Koberstein v. Richland Lumber, Inc., 2004-Ohio-5291

COURT OF APPEALS

RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATEMENT OF THE FACTS AND CASE

{¶2} On August 23, 1999, appellants Verner and Donna Koberstein [hereinafter “appellants”] filed a complaint against appellee Richland Lumber [hereinafter “appellee”], Inc. in the Mansfield Municipal Court. Appellants, in their complaint, alleged that they had entered into a contract with appellee to purchase doors and windows and that appellee breached the contract by providing the wrong doors and windows. Appellants, in their complaint, demanded a jury trial. Appellee filed an answer to appellants’ complaint on September 29, 1999.

{¶3} On January 28, 2000, appellee filed a Motion for Summary Judgment to which appellants filed a memorandum in opposition on April 11, 2000. Attached to the memorandum in opposition was the affidavit of appellant Donna Koberstein. Appellee, in a response brief filed the next day, argued that appellant Donna Koberstein’s affidavit should be stricken since “it does not contain the recitation required under Civil Rule 56(E) that the affidavit is based upon personal knowledge and that the statements set forth therein are true.” Thereafter, an amended affidavit was filed on April 20, 2000. Appellant Donna Koberstein, in the same, stated that she had “personal knowledge of the facts set forth above” and that she was “competent to testify to the matters set forth above.”