[Cite as Midland Funding, L.L.C. v. Hottenroth, 2014-Ohio-5680.]

 

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

EN BANC 

No. 100146

MIDLAND FUNDING L.L.C.

 

PLAINTIFF-APPELLEE 

vs. 

DUSTIE HOTTENROTH 

N.K.A. DUSTIE MILLER

DEFENDANT-APPELLANT 

JUDGMENT: 

REVERSED IN PART 

AND REMANDED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-10-729712 

BEFORE: En Banc Court 

RELEASED AND JOURNALIZED: December 24, 2014 
ATTORNEYS FOR APPELLANT 

Robert S. Belovich 

9100 South Hills Blvd. 

Suite 300 

Broadview Heights, OH 44147 

Anand N. Misra 

The Misra Law Firm, L.L.C. 

3659 Green Road 

Suite 100 

Beachwood, OH 44122 

ATTORNEYS FOR APPELLEE

For Midland Funding, L.L.C.

Steven G. Janik 

Crystal Lynn Maluchnik 

Ellyn Mehendale 

Sean T. Needham 

Janik L.L.P. 

9200 South Hills Blvd. 

Suite 300 

Broadview Heights, OH 44147 

Sam A. Benson 

1100 Superior Avenue 

19th Floor 

Cleveland, OH 44114 

For Javitch, Block and Rathbone, L.L.C.

Robert G. Knirsch 

Mark Brncik 

James Oh 

Javitch, Block & Rathbone L.L.C. 

1100 Superior Avenue, 19th Floor 

Cleveland, OH 44114-1503 
SEAN C. GALLAGHER, J.: 

{¶1} Pursuant to App.R. 26 and Loc.App.R. 26, the en banc court determined that a 

conflict existed between the original panel’s decision in Midland Funding L.L.C. v. Hottenroth, 

8th Dist. Cuyahoga No. 100146, 2014-Ohio-2390, and this court’s prior decision in In re A.A., 

8th Dist. Cuyahoga No. 85002, 2005-Ohio-2618, on the following question, as advanced in 

appellant’s sixth and seventh assignments of error: is an appellant’s failure to include a copy of 

all challenged judgments or orders with the notice of appeal, or to identify them in the notice of 

appeal, a jurisdictional defect, or is it a rules violation that gives the appellate court the discretion 

to take appropriate action, including dismissal? To secure and maintain uniformity of decisions 

within the district, we vacate the panel’s decision, consider Miller’s sixth and seventh 

assignments of error en banc, and reissue the original panel decision regarding the unaffected 

assignments of error.1

 

Decision of the En Banc Court:

{¶2} In Miller’s sixth and seventh assignments of error, she claims the trial court erred by 

dismissing two other defendants and denying a motion for sanctions against a third defendant. 

The relevant decisions, however, were interlocutory in nature. Miller failed to include a copy of 

each judgment in her notice of appeal as required by App.R. 3(D) and Loc.App.R. 3(B). 

{¶3} This court has previously held, the purpose of a notice of appeal is to notify 

appellees of the appeal and advise them of the scope of the appeal, and the failure to provide the 

appropriate notice, through attachment of the judgments or orders being appealed to the notice of 

appeal, was a jurisdictional defect. Parks v. Baltimore & Ohio RR., 77 Ohio App.3d 426, 427, 

 1

 The original announcement of decision, Midland Funding L.L.C. v. Hottenroth, 8th Dist. Cuyahoga No. 

100146, 2014-Ohio-2390, released June 5, 2014, is hereby vacated. This opinion is the court’s journalized decision 

in this appeal. 
602 N.E.2d 674 (8th Dist.1991), citing Maritime Mfrs., Inc. v. Hi-Skipper Marina, 70 Ohio St.2d 

257, 258-259, 436 N.E.2d 1034 (1982). To the contrary, this court also recognized that 

Loc.App.R. 3(B) expressly provides that the failure to attach the judgment or order appealed 

from is not a jurisdictional defect. In resolving this intra-district conflict in favor of the 

discretionary approach, we recognize that the Ohio Supreme Court agreed and held that appellate 

courts enjoy discretion to dismiss appeals for failure to comply with App.R. 3. Transamerica 

Ins. Co. v. Nolan, 72 Ohio St.3d 320, 322-323, 649 N.E.2d 1229 (1995); see also In re A.A., 8th 

Dist. Cuyahoga No. 85002, 2005-Ohio-2618, ¶ 21; Consol. Church Fin. Co. v. Geauga Savs. 

