Litigation NewsSummary judgment motions are powerful. They can deprive a litigant of a trial and summarily award judgment to the other party. Naturally a motion so powerful should be governed by strict stan-dards and require evidence as opposed to mere argument.

Civ.R. 56(C) provides those standards. It specifies the evidence suitable for summary judgment motions: “pleadings, depositions, answers to interrogatories, written admissions, affidavits, tran-scripts of evidence, and written stipulations of fact, if any, timely filed in the action.” It requires “no evidence or stipulation may be considered except as stated in this rule,” and that “a summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, [that the party is entitled to judgment].” (Emphasis added.)

Civ.R. 56(E) tutors litigants to present their evidence as if at trial with affidavits standing in for live witnesses:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. Sworn or certi-fied copies of all papers or parts of papers referred to in an affidavit shall be attached to or served with the affidavit.

To be granted summary judgment, a party has to introduce ad-missible evidence with the motion. In the opposition brief, the adversary can introduce contradictory evidence. The court needs

to examine any uncontroverted evidence remaining to determine whether it supports judgment as a matter of law for the movant.

A departure from the requirement of such carefully specified evidence started sensibly enough with cases like Brown v. Ohio Cas. Ins. Co.1 In this insurance dispute, one party moved for summary judgment and attached a copy of the insurance contract in sup-port. No “well-framed” affidavit authenticated it. The other party opposed the motion and submitted a copy of the same contract, also unauthenticated. The court of appeals noted the parties’ mu-tual evidentiary nonchalance and concluded that since neither party objected, the court could consider the contract in ruling on the summary judgment motion. This entirely sensible move recognized an implicit stipulation by the parties but launched us onto the path we stumble down today.

Other Ohio courts of appeal have followed Brown.2 Some courts of appeal have refused to follow this revolution in summary judg-ment analysis,3 pointing out that unauthenticated material violates Rule 56’s explicit requirements. The Supreme Court of Ohio has not addressed the issue.

Several case decisions emphasize the trial court’s discretion wheth-er to treat the parties’ failure to object as a waiver or tacit stipula-tion to the unauthenticated material.4 No case spells out when the trial court should exercise its discretion and when it should not. The practice accepted in Brown and its progeny is efficient, but it creates practical difficulties. Chief among them is the additional and confusing motion practice it engenders.

Summary judgment practice is losing integrity

Published by the Ohio State Bar Association Litigation Section

Vol. 18 Issue 2 Spring 2013

(continued on pg. 2)

INSIDESupreme Court of Ohio distinguishes a real-party-in-interest from standing requirement ............................................3

Mediation can cut the “actual cost” of public records requests ......................................4

Do you know in front of whom you are practicing? ........................................6

Litigation News

When a summary judgment movant uses an unsworn document, the opponent may object to its consideration because Civ.R. 56(C) forbids it or it lacks authenticity or reliability. How does the opponent object? One could file a motion to strike the un-sworn item from consideration. This means before ruling on the summary judgment motion, the court has to decide the intra-mural motion whether the challenged item is entitled to a role in the decision-making process. If the court strikes it, can the party later authenticate and re-assert its evidence for the court to consider or is he stuck?

An opponent could object in his op-position brief to the court considering the unsworn item. This means the court must read briefs carefully and keep a tally of which items are objected to and are therefore out of the evidentiary running. How does the movant defend his evidence against the opponent’s objection embedded in the opposition brief? The movant’s reply brief is a poor solution in any trial court that requires the movant to first obtain leave to file a reply.

Once an opponent moves to strike or objects to the movant’s unsworn exhibit, expect the movant to file a motion to amend or supplement the summary judg-ment motion with—voila!—an affidavit fully authenticating the previously unsworn document. Once again, before the court can decide the main motion, it has this pre-liminary motion to decide. If the opponent has already filed his opposition brief, the docket becomes chaotic as now there is an amended motion for summary judgment (or perhaps, supplementary affidavits to the motion). The original opposition brief is rendered obsolete. Should the opponent be permitted to modify and re-file it?

