[Cite as Carter-Jones Lumber Co. v. Smartland, L.L.C. , 2021-Ohio-3708.] 

## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNT Y

THE CARTER-JONES LUMBER COMPANY d.b.a. CARTER LUMBER, Plaintiff-Appellee,

- v - SMARTLAND, LLC, Defendant-Appellant. CASE NO. 2021-P-0042

Civil Appeal from the Court of Common Pleas

Trial Court No. 2020 CV 00424

O P I N I O N Decided: October 18, 2021 Jud g ment: Affirmed

Daniel J. Funk , Baker, Dublikar, Beck, Wiley & Mathews, 400 South Main Street , North Canton, OH 44720 ( For Plaintiff-Appellee )

. John P. Bacevice , 248 Euclid Avenue, Suite 408, Cleveland, OH 44114 (For Defend antAppellant )

.

MARY JANE TRAPP, P.J. {¶1} Appellant, Smartland, LLC (“Smartland”), appeals from the judgm ent of the Portage County Court of Common Pleas, which awarded summary jud gment to appellee, the Carter-Jones Lumber Company, d.b.a. Carter Lumber (“Carter Lumber”). {¶2} In its sole assignment of error, Smartland contends the trial c ourt erred as a matter of law in granting summary judgment in favor of Carter Lumber on a credit account that was due and outstanding since there was a clear qu estion of fact as to2

Case No. 2021-P-0042 whether Carter Lumber breached a contract with Smartland by sup plying inadequately engineered/constructed trusses for a home Smartland was buildin g. {¶3} After a review of the record and pertinent caselaw, we find Sma rtland’s assignment of error to be without merit. While Smartland argue d there was a contract between it and Carter Lumber to supply trusses, which was breac hed, it failed to put forth any evidentiary quality materials in its brief in opposition to summary judgment to support its defense. Nor did Smartland dispute the existence and terms of its credit account with Carter Lumber or the amount due and outstanding. Quite simply, Smartland failed to demonstrate a genuine issue of material fact. Thus, the trial court appropriately awarded summary judgment to Carter Lumber as a matter of law. {¶4} The judgment of the Portage County Court of Common Pleas is aff irmed.

Substantive and Pr ocedural History {¶5} In July 2020, Carter Lumber filed a complaint in the Portage Co unty Court of Common Pleas alleging Smartland owed $25,280.46 on a credit account. Despite repeated billing, Smartland failed to satisfy the obligation. {¶6} Attached to the complaint were copies of Carter Lumber’s custom er account inquiry for Smartland showing the account was more than 120 day s overdue, with an amount of $25,280.46 outstanding, and Smartland’s signed yard a ccount application requesting a credit line of $20,000 from Carter Lumber, which i ncluded the terms and

conditions of the credit account. {¶7} Smartland filed its answer in which it admitted “to an agreemen t with Plaintiff” and that venue was proper but denied the remaining a llegations of Carter Lumber’s complaint. Smartland also set forth numerous affirmat ive defenses, including3

Case No. 2021-P-0042 the defense that Carter Lumber’s alleged damages were caused, i n whole or in part, by its own breach of contract, but no contract document was attach ed to its answer. {¶8} Carter Lumber filed a motion for summary judgment, arguing ther e was no genuine issue of material fact, i.e., Smartland neither denied nor disputed the debt amount, and there was no evidence that the contract between the parties is invalid or inaccurate. Attached to the motion for summary judgment was th e yard account application, including its terms and conditions, as well as an affidavit from Robin Bare (“Ms. Bare”), the credit manager for Carter Lumber. Ms. Bare a verred in her affidavit that Smartland purchased materials from Carter Lumber from March 24, 2017, through August 29, 2019, and that Smartland failed since September 23, 2019, t o pay the remaining amount due of $25,280.46. {¶9} Smartland filed a brief in opposition to Carter Lumber’s motion for summary judgment, arguing that summary judgment was not appropriate bec ause Carter Lumber breached another contract between the parties, which contribute d to a separate lawsuit against Smartland in Geauga County. Thus, it was justified in not paying the account. More specifically, Smartland alleged that it entered into a con tract with Carter Lumber to build and supply trusses for Smartland’s construction of a home for one of its clients. Smartland claimed the trusses did not comply with engineering s tandards, which prompted the homeowners to bring suit against Smartland in Geau ga County Common Pleas Court. In addition, in the “Statement of Facts” section of its brief in opposition, Smartland claimed Carter Lumber knowingly overleveraged Smartla nd by giving it more debt than it requested and that Carter Lumber’s “malfeasance [w as] the sole cause of this

