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Ezzo v. Ezzo

Court of Appeals of Ohio, Eleventh District, Ashtabula

June 17, 2019

SYLVIA EZZO, et al., Plaintiffs-Appellees,
NICHOLAS EZZO, Defendant-Appellant.

          Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2016 CV 00597.

          Samuel L Altier, (For Plaintiffs-Appellees).

          Plato Kalfas, (For Defendant-Appellant).


          MARY JANE TRAPP, J.

         {¶1} Appellant, Nicholas Ezzo, appeals from a June 27, 2018 entry of the Ashtabula County Court of Common Pleas. The trial court granted judgment in favor of appellees, Sylvia Ezzo, Thomas Ezzo, and Deborah Kametz, on their complaint for forcible entry and detainer and against Nicholas on his counterclaim for breach of contract and specific performance. The issues on appeal relate to the denial of Nicholas's motion for summary judgment and the admission at trial of Sylvia's prior testimony. The judgment is affirmed in part, reversed in part, and the matter is remanded.

         Substantive History and Procedural Background

         {¶2} Sylvia Ezzo, upon the death of her husband in 1992, became the sole owner of real property located on Fairview Drive in Conneaut, Ohio. Nicholas Ezzo, Sylvia's son, moved into the cottage on the property in 2003 and has lived there full time since June 2004. On or about July 19, 2010, Sylvia added to the survivorship deed her other son and daughter, Thomas Ezzo and Deborah Kametz.

         {¶3} Sylvia and Deborah initiated a forcible entry and detainer action against Nicholas on August 24, 2016, in the Conneaut Municipal Court. Plaintiffs alleged they are the owners of the property and permitted Nicholas to reside there through an oral agreement, but they have now requested that he vacate the premises. They alleged Nicholas refused to vacate the premises and served him with notice on August 20, 2016. According to the complaint, Nicholas was to pay rent in the sum of $510 per month, plus a late fee of $76.50 if paid after the fifth day of the month. Plaintiffs alleged Nicholas had not paid rent since March 5, 2015, after numerous requests for payment. Plaintiffs demanded judgment against Nicholas for restitution of the property and for costs.

         {¶4} Nicholas opposed the action and filed a counterclaim for specific performance of an alleged agreement with Sylvia to purchase the property. Nicholas also joined Thomas as a necessary party.

         {¶5} In his counterclaim, Nicholas alleged that, at the time Sylvia was the sole owner of the property, she entered into an agreement with Nicholas to sell him the property for $37, 000. He alleged that details of the sale were recorded in a journal kept by Sylvia and signed by both parties. Nicholas maintained that, two days after the agreement was made, he gave Sylvia a cashier's check for $12, 000 of which $10, 000 was the down payment for the purchase price. Sylvia allegedly accepted the check but never communicated to Nicholas how much the installment payments would be going forward. Nicholas alleged that he gave Sylvia a second cashier's check for $10, 000 in August 2009 and that Sylvia stated the remaining amount owed on the purchase price was $17, 000. At that time, Nicholas alleged, he also gave Sylvia $1, 500 cash to cover his recent utility bills and then transferred the utility bills into his name. Nicholas further alleged that Sylvia added Deborah and Thomas to the deed, without his knowledge, on or about July 19, 2010. Since that time, Sylvia has allegedly refused to speak to Nicholas about the purchase agreement and refused to allow him access to the journal. He requested specific performance of the alleged contract with Sylvia to purchase the property.

         {¶6} The case was transferred to the Ashtabula County Court of Common Pleas.

         {¶7} On November 29, 2016, Nicholas filed a motion to enjoin transfer or encumbrance of the property, as he believed plaintiffs were attempting to sell the property.

         {¶8} The magistrate held an injunction hearing on February 1, 2017. All parties appeared pro se and waived their right to have counsel present. The magistrate allowed each party to present their arguments solely as to the motion to enjoin. None of the parties were cross-examined. The magistrate overruled the motion to enjoin on February 3, 2017.

         {¶9} On March 29, 2017, Nicholas sent to Sylvia interrogatories, a request for production of documents, and a request for admissions. Sylvia did not respond.

         {¶10} Nicholas filed a motion to compel on June 12, 2017, which the magistrate granted on July 12, 2017. Sylvia was ordered to respond "forthwith." She did not respond.

         {¶11} On August 3, 2017, Nicholas filed a motion for an order compelling Sylvia to appear and show cause why she should not be held in contempt for failing to comply with the July 12, 2017 order. The trial court set a show cause hearing for September 29, 2017.

         {¶12} On August 21, 2017, Sylvia filed responses to the request for admissions, request for production of documents, and interrogatories. She also filed a notice of service, which was not signed.

         {¶13} Nicholas filed a motion for summary judgment on August 24, 2017, based on Sylvia's failure to timely respond to his request for admissions and her failure to sign the notice of service. He asserted the admissions, by virtue of their untimeliness, had been conclusively established and were of such a nature as to eliminate all genuine issues of material fact. Nicholas attached to his motion Sylvia's discovery responses; his own notarized affidavit; a copy of an August 2009 cashier's check in the amount of $10, 000, paid to the order of Sylvia from Nicholas, with the notation "payment for cottage" in the memo line; and a copy of the July 19, 2010 survivorship deed transferring the property from Sylvia to Sylvia, Deborah, and Thomas.

         {¶14} Plaintiffs did not file a response to Nicholas's motion for summary judgment.

         {¶15} A joint pretrial conference and motion hearing was held September 29, 2017. Sylvia did not appear; the other parties appeared pro se. The magistrate overruled Nicholas's motion to show cause on ...

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