COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59569 DONALD WOLFF : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION WILLIAM F. KURALAK, ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : DECEMBER 19, 1991 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 159,319 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellees: Paul Mancino, Jr., Esq. John P. Lutseck, Esq. Suite 1016 14 East Monroe Street 75 Public Square Bldg. Bedford, OH 44146 Cleveland, OH 44113 - 2 - PATTON, J., Plaintiff-appellant Donald Wolff ("appellant") appeals from the trial court's entry of summary judgment in favor of defen- dant-appellees William F. and Carol Kuralak (collectively "appellees") on appellant's foreclosure action on a judgment lien against appellees. For the reasons that follow we affirm. The undisputed facts are as follows: 1. On or about April 19, 1963, appellees pur- chased the real estate which is the subject of this action. 2. On December 13, 1979, appellant obtained a judgment against appellee William Kuralak./1\ 3. On April 1, 1985, appellees transferred the subject real estate into an estate by the entireties. 4. On May 3, 1987, appellant was granted a revivor of his dormant judgment against William Kuralak. 5. On June 13, 1987, appellant filed a judgment lien against any and all interest in real estate owned by William Kuralak. 6. On November 3, 1988, appellant commenced this foreclosure action upon a judgment lien against appellees. 7. On October 16, 1989, Carol Kuralak filed a motion for summary judgment. 8. On October 30, 1989, appellant filed a brief in opposition to Carol Kuralak's motion for summary judgment. /1\ According to the record, this judgment was not filed in the judgment lien index. - 3 - 9. On March 9, 1990, Carol Kuralak's motion for summary judgment was granted, with opinion, by the trial court. Appellant's timely appeal asserts two assignments of error: I. THE COURT COMMITTED PREJUDICIAL ERROR IN GRANTING SUMMARY JUDGMENT IN THIS CASE DUE TO THE FACT THAT THE MOTION FOR SUMMARY JUDGMENT WAS NOT SUPPORTED BY ANY PROPER EVIDENTIARY MATERIALS AND DID NOT OTHERWISE COMPORT WITH RULE 56 OF THE OHIO RULES OF CIVIL PROCEDURE. II. THE COURT COMMITTED PREJUDICIAL ERROR IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANTS AS THE TRANSFER OF PROPERTY TO AN ESTATE BY THE ENTIRETIES AFTER THE JUDGMENT HAS BEEN OBTAINED AGAINST ONE OF THE CO-TENANTS IS SUBJECTED TO BEING SET ASIDE AS A FRAUDULENT CONVEYANCE. I. AND II. In appellant's first assignment of error, he argues the motion for summary judgment should have been overruled. Speci- fically, he repeats his argument contained in his brief in opposition to Carol Kuralak's motion for summary judgment and contends he was not required, as the non-moving party, to come forward with rebuttal evidence because the motion was not supported with competent evidence. This argument deals with the procedural aspect of a summary judgment proceeding which analysis must necessarily be addressed with the substantive argument in appellant's second assignment of error. In that portion of appellant's brief, he argues summary judgment was inappropriately granted as the conveyance of said real property - 4 - to an estate by the entireties was a fraudulent conveyance designed to defraud creditors. To support appellant's contention, he argues that the judg- ment lien was indeed filed; hence, he was a judgment creditor at the time of said transfer of the subject property to an estate by the entireties and therefore entitled to foreclosure. Appel- lant's argument ignores the facts of the case. This court, in reviewing the granting of summary judgment, must follow the standard set forth in Civ. R. 56(C), which provides that before summary judgment may be granted it must be determined that: (1) No genuine issue as to any material fact remains to be litigated;(2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327, 4 O.O. 3d 466, 472, 364 N.E. 2d 267, 274. Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App. 3d 78, 82. A. "A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. (Celotex v. Catrett [1986], 477 U.S.S 317, approved and followed.)" Wing v. Anchor Media Ltd. of - 5 - Texas (1991), 59 Ohio St. 3d 108, paragraph three of the sylla- bus. Although the moving party must disclose the basis for the summary judgment and support the motion with evidence, the non- moving party carries a reciprocal burden of specificity. Mitseff v. Wheeler (1988), 38 Ohio St. 3d 112, 115. Civ. R. 56(E) provides in pertinent part: *** When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Hence, requiring that the moving party be specific in his reasons for requesting summary provides the nonmoving party with the information necessary to formulate an appropriate response as required by Civ. R. 56(E). In this case, Carol Kuralak's motion for summary judgment was indeed factually and legally specific. The motion provided appellant the necessary information he needed to appropriately respond to said motion. However, appellant's response merely argued the motion should be overruled for lack of competent evidence. Appellant mistakenly argued he could rest upon the mere allegations in his complaint and that the "complaint must be taken as true." (Appellant's brief in opposition to the motion for summary judgment at p. 3.) As discussed, infra, this is not the proper procedure. - 6 - Further, as appellant bears the burden of production at trial of the documents verifying his claim that the judgment lien had indeed been filed and even that a revivor had been granted, he likewise carries the burden of producing these documents in opposing summary judgment. Wing, supra, at para- graph three of the syllabus. As such, appellant did not establish a genuine issue of material fact and his first assignment of error is overruled. B. Appellant essentially argues he was a creditor of William Kuralak as the result of a judgment entered against him on December 13, 1979. The transfer of the subject property occurred on April 1, 1985, which transfer transformed the property into an estate by the entireties. R.C. 5302.17 governs estates by the entireties in Ohio. The statute provides: A husband and wife who are the sole owners of real property as joint tenants or tenants in common, may create in themselves an estate by the entireties in such property, by executing a deed as provided in this section conveying their entire, separate interests in such property to themselves. An estate by the entireties, created pursuant to R.C. 5302.17, is not alienable by one spouse without the consent of the other. Central National Bank of Cleveland v. Fitzwilliam (1984), 12 Ohio St. 3d 51. Furthermore, a judgment creditor of an individual spouse is precluded from enforcing a judgment by a - 7 - foreclosure action against real property which the debtor holds with his or her spouse in an estate by the entireties where the foreclosure action is filed subsequent to the date of the granting of the estate by the entireties. Koster v. Boudreaux (1982), 11 Ohio App. 3d 1. Appellant fails to mention that the judgment became dormant as no lien or foreclosure action was taken within five years of the judgment./2\ Nearly five and one-half years elapsed when appellees transferred their property into an estate by the entireties. The revivor of said judgment occurred on May 3, 1987, two and one-half years after the judgment became dormant and two years after said transfer of property. As such, appel- lant did not produce any evidence of the filing of said judgment lien, the alleged revivor or any other evidence which would reveal this to be a fraudulent conveyance. /2\ R.C. 2329.07 reads in relevant part: If neither execution on a judgment rendered in a court of record or certified to the clerk of the court of common pleas in the court in which the judgment was rendered is issued, nor a certificate of judgment for obtaining a lien upon lands and tenements is issued and filed, as provided in sections 2329.02 and 2329.04 of the Revised Code, within five years from the date of the judgment or within five years from the date of the issuance of the last execution thereon or the issuance and filing of the last such certificate, whichever is later, then, unless the judgment is in favor of the state, the judgment shall be dormant and shall not operate as a lien upon the estate of the judgment debtor. - 8 - Accordingly, the second assignment of error is overruled. Judgment affirmed. Judgment affirmed. It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J. FRANCIS E. SWEENEY, J., CONCUR JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .