COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67232 FIRST FACTORS CORPORATION : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ECKER SHANE FURNITURE, INC., : OPINION ET AL. : : DEFENDANTS-APPELLANTS : DATE OF ANNOUNCEMENT OF DECISION: MAY 11, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-258304. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: W. T. Hohman, Esq. Jack Curtis, Esq. Hohmann, Boukis & Boukis Co. 520 Standard Building 1370 Ontario Street Cleveland, OH 44113-1790 For Defendants-Appellants: Joseph G. Ritzler, Esq. 330 Hanna Building 1422 Euclid Avenue Cleveland, OH 44115-1901 -2- DAVID T. MATIA, P.J.: Larry and Virginia Shane, defendants-appellants, appeal from the judgment of the Cuyahoga County Court of Common Pleas in which the trial court granted First Factors Corporation's, plaintiff- appellee, motion for summary judgment. Defendants-appellants assign two errors for this court's review. Defendants-appellants' appeal is not well taken. I. THE FACTS On September 17, 1993 First Factors Corporation, plaintiff- appellee, filed a complaint in the Cuyahoga County Court of Common Pleas against Ecker-Shane Furniture, Inc. and Larry and Virginia Shane, defendants-appellants. The complaint set forth two claims for relief. The first claim was against Ecker-Shane Furniture, Inc. for the sum of $16,4754.93 for goods sold to Ecker-Shane Furniture, Inc. on account by a number of assignors. The second claim was against Larry and Virginia Shane, defendants-appellants, on their unconditional personal guarantee of the debts of Ecker-Shane Furniture, Inc. to plaintiff-appellee for the exact sum listed in the first claim for relief. Service on the summons and a copy of the complaint was perfected on all defendants on September 27, 1993. On October 27, 1993 plaintiff-appellee served defendants- appellants with separate requests for admissions with attached interrogatories. Defendants-appellants received the discovery requests on or about October 29, 1993. Defendants-appellants obtained an extension of time from the trial court until December -3- 11, 1993 to respond to the discovery requests. No additional extensions of time to respond to this discovery were requested by defendants-appellants. On January 11, 1994 a stipulation for judgment against separate defendant Ecker-Shane Furniture, Inc. was journalized by the trial court. This consent judgment against Ecker-Shane Furniture, Inc. only was for the amount of $16,454.93 plus interest at the rate of 10 percent per annum from February 17, 1993. The consent judgment remains in effect and has not been appealed. On February 7, 1994 plaintiff-appellee filed a motion for summary judgment against the remaining defendants, Larry and Virginia Shane, based upon their failure to respond to the requests for admissions served on October 27, 1993. The purpose of plaintiff-appellee's summary judgment motion was to recover from defendants-appellants on their personal guarantee of Ecker-Shane Furniture, Inc.'s obligations. On March 8, 1994 defendants-appellants filed a brief in opposition to plaintiff-appellee's motion for summary judgment. That same day, defendants-appellants filed responses to plaintiff- appellee's requests for admissions with interrogatories approximately three months after the time for responses had passed. Defendants-appellants did not obtain leave of court to file the responses to the requests for admissions. On April 4, 1994 the trial court granted plaintiff-appellee's motion for summary judgment against Larry and Virginia Shane, defendants-appellants. On April 14, 1994 the trial court entered -4- judgment against defendants-appellants in the amount of $16,454.93 plus 10 percent interest per annum from February 17, 1993. On May 4, 1994 defendants-appellants filed a timely notice of appeal from the judgment of the trial court. II. ASSIGNMENTS OF ERROR Defendants-appellants' first assignment of error states: TRIAL COURT INCORRECTLY GRANTED FIRST FACTORS['] MOTION FOR SUMMARY JUDGMENT BECAUSE THE GENUINE ISSUES OF FACT EXISTED AS TO THE AMOUNT DUE TO FIRST FACTORS CORPORATION. Defendants-appellants' second assignment of error states: THE TRIAL COURT INCORRECTLY GRANTED FIRST FACTORS['] MOTION FOR SUMMARY JUDGMENT BECAUSE GENUINE ISSUES OF FACT EXISTED AS TO THE VALIDITY OF THE PERSONAL GUARANTEE SIGNED BY APPELLANT[S] LARRY AND VIRGINIA SHANE. Having a common basis in both law and fact, this court shall consider defendants-appellants' first and second assignments of error concurrently. A. THE ISSUE RAISED: SUMMARY JUDGMENT Larry and Virginia Shane, defendants-appellants, argue through their first and second assignments of error that the trial court erred in granting the motion for summary judgment filed by First Factors Corporation, plaintiff-appellee. Defendants-appellants maintain that genuine issues of material fact exist as