7

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The estate's first assignment of error states:

"The trial court erred to the prejudice of Appellants by failing to dismiss

Appellee's causes of action due to failure to respond to discovery requests for well

over one (1) year."

We review a trial court's order granting discovery sanctions under the

abuse of discretion standard. United Holy Church of Am., Inc. v. Kingdom Life

Ministries, 165 Ohio App.3d 782, 2006-Chio-708, 848 N.E.2d 866, ***.

Civ.R. 37(B)(2) states in part:

"If any party *** fails to obey an order to provide or permit discovery, ***

the court in which the action is pending may make such orders in regard to the

failure as are just, and among others *** an order *** dismissing the action or

proceeding or any part thereof, or rendering a judgment by default against the

disobedient party."

As noted in United Holy Church of Am., Inc. v. Kingdom Life Ministries,

supra:

"***dismissal on the merits is a harsh remedy, which should only be

imposed when the actions of the defaulting party create a presumption of

willfulness or bad faith. *** Alternative sanctions available should be

considered first. Id., citing.F"urcello U. Klammer (1980), 67 Ohio App.2d 156, 159,

426 N.E.2d 187; accord Coleman v. Cleveland Sch. Dist., Cuyahoga App. Nos.

'0^0 6 6 zb) 000 2S 8

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81674 & 81811, 2003-Ohio-880, quoting Sazima v. Chalko, 86 Ohio St.3d at 155,

1999-Ohio-92, 712 N.E.2d 729 ('[a] dismissal on the merits is a harsh remedy

requiring the due process guarantee of prior notice. "The purpose of notice is to

give the party who is in jeopardy of having his or her action or claim dismissed

one last chance to comply with the order or to explain the default."')."

The record in this case demonstrates that in June 2005, the attorney for

Clareshire Court sent Montilla an itemized statement from MultiVest

Management, Inc. which detailed Montilla's accumulated charges for the period

from July 1, 2003 to June 2005. Clareshire Court also sent Montilla an itemized

statement from Render Management Group which itemized charges from June

l, 2001 to June 2003. On September 21, 2005, Montilla filed a motion for

discovery and production of documents in which she sought a "full and complete

itemized breakdown of all debt * * * pertaining to ALL current and previously

filed liens."

In a Ma"gistrate's Order dated August 1, 2006, Montilla's Motion for

Discovery and Production of Documents was granted. Clareshire Court was

given 30 days to respond to Montilla's request and also ordered to provide

courtesy copies to the magistrate. On August 31, 2006, Clareshire Court filed

a motion requiring Montilla to refile and reserve the discovery requests because

Clareshire Court could not locate the original requests. The trial court granted

^^^^^6 5- PiO 02 59

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this request and, on December 6, 2006, subsequently ordered that all discovery

was to be complete by February 28, 2007, and all dispositive motions.were to be

filed by March 9, 2007. On December 22, 2006, the estate filed a motion to

dismiss in which it complained that it had not received discovery from

Clareshire Court, but later, on March 19, 2007, the court noted that "there are

no discovery issues" and that "the magistrate will rule on Plaintiffs motion for

summary judgment no later than March 23, 2007."

On this record it is clear that, although it took an extremely long time for

Clareshire Court to provide discovery, the trial court's March 19, 2007 journal

entry noted that "there are no discovery issues" and that "the magistrate will

rule on Plaintiffs motion for summary judgment no later than March 23, 2007."

We are therefore unable to conclude that Clareshire Court disobeyed an order

of the trial court and we find no abuse of discretion in connection with the trial

court's refusal to dismiss this action pursuant to Civ.R. 37.

This assignment of error is without merit.

rI'he estate's second and third assignments of error are interrelated and

state:

"The trial court erred to the prejudice of Appellants by granting Appellee's

Motion for Summary Judgment on all counts and claims."

-YO 6 6 'J' P:0 0260

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"The trial court erred to the prejudice of Appellants by affirming the

Magistrate's Decision."

