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Pension Fund v. Whitehurst

Court of Appeals of Ohio, Fifth District

January 16, 2004

SHEET METAL WORKERS LOCAL 98, PENSION FUND Plaintiff-Appellee
v.
STEVEN R. WHITEHURST Defendant-Appellant

Civil Appeal from the Mount Vernon Municipal Court, Case No. 02 CVH 00646

For Plaintiff-Appellee LEONARD S. SIGALL LAW OFFICES of LEONARD S. SIGALL.

For Defendant-Appellant EDWARD P. BRUEGGEMAN.

Hon. W. Scott Gwin, P. J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.

OPINION

Wise, J.

{¶1} Appellant Steven Whitehurst appeals the decision of the Mount Vernon Municipal Court arguing the trial court erred when it denied his motion for change of venue and denied his motion for summary judgment and granted Appellee Sheet Metal Workers Local 98 Pension Fund's ("appellee") motion for summary judgment. The following facts give rise to this appeal.

{¶2} On February 11, 2002, appellant received a letter from appellee expressing its regret concerning the recent death of appellant's father, a 1984 retiree. Enclosed in the letter was a check in the amount of $1, 500, which represented the death benefit, from the pension fund, for retired members. The letter also contained a warning to return any future checks sent by Equitable. Thereafter, the pension fund sent appellant three more checks each in the amount of $1, 500. It is these three checks that form the basis of this lawsuit.

{¶3} Appellant accepted the three checks and deposited them into his savings account at The First Knox National Bank. Subsequently, the pension fund requested the return of the three checks and filed suit against appellant on August 2, 2002. On January 21, 2003, the pension plan issued appellant an IRS Form 1099-R which indicated a $6, 000 taxable pension distribution. Appellant claims that as a result of this alleged overpayment by the pension fund, he incurred $2, 318 in expenses that he would not have otherwise incurred.

{¶4} On September 20, 2002, appellant moved for dismissal of appellee's complaint on the grounds that Knox County was not the proper venue because he lived in Morrow County. The trial court overruled appellant's motion on October 30, 2002, concluding Knox County was the proper venue because appellant's address is Centerburg, which is located in Knox County. Judgment Entry, Oct. 30, 2002. Appellant filed a motion for reconsideration which the trial court overruled on December 4, 2002.

{¶5} Both parties filed motions for summary judgment. On July 29, 2003, the trial court granted appellee's motion for summary judgment and denied appellant's motion for summary judgment. Appellant timely filed a notice of appeal and sets forth the following assignments of error for our consideration:

{¶6} "I. THE COURT ERRED IN FINDING THAT KNOX COUNTY WAS A PROPER VENUE.

{¶7} "II. THE COURT ERRED IN FAILING TO FIND THE ALLEGED OVERPAYMENT WAS MADE AS A RESULT OF A MISTAKE IN LAW.

{¶8} III. "THE COURT ERRED IN FAILING TO FIND THAT DEFENDANT-APPELLANT'S CHANGE IN FINANCIAL POSITION ENTITLED HIM TO RETAIN THE OVERPAYMENT EVEN IF, ARGUENDO, THE PAYMENT WAS MADE PURSUANT TO A MISTAKE OF FACT."

"Summary Judgment Standard"

{¶9} Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. As such, we must refer to Civ.R. 56 which provides, in pertinent part:

{¶10} "Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case 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. * * * a summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor."

{¶11} Pursuant to the above rule, a trial court may not enter summary judgment if it appears a material fact is genuinely disputed. 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. The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The moving party must specifically point to some evidence which demonstrates the non-moving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the non-moving party to set forth specific facts ...


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