to the amount actually due plaintiff-appellee. Defendants-appellants maintain further that genuine issues of material fact exist regarding the validity of the underlying personal guarantee. -5- Specifically, defendants-appellants argue that they were entitled to credits for money owed to them by the assignors of plaintiff-appellee and that those credits should have been subtracted from the amount of the judgment. Defendants- appellants challenge the validity of the personal guarantee based on the alleged impairment of the collateral by Star Bank, an unrelated creditor. Defendants-appellants' first and second assignments of error are not well taken. B. STANDARD OF REVIEW FOR SUMMARY JUDGMENT Civ.R. 56(C) provides that before summary judgment may be granted, the court must determine 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; (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. Osborne v. Lyles (1992), 63 Ohio St.3d 326. A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108 (syllabus). The non-movant must also present specific facts and may not rely merely upon the pleadings or upon unsupported allegations. Shaw v. Pollack & Co. (1992), 82 Ohio App.3d 656. When a party moves for summary judgment supported by evidentiary -6- material of the type and character set forth in Civ.R. 56(E), the opposing party has a duty to submit affidavits or other material permitted by Civ.R. 56(C) to show that there is a genuine issue for trial. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. This court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Howard v. Willis (1991), 77 Ohio App.3d 133. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 1920, unreported. C. THE TRIAL COURT DID NOT ERR IN GRANTING PLAINTIFF-APPELLEE'S SUMMARY JUDGMENT MOTION Plaintiff-appellee's complaint alleges two claims for relief based upon money due on account from Ecker-Shane Furniture, Inc. for which defendants-appellants had executed an unconditional personal guarantee. Defendants-appellants attempt to challenge the amount of the judgment based upon credits allegedly owed to Ecker-Shane Furniture, Inc. A review of the record herein fails to support defendants-appellants' assertion. Plaintiff-appellee's motion for summary judgment is largely based upon defendants-appellants' failure to timely respond to requests for admissions served upon defendants-appellants October 27, 1993. Civ.R. 36(A) provides in pertinent part: *** Each matter of which an admission is requested shall be separately set forth. The -7- matter is admitted, unless, within a period designated in the request, not less than twenty-eight days after service thereof or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admissions a written answer or objection ***. Defendants-appellants did not respond to the requests for admissions until March 8, 1994, approximately ninety days after defendants-appellants' first and only extension of time had expired. Pursuant to Civ.R. 36(A), the requests for admissions were deemed admitted at that time and summary judgment based upon the default admissions was appropriate. T & S Lumber Company v. Alta Construction Co. (1984), 19 Ohio App.3d 241, 244. In addition, Ecker-Shane Furniture, Inc. had already consented to judgment in the amount of $16,464.93 on January 11, 1994 thereby forfeiting any claim for an alleged set-off based on the outstanding debts owed to the furniture company by assignors of plaintiff-appellee. Defendants-appellants' challenge to the unconditional personal guarantee is also without merit. Defendants-appellants argue that, since Star Bank, a non-party to the present action, failed to perfect its alleged security interest against Ecker-Shane Furniture, Inc., the collateral of defendants-appellants was somehow impaired thereby nullifying the unconditional personal guarantee executed by defendants-appellants to plaintiff- appellee. A review of the record demonstrates that Star Bank was not a party to the guarantee between defendants-appellants and -8- plaintiff-appellee and any alleged impairment of collateral resulting from a separate guarantee between defendants-appellants and Star Bank has no effect on the unconditional personal guarantee executed by defendants-appellants in this action. For the foregoing reasons, the trial court properly granted plaintiff-appellee's summary judgment motion as no genuine issue of material fact existed and plaintiff-appellee was entitled to judgment as a matter of law. Defendants-appellants' first and second assignments of error are not well taken. Judgment of the trial court is affirmed. -9- It is ordered that appellee recover of appellants its 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 Common Pleas Court 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. DYKE, J. and NAHRA, J., CONCUR. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate .