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Professional Bank Services v. Grossman DT, Inc.

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 6, 2019

PROFESSIONAL BANK SERVICES, ET AL., Plaintiffs-Appellants,
v.
GROSSMAN DT, INC., Defendant-Appellee.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-17-884532

          Weltman, Weinberg & Reis Co., L.PA., Robert B. Weltman, Scott S. Weltman, and Daniel A Friedlander, for appellants.

          Myron 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 decision.

         {¶ 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 garnishment order."

         {¶ 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 ...


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