Court of Appeals of Ohio, Second District, Montgomery
ROBYN N. MATLOCK Plaintiff-Appellee
ROBERT J. RECK (R & S MOBILE HOME PARK) Defendant-Appellant
Appeal from Municipal Court T.C. NO. 2015-CVF-214
RABOLD, Atty. Reg. No. 89080, Attorney for Plaintiff-Appellee
LOPEZ, Atty. Reg. No. 19580, Attorney for Defendant-Appellant
1} This matter is before the Court on the August 11,
2017 Notice of Appeal of Robert J. Reck. Robert appeals from
the March 23, 2017 decision of the trial court overruling his
objections to the Magistrate's decision which granted
judgment in favor of Robyn N. Matlock in the amount of $3,
000.00, as a result of Robert's breach of the
parties' oral agreement regarding Robyn's purchase of
a habitable mobile home from Robert. The judgment of the
trial court will be affirmed.
2} Robyn Matlock filed a pro se "Small Claims
Complaint" in Miamisburg Municipal Court against
"Robert J. Reck (R & S Mobile Home Park)" on
February 3, 2015. The complaint provides as follows: "I
purchased a mobile home from Mr. Reck on 10-15-14. No
disclosures were given about condition of home and was told
that no repair[s] were needed. He did not deliver what was
promised. Unsafe conditions are evident." The complaint
sought judgment in the amount of $3, 000.00.
3} Robert filed a motion to dismiss on March 27,
2015, asserting that Robyn lacked standing to bring her claim
against him. According to Robert, Robyn "was not a party
to the contract for the sale of the mobile home. * * * Shawn
Matlock is the sole purchaser listed on the contract."
Robert further asserted that Robyn's complaint
"should be dismissed as it fails to provide a copy of
the purchase agreement at issue in the Complaint and which is
required pursuant to Rule 10(D) of the Ohio Rules of Civil
Procedure." Attached to the motion to dismiss is a
document dated October 15, 2014, with a heading as follows:
"R & S Reck Mobile Home Park, 8559 Dayton Cincinnati
Pike, Miamisburg, Ohio 45342." The top portion of the
document reflects Shawn Matlock's printed name,
signature, social security number, date of birth, phone
number, and employer, all separated by a dotted line from the
lower portion of the document that provides as follows:
* * *RENT* * *
RENT FOR THE HOME IS $275.00 PER MONTH
THE RENT MUST BE PAID BY THE FIRST DAY OF THE MONTH OR YOU
WILL RECEIVE A THREE DAY NOTICE TO VACATE THE MOBILE HOME
THERE IS A $40.00 LATE FEE AND A $10.00 DELIVERY FEE FOR THE
THREE DAY NOTICE
DO YOU HAVE A COPY OF THE RULES? YES__NO__
WOULD YOU LIKE A YEAR LEASE? YES__NO__
OR A MONTH TO MONTH LEASE? YESNO
4} There is a check mark on the first and third
"YES" lines. At the top of the document, above the
heading, "35 North" is handwritten, and "Sold
As is" is handwritten and underlined. At the bottom of
the document, the following is handwritten: "Dec 1-2015
Balance on trailer $800.00 Rent for March
$775.83." Also attached to the motion to dismiss is the
affidavit of Jose Lopez, counsel for Robert, which provides
that "good defenses exist to Plaintiffs claims, "
including "Plaintiffs failure to state a claim upon
which relief can be granted, Plaintiffs lack of standing, and
Plaintiffs failure to add a necessary party."
5} On April 6, 2015, Robert filed a "Motion and
Entry to Transfer to Regular Docket, " which was
granted. On July 15, 2015 Robert filed an "Answer and
Third-Party Complaint of Defendant/Third Party Plaintiff,
Robert Reck, for Unpaid Rent and Money Damages (Notice under
the Fair Debt Collection Practices Act)." Robert
asserted that he and Shawn Matlock "entered into a
written agreement whereby Third-party Plaintiff agreed to
sell to Third-party Defendant a mobile home and to lease
Third-party Defendant a lot upon which the mobile home
sat." Robert alleged that Shawn breached the written
agreement "in that he failed to pay the rent and the
purchase price of the mobile home." According to Robert,
Shawn owed him $775.83 in rent as well as $800.00 for the
remainder of the purchase price of the mobile home, and $1,
220.87 for "unpaid damages and/or necessary repairs to
the premises." Attached is the October 15, 2014
document, as set forth above, and an invoice from R&J
Handy Man Services addressed to R&S RECK MHP in the
amount of $1, 220.87.
