Wells Fargo Bank, N.A. v. Gerst

[Cite as Wells Fargo Bank, N.A. v. Gerst, 2015-Ohio-3776.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
WELLS FARGO BANK, N.A. JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2015 CAE 01 0004
JESSICA M. GERST, ET AL.
Defendant-Appellants OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of
Common Pleas, Case No. 14 CVE 08 0606
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: September 16, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellants
SCOTT A. KING ANDREW J. GERLING
JESSICA E. SALISBURY-COOPER Doucet & Associates, Co., LPA.
Thompson Hine LLP 700 Stonehenge Parkway, Suite 2B
10050 Innovation Drive, Suite 400 Dublin, Ohio 43017
Miamisburg, Ohio 45342
Delaware County, Case No. 2015 CAE 01 0004 2
Hoffman, P.J.
{¶1} Defendant-appellants Brandon and Jessica Gerst appeal the December
12, 2014 Order Dismissing Plaintiff's Claims entered by the Delaware County Court of
Common Pleas. Plaintiff-appellee is Wells Fargo Bank ("Wells Fargo").
STATEMENT OF THE CASE1
{¶2} On August 14, 2014, Wells Fargo filed its Complaint in Foreclosure
against Appellants. Appellants timely answered.
{¶3} On December 1, 2014, Wells Fargo moved to voluntarily dismiss its
complaint without prejudice pursuant to Civ.R. 41(A)(2). The trial court granted the
motion on December 12, 2014. It is from that order Appellants prosecute this appeal,
assigning as error:
{¶4} "I THE TRIAL COURT ERRED IN GRANTING WELLS FARGO'S
MOTION TO DISMISS BECAUSE IT DID NOT GIVE THE GERSTS AN
OPPORTUNITY TO REPLY BEFORE GRANTING THE MOTION."
{¶5} Civ.R. 41 (A)(2) provides:
{¶6} By order of court. Except as provided in division (A)(1) of this rule, a
claim shall not be dismissed at the plaintiff's instance except upon such terms and
conditions as the court deems proper.
{¶7} Civ.R. 6(C) provides:
{¶8} A written motion, other than one which may be heard ex parte, and notice
of the hearing thereof shall be served not later than seven days before the time fixed for
the hearing, unless a different period is fixed by those rules or by order of the court.
1
A rendition of the facts is unnecessary for our disposition of this appeal.
Delaware County, Case No. 2015 CAE 01 0004 3
{¶9} Local rule 7.08 of Practice of the Delaware County Common Pleas Court,
General Division provides:
{¶10} Once the initial motion has been filed, any memorandum contra to the
motion shall be filed and served upon opposing counsel no later than the fourteenth day
following the filing of the motion, unless the Court orders otherwise.
{¶11} In Logsdon v. Nichols (1995), 72 Ohio St.3d 124, the Ohio Supreme Court
held "…[g]iven the need for trial court action in order to effect the dismissal under Civ.R.
41(A)(2), the opposing party to the action is entitled to be heard on the motion." Id., at
127. "If a trial court disregards the response time created by the Ohio Rules of Civil
Procedure, that court has committed reversible error." Gibson-Myers & Assoc. v.
Pearce, 9th Dist. No. 19358 (Oct. 27, 1999). See, also, Hillabrand v. Drypers Corp., 87
Ohio St.3d 517, 519-520, 2000-Ohio-468.
{¶12} Pursuant to the aforementioned authority, we find the trial court committed
reversible error by granting Wells Fargo's motion to dismiss without prejudice without
affording Appellants an opportunity to respond in accordance with Civ.R. 6(C) and Local
Rule 7.08 of the Delaware Common Pleas Court, General Division.
Delaware County, Case No. 2015 CAE 01 0004 4
{¶13} Appellant's assignment of error is sustained. The December 12, 2014
order of the trial court is reversed and the matter remanded to that court for further
proceedings.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur