[Cite as Ohio Farmers Ins. Co. v. Earles, 2011-Ohio-3103.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

OHIO FARMERS INSURANCE 

COMPANY 

 Plaintiff-Appellant 

-vsCOLIN EARLES, ET AL. 

 Defendant-Appellees 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. Julie A. Edwards, J. 

Hon. Patricia A. Delaney, J. 

Case No. 2010CA00259 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of 

Common Pleas 

JUDGMENT: Reversed and Remanded 

DATE OF JUDGMENT ENTRY: June 20, 2011 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellees 

JEROME W. COOK AMELIA A. BOWER 

ERIN K. WALSH PLUNKETT COONEY 

MCDONALD HOPKINS LLC 300 East Broad Street Suite 590 

600 Superior Avenue, East Columbus, Ohio 43215 

Suite 2100 

Cleveland, Ohio 44114-2653 
Stark County, Case No. 2010CA00259 2

Hoffman, P.J. 

{¶1} Plaintiff-appellant Ohio Farmers Insurance Company appeals the June 30, 

2010 Judgment Entry of the Stark County Court of Common Pleas entering partial 

summary judgment in favor of Defendant-appellees Colin and Monika Earles, Brian and 

Traci Miller, Steven and Michele Sehmer, Steven and Mary Ann James, Chad and Mary 

Hecky, First Place Bank and Third Federal Savings & Loan Association. 

STATEMENT OF THE FACTS AND CASE 

{¶2} This case is one of a number of interrelated cases filed in the Stark 

County Court of Common Pleas, some of which have been assigned to different trial 

court judges and some of which have already made their way to this Court for review. 

We offer the following brief summary as background. 

{¶3} On July 29, 2004, John Hershberger, acting as president of Danbury Glen 

Estates, Inc., filed with the Stark County Recorder a notice of commencement for 

improvements to real property pursuant to R.C. 1311.04. At the time, Danbury Glen 

Estates, Inc. was the owner of the real estate to be developed later described in the 

affidavit for mechanic's lien at issue. 

{¶4} On April 4, 2006, Hersh Construction, one of the principal builders for the 

project, executed a note in favor of Fifth Third Bank in the amount of $1,552,800.00, 

plus interest. To secure the note, Hersh Construction executed a mortgage on twentyone (21) lots of the Danbury Glen Estates development. 

{¶5} Appellant Ohio Farmers served as the performance bond surety for 

Northern Valley Contractors, Inc. Northern Valley Contractors, Inc., assignor to 

Appellant Ohio Farmers, became involved in the development project and performed 
Stark County, Case No. 2010CA00259 3

work on the streets and the sanitary sewer system. On February 28, 2007, Northern 

Valley filed an affidavit for a mechanic's lien with the Stark County Recorder. The 

affidavit of mechanic's lien included at least 46 lots in the development project. By 

virtue of the performance bond, Northern Valley subsequently assigned its rights under 

its mechanics lien to Appellant Ohio Farmers. 

{¶6} Northern Valley’s affidavit of mechanic's lien was served on March 2, 2007 

on the following: John Hershberger, Danbury Glen Estates, Inc., Jody Hershberger, and 

Hershberger Construction, Inc. Danbury Glen Estates LLC was named but not served 

with a copy of the affidavit. Furthermore, lots owned by Danbury Glen Estates LLC, 

Rural Investors LLC and Brian and Traci Miller were included in the affidavit. However, 

the affidavit was not served on certain owners of record for lots which were acquired 

prior to the filing of the mechanic’s lien. 

{¶7} In August 2008, Hersh Construction filed a declaratory judgment action in 

the Stark County Court of Common Pleas, under case number 2008 CV 3574, 

challenging the validity of the Ohio Farmer’s Mechanic’s Lien on the property owned by 

Danbury, Danbury Glen Estates, LLC, Hersh and Rural Investors, LLC. 

{¶8} Multiple parties in case number 2008 CV 3574 filed motions for summary 

judgment. The trial court therein entered an order concerning summary judgment. Ohio 

Farmers, in lieu of an appeal in Case No.2008 CV 3574, entered into a resolution with 

the other parties, resulting in a May 6, 2009 Stipulated Judgment Entry which 

determined the mechanic's lien of 2/28/2007 was valid and would relate back to July 29, 

2004, the notice of commencement. 
Stark County, Case No. 2010CA00259 4

{¶9} Prior to that litigation, Hersh had sold lots to Colin and Monika Earles, 

Steven and Michelle Sehmer and Brian and Traci Miller. During the pendency of the 

litigation, Hersh sold lots to Steven and Mary Ann James and Chad and Mary Hecky. 