lawsuit.”4

Case No. 2021-P-0042 {¶10} Smartland’s “Law and Argument” section of its brief in oppositi on contained no argumentation as to law or what material facts are in disput e, and no statutory or case law support. {¶11} Smartland also filed an affidavit of Steven Gesis (“Mr. Gesis”) , the executive vice president of Smartland. Mr. Gesis averred that Carter Lum ber constructed a product for Smartland that did not comply with appropriate engineering standards; the underlying dispute regarding that construction resulted in civil litigatio n by the homeowners; that litigation was, in part, due to Carter Lumber’s failure to appr opriately size and engineer its product; Carter Lumber knowingly overleveraged Smartland by giving it more debt than it was approved for; and Carter Lumber’s malfeasance was the so le cause of the instant

action. {¶12} Smartland did not submit a copy of the alleged contract for the trusses. {¶13} After finding there were no genuine issues of material fact and that Carter Lumber was entitled to judgment as a matter of law, the trial c ourt granted Carter Lumber’s motion for summary judgment. {¶14} Smartland raises one assignment of error on appeal: {¶15} “The trial court failed as a matter of law granting summary jud gment where there is a clear question of fact.” Summary Judgment Standard of Review {¶16} We review de novo a trial court’s order granting summary judgme nt. Sabo

v. Zimmerman , 11th Dist. Ashtabula No. 2012-A-0005, 2012-Ohio-4763, ¶ 9. “ ‘A reviewing court will apply the same standard a trial court is r equired to apply, which is to determine whether any genuine issues of material fact exist and whether the moving party5

Case No. 2021-P-0042 is entitled to judgment as a matter of law.’” Id. , quoting Hapgood v. Conrad , 11th Dist. Trumbull No. 2000-T-0058, 2002-Ohio-3363, ¶ 13. {¶17} “Since summary judgment denies the party his or her ‘day in cou rt’ it is not to be viewed lightly as docket control or as a ‘little trial.’ The jurisprudence of summary judgment standards has placed burdens on both the moving and th e nonmoving party.

In Dresher v. Burt [75 Ohio St.3d 280, 662 N.E.2d 264 (1996)], the Supreme Court o f Ohio held that the moving party seeking summary judgment bears the initial burden of informing the trial court of the basis for the motion and ident ifying those portions of the

record before the trial court that demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party’s claim. The evidence must be in the record or the motion cannot succeed. The moving party cannot discharge i ts initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonm oving party has no evidence to prove its case but must be able to specifically poi nt to some evidence of the type listed in Civ.R. 56(C) that affirmatively demonstrates tha t the nonmoving party has no evidence to support the nonmoving party’s claims.” Welch v. Ziccarelli , 11th Dist. Lake No. 2006-L-229, 2007-Ohio-4374, ¶ 40. {¶18} “If the moving party fails to satisfy its initial burden, the m otion for summary judgment must be denied. If the moving party has satisfied its initial burden, the nonmoving party has a reciprocal burden outlined in the last se ntence of Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for t rial. If the nonmoving party fails to do so, summary judgment, if appropriate shall be enter ed against the nonmoving party based on the principles that have been firmly established in Ohio for quite some

time in Mitseff v. Wheeler (1988), 38 Ohio St.3d 112[, 526 N.E.2d 798].” Id.6

Case No. 2021-P-0042 {¶19} Further, in deciding a motion for summary judgment, Civ.R. 56(C ) only allows the trial court to consider “pleadings, depositions, ans wers to interrogatories, written admissions, affidavits, transcripts of evidence, and wr itten stipulations of fact, if any, timely filed in the action.” Civ.R. 56(C); see Palmer Bros. Concrete, Inc. v. Kuntry

