Matlock v. Reck

2018 Ohio 1650

ROBYN N. MATLOCK Plaintiff-Appellee v. ROBERT J. RECK (R & S MOBILE HOME PARK) Defendant-Appellant

C.A. CASE NO.: 27692

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

April 27, 2018

T.C. NO. 2015-CVF-214

(Civil Appeal from Municipal Court)

OPINION

MARIA RABOLD, Atty. Reg. No. 89080, 443 E. Central Avenue, Miamisburg, Ohio 45342 Attorney for Plaintiff-Appellee

JOSE LOPEZ, Atty. Reg. No. 19580, 18 East Water Street, Troy, Ohio 45373 Attorney for Defendant-Appellant

DONOVAN, J.

{¶ 1} This matter is before the Court on the August 11, 2017 Notice of Appeal of Robert J. Reck. Robert appeals from the March 23, 2017 decision of the trial court overruling his objections to the Magistrate's decision which granted judgment in favor of Robyn N. Matlock in the amount of $3,000.00, as a result of Robert's breach of the parties' oral agreement regarding Robyn's purchase of a habitable mobile home from Robert. The judgment of the trial court will be affirmed.

{¶ 2} Robyn Matlock filed a pro se "Small Claims Complaint" in Miamisburg Municipal Court against "Robert J. Reck (R & S Mobile Home Park)" on February 3, 2015. The complaint provides as follows: "I purchased a mobile home from Mr. Reck on 10-15-14. No disclosures were given about condition of home and was told that no repair[s] were needed. He did not deliver what was promised. Unsafe conditions are evident." The complaint sought judgment in the amount of $3,000.00.

{¶ 3} Robert filed a motion to dismiss on March 27, 2015, asserting that Robyn lacked standing to bring her claim against him. According to Robert, Robyn "was not a party to the contract for the sale of the mobile home. * * * Shawn Matlock is the sole purchaser listed on the contract." Robert further asserted that Robyn's complaint "should be dismissed as it fails to provide a copy of the purchase agreement at issue in the Complaint and which is required pursuant to Rule 10(D) of the Ohio Rules of Civil Procedure." Attached to the motion to dismiss is a document dated October 15, 2014, with a heading as follows: "R & S Reck Mobile Home Park, 8559 Dayton Cincinnati Pike, Miamisburg, Ohio 45342." The top portion of the document reflects Shawn Matlock's printed name, signature, social security number, date of birth, phone number, and employer, all separated by a dotted line from the lower portion of the document that provides as follows:

* * *RENT* * *

RENT FOR THE HOME IS $275.00 PER MONTH

THE RENT MUST BE PAID BY THE FIRST DAY OF THE MONTH OR YOU WILL RECEIVE A THREE DAY NOTICE TO VACATE THE MOBILE HOME THERE IS A $40.00 LATE FEE AND A $10.00 DELIVERY FEE FOR THE THREE DAY NOTICE

* * *

DO YOU HAVE A COPY OF THE RULES? YES___ NO___

WOULD YOU LIKE A YEAR LEASE? YES___ NO___

OR A MONTH TO MONTH LEASE? YES___ NO___

{¶ 4} There is a check mark on the first and third "YES" lines. At the top of the document, above the heading, "35 North" is handwritten, and "Sold As is" is handwritten and underlined. At the bottom of the document, the following is handwritten: "Dec 1-2015 Balance on trailer $800.00 Rent for March $775.83." Also attached to the motion to dismiss is the affidavit of Jose Lopez, counsel for Robert, which provides that "good defenses exist to Plaintiff's claims," including "Plaintiff's failure to state a claim upon which relief can be granted, Plaintiff's lack of standing, and Plaintiff's failure to add a necessary party."

{¶ 5} On April 6, 2015, Robert filed a "Motion and Entry to Transfer to Regular Docket," which was granted. On July 15, 2015 Robert filed an "Answer and Third-Party Complaint of Defendant/Third Party Plaintiff, Robert Reck, for Unpaid Rent and Money Damages (Notice under the Fair Debt Collection Practices Act)." Robert asserted that he and Shawn Matlock "entered into a written agreement whereby Third-party Plaintiff agreed to sell to Third-party Defendant a mobile home and to lease Third-party Defendant a lot upon which the mobile home sat." Robert alleged that Shawn breached the written agreement "in that he failed to pay the rent and the purchase price of the mobile home." According to Robert, Shawn owed him $775.83 in rent as well as $800.00 for the remainder of the purchase price of the mobile home, and $1,220.87 for "unpaid damages and/or necessary repairs to the premises." Attached is the October 15, 2014 document, as set forth above, and an invoice from R&J Handy Man Services addressed to R&S RECK MHP in the amount of $1,220.87.