Bank, 8th Dist. Cuyahoga No. 94715, 2011-Ohio-1360, ¶ 10. 

{¶4} In this case, the three defendants with interests in the outcome of the last two 

assignments of error were never put on notice of Miller’s intent to appeal the trial court’s 

interlocutory decisions, which were not attached to the notice of appeal as required by App.R. 3 

and Loc.App.R. 3(B). Accordingly, in exercising our discretion, we decline to consider Miller’s 

sixth and seventh assignments of error. Geauga Savs. Bank, 8th Dist. Cuyahoga No. 94715, 

2011-Ohio-1360, ¶ 10. 

SEAN C. GALLAGHER, JUDGE 

MARY J. BOYLE, A.J., 

PATRICIA ANN BLACKMON, J., 

FRANK D. CELEBREZZE, JR., J., 

EILEEN A. GALLAGHER, J., 

EILEEN T. GALLAGHER, J., 

MARY EILEEN KILBANE, J., 

KATHLEEN ANN KEOUGH, J., 

LARRY A. JONES. SR., J., 

TIM McCORMACK, J., 

KENNETH A. ROCCO, J., and 

MELODY J. STEWART, J., CONCUR. 
Decision of the Merit Panel:

SEAN C. GALLAGHER, P.J.: 

{¶5} Counterclaim-plaintiff Dustie Miller, f.k.a. Dustie Hottenroth (“Miller”), appeals 

from the trial court’s decision granting summary judgment in favor of Midland Funding, L.L.C., 

and Javitch, Block, and Rathbone, L.L.P. (collectively “defendants”). 2 For the following 

reasons, we reverse in part and and remand to the trial court for further proceedings. 

{¶6} The underlying facts are fairly straightforward. According to the exhibits in the 

record, especially those attached to Miller’s deposition that included a complete compilation of 

all billing records for account No. xxxx-xxxx-xxxx-9562, the credit limit on that account was 

exceeded sometime in April 2004. Between April 2004 and April 2005, payments were 

continually posted to the account, but several times the account reflected a nominal amount past 

due, which was immediately paid. For example, as of the October 15–November 12, 2004 

billing cycle, the statement reflects a total balance of $4,409.41, but that Miller owed $80 as an 

amount past due, $78 for the minimum payment for that billing cycle, and $409.41 for the 

amount she exceeded the credit limit. In fine print at the bottom of the document, Bank of 

America deemed the account “currently closed.” Miller tendered an $80 payment before the due 

date for that billing cycle. Thereafter, despite the account being deemed closed, Miller kept the 

account from accumulating an amount past due until sometime in April 2005; in other words, she 

never allowed a past-due amount to accrue for longer than 30 days. 

 2

 For the purposes of this appeal, we will refer to the plaintiff Midland Funding and counterclaim 

defendant Javitch, Block, and Rathbone, L.L.P., as “defendants” for ease of reference in consideration of their roles 

in the counterclaim advanced. 
{¶7} No payment was tendered as of the April 12, 2005 due date, for that billing cycle, 

and the overdue balance grew. It was not until October 2005 that Bank of America first 

requested that Miller pay the entire balance owed as the minimum payment required, at that time 

being the sum of $4,180.84, pursuant to the default provision of the credit agreement. 

Thereafter, Bank of America sought the entire amount owed as the minimum monthly balance 

until October 26, 2006, when Bank of America charged off the remaining balance. 

{¶8} On that date, Bank of America charged off $5,050.43 from the 

xxxx-xxxx-xxxx-9562 account, representing the closing balance for that billing cycle. The 

apparent opening balance, denoted as the previous balance, on the November 2006 billing 

statement for account No. xxxx-xxxx-xxxx-7342 was $5,064.50.3

 Relying on the defendants’ 

evidentiary submissions, including affidavits and depositions from the defendants’ 

representatives, the defendants claimed Miller’s account was a single account, only differing with 

respect to the account numbers as the charge-off balance was prepared for resale. 

