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Kohrman9/14/2000
irst four counts of its complaint.
Appellee attached to its motion several exhibits. They included the affidavit of its Director of Administration, which verified the following documents: (1) a copy of a bill addressed to appellant dated July 30, 1998 for a "total balance due" in the amount of $109,964.44 and (2) copies of the itemizations pertaining to appellant's account with appellee. Appellee attached as additional exhibits appellant's answers to both its requests for admissions and its interrogatories.
Appellant filed a brief in opposition to appellee's motion. Therein, appellant argued appellee's own evidence demonstrated issues of fact remained with regard to its claims. Appellant based his argument in large part upon his answers to appellee's requests for admissions and interrogatories. Appellant therefore also attached these documents to his brief as exhibits. Although appellee filed a reply brief, appellee neither challenged appellant's evidence attached to his brief nor provided any additional documentary evidence.
Appellee's motion still remained pending when appellant filed his own motion for summary judgment. Appellant argued in his supporting brief that appellee had failed both to dispute his claim of set-off and "to produce evidence of the hourly rate to which [appellant] allegedly agreed"; therefore, he was entitled to judgment on appellee's claims.
Appellee responded with a brief in opposition to appellant's motion. Attached to its brief as an exhibit was the affidavit of Marc C. Krantz, its Managing Partner. Krantz stated in relevant part that appellee never "agree to pay a fee of $250,000 regarding Gasoil's land leases," that appellant's allegations "regarding Gasoil are false," and that appellee was "not indebted to [appellant]." Appellee also attached as an exhibit a copy of a document that purported to be the plea agreement entered into by appellant in the federal criminal matter.
The record indicates the trial court called for an oral hearing solely on appellee's motion. During this hearing, the trial court questioned appellee's attorney with regard to the federal proceedings against appellant; however, the trial court did not request any evidentiary verification of counsel's answers. Appellant's counsel thereafter asserted his client's position disputing appellee's entitlement to the "fees that are in issue."
Following a discussion on the defense of "set-off," the trial court mentioned it was "concerned about the fact that there nothing under oath before by the [appellant] other than the Federal (sic) papers that ha been supplied."
Appellant's counsel responded with the argument appellee had waived this issue; however, the trial court's reaction to the argument demonstrated it remained unconvinced. Thereafter, it issued its order denying appellant's motion for summary judgment and granting appellee's motion for summary judgment on the basis appellant "ha not presented supporting statements under oath." The trial court's subsequent journal entry granting appellee judgment in the amount of $109,694.44 plus interest * plus costs" rendered its judgment final.
Appellant has filed a timely appeal of the trial court's order. He presents six assignments of error for this court's review; the first five follow:
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT WHEN APPELLEE FAILED TO CARRY ITS BURDEN OF DEMONSTRATING THAT THERE WAS NO GENUINE ISSUE OF MATERIAL FACT AND THAT APPELLEE WAS ENTITLED TO JUDGMENT AS A MATTER OF LAW.
ASSIGNMENT OF ERROR NO. II
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