{¶10} Appellant filed the within action on July 15, 2009. The trial court granted 

partial summary judgment in favor of Appellees Colin and Monika Earles, Brian and 

Traci Miller, Steven and Michele Sehmer, Steven and Mary Ann James, Chad and Mary 

Hecky, First Place Bank and Third Federal Savings & Loan Association and denied 

summary judgment to Appellant via Judgment Entry of June 30, 2010. 

{¶11} Appellant now appeals, assigning as error: 

{¶12} “I. THE TRIAL COURT ERRED WHEN IT GRANTED PARTIAL 

SUMMARY JUDGMENT TO DEFENDANTS-APPELLEES BRIAN AND TRACI MILLER 

AND THEIR MORTGAGEE, FIRST PLACE BANK, AND DENIED SUMMARY 

JUDGMENT TO OHIO FARMERS ON GROUNDS OF THE TRIAL COURT’S 

DECLARATION THAT THE MECHANIC’S LIEN OF OHIO FARMERS WAS INVALID 

AS TO THE LAND OF BRIAN AND TRACI MILLER, AND WHERE THE TRIAL COURT 

FAILED TO CLARIFY OR RECONSIDER THAT DECLARATION, BASED UPON OHIO 

FARMERS’ FAILURE TO IDENTIFY BRIAN AND TRACI MILLER AS OWNERS IN THE 

MECHANIC’S LIEN AFFIDAVIT AND SERVE THEM, WHERE THERE WAS NO 

DOCUMENTARY EVIDENCE PRESENTED BY BRIAN OR TRACI MILLER THAT 

OHIO FARMERS ACTUALLY KNEW THAT THEY HAD BECOME OWNERS OF THE 

PARCEL [i.e., ONE OF MANY AT ISSUE] JUST TWENTY-ONE DAYS PRIOR TO THE 

RECORDING OF OHIO FARMERS’ MECHANIC’S LIEN. 
Stark County, Case No. 2010CA00259 5

{¶13} “II. THE TRIAL COURT ERRED WHEN IT GRANTED PARTIAL 

SUMMARY JUDGMENT TO ALL DEFENDANTS-APPELLEES AND DENIED 

SUMMARY JUDGMENT TO OHIO FARMERS ON GROUNDS OF THE TRIAL 

COURT’S DECLARATION THAT THE MECHANIC’S LIEN OF OHIO FARMERS WAS 

INVALID IN ITS TOTALITY, AND FAILED TO CLARIFY OR RECONSIDER THAT 

DECLARATION, ON THE ERRONEOUS PREMISE THAT OHIO’S MECHANIC’S LIEN 

LAW IMPOSES A STATUTORY OBLIGATION UPON MECHANIC’S LIEN CLAIMANTS 

TO PERFORM A TITLE SEARCH AND PRESUMABLY UPDATE THAT TITLE 

SEARCH TO THE VERY SECOND BEFORE RECORDING OF THE MECHANIC’S 

LIEN, OR RISK FORFEITURE, AS A MATTER OF LAW, OF THEIR ENTIRE 

MECHANIC’S LIEN AS TO ALL LAND DESCRIBED THEREIN, AS A RESULT OF ITS 

FAILURE TO DISCOVER THE IDENTIFY OF ONE OWNER OF ONE PARCEL, NO 

MATTER HOW RECENTLY THAT OWNER MAY HAVE ACQUIRED TITLE, NO 

MATTER THAT THE MECHANIC’S LIEN IDENTIFIED ALL OWNERS AND OWNERS’ 

DESIGNEES IDENTIFIED IN THE NOTICE OF COMMENCEMENT [WHO OWNED 

MANY SEPARATE PARCELS] AND THAT THESE OWNERS AND OWNERS’ 

DESIGNEES WERE SERVED WITH THE MECHANIC’S LIEN AFFIDAVIT. 