{¶9} Ultimately, in January 2008, the xxxx-xxxx-xxxx-7342 account was again officially 

charged off and the $5,427.24 balance was transferred through a purchase agreement to Midland 

Funding. Midland Funding began pursuing debt collection actions culminating in the April 5, 

2010 filing of the underlying claim against Miller, based on the xxxx-xxxx-xxxx-9562 account, 

seeking a judgment in the amount of $4,129.81. Midland Funding used a Euclid, Ohio, address 

for Miller for the purposes of serving Miller and establishing venue in Ohio. Miller disputed 

 3

The only explanation for the discrepancy between the charge-off amount and the opening balance in the 

latter account number came at oral argument. The defendants claimed the $14.07 difference was due to interest 

accumulation, although the statements never reflected accumulated interest being added to the charge-off amount 

from the immediately preceding billing statement. 
residing at that address at the commencement of the case, claiming to have moved there at the 

end of April 2010. 

{¶10} Miller answered the complaint and filed a counterclaim asserting on behalf of 

herself and other similarly situated persons, several claims against the defendants for violations 

of the Fair Debt Collection Practices Act (“FDCPA”) and Ohio’s Consumer Sales Practices Act 

(“OCSPA”). Succinctly stated, Miller claimed that the defendants violated the FDCPA and 

OCSPA by (1) commencing and maintaining a time-barred lawsuit; (2) concealing material 

information in the lawsuit; (3) making false representations in the lawsuit; (4) demanding interest 

and costs in the lawsuit; (4) causing the lawsuits to be reported to the credit bureaus; (5) filing 

lawsuits without conducting an adequate investigation of the debt; and (6) filing the lawsuit in a 

territory in which Miller did not reside. Miller also advanced common law tort claims of abuse 

of process, defamation, civil conspiracy, and fraud. 

{¶11} The trial court granted Midland Funding leave to amend the complaint, filed on 

August 13, 2010. Three days later, Midland Funding dismissed the complaint without prejudice, 

prior to the deadline to file an answer. Simultaneously, Midland Funding argued that the entire 

case should be dismissed because the amended complaint was dismissed prior to an amended 

answer, and according to Midland Funding, the counterclaim ceased to exist. The trial court 

dispensed with that argument, but upon summary judgment, condensed Miller’s claims into two 

basic causes of action based on the filing of a time-barred claim in a territory in which Miller did 

not reside. 

{¶12} The trial court determined that there were no genuine issues of material fact 

regarding the date that the cause of action accrued and where Miller lived on April 5, 2010. The 

trial court determined that all of Miller’s claims failed as a matter of law because the 15-year 
statute of limitations, pursuant to the version of R.C. 2305.06 in effect at the time, applied to the 

facts of this case because the cause of action accrued in October 2004 when the account was 

closed. In so ruling, the trial court expressly relied on the statute of limitations prior to the April 

7, 2005 enactment of the borrowing statute, R.C. 2305.03(B). Further, the trial court held that 

Miller lived at the Euclid, Ohio address on the date the action was commenced. Miller timely 

appealed from the trial court’s decision. 

{¶13} Despite starting from the deceptively simple origins of an action arising from a 

consumer debt, this case became unduly complicated, in part brought upon by the parties’ 

inability to accurately set forth the facts as presented in the documentary evidence. The crux of 

the issues before the trial court and upon this appeal focus on a statute of limitations issue and 

Miller’s place of residence on April 5, 2010. In this regard, precisely identifying the pertinent 

dates is paramount to the resolution of the claims. 

{¶14} Before addressing the merits of the appeal, we must address the procedural posture 

of this case. Miller’s counterclaim advanced claims on behalf of a putative class. In the midst 

of several discovery disputes, the trial court indefinitely stayed discovery on the class 

certification issue, and only allowed Miller to proceed with discovery on the merits of her 

individual claims. In granting the defendants’ motion for summary judgment, the trial court 

dismissed the counterclaim. On appeal, this court sought additional briefing on whether the 

dismissal of Miller’s individual counterclaims created a final appealable order in light of the fact 

that the order omitted any reference to disposing of the class action claims. Both parties filed 

supplemental briefs agreeing that the trial court’s summary judgment opinion disposed of all 

claims. 
{¶15} We are compelled to note, however, that the defendants’ claim that the class action 

allegations were mooted — by the fact that Miller failed to advance claims for class certification 

prior to the court’s resolution of her individual claims — is misplaced. The trial court’s 

intercession staying discovery absolved Miller of the responsibility of filing for class certification 

in order to preserve the putative class’s claims for appeal. See Hoban v. Natl. City Bank, 8th 

Dist. Cuyahoga No. 84321, 2004-Ohio-6115, ¶ 22 (string citing authority stating that the 

“mootness doctrine” could not be invoked in situations where a plaintiff is prevented from 

seeking class certification). Nevertheless, the trial court’s June 25, 2013 order granting 

judgment in the defendants’ favor dismissed the entirety of Miller’s counterclaim, including any 

class action component. Miller never challenged this dismissal with respect to the class-wide 

allegations, and therefore, all claims were disposed of for the purposes of R.C. 2505.02. 

