Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Weltman, Weinberg & Reis Co., L.PA., Robert B. Weltman,
Scott S. Weltman, and Daniel A Friedlander, for appellants.
Watson, for appellee.
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, J.
1} Plaintiffs-appellants, Professional Bank Services
and Francis H. Calvert (collectively "appellants"),
appeal the trial court's decision granting summary
judgment in favor of defendant-appellee, Grossman DT, Inc.,
d.b.a. Nemo's Beverage ("Grossman"). For the
reasons that follow, we affirm the trial court's
2} In 2005, appellants obtained a default judgment
against Elie F. Abboud ("Abboud"). In 2016,
appellants attempted to garnish Abboud's personal
earnings from Grossman, and an order of garnishment was sent
to Grossman on May 16, 2017. When Grossman did not respond,
appellants brought the underlying action against Grossman
pursuant to R.C. 2716.21(F)(1) seeking to hold it responsible
for the entirety of their judgment against Abboud.
3} Following extensive discovery, Grossman moved for
summary judgment, contending there is no genuine issue of
material fact that Abboud was not employed by Grossman during
the order of garnishment. In support, Grossman attached an
affidavit executed by Fayez E. Abboud, president and majority
shareholder of Grossman and also Abboud's son. The
affidavit referenced and incorporated Grossman's payroll
withholding records depicting that Abboud was not employed
with Grossman when it was served with the garnishment order.
4} Appellants opposed the motion, alleging that
Grossman's failure to properly withhold taxes from all
monies paid to Abboud should not be grounds for summary
judgment. Specifically, appellants contended that Abboud
receives remuneration from his children, including Fayez, who
owns Grossman, that should be subject to garnishment because
these monies allow Abboud to acquire certain assets. In
support, appellants attached multiple court dockets, an
affidavit by the process server, and Abboud's depositions
dated February 28 and March 15, 2018.
5} The trial court granted Grossman's motion,
finding no genuine issue of material fact for trial. The
court stated: "[p]laintiff s sole claim alleges
defendant, as the employer of Elie F. Abboud, failed to
comply with a wage garnishment order. While Elie F. Abboud
was an employee of the defendant, his employment with the
defendant ceased before defendant was served with the
6} Appellants now appeal, contending in their sole
assignment of error that the trial court erred in granting
summary judgment in favor of the defendant. Specifically,
appellants contend that the affidavit attached to the
defendant's motion for summary judgment improperly
incorporated unauthenticated business records. Appellants
contend that even if the affidavit properly authenticated the
business records, genuine issues of material fact exist
regarding whether Abboud received personal earnings from
Grossman that are subject to garnishment.
7} Under Civ.R. 56(C), summary judgment is
appropriate when (1) there is no genuine issue of material
fact, (2) the moving party is entitled to judgment as a
matter of law, and (3) after construing the evidence most
favorably for the party against whom the motion is made,
reasonable minds can only reach a conclusion that is adverse
to the nonmoving party. Zivich v. Mentor Soccer Club,
Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998);
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327,
364 N.E.2d 267 (1977). We review the trial court's
judgment de novo, using the same standard that the trial
court applies under Civ.R. 56(C). Grafton v. Ohio Edison
Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
Accordingly, we stand in the shoes of the trial court and
conduct an independent review of the record.
8} On a motion for summary judgment, the moving
party carries the initial burden of identifying specific
facts in the record that demonstrate its entitlement to
summary judgment. Dresher v. Burt, 75 Ohio St.3d
280, 292-293, 662 N.E.2d 264 (1996). If the moving party
fails to meet this burden, summary judgment is not
appropriate; if the moving party meets this burden, the
nonmoving party has a reciprocal burden to point to evidence
of specific facts in the record demonstrating the existence
of a genuine issue of material fact for trial. Id.
at 293. Summary judgment is appropriate if the nonmoving
party fails to meet this burden. Id.
9} On appeal, appellants contend that Grossman
improperly supported its motion for summary judgment with an
affidavit that incorporated unauthenticated business records.
A review of appellants' brief in opposition to summary
judgment, however, reveals that they did not raise this
specific issue with the trial court.
10} Civ.R. 56(C) places limitations on the types of
documentary evidence a party must use in supporting or
opposing a motion for summary judgment. Under Civ.R. 56(C),
the materials that may be considered include the pleadings,
depositions, answers to interrogatories, written admissions,
affidavits, transcripts of evidence, and written stipulations
of fact. Other types of documents may be introduced as
evidentiary material only through incorporation by ...