COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73509 ARTHUR R. SWANEY II : ACCELERATED DOCKET : Defendant-Appellant : JOURNAL ENTRY : vs. : AND : SYNDICATE MANAGEMENT, INC., ET AL. : OPINION : Plaintiffs-Appellees : : PER CURIAM : DATE OF ANNOUNCEMENT OF DECISION: JULY 2, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Cuyahoga County Common Pleas Court, Case No. CV-304681 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: Plaintiffs-Appellees: Defendant-Appellant: GARY L. LIEBERMAN ARTHUR R. SWANEY II, Pro Se 50 Public Square 16015 Euclid Avenue, Suite 415 400 Terminal Tower East Cleveland, Ohio 44112 Cleveland, Ohio 44113-2203 -2- PER CURIAM: This cause came to be heard on the accelerated calendar of our court pursuant to App.R. 11 and Loc.App.R. 25. Arthur R. Swaney appeals from a decision of the common pleas court granting summary judgment in favor of Syndicate Management, Inc. on his claim for fraud arising out of his eviction from The Crystal Tower Apartments, located at 16000 Terrace Rd., in East Cleveland, Ohio. After reviewing the facts and the law in this case, we have concluded that Swaney failed to establish a prima facie case of fraud; hence, we affirm the judgment of the trial court in connection with the summary judgment. This case began in June, 1995 when Syndicate Management, Inc. contracted to manage The Crystal Tower Apartments and, at that time, transferred tenant records into its billing system, but mistakenly entered the wrong amount for Swaney's rent. Because he suffers from a disability, Swaney's $430.00 monthly rental is comprised of a $234.00 supplement paid by Cuyahoga County Housing Assistance Program, and a $196.00 contribution from Swaney. In entering Swaney's rent into its system, Syndicate received $234.00 from the housing assistance program, and mistakenly credited this sum against Swaney's $196.00 personal payment, resulting in a $38.00 monthly credit which it reported on computer- generated print-out sheets delivered to Swaney. Swaney inquired about the monthly credits and Syndicate replied that his account reflected a credit balance. -3- When Swaney asked Syndicate to refund his accumulated $304.00 balance, Syndicate discovered its error and billed Swaney $1,568.00 for back rent. Swaney refused to pay, and rejected Syndicate's offer for him to pay an extra ten dollars per month on the balance. Thereafter, Syndicate served an eviction notice and filed a forcible entry and detainer action against him. Swaney then counterclaimed against Syndicate alleging fraud, racial discrimination and intentional infliction of emotional distress. The trial court held a hearing on June 6, 1996 in connection with Syndicate's forcible entry and detainer action, ordered Swaney evicted from his apartment, and continued the matter until October, 1996, when the court dismissed Swaney's pending counterclaims. Swaney then appealed his eviction and the dismissal of his counterclaims to our court; we determined at that time that Swaney's failure to appeal from the eviction order precluded review of any claim of error regarding possession of the premises but reviewed the dismissal of his counterclaims and remanded the case on Swaney's counterclaims. Following our remand, the trial court dismissed counts one, two, and four, concerning Swaney's racial discrimination and other claims, and granted summary judgment to Syndicate Management on counts three and five, his fraud and emotional distress claims. Swaney now appeals from the summary judgment regarding his fraud claim, raising three assignments of error for our review which state: I. THE TRIAL JUDGE ERRED AND ABUSED HER DISCRETION IN GRANTING DEFENDANT-APPELLEE'S, -4- SUMMARY JUDGMENT - THEIR MOTIONS TO DISMISS FOR FAILURE TO STATE CLAIM PLAINTIFF HAS A MERITORIOUS CAUSE OF ACTION WITH PRIMA FACIE EVIDENCE, ALL COUNTS IN PLAINTIFF-APPELLANT'S CAUSE SHOULD STAY IN PLACE; ALSO THE TRIAL JUDGE ERRED IN STRIKING CRYSTAL TOWER APARTMENTS FROM THIS ACTION. THEY STARTED THIS CASE AND IS THE MAIN BONE OF THE BODY [sic]. II. THE TRIAL JUDGE ERRED AND ABUSED HER DISCRETION IN STATING PLAINTIFF-APPELLANT DID NOT DISPUTE OR OPPOSE. PLAINTIFF-APPELLANT HIGHLY DISPUTED AND IN OPPOSITION TO DEFENDANT-APPELLEE'S EVERY MOTION [sic]. III. THE TRIAL JUDGE ERRED AND ABUSED HER DISCRETION IN DENYING PLAINTIFF-APPELLANT 60(B)(5) MOTION TO VACATE UNDER FRAUD CHARGES [sic]. In his brief, Swaney essentially contends the trial court erred in granting summary judgment on his fraud claim against Syndicate Management, because he claims the evidence he presented established a prima facie case of fraud. Syndicate Management urges, on the other hand, that the court properly granted summary judgment on the fraud claim, arguing that Swaney failed to establish that Syndicate intentionally misled him in connection with the monthly rental statements which showed a credit balance. The issue then presented for our consideration concerns the propriety of the actions of the trial court in granting summary judgment on appellant's claim of fraud. We recognize that under Civ.R. 56(C) and related case law, the party moving for summary judgment bears the burden to show that no genuine issue as to any material fact exists, and the moving party is entitled to judgment as a matter of law. -5- The substantive law of fraud as stated in Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992), 65 Ohio St.3d 621, at 632, provides the elements for establishing a prima facie case of fraud. There, the court stated, a representation of a fact, which is material, made falsely -- either with knowledge of its falsity or utter disregard and recklessness as to falsity -- with an intent to mislead, with justifiable reliance thereupon, and a resulting injury. See Chemical Bank of New York v. Neman (1990), 52 Ohio St.3d 204. See, also, Cohen v. Lamko, Inc. (1984), 10 Ohio St.3d 167. In this case, Syndicate moved for summary judgment on Swaney's fraud claim and provided an affidavit of its Administrative Manager, Verena Simmons, which demonstrated that, although the management company issued incorrect statements to Swaney indicating he had a credit balance on his rental account, it made a bookkeeping error regarding the amount of his rent, but did not intend to mislead him, and offered to resolve the dispute by accepting ten dollars a month toward payment of the delinquent rent. An examination of the pleadings submitted by Swaney reveals that he filed his own affidavit regarding his claim of fraud, but failed to establish a genuine issue of fact regarding Syndicate Management's intent to mislead him or the bookkeeping error, and failed to contradict Syndicate's offer to accept ten dollars a month to resolve the delinquent balance. Accordingly, we conclude that Swaney did not establish a prima facie case of fraud in that he failed to meet his burden to -6- demonstrate Syndicate's intent to mislead him. For this reason, the court properly found Syndicate entitled to judgment as a matter of law. Swaney's assignments of error are, therefore, overruled, and we affirm the judgment of the trial court. Judgment affirmed. -7- It is ordered that appellee recover of appellants 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. JOSEPH J. NAHRA, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE TIMOTHY E. McMONAGLE, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .