Bur. of Motor Vehicle Repair v. Griffin ( 2018 )


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  • [Cite as Bur. of Motor Vehicle Repair v. Griffin, 
    2018-Ohio-5101
    .]
    IN THE COURT OF APPEALS OF OHIO
    TENTH APPELLATE DISTRICT
    Ohio Bureau of Motor Vehicle Repair,                 :
    No. 17AP-773
    Plaintiff-Appellee,                 :                      and
    No. 17AP-810
    v.                                                   :               (C.P.C. No. 15CV-9470)
    Michael Lance Griffin et al.,                        :           (REGULAR CALENDAR)
    Defendants-Appellants.              :
    D E C I S I O N
    Rendered on December 18, 2018
    On brief: Michael DeWine, Attorney General, Peter L.
    Jamison, Tyler J. Herrmann, and Giles Allen for appellee.
    Argued: Giles Allen.
    On brief: Michael Lance Griffin, pro se. Argued: Michael
    Lance Griffin.
    APPEALS from the Franklin County Court of Common Pleas
    BROWN, P.J.
    {¶ 1} Michael Lance Griffin; the Michael Lance Griffin Trust dba Tintmasters
    ("trust"); Tintmasters, LLC ("Tintmasters"); Mid City Collision; Cincinnati Custom &
    Collision Professionals, the Cincinnati Collision Center, and the Mike Griffin Tire & Body
    Shop, defendants-appellants, appeal from two judgments of the Franklin County Court of
    Common Pleas. In an October 2, 2017 judgment, the court: (1) enjoined appellants from
    conducting collision repair or window tint operations at any location unless and until they
    register with plaintiff-appellee, Ohio Board of Motor Vehicle Repair ("board"), (2) ordered
    appellants to pay $4,125 in back registration fees, and (3) ordered appellants to pay a
    $4,000 statutory fine. In a November 2, 2017 judgment, the court found it lacked
    Nos. 17AP-773 and 17AP-810                                                               2
    jurisdiction to address several of appellants' motions due to appellants' pending appeal of
    the October 2, 2017 judgment.
    {¶ 2} Appellants are engaged in automobile collision repair and window tinting.
    R.C. Chapter 4775 mandates motor vehicle collision repair operators and motor vehicle
    window tint operators register with the board. None of the appellants have ever registered
    with the board. On October 23, 2015, the board filed a complaint against Tintmasters and
    Griffin. The board later amended its complaint to include the trust as a defendant. In its
    amended complaint, the board asserted appellants' failure to register violates R.C.
    4775.02(A) because each defendant is a motor vehicle collision repair operator or motor
    vehicle window tint operator. The board, therefore, requested the trial court issue: (1) a
    declaratory judgment stating all appellants act as motor vehicle collision repair operators
    or motor vehicle window tint operators and must register with the board, (2) an
    injunction enjoining all appellants from committing any acts or practices that violate R.C.
    Chapter 4775, (3) an order requiring appellants pay fees for the years in which they
    operated while unregistered, totaling $4,125, and (4) an order requiring appellants pay a
    fine of $4,000.
    {¶ 3} On December 7, 2015, Griffin, pro se, filed a motion to dismiss, which the
    trial court denied on January 15, 2016. On February 10, 2016, appellants filed another
    motion to dismiss, which the trial court struck as being redundant on May 2, 2016.
    {¶ 4} On July 29, 2016, the board filed a motion for summary judgment, in which
    it argued there were no genuine issues of material fact remaining as to whether appellants
    were acting as motor vehicle repair operators and motor vehicle tint operators and were
    not registered with the board. Thereafter, appellants filed several requests for discovery.
