[Cite as Sanderfer v. Cuyahoga Metro. Hous. Auth., 2017-Ohio-1552.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 104720 

DARNELLA SANDERFER

 PLAINTIFF-APPELLANT

vs. 

CUYAHOGA METROPOLITAN HOUSING AUTHORITY 

DEFENDANT-APPELLEE

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-15-844724 

BEFORE: Jones, J., Stewart, P.J., and Laster Mays, J. 

RELEASED AND JOURNALIZED: April 27, 2017 
ATTORNEY FOR APPELLANT 

Steven J. Moody 

3751 Prospect Avenue, Floor 3 

Cleveland, Ohio 44115

ATTORNEYS FOR APPELLEE 

Adrian D. Thompson 

Taft Stettinius & Hollister, L.L.P. 

3500 BP Tower 

200 Public Square 

Cleveland, Ohio 44114

 
LARRY A. JONES, SR., J.: 

{¶1} Plaintiff-appellant, Darnella Sanderfer (“Sanderfer”), appeals the trial court’s 

decision to grant summary judgment in favor of defendant-appellee, Cuyahoga 

Metropolitan Housing Authority (“CMHA”). We affirm. 

{¶2} Sanderfer worked for CMHA as a maintenance worker from 2004 until she 

was terminated in December 2011. Sanderfer initially filed suit against CMHA on May 

30, 2013, but dismissed her complaint in April 2014. She refiled her complaint on April 

24, 2015, alleging sexual harassment and a hostile work environment. 

{¶3} During the pretrial process, the trial court held a case management conference 

and issued a trial order on January 11, 2016. Counsel for both parties signed the trial 

order and the order was entered on the docket. Paragraph three of the trial order stated: 

Unless otherwise ordered, motions for summary judgment, if any, may only 

be filed with leave of Court in accordance with Civ.R. 56(B) and not later 

than 10 days after the discovery deadline * * *. Said motions are to be filed 

instanter with a motion for leave. Responses to motions for summary 

judgment are due within 10 days after the filing of the Motion for Leave and 

Motion for Summary Judgment whether or not the Court has issued a ruling 

on the Motion for Leave. 

{¶4} On April 18, 2016, CMHA moved for leave to file a motion for summary 

judgment and attached to it a motion for summary judgment with a memorandum in 

support of the motion. Sanderfer did not oppose the motion. 

{¶5} On June 8, 2016, the court issued a judgment entry stating that Sanderfer’s 

time to oppose CMHA’s motion for summary judgment had elapsed and granting summary 
judgment in favor of CMHA. 

{¶6} Sanderfer appealed and raises the following assignments of error for our 

review: 

I. The trial court erred by instituting a rule for summary judgment that 

requires responding to a summary judgment motion within 10 days which is 

in conflict with the Ohio civil rules prior to the July 15, 2015 amendment of 

procedure rule 56 which requires the court [to] allow at least 14 days to 

respond. 

II. The trial court erred by granting the defendant’s motion for summary 

judgment without a leave of court in violation of civil rule 56. 

III. The trial court erred by issuing a default summary judgment. 

{¶7} In the first assignment of error, Sanderfer argues that the trial court erred by 

giving her only ten days to respond to the motion for summary judgment instead of the 14 

days as required by Civ.R. 56. 

{¶8} Sanderfer did not raise in the trial court her issue of a perceived conflict 

between the trial court’s trial order and Civ.R. 56. It is well established that “[a]n 

appellate court will not consider any error which could have been brought to the trial 

court’s attention, and hence avoided or otherwise corrected.” Schade v. Carnegie Body 

Co., 70 Ohio St.2d 207, 210, 436 N.E.2d 1001 (1982). Thus, a party waives and may not 

raise on appeal any error that arises during the trial court proceedings if that party fails to 

bring the error to the court’s attention, by objection or otherwise, at a time when the trial 

court could avoid or correct the error. Goldfuss v. Davidson, 79 Ohio St.3d 116, 

121-123, 679 N.E.2d 1099 (1997). A party’s failure to object waives all but plain error. 

Id. 
{¶9} Even if Sanderfer had brought the issue to the court’s attention, however, there 

was no error because the court’s trial order did not conflict with Civ.R. 56. Both the 

former version of Civ.R. 56(C) and the current version of Civ.R. 56(C), effective July 1, 

2015, provide that 

[u]nless otherwise provided by local rule or by order of the court, the adverse 

party may serve responsive arguments and opposing affidavits within 

twenty-eight days after service of the motion, and the movant may serve 

reply arguments within fourteen days after service of the adverse party’s 

response. 

{¶10} Sanderfer claim was that the trial court had to allow her 14 days to respond to 

CMHA’s motion for summary judgment but the court order allowed her only ten days to 

respond, and therefore, the trial court’s order conflicted with the Civil Rules. But 

Civ.R.56(C), by its express terms, actually gives a responding party 28 days in which to 

respond to a motion for summary judgment, “unless otherwise provided for by local rule or 

by order of the court.” The order of the court in this case, which counsel for both parties 

signed, was that responsive motions were due ten days after the filing of a motion for 

summary judgment. CMHA filed its motion for summary judgment on April 18, 2016. 