{¶14} “III. THE TRIAL COURT ERRED WHEN IT GRANTED PARTIAL 

SUMMARY JUDGMENT TO DEFENDANT-APPELLEES COLIN AND MONIKA 

EARLES, CHAD AND MARY HECKY, STEVEN AND ANN JAMES, AND STEVEN AND 

MICHELLE SEHMER AND THEIR MORTGAGEES, AND DENIED SUMMARY 

JUDGMENT TO OHIO FARMERS ON GROUNDS OF THE TRIAL COURT’S 

DECLARATION, AND ITS FAILURE TO CLARIFY OR RECONSIDER THAT 
Stark County, Case No. 2010CA00259 6

DECLARATION, THAT OHIO FARMER’S MECHANIC’S LIEN WAS INVALID AS TO 

THE PARCELS OWNED BY DEFENDANTS-APPELLEES COLIN AND MONIKA 

EARLES, CHAD AND MARY HECKY, STEVEN AND ANN JAMES, AND STEVEN AND 

MICHELLE SEHMER WHERE THE UNDISPUTED DOCUMENTARY EVIDENCE 

PROVED THAT THAT THESE OWNERS ALL TOOK TITLE AND THE MORTGAGEES 

TOOK THEIR MORTGAGORS AFTER THE RECORDING OF OHIO FARMERS’ 

MECHANIC’S LIEN AND THE OWNERS RECEIVED THEIR TITLES FROM HERCH 

CONSTRUCTION, INC. WHO HAD BEEN IDENTIFIED IN OHIO FARMERS’ 

MECHANIC’S LIEN AND WHO HAD BEEN SERVED WITH THE MECHANIC’S LIEN 

AFFIDAVIT. 

{¶15} “IV. THE TRIAL COURT ERRED WHEN IT GRANTED PARTIAL 

SUMMARY JUDGMENT TO ALL DEFENDANTS-APPELLEES AND DENIED 

SUMMARY JUDGMENT TO OHIO FARMERS ON GROUNDS OF THE TRIAL 

COURT’S DECLARATION THAT THE VALIDITY OF OHIO FARMERS’ MECHANIC’S 

LIEN WAS SUBJECT TO COLLATERAL ATTACK BY ALL DEFENDANTSAPPELLEES DESPITE THE TRIAL COURT’S FULL KNOWLEDGE OF TWO 

PREVIOUS FINAL ORDERS BY THE STARK COUNTY COURT OF COMMON PLEAS 

IN TWO SEPARATE CASES THAT SPECIFICALLY DECLARED THE VALIDITY AND 

AMOUNT OF OHIO FARMER’S MECHANIC’S LIEN AND WHERE NO ALLEGATIONS 

OR PROOF OF FRAUD OR LACK OF JURISDICTION WERE RAISED OR 

SUPPORTED BY DEFENDANTS-APPELLEES BELOW. 

{¶16} “V. THE TRIAL COURT ERRED WHEN IT GRANTED PARTIAL 

SUMMARY JUDGMENT TO ALL DEFENDANTS-APPELLEES AND DENIED 
Stark County, Case No. 2010CA00259 7

SUMMARY JUDGMENT TO OHIO FARMERS WHERE THE TRIAL COURT REFUSED 

TO RECOGNIZE THE RES JUDICATA EFFECT OF THE STIPULATED JUDGMENT 

ENTRY IN STARK COUNTY COMMON PLEAS COURT CASE NO. 2008 CV 03574 

RELATING TO THE VALIDITY AND AMOUNT OF OHIO FARMERS’ MECHANIC’S 

LIEN ON THE VERY PARCELS THAT WERE TRANSFERRED BY HERSH 

CONSTRUCTION, INC. DIRECTLY TO EACH OF THE DEFENDANTS-APPELLEES 

AND UPON WHICH THE BANK DEFENDANTS-APPELLEES TOOK THEIR 

RESPECTIVE MORTGAGES. 

{¶17} “VI. THE TRIAL COURT ERRED WHEN IT DECLARED THAT THE 

EFFECTIVE DATE OF THE AGREED JUDGMENT ENTRY, NUNC PRO TUNC, FILED 

IN STARK COUNTY CASE NO. 2007-CVO-1663 [OVER WHICH JUDGE CHARLES 

BROWN, NOT JUDGE FORCHIONE, HAD JURISDICTION] WAS EFFECTIVE FROM 

THE DATE OF ITS FILING ON MAY 6, 2009 AND THAT ITS EFFECTIVE DATE DID 

NOT RELATE BACK TO THE DATE OF THE AGREED JUDGMENT ENTRY THAT IT 

WAS OBVIOUSLY INTENDED TO CLARIFY WHICH WAS FILED ON AUGUST 3, 

2007.” 

I, II, & III 

{¶18} Appellant’s first three assigned errors raise common and interrelated 

issues; therefore, we will address the arguments together. 

{¶19} Summary judgment proceedings present the appellate court with the 

unique opportunity of reviewing the evidence in the same manner as the trial court. 

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. 