This space does not permit a complete list of the procedural disadvantages that result, but Page v. Taylor Lumber, supra, points out that ignoring Civ.R. 56 and accepting unsworn excerpts of deposition testimony leads to a violation of another rule, Civ.R. 30(F)(1), which mandates filing the deposi-

tion with the court reporter’s certification before its testimony may be used in court.

It is more practical, simpler and closer to Civ. R. 56(C)’s original intent to aban-don the liberal holdings of Brown and similar cases. Courts should “just say no” to evidentiary submissions on summary judgment that do not conform to the strict requirements of Civ. R. 56(C).

Continued allegiance to this renegade line of cases complicates summary judgment motion practice and it confuses counsel as to whether one really has to submit evidence or whether unauthenticated docu-ments will do. Courts have discretion to accept or reject non-conforming items but no obligation to announce in advance when and if they will exercise it. The case deci-sions have not developed any standards.

Ohio courts should strictly interpret and implement the foundational requirements of Civ.R. 56(C). On its face, Civ.R. 56 is willing to dispense with trial only when trial-quality evidence shows there is no need for trial. Litigants should submit only items of evidence satisfying the rule and courts should ignore all other submissions.

The parties have recourse to this rigid ap-proach: Instead, they can file affirmative stipulations of fact, confirm the authentic-ity of documents and dispense with the evidentiary formalities by agreement.

These approaches are simple and efficient and maintain the integrity of Civ.R. 56 procedure. ◆

By Judge Janet R. Burnside, Cuyahoga County Common Pleas Court.

Endnotes

1 63 Ohio App.2d 87, 409 N.E.2d 253 (8th Dist.1978).

2 For example, Gaumont v. Emery Air Freight Corp, 61 Ohio App. 3d 277, 287, 572 N.E.2d 747 (2d Dist.1989); Thompson v. Hook, 2d Dist. No. 14604,

1995 WL 245101 *4 (April 28, 1995); Davis v. Eachus, 4th Dist. No. 04CA725, 2004-Ohio-5720, ¶ 38; Athenian Trader Enterprises, Corp. v. Merrill Lynch, 5th Dist. No. CA-2311, 1985 WL 7270 (October 16, 1985); Bowmer v. Dettelbach, 109 Ohio App.3d 680, 684, 672 N.E.2d 1081 (6th Dist.1996); Gebauer v. Winesburg Enterprises, Inc., 6th Dist. No. S-86-40, 1987 WL 11243 *5 (May 22, 1987); Bell v. Holden Surveying, 7th Dist. No. 01AP0766, 2002-Ohio-5018, ¶ 12 (Sept. 19, 2002); Richardson v. Auto-Own-ers Mut. Ins. Co., 9th Dist. 21697, 2004-Ohio-1878; Central Ohio Neurological Surgs. v. Rose, 10th Dist. No. 96APE11-1611, 1997 WL 566160 (Sept. 11, 1997); Nalbach v. Cacioppo, 11th Dist. No. 2001-T-0062, 2002-Ohio-53, *11 (“Given the lack of any objec-tion to the documents in question, the documents warrant consideration because they contain suf-ficient indicia of reliability.”); Christopher v. S.Q.S. Properties, Inc., 11th Dist. No. 92-T-4737, 1993 WL 419101 (June 4, 1993); Keytack v. City of Warren, 12th Dist. No. 2005-T-0152, 2006-Ohio-5179; McCabe Corp. v. Ohio EPA, 10th Dist. 12AP-204, 2012-Ohio-6256.

