[Cite as Premier Restoration & Mechanical Sys., Inc. v. Arlington Arms Apts., L.L.C., 2016-Ohio-1152.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

PREMIER RESTORATION & : 

MECHANICAL SYSTEMS, INC., 

 : CASE NO. CA2015-09-173 

 Plaintiff-Appellee, 

 : O P I N I O N 

 3/21/2016 

 - vs - : 

 

 : 

ARLINGTON ARMS APARTMENTS, 

LLC, et al., : 

 Defendants-Appellants. : 

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

Case No. CV2014-09-2579 

Combs, Schaefer, Atkins, & Little, Edward B. Schaefer, 1081 North University Blvd., Suite B, 

Middletown, Ohio 45042, for plaintiff-appellee 

Joseph R. Matejkovic, 9078 Union Centre Blvd., Suite 350, West Chester, Ohio 45069, for 

defendant-appellant, Kensington Ridge Partners, LLC 

 HENDRICKSON, J.

{¶ 1} Defendant-appellant, Kensington Ridge Partners, LLC ("Kensington"), appeals 

from a decision of the Butler County Court of Common Pleas granting summary judgment to 

plaintiff-appellee, Premier Restoration & Mechanical Systems, Inc. ("Premier Restoration"), 

on Premier Restoration's complaint to recover funds due for rendered repair services. For 
Butler CA2015-09-173 

 - 2 - 

the reasons set forth below, we reverse and remand the matter for further proceedings. 

{¶ 2} On September 26, 2014, Premier Restoration filed a complaint against 

Arlington Arms Apartments, LLC ("Arlington Arms") and Kensington to collect an outstanding 

balance due on the defendants' account for HVAC, plumbing, and other repair services. The 

complaint alleged Kensington owned Arlington Arms and that Premier Restoration had 

"entered into an oral agreement" for repair services at the apartment complex. Arlington 

Arms did not file an answer or otherwise appear in the case, and default judgment was 

entered against it. Kensington filed an answer denying the allegations set forth in the 

complaint, and the parties engaged in discovery. 

{¶ 3} On February 20, 2015, the trial court issued a pretrial order in which the court 

set a bench trial for September 11, 2015, and established August 1, 2015 as the deadline for 

filing motions for summary judgment. Thereafter, on July 31, 2015, Premier Restoration filed 

a motion to extend the pretrial deadlines, a motion for leave to file a motion for summary 

judgment, and a motion for summary judgment against Kensington. Kensington did not file a 

response to any of the foregoing motions. 

{¶ 4} On August 27, 2015, the trial court denied Premier Restoration's request to 

extend the pretrial deadlines, granted Premier Restoration's motion for leave to file a motion 

for summary judgment, and granted summary judgment to Premier Restoration in the amount 

of $27,083.42, plus interest in the amount of three percent and court costs. The court's order 

granting leave was file-stamped at 9:26 a.m. and the entry granting summary judgment was 

file-stamped at 9:27 a.m. 

{¶ 5} Kensington timely appealed, raising the following as its sole assignment of 

error: 

{¶ 6} THE TRIAL COURT ERRED TO THE PREJUDICE OF 

DEFENDANT/APPELLANT WHEN IT GRANTED SUMMARY JUDGMENT. 
Butler CA2015-09-173 

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{¶ 7} In its sole assignment of error, Kensington argues the award of summary 

judgment should be reversed as its due process rights were denied when the trial court 

awarded summary judgment to Premier Restoration without allowing Kensington a fair 

opportunity to respond to the motion. Kensington also argues summary judgment should be 

reversed as the trial court failed to conduct an "independent review and assessment of the 

evidence in support of the prayer for relief." We begin by addressing Kensington's due 

process claim. 

{¶ 8} "Procedural due process demands that a trial court allow a non-moving party 

time for a fair opportunity to respond before ruling on a motion for summary judgment." 

Huntington Natl. Bank v. Miller, 10th Dist. Franklin No. 14AP-716, 2015-Ohio-1558, ¶ 11, 

citing Hooten v. Safe Auto Ins. Co., 100 Ohio St.3d 8, 2003-Ohio-4829, ¶ 40. A trial court's 

local rules generally designate the deadline for filing a response to a motion for summary 

judgment. Id.; Hooten at ¶ 33. Here, the applicable local rule states that "[u]nless an 

extension of time is granted for good cause shown, any memorandum in opposition to a 

motion * * * shall be filed within twenty-one (21) days of the service of the motion." Loc.R. 

6.02(D) of the Butler County Court of Common Pleas, General Division. 

{¶ 9} The submittal of a motion for leave to file a motion for summary judgment 

complicates the application of Loc.R. 6.02(D). See, e.g., Miller, 2015-Ohio-1558 at ¶ 12. 

"When the moving party seeks leave to file a motion for summary judgment, the non-moving 

party has no obligation to respond to the merits of the summary judgment motion until the 

trial court grants leave to file that motion." Id., citing M-N North Chase II, LLC v. Roe, 9th 

Dist. Summit No. 25694, 2011-Ohio-4071, ¶ 9. See also Maddox v. E. Cleveland, 8th Dist. 

Cuyahoga No. 92673, 2009-Ohio-6308, ¶ 43-44; Capital One Bank v. Toney, 7th Dist. 

Jefferson No. 06 JE 28, 2007-Ohio-1571, ¶ 47. It is not until the trial court grants the motion 

for leave that the 21-day response period set forth in Loc.R. 6.02(D) begins to run. See, e.g., 
Butler CA2015-09-173 

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Miller at ¶ 12; Cheap Escape Co. v. Tri-State Constr., L.L.C., 173 Ohio App.3d 683, 2007-

Ohio-6185, ¶ 31 (10th Dist.). If the trial court rules on the motion for summary judgment prior 

to the expiration of the 21-day period, the court has "contravene[d] the non-moving party's 

right to a fair opportunity to respond." Miller at ¶ 12. 

{¶ 10} Here, Premier Restoration filed a motion for leave to file a summary judgment 

motion, thereby seeking the court's permission to move for judgment. Kensington had no 

obligation to respond to the merits of the summary judgment motion until the trial court 

granted leave for the filing of such motion. See Toney at ¶ 47. The trial court granted 

Premier Restoration leave to file a motion for summary judgment on August 27, 2015. 

Pursuant to Loc.R. 6.02(D), Kensington should have been given at least until September 17, 

2015, to file a responsive memorandum in opposition. By granting Premier Restoration's 

motion for summary judgment only seconds after granting leave for the filing of the motion, 

the trial court denied Kensington a fair opportunity to respond and be heard on the motion. 

{¶ 11} We therefore sustain Kensington's assignment of error. The decision of the 

trial court awarding summary judgment to Premier Restoration is vacated and the matter 

remanded to permit Kensington the opportunity to file a memorandum in opposition to the 

motion in accordance with Civ.R. 56(C) and Loc.R. 6.02(D). 

{¶ 12} Judgment reversed and remanded. 

PIPER, P.J., and RINGLAND, J., concur.