COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74271 PERRY WALKER : : ACCELERATED DOCKET PLAINTIFF-APPELLANT : : JOURNAL ENTRY vs. : : AND ASSOCIATED ESTATES REALTY : CORPORATION : OPINION : DEFENDANT-APPELLEE : PER CURIAM : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 24, 1998 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-339478. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ________________________________ APPEARANCES: For Plaintiff-appellant: Perry Walker, pro se P.O. Box 10395 Cleveland, Ohio 44110 For Defendant-appellee: Anthony J. Damelio, Jr., Esq. Glen H. Garrett, Esq. Ziegler, Metzger & Miller 925 Euclid Avenue, Suite 2020 Cleveland, Ohio 44115 PER CURIAM: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.R. 25. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusory decision. -2- Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). Plaintiff-appellant Perry Walker, pro se, ( tenant ) appeals from the granting of summary judgment in favor of defendant- appellee Associated Estates Realty Corporation ( landlord ). For the reasons adduced below, we affirm. A review of the record on appeal indicates defendant manages the Euclid Beach Villa, a federally subsidized low income apartment complex located on the East side of Cleveland, Ohio. Plaintiff had been a tenant at that complex, but developed a history of being late with his monthly rent payments. In July of 1996, defendant- landlord filed suit in Cleveland Municipal Court, Housing Division, seeking to have plaintiff evicted from the premises. On October 30, 1996, the Housing Court journalized an agreed judgment entry by the parties disposing of the municipal court case, providing that a writ of restitution shall issue but no move-out order would issue unless (1) the tenant breaches the agreement to pay his past rent in addition to the monthly rent in the future when due or (2) tenant disturbs his neighbor's physical and/or social enjoyment of the complex or any other provision of the lease agreement. Despite the agreement in the Housing Court case, tenant continued to experience problems paying his rent on a timely basis. Thereafter, in November of 1996, the landlord returned to the Housing Court seeking to enforce the writ of restitution previously agreed upon and received an agreed judgment entry between the parties with a move-out date for the tenant of December 10, 1996. -3- See Housing Court Order of November 15, 1996, a copy of which is attached to appellee's brief at Exhibit B. The tenant moved out of the apartment complex on December 11, 1996. On August 29, 1997, the tenant filed the action sub judice alleging: (1) the eviction was improper because the landlord did not serve him with a ten-day eviction notice as required by regulations of the U.S. Department of Housing and Urban Development ( HUD ); (2) the failure of the landlord to serve him with a three- day notice to vacate the premises pursuant to R.C. 1923.04(A); (3) a challenge to the jurisdiction of the Municipal Court to issue the writ of restitution based on the alleged deficiencies of notice; and, (4) a claim for punitive damages. On October 31, 1997, the landlord filed its Answer. On January 2, 1998, tenant filed a motion for partial summary judgment solely on the issue of the liability of the landlord. Tenant's affidavit, with leave of court granted permitting same to be filed, supported his motion. Also on January 2, 1998, landlord filed a motion to dismiss pursuant to Civ.R. 12(B)(1) and (6), or, in the alternative, a motion for summary judgment supported by documentary evidence. On January 22, 1998, landlord filed its brief in opposition to tenant's motion for partial summary judgment. On February 26, 1998, landlord filed a supplement to its brief in opposition to the partial summary judgment motion of tenant. -4- On March 3, 1998, the trial court, utilizing a half-sheet status form entry, indicated that the tenant had not responded to the landlord's January 2, 1998 motion to dismiss/summary judgment and granted summary judgment in favor of the defendant-landlord. A notice of appeal from the order granting summary judgment was filed by plaintiff-tenant on April 2, 1998. Three assignments of error are presented for review. I THE TRIAL COURT ERRED IN FAILURE (sic) TO NOTIFY APPELLANT THAT THE COURT WERE (sic) CONVERTING APPELLEE'S 12(B)(6) MOTION TO DISMISS FOR FAILING (sic) TO STATE A CLAIM FOR WHICH RELIEF MAY BE GRANTED, INTO A MOTION FOR A (sic) SUMMARY JUDGMENT UNDER CIVIL RULE 56(C). The movant-landlord having phrased the caption of the subject dispositive motion in the alternative Motion to Dismiss with Supporting Affidavit and Alternative Motion for Summary Judgment, notice by the trial court to the non-movant of an intent to convert the motion to dismiss into a motion for summary judgment was not necessary given the dual nature of the motion. Redmond v. Sberna (May 23, 1996), Cuyahoga App. No. 68529, unreported, at 3-4, 1996 WL 273764, citing Applegate v. Fund for Constitutional Govt. (1990), 70 Ohio App.3d 813, 816. The first assignment of error is without merit. The remaining two assignments will be discussed jointly since they both argue the merits of granting summary judgment. II THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT WHERE THE FACTS -5- STATED IN APPELLANT'S AFFIDAVIT AND AMENDED COMPLAINT ARE SUFFICIENT FOR WHICH RELIEF COULD HAVE BEEN GRANTED. III THE TRIAL COURT ERRED IN FAILURE (sic) TO CONSIDER APPELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT, WHERE APPELLANT WAS ENTITLED TO SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY ALONE. The standard of review for a motion for summary judgment was generally stated in State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 448-449, as follows: Civ.R. 56(C) 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 nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. * * * Summary judgment is appropriate where the nonmoving party does not produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus; State ex rel. Morley v. Lordi (1995), 72 Ohio St.3d 510, 513, 651 N.E.2d 937, 940. When a motion for summary judgment is made and supported as provided in Civ.R. 56, the nonmoving party may not rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing that there is a genuine triable issue. Civ.R. 56(E); Jackson v. Alert Fire & -6- Safety Equip., Inc. (1991), 58 Ohio St.3d 48, 52, 567 N.E.2d 1027, 1031. (Emphasis added.) Also see Celotex v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. Subsequent to Tompkins, in the recent case of Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, 144-145, the Ohio Supreme Court limited the third paragraph of the syllabus of Wing, supra, by reasserting reliance on Dresher v. Burt (1996), 75 Ohio St.3d 280, 293: [A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. (Footnote omitted; Italicization in original.) The general substance of the tenant's motion for partial summary judgment was that procedures regarding notices were not afforded him in the prior Housing Court action, thereby divesting -7- that municipal court of jurisdiction to enter a writ of restitution. The motion for summary judgment filed by the landlord attacked the various arguments presented by the tenant. This attempt by the tenant to challenge the jurisdiction of the municipal court in the present common pleas action must fail. The remedy for such an argument lies, if at all, in a properly framed and supported Civ.R. 60(B) motion for relief from judgment filed in the municipal court action or a direct appeal from the municipal court ruling. While a motion for relief from judgment was filed on November 27, 1997 by the tenant in the municipal court action, and denied by the municipal court on December 12, 1997, the common pleas action is not a substitute for such relief from judgment or a direct appeal from the municipal court action. See Article IV, Section 4 of the Ohio Constitution which precludes courts of common pleas from reviewing municipal court proceedings. The action of the municipal court in issuing the writ of restitution is therefore res judicata.Also, the record demonstrates beyond doubt that the tenant consented to his eviction and move-out through the agreed judgment entries entered in the Housing Court action. Accordingly, the trial court did not err in granting summary judgment in favor of the landlord-defendant. The second and third assignments of error are without merit. Judgment affirmed. -8- It is ordered that appellee recover of appellant 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. ______________________________ JAMES M. PORTER, P.J. ______________________________ JAMES D. SWEENEY, J. ______________________________ MICHAEL J. CORRIGAN, J. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 25(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 .