Further, Miller only appealed the trial court’s decision with respect to her individual claims, so 

we need not delve into the class action component of the counterclaim. 

{¶16} Turning to the merits of the claim, appellate review of summary judgment is de 

novo, governed by the standard set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 

2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. 

Summary judgment may be granted only when (1) there is no genuine issue of 

material fact, (2) the moving party is entitled to judgment as a matter of law, and 

(3) viewing the evidence most strongly in favor of the nonmoving party, 

reasonable minds can come to but one conclusion and that conclusion is adverse 

to the nonmoving party. 

Marusa v. Erie Ins. Co., 136 Ohio St.3d 118, 2013-Ohio-1957, 991 N.E.2d 232, ¶ 7. A party 

requesting summary judgment bears the initial burden to show the basis of the motion. Dresher 

v. Burt, 75 Ohio St.3d 280, 293-294, 662 N.E.2d 264 (1996). Only when the moving party 

satisfies this burden of production is the opposing party’s reciprocal burden triggered, requiring 
introduction of evidence allowed under Civ.R. 56(C) to demonstrate genuine issues of material 

fact. Id.

{¶17} In Miller’s first, second, third, fourth, and ninth assignments of error, she claims 

the trial court erred in granting summary judgment upon the counterclaim because of the 

existence of genuine issues of material fact. After thoroughly reviewing the record, we agree 

and hold that the trial court erred by applying the 15-year statute of limitations for a written 

contract pursuant to the pre-September 2012 version of R.C. 2305.06, by determining that the 

defendants’ claims accrued in October 2004, in failing to apply the borrowing statute R.C. 

2305.03(B) to the facts of this case, and by determining that no genuine issues of material fact 

existed with regard to Miller’s permanent residency as of April 5, 2010. 

{¶18} “A debt collector violates [15 U.S.C.] 1692e by, among other things, falsely 

representing ‘the character, amount, or legal status of any debt.’” Dudek v. Thomas & Thomas 

Attys. & Counselors at Law, LLC, 702 F.Supp.2d 826, 833 (N.D.Ohio 2010), citing 15 U.S.C. 

1692e(2)(A). “‘Common sense dictates that whether a debt is time-barred is directly related to 

the legal status of that debt.’” Id., quoting Gervais v. Riddle & Assocs., P.C., 479 F.Supp.2d 

270, 277 (D.Conn.2007). As a result, a debt collector violates the FDCPA in filing a legal 

action based on a time-barred debt. 

{¶19} The determination as to when the defendants’ claim accrued based on the alleged 

debt is of paramount concern to the resolution of the claims. Rather than addressing this issue, 

the trial court, admittedly upon the urging of the parties, accepted Miller’s statement, in her brief 

in opposition to summary judgment, that the defendants’ claim accrued in October 2004 when 

Bank of America deemed the account as being “currently closed.” The parties provided no 

authority for the proposition that the date of the closing of the account is the date the cause of 
action definitively accrued, and the affidavits attached in support of defendants’ respective 

motions for summary judgment are simply incorrect as compared to the billing statements, 

creating a genuine issue of material fact regarding when Midland Funding’s cause of action 

accrued. 

{¶20} In particular, in her February 15, 2011 affidavit, Melinda Stephenson claimed that 

Bank of America was owed the sum of $5,427.24 on October 15, 2005, but that the 

xxxx-xxxx-xxxx-7342 account was the same as the original xxxx-xxxx-xxxx-9562 account, 

despite the fact that the former did not exist until November 2006. According to those same 

records, the balance on account No. xxxx-xxxx-xxxx-9562 was $4,180.84 as of the October 

2005 statement, and the amount actually charged off on October 26, 2006, was $5,050.43. It 

was not until January 2008 that Bank of America sold the xxxx-xxxx-xxxx-7342 account, then 

totaling $5,427.24, to Midland Funding. Likewise, according to Joel Rathbone’s affidavit, the 

law firm used Midland Funding’s date of October 15, 2005, as the date the 

xxxx-xxxx-xxxx-9562 account was charged off and transferred to the xxxx-xxxx-xxxx-7342 

account number. He further stated that the only discrepancy in their records was the account 

numbers used to identify the single account, although the charge-off amount from the original 

account number did not match the opening balance of the later one. 