3 For example, Northern Assurance Co. of Am. v. Archer Plumbing Co., 1st Dist. No. C-74140, 1975 WL 181469 (March 10, 1975) (reversible error to grant summary judgment on improperly authen-ticated evidence even though no objection was interposed); Dupler v. Rockwell Intl. Inc., 3d Dist. No. 14-84-1, 1985 WL 9085 *2 (March 4, 1985) (“The whole function of the rule is to require the parties to present factual material to establish that they are or are not entitled to judgment. . . . To permit the parties to waive this requirement would, in effect, permit the parties to amend the very explicit directions and limitations of the rule.”); Page v. Taylor Lumber, Inc., 161 Ohio App. 3d 644, 651, 2005-Ohio-3104, 831 N.E.2d 1017 (4th Dist) (uncertified deposition disregarded); Worldwide Asset Purchasing, L.L.C. v. Sandoval, 5th Dist. No. 2007-CA-00159, 2008-Ohio-6343, ¶ 30 (unauthenticated documents submitted in brief in opposition not considered); Rhodes v. Sinclair, 7th Dist. No. 08-MA-23, 2012- Ohio-5848, ¶50 (“unauthenticated documents which are not sworn, certified, or authenticated by way of affidavit have no evidentiary value and may not be considered by the trial court in ruling on a motion for sum-mary judgment.”);Thompson v. Hayes, 10th Dist. No. 05AP-476, 2006-Ohio-6000, ¶¶ 103-105 (affidavit not meeting 56(E) requirements should not have been considered as evidence); Premier Capital, LLC v. Baker, 11th Dist. No. 2011-P-0041, 2012-Ohio-2834, ¶ 46 (“Because the evidence was not properly authenticated, summary judgment was not proper.”); Koop v. Speedway SuperAmerica, LLC, 12th Dist. No. CA2008-09-110, 2009-Ohio-1734, ¶ 9 (trial court did not err by refusing to consider unauthenticated evidence).

4 See Biskupich v. Westbay Manor Nursing Home, 33 Ohio App.3d 220, 515 N.E.2d 632 (8th Dist.1986).

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Litigation News

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Supreme Court of Ohio distinguishes a real-party-in-interest from standing requirementThe real-party-in-interest in a foreclosure is the current holder of the promissory note and mortgage. Initially, the original lender is the real-party-in-interest. But typically the original lender transfers the note to another lender. When a homeowner defaulted on the mortgage, the later lender often filed a foreclosure complaint—before acquiring possession of the note from the original lender—to streamline the foreclosure pro-cess. After filing a foreclosure complaint, but before judgment, the later lender often acquired the note and filed it with the court.

In what has been called a “bombshell win for homeowners,”1 the Supreme Court of Ohio’s recent decision in Federal Home Mortgage Corporation v. Schwartzwald 2 ruled that lenders must possess the note to have standing to file a foreclosure complaint. Lenders cannot retroactively “cure” this jurisdictional defect with a later assignment by, or substitution of, the real-party-in-interest. Although Civ. R. 17 is a mechanism used to cure real-party-in-interest problems, standing is jurisdictional and cannot be cured.

Schwartzwald is significant because it resolved an appellate conflict. In 2011, the Ohio Supreme Court recognized a conflict in U.S. Bank v. Duvall 3 on the following question: To have standing as a plaintiff in a mort-gage foreclosure action, must a party show that it owned the note and mortgage when the complaint was filed?

Duvall resulted from an Eighth District deci-sion in conflict with the Fifth4, Seventh5, Ninth6 and Tenth7 districts. Before the Supreme Court of Ohio issued a ruling in Duvall to resolve the conflict, the case was dismissed as moot. But Schwartzwald gave the Supreme Court of Ohio another chance to speak on the issue.

Standing-to-foreclose Standing-to-foreclose is determined on the

date of the foreclosure filing and cannot be cured through assignment of the note or substitution

The Schwartzwalds purchased a home and received a $251,250 mortgage from Legacy Mortgage, who endorsed the note to Wells Fargo Bank, N.A., and assigned the mort-gage to Wells Fargo.8 The Schwartzwalds went into default on Jan. 1, 2009.9

Federal Home Loan Mortgage filed for foreclosure on April 15, 2009, for the outstanding $245,085.18 on the note.10 Although Federal Home Loan attached the mortgage to the complaint, it said “a copy of [the note] is currently unavailable.”11 Nine days later, on April 24, 2012, Federal Home Loan filed a copy of the note.12 There was a special endorsement from Leg-acy Mortgage to Wells Fargo and a blank endorsement above.13 On May 15, 2009, Wells Fargo assigned the note and mortgage to Federal Home Loan who filed a copy of the assignment with the Court on June 17, 2009.14 Federal Home Loan moved for summary judgment with an affidavit from its vice president showing the default, and authenticating the note and assignment.15 The Second District determined that the company cured the real-party-in-interest problem—created by Federal Home Loan’s failure to attach the note to its complaint— through the later assignment and note trans-fer before judgment.15

Civ. R. 17(A) requires that “[e]very action [be] prosecuted in the name of the real party in interest.” But the rule’s cure provi-sion states that

“[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for rati-fication of commencement of the

action by, or joinder or substitution of, the real party in interest. Such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.”

The Schwartzwalds urged the Court to “sanction the shell game that is today’s mortgage industry.”16 They argued that Fed-eral Home Loan lacked standing because it was not injured by their default at the time of the foreclosure filing as it acquired the note and mortgage afterwards.17 They argued that “real parties in interest [are] a subset of those who have standing,” and that standing cannot be cured because it is jurisdictionally required by the Ohio Consti-tution to file suit.18 Federal Home Loan, on the other hand, argued that it was a “person entitled to enforce the note” and that its lack of standing was cured through Civ. R. 17(A) substitution.

The Court’s 7-0 decision ruled that standing to initiate mortgage foreclosure is determined on the date of filing. The Ohio Constitution states that “[t]he courts . . . shall have such original jurisdiction over all justiciable matters”19 and invoking jurisdic-tion “depends on the state of things at the time of the action brought.”20 A party lacks standing to invoke jurisdiction without a real interest in the subject matter of the suit.21 Be-cause standing-to-foreclose is determined on the date of filing, it cannot be cured through an assignment of the note or substitution of the real-party-in-interest before judgment.22 Notably, however, a standing-to-foreclose defect is not “an adjudication on the merits” which allows the lender to file a subsequent foreclosure action.23

What does it mean?Schwartzwald not only clarifies an appellate split, but also illuminates the differences be-tween a real-party-in-interest under Civ. R.

(continued on pg. 4)

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17 and the jurisdictional issue of standing to file suit. Courts and litigants previously treated these distinct issues as the same which unsurprisingly produced divergent results. By deconstructing these issues, courts and litigants now have clear guidance on handling standing.

Perhaps equally important is what the case is not—namely, an “adjudication on the merits.” The Ohio Supreme Court went out of its way to make this point. If a suit is dismissed for lack of standing, a lender can obtain standing by acquiring the note and then re-filing. Even though a standing-to-foreclose defect is not fatal, it will cause delay and provide a struggling homeowner with time to fight a foreclosure. The full impact of Schwartzwald and its implications beyond foreclosure litigation may not be known for years to come. ◆

By Tyler Tarney and Zachary Pyers, Reminger Co., LPA, Columbus.

Endnotes

1 Ohio Supreme Court: Bombshell Win for Home-owners, Ohio FRAUDclosure, http://ohiofraudclosure.blogspot.com/, (Oct. 31, 2012) (last accessed 3/2/13).

2 Fed. Home Mtge. Corp. v. Schwartzwald, 134 Ohio St 3d 13, 2012-Ohio-5017, 979 N.E.2d 1214.

3 U.S. Bank v. Duvall, 128 Ohio St.3d 1443, 2011-Ohio-1618, 944 N.E.2d 693.

4 U.S. Bank, N.A. v. Bayless, 5th Dist. No. 09 CAE 01 004, 2009-Ohio-6115 (Nov. 13, 2009).

5 U.S. Bank, N.A. v, Marcino, 181 Ohio App.3d 328, 2009-Ohio-1178, 908 N.E.2d 1032 (7th Dist.).

6 Bank of New York v. Stuart, 9th Dist. No. 06CA008953, 2007-Ohio-1483 (March 30, 2007).

7 Countrywide Home Loan Servicing, L.P. v. Thomas, 10th Dist. No. 09AP-819, 2010-Ohio-3018 (June 30, 2010).

8 Fed. Home Loan at ¶¶ 5, 9.9 Id. at ¶ 6.10 Id. at ¶ 7.11 Id. 12 Id. at ¶ 9.

13 Id. 14 Id. at ¶ 10.15 Id. at ¶ 12.16 Appellant Reply, p. 3.17 Fed. Home Loan at ¶ 17.18 App. Merit Brief, p. 9.19 Fed. Home Loan at ¶ 25.20 Id. at ¶ 20 (citing Ohio Constitution, Art. IV, Sec-tion 4(B)) (Emphasis added).