    On September 2, 2016, the board filed a motion for stay of discovery pending the outcome
    of the motion for summary judgment.
    {¶ 5} On September 30, 2016, the trial court granted the board's motion for
    summary judgment.
    {¶ 6} On October 29, 2016, appellants filed a motion to set aside or vacate void
    order.
    {¶ 7} On October 30, 2016, appellants filed a notice of appeal.
    Nos. 17AP-773 and 17AP-810                                                                3
    {¶ 8} On November 16, 2016, appellants filed a motion for summary judgment.
    On November 22, 2016, the trial court issued a decision and entry. The trial court denied
    appellants' motion to vacate judgment and struck his motion for summary judgment.
    {¶ 9} On November 29, 2016, appellants filed a request for findings of fact and
    conclusions of law, as well as a request for mandatory judicial notice. On December 8,
    2016, the court struck the request for judicial notice and found the request for findings of
    fact and conclusions of law moot.
    {¶ 10} On December 15, 2016, appellants filed two notices of appeal with respect to
    the November 22 and December 8, 2016 judgments, and this court consolidated the three
    pending appeals. In Ohio Bd. of Motor Vehicle Repair v. Tintmasters Internatl., LLC,
    10th Dist. No. 16AP-749, 
    2017-Ohio-8002
    , we found that none of the appealed judgments
    constituted a final appealable order; thus, this court lacked jurisdiction, and we dismissed
    the appeals.
    {¶ 11} On January 16, 2017, appellants filed another motion to vacate the
    September 30, 2016 judgment that granted the board's motion for summary judgment.
    On January 17, 2017, the trial court struck the motion, finding it lacked jurisdiction
    because it was divested of jurisdiction upon appellants' filing their notice of appeal.
    Appellants appealed the January 17, 2017 judgment of the trial court, but this court
    dismissed the appeal in Ohio Bd. of Motor Vehicle Repair v. Griffin, 10th Dist. No. 17AP-
    58, 
    2017-Ohio-9129
    , due to the lack of a final appealable order.
    {¶ 12} On October 2, 2017, the trial court issued a judgment, in which the court
    amended its September 30, 2016 entry to: (1) enjoin appellants from conducting collision
    repair or window tint operations at any location unless and until they register with the
    board, (2) order appellants pay $4,125 in back registration fees, and (3) order appellants
    pay a $4,000 statutory fine. In a November 2, 2017 judgment, the court found it lacked
    jurisdiction to address several of appellants' motions filed after the October 2, 2017
    judgment, due to appellants' pending appeals.
    {¶ 13} Appellants appeal the judgments of the trial court, asserting the following
    assignments of error, which contain identical language but present different underlying
    arguments:
    [I.] The Trial Court erred in granting summary judgment for
    plaintiff-appellee, Ohio Board of Motor Vehicle Repair.
    Nos. 17AP-773 and 17AP-810                                                                   4
    [II.] The Trial Court erred in granting summary judgment for
    plaintiff-appellee, Ohio Board of Motor Vehicle Repair.
    {¶ 14} Appellants argue in their first assignment of error the trial court erred when
    it granted the board's motion for summary judgment. Summary judgment is appropriate
    when the moving party demonstrates that: (1) there is no genuine issue of material fact,
    (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds
    can come to but one conclusion when viewing the evidence most strongly in favor of the
    non-moving party, and that conclusion is adverse to the non-moving party. Hudson v.
    Petrosurance, Inc., 
    127 Ohio St.3d 54
    , 
    2010-Ohio-4505
    , ¶ 29; Sinnott v. Aqua-Chem, Inc.,
    