{¶21} While the exact accrual date is beyond the scope of this appeal, the bookend dates 

are determinable as a matter of law. The accrual date for a credit card debt has largely been 

unsettled, “in part because courts have not consistently categorized credit card accounts.” Jarvis 

v. First Resolution Invest. Corp., 9th Dist. Summit No. 26042, 2012-Ohio-5653, ¶ 33. In 

recognition of the unsettled law, the Ninth District held that credit card accounts are open 

accounts based on the legislature’s definition of account to include “a right to payment of a 
monetary obligation, whether or not earned by performance, arising out of the use of a credit or 

charge card.” Id., citing R.C. 1309.102(A)(2)(a). According to the common law definition, an 

open account is an “account with a balance which has not been ascertained and is kept open in 

anticipation of future transactions.” Id. at ¶ 34, citing Smither v. Asset Acceptance, L.L.C., 919 

N.E.2d 1153, 1159 (Ind.App.2010). An account remains open until “one of the parties wishes to 

settle and close the account, and where there is but one single and indivisible liability arising 

from the such series of related and reciprocal debits and credits.” Id. Thus, an account remains 

open until both settled to a single liability and closed by one of the parties. 

{¶22} In light of the evidentiary submissions by defendants in prosecuting their respective 

motions for summary judgment, it is undisputed that any claim for the xxxx-xxxx-xxxx-9562 

account number accrued after April 7, 2005, the effective date of the borrowing statute. In this 

regard, the court erred as a matter of law by failing to apply the borrowing statute to the claims in 

this case. According to the April 2005 billing statement, the xxxx-xxxx-xxxx-9562 account was 

past due. Prior to that billing statement, there were sporadic billing cycles reflecting a balance 

past due. The delinquency was remedied until April 12, 2005. That payment was never 

tendered, and thus Miller could not have defaulted until April 12, 2005. Also, because Miller 

continued to make payments, the fact that Bank of America deemed the account “currently 

closed” is of no consequence for the purposes of this case. The account was not settled to a 

single liability until October 2005 when Bank of America both closed the account and sought the 

entire amount owed as a lump-sum payment, as a consequence to Miller’s default. Jarvis at ¶ 

34. 

{¶23} April 12, 2005, is the earliest the cause of action could have accrued, seven days 

after the enactment of the borrowing statute. Midland Funding conceded as much in its motions 
for summary judgment, identifying the April 2005 billing statement as the date that Miller finally 

defaulted on her obligation by failing to remit a payment for the amount she owed that was past 

due. The Rathbone affidavit attached to Javitch’s motion for summary judgment indicated that 

the charge-off date was the appropriate date for the purposes of resolving the statute of 

limitations issues. Thus, the undisputed evidence demonstrated that the earliest accrual date of 

Midland Funding’s purchased claim against Miller was April 12, 2005. The trial court erred in 

determining an earlier date and by not applying the borrowing statute to the facts of the current 

claim. 

{¶24} Defendants also claim that the shortest statute of limitations that could possibly be 

applicable is a three-year term and that Miller made sporadic payments to the 

xxxx-xxxx-xxxx-9562 and xxxx-xxxx-xxxx-7342 account numbers until April 16, 2007, thereby 

prolonging the accrual date for their claim against Miller until April 16, 2010. Typically, the 

making of a partial payment on an open account before the statute of limitations expires extends 

the implied promise to pay the balance owed amount, acting to renew the statute of limitations 

period. Himelfarb v. Am. Express Co., 301 Md. 698, 705, 484 A.2d 1013 (1984). 

{¶25} Even if those payments did act to extend the statute of limitations, although a 

payment was posted in the xxxx-xxxx-xxxx-7342 account on April 16, 2007, that payment was 

rejected by Bank of America on May 2, 2007. The last actual payment accepted by the creditor 

was posted on March 15, 2007. Generally, in order 

[t]o interrupt the running of the statute of limitations, the part payment must be 

the debtor’s voluntary act * * *. A “voluntary payment” for this purpose is one 

that is intentionally and consciously made and accepted as part payment of the 

particular debt in question, under such circumstances as would warrant a clear 

inference that the debtor assents to and acknowledges that a greater debt is due as 

an existing liability. 
(Emphasis added.) 51 American Jurisprudence 2d, Limitation of Actions, Section 328 (2014); 

see also Martin v. Brown, 716 N.E.2d 1030, 1034 (Ind.App.1999). Under the defendants’ 

theory, therefore, the claim accrued at the latest on March 15, 2007, the date of the last accepted 

payment. 