{¶ 6} On August 31, 2015 Robert filed a motion for summary judgment. Robert argued that the "terms of the contract indicated that the mobile home was being sold in an 'as is' condition," and that at "no time did Defendant contract either orally or in writing with the Plaintiff, Robyn N. Matlock, for the purposes of the sale of the mobile home as she alleges in her Complaint. * * * As such, Plaintiff has no standing to bring the instant action for alleged damages to the mobile home." Attached to the motion is Robert's affidavit, and the October 15, 2014 document. Robert's affidavit provides in part as follows:

* * *

3. That Affiant is the legal owner of R & S Reck Mobile Home Park, LLC, a corporation organized and existing under the laws of the State of Ohio.

4. That on or about, October 15, 2014, I entered into a written agreement with Shawn Matlock to sell him a 1962 Travelo mobile home, VIN # OH703233549, (a copy of said aforementioned contract is attached hereto as Exhibit "B").

5. The contract for sale included a condition that the mobile home was being sold in an "as is" condition.

6. At no time did I contract either orally or in writing with the Plaintiff, Robyn N. Matlock, for the purposes of the sale of the mobile home identified in Paragraph 3 of this Affidavit.

7. No Express warranties were made regarding the condition of the mobile home.

{¶ 7} On October 1, 2015 correspondence from Robyn to the clerk of court was filed requesting a continuance of the scheduled October 20, 2015 trial date due to her "high risk pregnancy," and the request was granted.

{¶ 8} On March 15, 2016, Robyn filed a pro se response to Robert's motion for summary judgment. On March 29, 2016, Robert filed a reply, noting that Robyn's response does not "contain an affidavit in accordance with Civ.R. 56(E)," and concluding that without "an affidavit, this Court may not consider any of the factual allegations or statements of personal knowledge which comprise the entirety of Plaintiff's response."

{¶ 9} On May 3, 2016, Robyn, represented by counsel, filed an amended response to the motion for summary judgment. The amended response sets forth the following facts:

Defendant agreed to sell Plaintiff a mobile home for $4,000.00. The agreement was that Plaintiff was to pay $3,100.00 as a down payment and $900.00 to be paid in monthly installments of $100.00 for 9 months and as a result Plaintiff would receive a mobile home. This was an oral agreement and the transactions were cash transactions. Plaintiff paid Defendant $3,100 on October 15, 2014 and moved into the property.

Simultaneously, Plaintiff's husband, Shawn Matlock, signed an application to rent the lot on which the mobile home was situated. This was attached to Defendant's Motion for Summary Judgment and marked Exhibit B. It is apparent that this contract was for the lot rent, not for the sale of the mobile home. These two transactions were separate.

Plaintiff continued to pay the $100.00 installment for purchase of the mobile home and $275.00 lot rent, each month. In December 2014, Plaintiff's Husband Shawn Matlock, moved out of the home and Defendant continued to handle rent and purchase transactions with Robyn Matlock.

{¶ 10} According to Robyn, Robert's "acts were unconscionable under Ohio Revised Code § 1345.03. Defendant made a statement to Plaintiff regarding the condition of the home and she relied on it to her detriment. Defendant has gained $3,500.00 and Plaintiff did not receive a suitable and fit mobile home. A genuine issue of material fact exists regarding Defendant's statements made to Plaintiff and the details of the transaction."

{¶ 11} On May 20, 2016, Robert filed a "Motion to Strike Plaintiff's Amended Response to Defendant's Motion for Summary Judgment," asserting that it "was filed out of time and lacks a supporting affidavit."

{¶ 12} On June 21, 2016, the Magistrate issued an "Entry & Decision on Motion for Summary Judgment." The Magistrate determined as follows:

It may be that Plaintiff's ultimate chance at success is nil. We are not yet at the final stage, since factual issues still remain. The court is not convinced by the requisite standard of proof that Defendant is entitled to prevail on summary judgment. Accordingly this matter is set for trial before Magistrate Jeffrey Slyman on August 30, 2016 at 1:00 pm. * * *

{¶ 13} On July 5, 2016, Robert filed objections to the Magistrate's decision. Robert asserted that Robyn untimely responded to his motion for summary judgment seven months after it was filed. Robert argued that "despite the utter lack of any permissible evidence or averments, the Magistrate permitted and considered the filing." Robert noted that Robyn's subsequent amended response contained averments, none of which "were in any way supported by testimony or evidence deemed admissible for summary judgment purposes pursuant to Civil Rule 56." Robert asserted that Robyn "has failed to ever present any evidence or testimony contrary to the affidavit of Robert J. Reck that is admissible pursuant to Civil Rule 56." Robert argued that "the unchallenged averments set forth in Robert J. Reck's Affidavit stand unchallenged and establish that said Defendant is entitled to summary judgment as a matter of law." He asserted that "the Affidavit establishes that (1) the Defendant entered into a written agreement to sell Shawn Matlock a mobile home; (2) that the contract included a provision that the home was being sold 'as is'; and (3) that Plaintiff, Robyn N. Matlock, was not a...