Within these assignments of error, the estate asserts that Clareshire

Court was not entitled to summary judgment because the certificates of lien

were "bogus, improper and unenforceable," and the affidavit describing the

certificate of lien did not properly establish the amount due. The estate also

asserts that there is a genuine issue of material fact as to the intentional

infliction of emotional distress claim. The estate finally asserts that the

magistrate made only a cursory review of the matter and ignored the pleadings

and the estate's objections.

We review the grant of summary judgment de novo using the same

standards as the trial court. Nationwide ltlut. Fire Ins. Co. v. Guman Brvs.

Farm (1995), 73 Ohio St.3d 107, 108, 652 N.E.2d 684.

A trial court may not grant a motion for summary judgment unless the

evidence before the court demonstrates 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 nonmoving party, that conclusion is adverse to the party against whom

q L., L, 6 6 5 H26 I

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the motion for summary judgment is made. See, e.g., Vahila v. Hall (1997), 77

Ohio St.3d 421, 429-30, 674 N.E.2d 1164, 1171.

The burden of showing that no genuine issue exists as to any material fact

falls upon the moving party in requesting a summary judgment. Id., citing

Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d

46, 47. The party moving for summary judgment bears the initial burden of

informing the trial court of the basis for its motion and identifying those portions

of the record that demonstrate the absence of a genuine issue of material fact.

Vahila v. Hall,. supra.

In responding to a motion for summary judgment, the nonmoving party

may not rest on "unsupported allegations in the pleadings." Civ.R. 56(E);

Harless v. Willis Day Warehousing Co., supra. Rather, Civ.R. 56 requires the

nonmoving party to respond with competent evidence that demonstrates the

existence of a genuine issue of material fact for trial. Vahila v. Hall, supra.

Summary judgment, if appropriate, shall be entered against the nonmoving

party. Jackson v. Alert Fire &Safeiy Equip., Inc. (1991), 58 Ohio St.3d 48, 52,

567 N.E.2d 1027, 1031.

In this matter, a representative of Clareshire Court averred that the

certificates of lien in the amount of $3,424.77 were filed.

'YOt01665 P90262.

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^

Certificates of lien are governed by R.C. 5311.18, which provides in

relevant part as follows:

"(A) (1) Unless otherwise provided by the declaration or the bylaws, the

unit owners association has a lien upon the estate or interest of the owner in any

unit and the appurtenant undivided interest in the common elements for the

payment of any of the following expenses that are chargeable against the unit

and that remain unpaid for ten days after any portion has become due and

payable:

"(a) The portion of the common expenses chargeable against the unit;

"(b) Interest, administrative late fees, enforcement assessments, and

collection costs, attorney's fees, and paralegal fees the association incurs if

authorized by the declaration, the bylaws, or the rules of the unit owners

association and if chargeable against the unit.

"(2) Unless otherwise provided by the declaration, the bylaws, or the rules

of the unit owners association, the association shall credit payments made by a

unit owner for the expenses described in divisions (A)(1)(a) and (b) of this section

in the following order of priority:

"(a) First, to interest owed to the association;

"(b) Second, to administrative late fees owed to the association;

^^^Ll 6 6 5- 0 26 3,

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"(c) Third, to collection costs, attorney's fees, and paralegal fees incurred

by the association;

"(d) Fourth, to the principal amounts the unit owner owes to the

association for the common expenses or penalty assessments chargeable against

the unit.

"(3) The lien described in division (A)(1) of this section is effective on the

date that a certificate of lien in the form described in division (A)(3) of this

section is filed for record in the office of the recorder of the county or counties in

which the condominium property is situated pursuant to an authorization given

by the board of directors of the unit owners association. ***

46**3C

"(C) A unit owner who believes that the portion of the common expenses

chargeable to the unit, for which the unit owners association files a certificate

of lien pursuant to division (A) of this section, has been improperly charged may

commence an action for the discharge of the lien in the court of common pleas of

the county in which all or a part of the condominium property is situated. In the

action, if it is finally determined that the portion of the common expenses was

improperly charged to the unit owner or the unit, the court shall enter an order

that it determines to be just, which may provide for a discharge of record of all

or a portion of the lien."