The trial court granted the motion on June 8, 2016, 51 days after CMHA filed the motion. 

During that 51 days, Sanderfer did not respond to CMHA’s motion or otherwise ask for an 

extension of time in which to respond. Therefore, Sanderfer’s argument that the court 

did not give her the proper amount of time in which to file her response holds no merit. 

{¶11} In light of the above, the first assignment of error is overruled. 

{¶12} In the second assignment of error, Sanderfer claims that the trial court erred 
by granting CMHA’s motion for summary judgment without leave of court. Sanderfer 

claims that she did not respond to CMHA’s motion for summary judgment because the 

trial court had not yet ruled on whether CMHA could file its motion for summary 

judgment. 

{¶13} Again, paragraph three of the court’s January 11, 2016 trial order provided: 

Unless otherwise ordered, motions for summary judgment, if any, may only 

be filed with leave of Court in accordance with Civ.R. 56(B) and not later 

than 10 days after the discovery deadline * * *. Said motions are to be filed 

instanter with a motion for leave. Responses to motions for summary 

judgment are due within 10 days after the filing of the Motion for Leave and 

Motion for Summary Judgment whether or not the Court has issued a ruling 

on the Motion for Leave. 

{¶14} The trial order clearly stated that responsive motions were due within ten 

days after the filing of a summary judgment motion “whether or not the court has issued a 

ruling on the motion to leave.” 

“[A] court may, in its sound discretion, consider a motion for summary 

judgment that has been filed, without express leave of the court, after the 

action has been set for trial. Furthermore, where the acceptance of a 

motion occurs by the grace of the court, the decision to accept is by itself 

leave of court.” 

 

Meyer v. Wabash Alloys, L.L.C., 8th Dist. Cuyahoga No. 80884, 2003-Ohio-4400, ¶ 16, 

quoting Lachman v. Wietmarschen, 1st Dist. Hamilton No. C-020208, 2002-Ohio-6656. 

{¶15} The record does not reflect that the court expressed to the parties that it 

would rule on a motion to leave before considering an accompanying motion for summary 

judgment. Thus, we consider what the record does reflect, which is that the January 11, 

2016 trial court order required a party opposing a summary judgment motion to file its 
responsive motion within ten days, regardless of whether the court had ruled on the motion 

to leave. 

{¶16} The second assignment of error is overruled. 

{¶17} In the third assignment of error, Sanderfer argues that the trial court granted 

CMHA a “default” summary judgment without considering the evidence or conducting 

any reasoning or analysis. 

{¶18} In granting summary judgment, the trial court stated: 

In accordance with Paragraph 3 of this Court’s Trial Order, issued on 

January 11, 2016 and signed by both parties at the case management 

conference, all responses to motions for summary judgment were due within 

10 days of filing whether or not the court has issued a ruling on the motion 

for leave. As more than 30 days have passed since Defendant’s Motion for 

Summary Judgment was filed, Plaintiff’s response time for said Motion has 

lapsed. Therefore, Defendant’s Motion for Summary Judgment, filed 

4/18/2016, remains unopposed. In construing the evidence most strongly in 

favor of the Plaintiff, the court finds that as to Plaintiff Sanderfer’s claims 

against Defendant, there is no genuine issue as to any material fact, 

reasonable minds could only find in favor of said Defendant, and said 

Defendant is entitled to judgment as a matter of law. Therefore, Defendant’s 

Motion for Summary Judgment is granted and Plaintiff’s claims against 

Defendant are dismissed with prejudice. 

{¶19} Sanderfer does not support her claim that the trial court failed to consider the 

evidence in the case. Moreover, Civ.R. 52 does not require a trial court to issue findings 

of fact or conclusions of law when deciding a motion pursuant to Civ.R. 56.1

 

{¶20} In determining whether a summary judgment is warranted, a court must 

determine whether (1) no genuine issue as to any material fact exists, (2) the party moving 

 1

 Civ.R. 52 states: “Findings of fact and conclusions of law required by this rule * * * are 

unnecessary upon all other motions including those pursuant to * * * Civ.R. 56.” 
for summary judgment is entitled to judgment as a matter of law, and (3) in viewing the 

evidence most strongly in favor of the non-moving party, conclude that reasonable minds 

can only reach one conclusion, which is adverse to the non-moving party. Temple v. 

Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1997). The trial court’s 

judgment entry granting summary judgment sufficiently supports its finding in favor of 

CMHA. 

{¶21} The third assignment of error is overruled. 

{¶22} Judgment affirmed. 

It is ordered that appellee recover of appellant costs herein taxed. 

It is ordered that a special mandate issue out of this court directing the Cuyahoga 

County Court of Common Pleas 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. 

 

LARRY A. JONES, SR., JUDGE 

MELODY J. STEWART, P.J., and 

ANITA LASTER MAYS, J., CONCUR