21 Id. at ¶ 22.22 Id. at ¶ 41. 23 Id. at ¶ 40.

The important right of citizen access to government records sometimes flounders in the quicksand of an insufficiently spe-cific request. A public office may deny a legally ambiguous or overly broad request (with the required explanations), leaving the requester to ponder the revision or enforce-ment options. Where the goal is to obtain the records as soon as possible, the statutory remedy of a mandamus action rarely satis-fies a requester’s desire for speed, and the parties may struggle over what revision is necessary to make the request a proper one. Mediation options available before and dur-ing public records litigation are well-suited to resolve these common “clarification of request” issues.

When a public office believes that a request is ambiguous or overly broad (e.g., “all email” between multiple employees for long

periods or “all records pertaining in any way to” some policy or concept), the office may deny the request under the Ohio Public Re-cords Act and then provide the requester an opportunity to revise the request by inform-ing the requester of the manner in which records are maintained and accessed by the public office.1 If this required “informing” is not followed by the requester resolving the impasse through an acceptably narrowed request, resulting litigation can delay produc-tion of records for months or years.

We have seen requesters refuse mediation at the outset of such litigation, stating the belief that they will get a faster result by pressing forward with litigation and appeals, only to end up with neither records nor fees. Public offices also can have difficulty evalu-ating the strength of their position in these cases, and win or lose, may come to regret

litigation time and expense that could have been avoided by greater effort to facilitate a revised request. Members of the Ohio Attorney General’s Public Records Unit, based on experience as both mediators and parties to mediation in these circumstances, heartily recommend mediation as a low-cost, swift, and effective option for clarifying an ambiguous or overly broad request.

Where the initial stumbling block is lack of clear identification and scope of the re-cords sought, a neutral third party can help conform the requester’s real interests to the practical and legal issues facing the public office, either in group discussion or confi-dentially through the mediator, and explore creative solutions. In typical mediation practice where both sides explain their un-derlying interests and constraints, a requester may learn that the records sought are not

Mediation can cut the “actual cost” of public records requests

Litigation News

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all stored in one location, or searchable through a central index, and therefore are not as globally searchable as assumed. The public office may learn that the requester needs only records from one division rather than office-wide, or is willing to bypass a large but marginally relevant category of records, or is willing to make a narrower first request on the understanding that a follow-up request can be made later. Be-cause there are few bright lines in applying the terms “ambiguous” and “overly broad,” the mediator may want to give the parties a reality check by listing public records cases where requests were found to be sufficiently specific, or not.2

The public office should take the time to lay out in detail how the type of records sought are actually organized, maintained and ac-cessed, giving the requester and mediator the tools to adapt the records request to the realities of the public office’s records management systems and equipment. A set of the office’s records retention schedules sometimes can serve as a handy pre-exist-ing resource for outlining office records management to the requester, and may be useful in the earlier “informing” process as well. One valuable benefit of a coopera-tive mediation discussion is that the mutual explanations, background, and goal-setting can establish a long-term relationship based on insight and trust between the public office and a repeat requester (often media, activists, or litigators), improving efficiency and reducing the burden of future requests.

The parties may agree to select a media-tor from among private mediation orga-nizations and mediators, generally subject to the confidentiality and other rules of the Ohio Uniform Mediation Act, R.C. Chapter 2710. As an alternative, the Ohio Attorney General’s Public Records Media-tion Program may be requested prior to the filing of litigation by either party to a public records dispute (not involving state agencies), and is provided free of charge. If both parties agree to mediate, sessions take place by teleconference, with knowledgeable members of the Ohio Attorney General’s

Public Records Unit as mediators. Because it is part of a public office, the mediation intake form and scheduling records of the Ohio Attorney General’s Public Records Mediation Program are public record, but the teleconference sessions themselves are not public or recorded. They can be viewed at www.ohioattorneygeneral.gov/PublicRe-cordsMediation.

