Court of Appeals of Ohio, Eleventh District, Ashtabula
Appeal from the Ashtabula County Court of Common Pleas, Case
No. 2016 CV 00597.
L Altier, (For Plaintiffs-Appellees).
Kalfas, (For Defendant-Appellant).
JANE TRAPP, J.
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.
History and Procedural Background
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.
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.
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
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.
The case was transferred to the Ashtabula County Court of
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.
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.
On March 29, 2017, Nicholas sent to Sylvia interrogatories, a
request for production of documents, and a request for
admissions. Sylvia did not respond.
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.
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.
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.
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.
Plaintiffs did not file a response to Nicholas's motion
for summary judgment.
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 ...