Haven Constr. LLC , 6th Dist. Wood No. WD-11-033, 2012-Ohio-1875, ¶ 10. Law and Analysis {¶20} In its sole assignment of error, Smartland contends the trial c ourt failed as a matter of law granting summary judgment where there is a clea r question of fact. More specifically, Smartland argues it was justified in refusing to pay the amount due and outstanding because Carter Lumber breached another contract by providing “inadequate”

trusses. {¶21} An action on an account is “a pleading device used to consolida te several claims which one party has against another.” AMF, Inc. v. Mravec , 2 Ohio App.3d 29, 440 N.E.2d 600 (8th Dist.1981), paragraph one of the syllabus. “An action on an account is appropriate where the parties have conducted a series of tra nsactions, for which a balance remains to be paid.” Id. {¶22} To establish a prima facie case for an action on account, an accou nt must show the name of the party charged and contain: (1) a beginnin g balance (zero, or a sum that can qualify as an account stated, or some other provable s um); (2) listed items, or an item, dated and identifiable by number or otherwise, representi ng charges, or debits, and credits; and (3) summarization by means of a running or develop ing balance, or an arrangement of beginning balance and items which permits the ca lculation of the amount7

Case No. 2021-P-0042 claimed to be due. Discover Bank v. Damico , 11th Dist. Lake No. 2011-L-108, 2012- Ohio-3022, ¶ 12. {¶23} As our review of the facts indicates, the moving party, Carter Lumber, met its burden demonstrating no genuine issue of material fact exis ted, i.e., Smartland failed to pay its account, owing a sum of $25,280.46. Dresher at 292. {¶24} Smartland, in turn, had a reciprocal burden to provide evidenti ary quality material demonstrating a genuine issue of material fact exists. Id. at 293; Bressi v. Irwin , 2021-Ohio-2550, --- N.E.3d ---, ¶ 52 (11th Dist.). Thus, pursu ant to Civ.R. 56(E), “[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party’s pleadings , but the party’s response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered aga inst the party.” (Emphasis added.) {¶25} In its brief in opposition, Smartland argued that Carter Lumber breached a contract to build trusses, whose product did not conform to eng ineering standards. However, Smartland failed to demonstrate a genuine issue of mat erial fact since it failed to offer any evidentiary quality materials supporting this defe nse. While it attempted to base its defense on a contract to build trusses, that contract is not in the record and is not referenced in the self-serving affidavit. Nor does Smartland d ispute the amount owed or the credit agreement. {¶26} It must also be noted that the “overleveraged” and “malfeasance ” argument asserted in the trial court have not been raised on appeal.8

Case No. 2021-P-0042 {¶27} As this court has previously held, a nonmoving party may not av oid summary judgment by merely submitting a self-serving affidavit contradicting the evidence offered by the moving party. Greaney v. Ohio Turnpike Comm ., 11th Dist. Portage No. 2005-P-0012, 2005-Ohio-5284, ¶ 16. This rule is ba sed upon judicial economy; permitting a nonmoving party to avoid summary judgment by asserting nothing more than “‘bald contradictions of the evidence offered by the moving party’” would necessarily abrogate the utility of the summary judgment exerci se. Id. , quoting C.R. Withem Ents. v. Maley , 5th Dist. Fairfield No. 01 CA 54, 2002-Ohio-5056, ¶ 24. Cour ts would be unable to use Civ.R. 56 as a means of assessing the me rits of a claim at an early stage of the litigation, needlessly enlarging the civil p rocess. Id. {¶28} Summary judgment was clearly appropriate in this case because S martland failed to meet its reciprocal burden as the nonmoving party to offer any evidentiary quality materials demonstrating a genui ne issue of material fact. {¶29} The judgment of the Portage County Court of Common Pleas is aff irmed.

CYNTHIA WESTCOTT RICE, J., MATT LYNCH, J.,

concur.