{¶26} In short, sometime between April 12, 2005 and March 15, 2007, lies the accrual 

date of the claim for the purposes of determining whether the April 5, 2010 complaint was 

timely. It is undisputed, therefore, that the borrowing statute applied and the trial court erred by 

applying Ohio’s statute of limitations without consideration of R.C. 2305.03(B). Accordingly 

we must remand for resolution of the implications of R.C. 2305.03(B). See Jarvis, 9th Dist. 

Summit No. 26042, 2012-Ohio-5653. 

{¶27} Finally, there remains a genuine issue of material fact as to whether Miller lived in 

Euclid, Ohio, on April 5, 2010. 15 U.S.C. 1692i provides that a debt collector shall file an 

action only in the judicial district in which the consumer signed the contract or in which the 

consumer resides at the commencement of the action. 

The term “reside” has a commonly accepted meaning. Dictionaries define “reside” 

as “to live in a place for a permanent or extended time,” Webster’s II New College 

Dictionary 943 (2001), or to “live, dwell . . . to have a settled abode for a time . . . 

.” Black’s Law Dictionary (5th ed. 1979). An ordinary person would understand 

that a person resides where the person regularly lives or has a home as opposed to 

where the person might visit or vacation. 

United States v. Namey, 364 F.3d 843, 845 (6th Cir.2004); Nationwide Property Cas. Ins. Co. v. 

Kavanaugh, 2d Dist. Montgomery No. 25747, 2013-Ohio-4730, ¶ 33. 

{¶28} Defendants argue that Miller resided in Euclid, Ohio, and Ripley, West Virginia, 

on the date they commenced the underlying case against her. Miller disputes that and presented 

evidence that she moved to Euclid at the end of April 2010, including a United States Postal 
Service permanent change of address form, bank statements demonstrating purchases being made 

primarily in West Virginia during April 2010, and her own deposition testimony. 

{¶29} In its motion for summary judgment, Javitch solely relied on the fact that Miller’s 

bank or credit card accounts indicated transactions occurring in Ohio around the time the lawsuit 

was filed and that a bank form indicated Miller used the Euclid, Ohio address. Midland Funding 

relied on the fact that Miller moved to the address sometime after the lawsuit was filed. Neither 

argument satisfies the defendants’ burden to demonstrate the lack of genuine issues of material 

fact for the purposes of summary judgment. Javitch’s evidence is open to interpretation and is 

contradicted by Miller’s deposition testimony stating the bank account was opened before she 

moved out of Ohio and got married. Simply making purchases in Ohio is insufficient to 

establish residency in light of the undisputed fact that Miller’s family, whom she may have been 

visiting, lived in Ohio. Further, Midland Funding’s argument fails to address the issue of where 

Miller resided at the commencement of the lawsuit. The trial court accepted the defendants’ 

arguments without consideration of the evidence presented in response. As a result, based on 

the evidence considered in a light most favorable to the nonmoving party, there is an issue of fact 

regarding whether Miller resided in Euclid, Ohio, at the commencement of the lawsuit. 

{¶30} Accordingly, Miller’s first, second, third, fourth, and ninth assignments of error are 

sustained. The trial court erred in failing to consider the implications of R.C. 2305.03(B), and 

genuine issues of material fact exist with respect to Miller’s residence at the commencement of 

Midland Funding’s now dismissed action. We must reverse the trial court’s decision granting 

summary judgment upon Miller’s individual claims.4

 

 4

Our resolution of these assignments of error moot Miller’s eighth assignment of error, in which she claims 

the trial court erred by failing to strike Stephenson’s affidavit originally included for the purposes of resolving the 
{¶31} The decision of the trial court is reversed in part and the case is remanded for 

further proceedings. 

It is ordered that appellant and appellees share the 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. 

SEAN C. GALLAGHER, PRESIDING JUDGE 

EILEEN A. GALLAGHER, J., and 

EILEEN T. GALLAGHER, J., CONCUR 

 

 motions for summary judgment.