Once a mandamus action is filed, mediation frequently is available through county courts of common pleas or in the district courts of appeals; procedure varies locally. App. R. 20 provides for prehearing conferences that can include dispute resolution efforts, and six of the Ohio appellate districts provide for mediation in their local rules, though the parties may need to initiate the request for mediation. In the Supreme Court of Ohio, a public records mandamus action filed as an original action is often referred sua sponte to mediation under S.Ct.Prac.R. 17, or mediation may be requested by either party. Unless otherwise provided by court order, this mediation does not delay the filing deadlines; it can resolve or at least simplify the requester’s claims, accelerating resolution and minimizing expense for both parties.

Ideally the only “cost” of a public records request is the cost of copying the requested records onto paper or electronic media. If an ambiguous or overly broad request ends up in court, both parties pay much higher costs in time, filing costs, risk of attorney fees and statutory damages, as well as the lost opportunity for a positive long-term relationship. Mediation is widely available to help control these costs, and smooth the path to prompt inspection of the people’s records. ◆

By Jeff Clark, assistant attorney general, Ohio Attorney General’s Public Records Unit.

Endnotes

1 R.C. 149.43(B)(2)2 One such (non-exhaustive) list is found in the Ohio Sunshine Laws Manual, 2013 Ed., at p. 12.

www.ohioattorneygeneral.gov/YellowBook.

Litigation News

Do you know in front of whom you are practicing?We are lucky to have the opportunity to practice in front of many great judges across Ohio. For both newer and seasoned attorneys, it can sometimes be overwhelm-ing and difficult to practice in front of so many different judges. You need to be aware of who you are practicing in front of to be a more valuable advocate for your clients.

Do your homework For starters, just about every courthouse in the state has a website containing judge profiles. This is a great way to do some quick homework before heading in front of a judge for the first time. You can also find other helpful information such as basic courtroom procedures and contact information. Another great way to do your homework is to ask more seasoned attor-neys for pointers based on their familiarity with practicing before specific judges. The best teacher is experience, and attorneys who have been around longer than you have certainly made mistakes you can learn from.

Call aheadIf you have done your homework and still have a specific question or a unique situation you need guidance on, call the judge’s staff, but do not do it 10 minutes before your hearing. More often than not, your question or concern will be met with a friendly answer or helpful suggestion if you know when to do the asking. Try to avoid the morning, as most court staff members are busy helping with the morn-ing dockets.

Take notesIt is one thing to be a rookie practicing before a different judge or in a different county; it is another thing to ask the same questions every time you practice before

that judge or in that county. Once you learn the procedures and preferences of a particular courtroom—write them down! You will likely have to recall that informa-tion again, and repeatedly asking the same questions is never good. Court staff will notice. Showing up prepared and remem-bering what you were told will score you major points.

Be niceYour demeanor will make or break you. Even attorneys that completely ignore the three tips above will still get by if they are courteous to everyone (yes that means op-posing counsel). Oddly enough, mastering the first three tips is relatively meaningless if you do not know how to play nice. Even if a judge is not watching you directly, comments made by his or her staff, your attitude in filed pleadings, and even emails with opposing counsel are all noticed.

Do it If you tell the court you are going to do something, do it!

Leave a (good) lasting impression You have heard this a thousand times, but it might be the most relevant here. Leav-ing good impressions on your colleagues is important, but not nearly as important as leaving a good impression on the judge and his or her staff. Be on time, be polite, and recognize the fact that your case is only one of many. ◆

By Stephanie R. Hanna, staff attorney to The Hon. Kim J. Brown, Franklin County Court of Common Pleas, General Division.

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Litigation News is produced by the Ohio State Bar Association Litigation Section. The OSBA publishes 10 committee and section newsletters.

For more information about Litigation News, contact editors Andrew Holford at aholford@ahlawltd.com or Meredith Mercurio at mmercurio@co.lucas.oh.us.

Articles published in this newsletter reflect the views and opinions of the writers and are not necessarily the views or opinions of the OSBA Litigation Section. Publication in Litigation News should not be construed as an endorsement by the committee or the OSBA.

For information about other OSBA committee and section newsletters, contact John Hocter, publications editor, at P.O. Box 16562, 1700 Lake Shore Drive, Columbus, Ohio 43216-6562, by phone (800) 282-6556 or (614) 487-4402, or by e-mail at jhocter@ohiobar.org. ◆Designed by Andrea Davidson and Natalie Zofko.

© Copyright 2013 Ohio State Bar Association.

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