`VIRIO 66 5 Eg 0 2 6 4,

¢^r

..i

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''

In this matter, Clareshire Court presented evidence that it filed a lien in

the amount of $3,424.77 pursuant to R.C. 5311.18 for Montilla's unpaid common

expenses. Clareshire Court also averred that Montilla did not suffer serious

emotional distress in this matter. Montilla's estate did not commence a separate

action to discharge the lien, pursuant to R.C. 5311.18(C), but the estate clearly

raised the issue of the propriety of the charges and the lien in the present case.

In its brief in opposition to the motion for summary judgment, the estate

disputed the amount of the lien, and also asserted a counterclaim seeking

recovery for overpayment. The estate also asserted that "the conduct of kicking

a person out of their own home upon a spurious lien constitutes extreme and

outrageous conduct for purposes of the emotional distress claim." While there

was no evidence to demonstrate that Montilla suffered serious emotional distress

in this matter, and this claim must therefore fail, cf. Pyle v. Pyle (1983), 110hio

App.3d 31, 34, 463 N.E.2d 98, the record does contain genuine issues of material

fact as to the amount of the lien and the overpayment claims. Finally, the estate

complained that the motion did not address remaining components of her

counterclaim, including documented overpayments. On this record, we find

genuine issues of material fact as to the amounts which may be owed by Montilla

andlor Clareshire Court in this matter. These genuine issues of fact were not

resolved by the evidentiary materials submitted by Clar.eshire Court.

^^^^^65 P0026S

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^. F

We therefore conclude that the trial court erred in entering summary

judgment for Clareshire Court.

The second and third assignments of error are well-taken.

This cause is reversed and remanded to the lower court for further

proceedings consistent with this opinion.

It is, therefore, considered that said appellants recover of said appellee

their costs herein.

It is ordered that a special mandate be sent to said 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.

ANN DYKE , JUDGE

KENNETH A. ROCCO, P.J., CONCURS.CHRISTINE T. MCMONAGLE, J., DISSENTS. (SEE ATTACHEDDISSENTING OPINION).

40 6 6o- PO0266

! 46

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CHRISTINE T. McMONAGLE, J., DISSENTING:

Respectfully, I dissent.

The complaint for foreclosure and marshaling of liens was filed by

Clareshire on September 29, 2004, alleging unpaid association fees. After failed

certified and ordinary mail upon Montilla, personal service was finally made on

May 13, 2005. Service by certified mail upon defendant Third Federal Savings

and Loan (the mortgage holder) was made on October 13, 2004.

Montilla filed an answer and counterclaim, and Third Federal filed an

answer and cross-claim demanding payment of their note secured by a mortgage

on the property. These pleadings were all amended several times; the final

amended complaint, answers, counterclaim and cross-claim were all filed by the

end of 2005.

On October 1, 2006, Montilla's attorney filed a suggestion of death,

notifying the parties that Montilla had passed away on July 6, 2006. Counsel

dutifully filed a motion pursuant to Civ.R. 25(A) to substitute the Estate of Julie

M. Montilla for Julie M. Montilla, and this motion was granted by the court on

January 16, 2007.

This matter was then heard by a foreclosure magistrate who awarded

Clareshire the sum of $3,424.77 against Julie Montilla. The magistrate did not

Y^t,O 6 6 5P'bO 26 7

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resolve any of Third Federal's claims for its mortgage, nor the Estate's

counterclaim. Both the Estate and Third Federal filed objections to the

Magistrate's report. The objections were overruled and the court ordered

judgment against Julie Montilla in the amount of $3,424.77 plus 10% interest

from August 15, 2005, and $193.78 per month from the date of the lien forward.

The court also ordered a decree of foreclosure in favor of Clareshire. VVhile this

entry contains the incantation "the court finds there is no just cause for delay,"

since no claims whatsoever were resolved by the trial court, there is no final

appealable order for us to review.

Julie Montilla is not a party to this action; she was "substituted out" on

January 16, 2007. The court's judgment entry did not resolve Clareshire's claim

against the Estate, it did not resolve Third Federal's claim against the Estate,

nor did it resolve the Estate's claim against Clareshire. Those being the only

claims made in this lawsuit, I would hold that there is no final appealable order

of any claim against any party, and this appeal should be dismissed.

vot 03, 6 65 05 0 2 68