    116 Ohio St.3d 158
    , 
    2007-Ohio-5584
    , ¶ 29. Appellate review of a trial court's ruling on a
    motion for summary judgment is de novo. Hudson at ¶ 29. This means that an appellate
    court conducts an independent review, without deference to the trial court's
    determination. Zurz v. 770 W. Broad AGA, LLC, 
    192 Ohio App.3d 521
    , 
    2011-Ohio-832
    ,
    ¶ 5 (10th Dist.); White v. Westfall, 
    183 Ohio App.3d 807
    , 
    2009-Ohio-4490
    , ¶ 6 (10th
    Dist.).
    {¶ 15} When seeking summary judgment on grounds the non-moving party cannot
    prove its case, the moving party bears the initial burden of informing the trial court of the
    basis for the motion and identifying those portions of the record that demonstrate the
    absence of a genuine issue of material fact on an essential element of the non-moving
    party's claims. Dresher v. Burt, 
    75 Ohio St.3d 280
    , 293 (1996). The moving party does not
    discharge this initial burden under Civ.R. 56 by simply making a conclusory allegation
    that the non-moving party has no evidence to prove its case. 
    Id.
     Rather, the moving party
    must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that
    the non-moving party has no evidence to support its claims. 
    Id.
     If the moving party meets
    its burden, then the non-moving party has a reciprocal burden to set forth specific facts
    showing that there is a genuine issue for trial. Civ.R. 56(E); Dresher at 293. If the non-
    moving party does not so respond, summary judgment, if appropriate, shall be entered
    against the non-moving party. 
    Id.
    {¶ 16} In their brief, appellants present the following "Issue Presented for Review
    and Argument," which contains the entirety of appellants' argument under the first
    assignment of error:
    Nos. 17AP-773 and 17AP-810                                                          5
    Where a person fails to establish a justiciable cause the Ohio
    Common Pleas Courts cannot invoke its own jurisdiction of
    the subject matter, and Ohio Board of Motor Vehicle Repair is
    not entitled to summary judgment because it lacked standing
    to sue, did not have a personal stake in the outcome of the
    case, and failed to prove any injuries that entitled it to relief
    due to the fact that Griffin was protected with the Grandfather
    clause stated below that does not allow the R.C. 4775 to
    preempt any established rights that he had prior to December
    1997, which creates reasonable doubt and is a genuine issue
    that disqualified the Appellee-Plaintiff's right to a summary
    judgment.
    {¶ 17} R.C. 4775.02 provides:
    (A) No person shall act as a motor vehicle collision repair
    operator or motor vehicle window tint operator unless the
    person is registered in accordance with this chapter.
    {¶ 18} R.C. 4775.01(D) provides:
    "Motor vehicle collision repair operator" means any person,
    sole proprietorship, foreign or domestic partnership, limited
    liability corporation, or other legal entity that is not an
    employee or agent of a principal and performs five or more
    motor vehicle collision repairs in a calendar year
    {¶ 19} R.C. 4775.01(E) provides:
    "Motor vehicle window tint operator" means any person, sole
    proprietorship, foreign or domestic partnership, limited
    liability corporation, or other legal entity that is not an
    employee or agent of a principal and installs tinted glass, or
    transparent, nontransparent, translucent, and reflectorized
    material in or on five or more motor vehicle windshields, side
    windows, sidewings, and rear windows in a calendar year.
    {¶ 20} R.C. 4775.11 contains an exemption to R.C. 4775.02 with regard to local
    laws:
    It is the intent of the general assembly to preempt any local
    ordinance, resolution, or other law adopted or enacted after
    December 18, 1997, that is limited to the registration of
    persons engaged in business as motor vehicle repair operators
    in a manner corresponding to the provisions of this chapter.
    This chapter does not preempt any local law adopted or
    enacted prior to December 18, 1997, for motor vehicle
    Nos. 17AP-773 and 17AP-810                                                                 6
    collision repair operators or the effective date of this
    amendment for motor vehicle window tint operators, or that
    may require registration or licensure as a component of
    imposing additional requirements on persons engaged in
    business as motor vehicle repair operators or technicians. Nor
    does it preempt the enforcement of any local law regulating
    motor vehicle repair operators or technicians, including
    building, zoning, health, safety, or other similar codes or laws.
    {¶ 21} In the present case, appellants' vague argument seems to be that they were
    exempt from compliance with R.C. Chapter 4775 based on 4775.11. However, appellants
    fail to explain what "established rights" they had prior to December 18, 1997, and what