6} On August 31, 2015 Robert filed a motion for
summary judgment. Robert argued that the "terms of the
contract indicated that the mobile home was being sold in an
'as is' condition, " and that at "no time
did Defendant contract either orally or in writing with the
Plaintiff, Robyn N. Matlock, for the purposes of the sale of
the mobile home as she alleges in her Complaint. * * * As
such, Plaintiff has no standing to bring the instant action
for alleged damages to the mobile home." Attached to the
motion is Robert's affidavit, and the October 15, 2014
document. Robert's affidavit provides in part as follows:
3. That Affiant is the legal owner of R & S Reck Mobile
Home Park, LLC, a corporation organized and existing under
the laws of the State of Ohio.
4. That on or about, October 15, 2014, I entered into a
written agreement with Shawn Matlock to sell him a 1962
Travelo mobile home, VIN # OH703233549, (a copy of said
aforementioned contract is attached hereto as Exhibit
5. The contract for sale included a condition that the mobile
home was being sold in an "as is" condition.
6. At no time did I contract either orally or in writing with
the Plaintiff, Robyn N. Matlock, for the purposes of the sale
of the mobile home identified in Paragraph 3 of this
7. No Express warranties were made regarding the condition of
the mobile home.
7} On October 1, 2015 correspondence from Robyn to
the clerk of court was filed requesting a continuance of the
scheduled October 20, 2015 trial date due to her "high
risk pregnancy, " and the request was granted.
8} On March 15, 2016, Robyn filed a pro se response
to Robert's motion for summary judgment. On March 29,
2016, Robert filed a reply, noting that Robyn's response
does not "contain an affidavit in accordance with Civ.R.
56(E), " and concluding that without "an affidavit,
this Court may not consider any of the factual allegations or
statements of personal knowledge which comprise the entirety
of Plaintiffs response."
9} On May 3, 2016, Robyn, represented by counsel,
filed an amended response to the motion for summary judgment.
The amended response sets forth the following facts:
Defendant agreed to sell Plaintiff a mobile home for $4,
000.00. The agreement was that Plaintiff was to pay $3,
100.00 as a down payment and $900.00 to be paid in monthly
installments of $100.00 for 9 months and as a result
Plaintiff would receive a mobile home. This was an oral
agreement and the transactions were cash transactions.
Plaintiff paid Defendant $3, 100 on October 15, 2014 and
moved into the property.
Simultaneously, Plaintiffs husband, Shawn Matlock, signed an
application to rent the lot on which the mobile home was
situated. This was attached to Defendant's Motion for
Summary Judgment and marked Exhibit B. It is apparent that
this contract was for the lot rent, not for the sale of the
mobile home. These two transactions were separate.
Plaintiff continued to pay the $100.00 installment for
purchase of the mobile home and $275.00 lot rent, each month.
In December 2014, Plaintiffs Husband Shawn Matlock, moved out
of the home and Defendant continued to handle rent and
purchase transactions with Robyn Matlock.
10} According to Robyn, Robert's "acts were
unconscionable under Ohio Revised Code § 1345.03.
Defendant made a statement to Plaintiff regarding the
condition of the home and she relied on it to her detriment.
Defendant has gained $3, 500.00 and Plaintiff did not receive
a suitable and fit mobile home. A genuine issue of material
fact exists regarding Defendant's statements made to
Plaintiff and the details of the transaction."
11} On May 20, 2016, Robert filed a "Motion to
Strike Plaintiff's Amended Response to Defendant's
Motion for Summary Judgment, " asserting that it
"was filed out of time and lacks a supporting
12} On June 21, 2016, the Magistrate issued an
"Entry & Decision on Motion for Summary
Judgment." The Magistrate determined as follows:
It may be that Plaintiff's ultimate chance at success is
nil. We are not yet at the final stage, since factual issues
still remain. The court is not convinced by the requisite
standard of proof that Defendant is entitled to prevail on
summary judgment. Accordingly this matter is set for trial
before Magistrate Jeffrey Slyman on August 30, 2016 at
1:00 pm. * * *
13} On July 5, 2016, Robert filed objections to the
Magistrate's decision. Robert asserted that Robyn
untimely responded to his motion for summary judgment seven
months after it was filed. Robert argued that "despite
the utter lack of any permissible evidence
or averments, the Magistrate permitted and considered the
filing." Robert noted that Robyn's subsequent
amended response contained averments, none of which
"were in any way supported by testimony or evidence
deemed admissible for summary judgment purposes pursuant to
Civil Rule 56." Robert asserted that Robyn "has
failed to ever present any evidence or
testimony contrary to the affidavit of Robert J. Reck that is
admissible pursuant to Civil Rule 56." Robert argued
that "the unchallenged averments set forth in Robert J.