Therefore, we must refer to Civ.R. 56(C), which provides, in pertinent part: “Summary 
Stark County, Case No. 2010CA00259 8

judgment shall be rendered forthwith if the pleadings, depositions, answers to 

interrogatories, written admissions, affidavits, transcripts of evidence in the pending 

case, and written stipulations of fact, if any, timely filed in the action, show that there is 

no genuine issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law. * * * A summary judgment shall not be rendered unless it 

appears from the evidence or stipulation, and only from the evidence or stipulation, that 

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

party against whom the motion for summary judgment is made, that party being entitled 

to have the evidence or stipulation construed most strongly in the party's favor.” 

{¶20} Pursuant to the above rule, a trial court may not enter summary judgment 

if it appears that a material fact is genuinely disputed. The party moving for summary 

judgment bears the initial burden of informing the trial court of the basis for its motion 

and identifying those portions of the record that demonstrate the absence of a genuine 

issue of material fact. The moving party may not make a conclusory assertion that the 

nonmoving party has no evidence to prove its case. The moving party must specifically 

point to some evidence which demonstrates that the nonmoving party cannot support its 

claim. If the moving party satisfies this requirement, the burden shifts to the nonmoving 

party to set forth specific facts demonstrating there is a genuine issue of material fact for 

trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997–Ohio–259, 674 N.E.2d 1164, citing 

Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. 

{¶21} At issue herein is the validity of the mechanic’s lien filed by Northern 

Valley Contractor’s Inc. now owned by Ohio Farmers. 
Stark County, Case No. 2010CA00259 9

{¶22} On October 21, 2008, Fifth Third Bank filed a complaint in Stark County 

Common Pleas Case 2008 CV 4442 seeking judgment on the note, mortgage and 

guarantee in this case. The complaint alleged Hersh had defaulted on a mortgage 

granted to Fifth Third on twenty-one lots in the subdivision known as Danbury Glen 

Estates. Appellant Ohio Farmers, as the surety for Northern Valley Contractors, Inc., 

filed a motion to intervene, seeking to protect a balance of more than $539,000.00 for 

Northern Valley Contractors, Inc’s contracting work. The trial court granted the motion to 

intervene. 

{¶23} On February 2, 2010, Appellant Ohio Farmers filed the aforesaid 

stipulated judgment entry of May 6, 2009, and the responses of Danbury Glen and 

Hersh Construction to request for admissions from case number 2008 CV 3574. 

{¶24} Upon reviewing the parties' briefing of the issues, the trial court granted 

Fifth Third's motion for summary judgment and denied Ohio Farmer's motion for 

summary judgment, concluding, inter alia, that the 2/28/07 affidavit of mechanic's lien 

filed by Northern Valley Construction did not create a lien against the real estate in 

question. The matter proceeded to appeal before this Court. 

{¶25} Via Judgment Entry of April 11, 2011, this Court reversed and remanded 

the decision of the trial court finding the owners’ name omissions did not render the 

mechanics lien invalid as to the lot owners, including the Millers. Fifth Third Bank v. 

Ohio Farmers Insurance Company, (April 11, 2011) Stark App. Case No. 

2010CA00286. This panel agrees with our colleagues rationale and decision finding the 

mechanics lien is valid. 

{¶26} Appellant’s first three assignments of error are sustained. 
Stark County, Case No. 2010CA00259 10

IV, V, and VI 

{¶27} In light of our disposition of Appellant’s Assignments of Errors I, II, and III, 

we find any discussions of these assignments of error to be moot. 

{¶28} The June 30, 2010 Judgment Entry of the Stark County Court of Common 

Pleas is reversed, and the matter remanded for further proceedings in accordance with 

the law and this opinion. 

By: Hoffman, P.J. 

Edwards, J. and 

Delaney, J. concur 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ Julie A. Edwards___________________

 HON. JULIE A. EDWARDS 

 s/ Patricia A. Delaney _________________

 HON. PATRICIA A. DELANEY 

 
Stark County, Case No. 2010CA00259 11

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

OHIO FARMERS INSURANCE : 

COMPANY : 

 : 

 Plaintiff-Appellant : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

COLIN EARLES, ET AL. : 

 : 

 Defendant-Appellees : Case No. 2010CA00259 

 For the reason stated in our accompanying Opinion, the judgment of the Stark 

County Court of Common Pleas is reversed, and the matter is remanded to that court 

for further proceedings in accordance with the law and our Opinion. Costs to Appellees. 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ Julie A. Edwards___________________

 HON. JULIE A. EDWARDS 

 s/ Patricia A. Delaney _________________

 HON. PATRICIA A. DELANEY