    local law exempts them from the registration requirements of R.C. Chapter 4775. Given
    appellants' complete failure to adequately argue their first assignment of error, we must
    overrule it. See App.R. 16(A)(7) (appellant must present an argument with respect to each
    assignment of error that includes the reasons in support of the contentions, with citations
    to authorities, statutes, and parts of the record).
    {¶ 22} Appellants argue in their second assignment of error the trial court erred
    when it granted the board's motion for summary judgment. The entirety of appellant's
    argument is as follows:
    Where a person fails to answer admissions it creates an
    automatic sanction and default, and Ohio Board of Motor
    Vehicle Repair is not entitled to summary judgment because it
    had a deadline of September 22, 2016 to answer admissions
    and failed to follow the Ohio Civil Rule 36 as required by law.
    {¶ 23} As set forth above, on July 29, 2016, the board filed a motion for summary
    judgment. On the discovery deadline of August 12, 2016, appellants filed several requests
    for discovery, including interrogatories, requests for production of documents, and
    requests for admissions. On September 2, 2016, the board filed a motion for stay of
    discovery pending the outcome of the motion for summary judgment. On September 30,
    2016, the trial court granted the board's motion for summary judgment and found the
    motion to stay was moot. On October 30, 2016, appellants filed a notice of appeal.
    {¶ 24} Appellants argue the trial court should not have granted summary judgment
    because appellants failed to respond to their discovery requests. Initially, we point out the
    board filed a motion to stay discovery that remained pending until the court rendered
    Nos. 17AP-773 and 17AP-810                                                                  7
    summary judgment; thus, appellants' assertion that the matters contained in the
    discovery requests should have been deemed admitted because the board failed to
    respond by the due date is unpersuasive. If the board were required to provide discovery
    during the pendency of their motion to stay discovery, their motion would have been
    rendered impotent.
    {¶ 25} Notwithstanding, Civ.R. 56(F) provides the sole remedy for a party who
    must respond to a motion for summary judgment before it has completed adequate
    discovery. Mootispaw v. Mohr, 10th Dist. No. 15AP-885, 
    2016-Ohio-1246
    , ¶ 10;
    Commons at Royal Landing, LLC v. Whitehall, 10th Dist. No. 15AP-240, 
    2016-Ohio-362
    ,
    ¶ 8. Pursuant to Civ.R. 56(F), a party may request the trial court defer ruling on the
    motion for summary judgment pending the completion of discovery. Mootispaw at ¶ 10;
    Commons at Royal Landing at ¶ 9. When a party fails to move for a Civ.R. 56(F)
    continuance, a trial court may grant summary judgment to the moving party even if
    discovery remains incomplete. Mootispaw at ¶ 10; Commons at Royal Landing at ¶ 11;
    see also Grenga v. Youngstown State Univ., 10th Dist. No. 11AP-165, 
    2011-Ohio-5621
    ,
    ¶ 22, citing BMI Fed. Credit Union v. Burkitt, 10th Dist. No. 09AP-1024, 2010-Ohio-
    3027, ¶ 17-18 (when a party does not file a Civ.R. 56(F) motion, it is not error for the trial
    court to rule on a motion for summary judgment where discovery is pending).
    Furthermore, the party that fails to move for a Civ.R. 56(F) continuance does not preserve
    his right to challenge the adequacy of discovery on appeal. Mootispaw at ¶ 10; see also
    BMI Fed. Credit Union at ¶ 17-18 (because appellant failed to file a Civ.R. 56(F) motion
    asking the trial court to delay ruling on appellee's motion for summary judgment pending
    completion of the outstanding discovery requests, appellant cannot argue on appeal that
    the trial court erred by ruling on the motion for summary judgment).
    {¶ 26} In the present case, appellants did not move for a continuance to complete
    discovery, pursuant to Civ.R. 56(F), any time prior to the trial court's entry granting
    summary judgment. Even considering this court in Tintmasters found that the
    September 30, 2016 judgment was not a final appealable order and remanded the matter,
    appellants also failed to move for a continuance under Civ.R. 56(F) prior to the October 2,
    2017 final judgment under review currently. Consequently, the trial court did not err in
    Nos. 17AP-773 and 17AP-810                                                           8
    granting the board summary judgment, even though appellants had not obtained the
    discovery they sought. Appellants' second assignment of error is overruled.
    {¶ 27} Accordingly, appellants' two assignments of error are overruled, and the
    judgments of the Franklin County Court of Common Pleas are affirmed.
    Judgments affirmed.
    SADLER and DORRIAN, JJ., concur.
    ____________________
    

Document Info

Docket Number: 17AP-773 17AP-810

Judges: Brown

Filed Date: 12/18/2018

Precedential Status: Precedential

Modified Date: 12/18/2018