Reck's Affidavit stand unchallenged and establish that
said Defendant is entitled to summary judgment as a matter of
law." He asserted that "the Affidavit establishes
that (1) the Defendant entered into a written agreement to
sell Shawn Matlock a mobile home; (2) that the contract
included a provision that the home was being sold 'as
is'; and (3) that Plaintiff, Robyn N. Matlock, was not a
party to the sale of the mobile home."
14} On July 20, 2016, "Plaintiff's
Memorandum in Opposition to Defendant's Objections to
Magistrate's Decision was filed." Therein Robyn
asserted that she "was served with her trial date at the
prior hearing on June 23, 2015, " and that Robert failed
to request leave of court to file his motion for summary
judgment, as required by Civ.R. 56(A). Robyn asserted that it
"is not a requirement that the response to summary
judgment be presented to the Court with an affidavit. Given
the extensions granted to Mrs. Matlock, her Amended Response
to Defendant's Motion for Summary Judgment should be
considered." Robyn asserted as follows:
Lastly, even if this Court finds Ms. Matlock's responses
were untimely and must consider only Mr. Robert Reck's
Motion for Summary Judgment and Affidavit, the summary
judgment cannot prevail. Defendant has not proven that
reasonable minds can come to only one conclusion and that
conclusion is against Mrs. Matlock. In Defendant's Motion
for Summary Judgment and Affidavit, he states "Exhibit
B" is a "contract for sale" of the mobile
home. However, there is no mention of a sales price or other
conditions of a sale. "Exhibit B" appears to be an
application to rent the lot space and has no bearing on the
actual sale of the mobile home. At the very most,
"Exhibit B" is a lease agreement which is not at
issue in this matter. Therefore, the Plaintiff must be given
the opportunity to cross-examine the Defendant regarding this
"contract" because the contract is ambiguous. There
are issues of material fact still to be determine[d] in this
15} On August 25, 2016, the court overruled
Robert's objections. The court concluded that the October
15, 2014 document "is not on its face a clear contract
as to the purchase of a mobile home. It reflects a
'balance on trailer' of $800.00 yet also sets forth a
'rent for the home' of $275.00 per month. Although
stating 'sold as is' there is no purchase price
reflected on the Exhibit."
16} Trial of this matter occurred on August 30,
2016, and December 13, 2016. On the first day, Robyn
testified that she moved into the mobile home on October 15,
2014, and moved out on March 31, 2015. She stated that Robert
represented to her that "everything [in the mobile home]
was in good working order, no work needed to be done."
According to Robyn, Robert "showed my husband around
first, my husband had me come and look at it and we both
agreed together that we would purchase it * * *." She
stated that after she moved in, "the roof or the ceiling
started to dip all the way through, we noticed mold, water
damage, * * * termite damage." Robin stated that the
purchase price of the mobile home was $3, 800.00, that she
made a down payment of $3, 100.00 and paid Robert $100.00 a
month for the following November, December, January, and
February. Robyn testified that she received an inheritance of
$4, 000.00 from the sale of her grandparents' home, and
that she used that money for the down payment.
17} Robyn stated that the water was turned off in
the home in February 2015. She testified, "I had paid my
rent for that month, I put it in the drop box, * * * Mr.
Reck, claimed that I did not pay my rent and he didn't
get it. So I called and made a police report about my rent
money being stolen and it was after that he did the three day
notice and I notified him I was going to take him to small
claims court and then the eviction."
18} Robin testified that a company called The Water
Works inspected the home at her request. The following
Q. I'm handing the witness a copy of plaintiff's
exhibit 1, can you please describe what this document is?
DEFENSE ATTORNEY: Objection Your Honor. The document itself
is here say [sic] unless there is going to be somebody from
the company here to testify as to the authenticity of it and
the fact that it is a business record.
THE COURT: The document may not be here say [sic], the
conclusions and things contained therein maybe. I think the
question was can she identify it, so let's just stick
with that. Overruled.
A. Um, it's an estimate of repairs that needed to be done
and the value of the repairs.
Q. Okay and speaking only to um, the price, as far as the,
um, do they give you a price of how much it would cost to
restore the mobile home?
DEFENSE ATTORNEY: Objection your Honor, it's hearsay.
THE COURT: Um, they haven't got there yet, we are getting
very close, all right, so in answer to the question, where