COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68865 BRANDON LEE FLAGNER : ACCELERATED DOCKET : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION CARMEN MARINO : : Defendant-appellee : PER CURIAM : DATE OF ANNOUNCEMENT : OF DECISION : FEBRUARY 29, 1996 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas Case No. 259322 : JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT FOR DEFENDANT-APPELLEE: Brandon Lee Flagner, Pro Se Stephanie Tubbs Jones, Esq. 188413 Leci, Box 56 Cuyahoga County Pros. Attorney Lebanon Corrections Center Carmen Marino, Esq. Lebanon, Ohio 45036 Chief Prosecuting Attorney Marilyn Barkley Cassidy, Esq. Assistant Prosecuting Attorney 1200 Ontario Street The Justice Center Cleveland, Ohio 44113 -2- PER CURIAM: Plaintiff-appellant, Brandon Lee Flagner, filed a replevin action on October 7, 1993, in the Court of Common Pleas of Cuyahoga County against defendant-appellee, Carmen Marino, an Assistant Prosecuting Attorney. Appellant alleged that Marino failed to return to him a portion of personal property which was confiscated by the Cuyahoga County Sheriff's Department. The trial court granted summary judgment in favor of Marino on March 22, 1995. This accelerated appeal followed with appellant claiming as error: Assignment of errors [sic] #1. Lower court erred in granting Summary Judgment against Appellant in light of well pled allegations and supporting evidence in this case. Assignment of errors [sic] #2. Appellee waived personal jurisdiction by failure to plea [sic] or defend in a timely manner and thus Lower Court erred by raising jurisdiction. Colleen Cooney, an Assistant Prosecuting Attorney for Cuyahoga County from March 19, 1984 to January 1, 1992, prepared an "Inventory of Flagner Property" on March 27, 1990. According to Cooney's affidavit, the items listed on the inventory were mailed to Flagner, an inmate in Mansfield, Ohio. Cooney stated in the affidavit, "There were no belongings of Brandon Lee Flagner remaining in the care, custody, and control of the Cuyahoga County Sheriff, or the Cuyahoga County Prosecutor." Flagner acknowledged receipt of the items listed on the inventory sheet in his response to Marino's motion for summary -3- judgment and the attached documents--the inventory sheet and Cooney's affidavit. He charged, however, that Marino remained in possession of certain items. In support of his position, Flagner provided the trial court with court papers filed in 1986 in an action entitled State of Ohio v. Flagner, Cuyahoga C.P. No. CR191309. The papers carry the clerk of court's file stamp. Flagner points out to this court that although Marino admitted in 1986 that certain belongings were in the state's possession, not all of the belongings were listed on the 1990 inventory sheet as being returned to him. Flagner thus argues in his first assignment of error that the 1986 court papers demonstrate a genuine issue of material fact remains for litigation concerning his replevin action. Marino initially suggests to this court that the 1986 court papers filed by Flagner with his response to the motion for summary judgment, are outside the scope of evidentiary materials authorized under Civ.R. 56(C). Documents which are submitted in opposition to a motion for summary judgment, but are not sworn, certified, or authenticated by affidavit, hold no evidentiary value and are not to be considered by a court in determining whether a genuine issue of material fact remains for trial. Green v. B.F. Goodrich Co. (1993), 85 Ohio App.3d 223, 228; Citizens Ins. Co. v. Burkes (1978), 56 Ohio App.2d 88, 95-96. This general rule, however, loses its force when the adverse party fails to object to the documents. See, Rodger v. McDonald's Restaurants of Ohio, Inc. (1982), 8 Ohio App.3d 256; Brown v. Ohio Cas. Ins. Co. (1978), 63 -4- Ohio App.2d 87; see, also, Karavolos v. Brown Derby (1994), 99 Ohio App.3d 548; Steinke v. Allstate Ins. Co. (1993), 86 Ohio App.3d 798; Green, supra; Lytle v. Columbus (1990), 70 Ohio App.3d 99; compare, Schmidt v. Nosker (Mar. 29, 1995), Greene App. No. 94 CA 96, unreported ("a copy of a certificate of judgment bearing the file stamp of the trial court's own clerk carries a high degree of reliability, even if not authenticated in accordance with Civ.R. 56"). Since Marino failed to object to Flagner's attachment of the 1986 court papers to his response brief, the documents were reviewable by the trial court in deciding whether Marino was entitled to summary judgment. Cooney, in her affidavit, stated that all of Flagner's belongings in the state's possession were returned to him in 1990. In light of this affidavit, Flagner had to file evidentiary documents that placed in issue the fact alleged by Cooney. See, Celotex Corp. v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265; Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 111; Hoffman v. Davis (1987), 31 Ohio St.3d 60; Mathis v. Cleveland Pub. Library (1984), 9 Ohio St.3d 199; Shepherd v. United Parcel Serv. (1992), 84 Ohio App.3d 634. Flagner provided no evidence which contradicted Cooney's sworn statement that all of his belongings were returned to him in 1990, and that the state no longer had any of his belongings in its possession at that time. The record, therefore, demonstrates that when construing the evidence in Flagner's favor, the trial court properly granted summary judgment to Marino. See, Johnson v. New London (1988), 36 -5- Ohio St.3d 60; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317; Flagner's first assignment of error is overruled. Flagner's second assignment of error seems to deal with the trial court's March 22, 1995 order of dismissal which was based upon the court's determination that the court of common pleas did not have jurisdiction over the claims set forth in October 1994 pleadings. The court's order did not specify whether the jurisdictional finding was personal, but both parties' appellate briefs discuss service of process and waiver of personal jurisdiction. Marino admits that personal jurisdiction existed, but argues that since the trial court's grant of summary judgment was proper, no issues remain as to Flagner's outstanding claims. Flagner filed a second "complaint and counterclaims" on January 30, 1995, that, for the most part, mimicked the claims asserted in October 1994. The trial court merged these claims with prior pleadings on March 22, 1995. The issue of whether the trial court abused its discretion in dismissing the October 1994 pleadings based upon lack of personal jurisdiction is consequently rendered moot by Marino's admission that he received notice of the pleadings, and the court's merger of the January 1995 pleadings into the pending motion for summary judgment. Appellant's second assignment of error is overruled. Judgment affirmed. -6- It is ordered that appellee recover of appellant his 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 Cuyahoga County 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. PATRICIA ANN BLACKMON, PRESIDING JUDGE SARA J. HARPER, JUDGE ANN DYKE, 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 journalization, at which .