Bank of Am., NA v. Valentine

[Cite as Bank of Am., NA v. Valentine, 2013-Ohio-598.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BANK OF AMERICA, NA : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
-vs- :
:
LEWIS J. VALENTINE, ET AL. : Case No. 12 CAE 03 0020
:
Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 10 CVE 09-1425
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 13, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
LAURA A. HAUSER LEWIS VALENTINE, PRO SE
127 Public Square 4642 Aberdeen Avenue
3900 Key Tower Dublin, OH 43016
Cleveland, OH 44114
MICHAEL L. DILLARD, JR.
41 South High Street
Suite 1700
Columbus, OH 43215
Delaware County, Case No. 12 CAE 03 0020 2
Farmer, J.
{¶1} On September 29, 2010, appellee, Bank of America, N.A., filed a
complaint in foreclosure against Debra Valentine and appellant, Lewis Valentine, for
failure to pay on a note secured by a mortgage.
{¶2} A bench trial before a magistrate was held on October 28, 2011. By
decision dated December 28, 2011, the magistrate found in favor of appellee as against
appellant in the amount of $674,918.76 plus interest. Appellant filed objections. By
judgment entry filed February 27, 2012, the trial court denied the objections and
approved and adopted the magistrate's decision.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT THE
RIGHT TO QUESTION A MATERIAL WITNESS, HENCE JUDGMENT BECOMES
INAPPROPRIATE AND MUST BE DENIED."
II
{¶5} "TRIAL COURT ERRED IN DENYING APPELLANT DISCOVERY AND
THE OPPORTUNITY TO OBTAIN THE NEEDED INFORMATION TO CONDUCT ANY
DEFENSE OF THE ALLEGATIONS LEVIED AGAINST APPELLANT."
III
{¶6} "THE TRIAL COURT ERRED IN KNOWINGLY ALLOWING APPELLEE'S
COUNSEL MANLEY-DEAS-KOCHALSKI TO REPRESENTING APPELLEE WHEN
Delaware County, Case No. 12 CAE 03 0020 3
ONE OF THEIR CURRENT, ON STAFF, PRACTICING ATTORNEY'S HAD
PREVIOUSLY REPRESENTED APPELLANT."
I
{¶7} Appellant claims the trial court erred in not permitting him to cross-
examine appellee's trial counsel, Charles Janes, as Mr. Janes had signed the
responses to his request for admissions. We disagree.
{¶8} Mr. Janes signed the responses to appellant's first request for admissions
following the language: "As to all objections, general and specific, mentioned above,
and otherwise as to the above responses on behalf of Plaintiff." In response to
Admission No. 1 which stated, "[a]dmit you have the proper authority to answer these
questions," Mr. Janes wrote: "Objection. It is unknown to whom 'you' refers, other than
the Plaintiff. This is not a proper request under Civ. R. 36. Without waiving the
objection, Plaintiff admits that it has proper authority to answer these questions."
{¶9} Essentially the responses consisted of general denials of the request for
admissions, along with objections. From our review, Mr. Janes did not offer any
admission that would qualify as an admission of a party and therefore, the admissions
did not have any evidentiary value. In addition, the admissions were not made under
oath. Further, Mr. Janes was not identified as a witness for trial. See, Scheduling Entry
filed April 4, 2011.
{¶10} In its February 27, 2012 judgment entry overruling appellant's objections
to the magistrate's decision, the trial court addressed this issue as follows:
Delaware County, Case No. 12 CAE 03 0020 4
Civ.R. 36(A)(1) states that a matter is admitted unless "the party to
whom the request is directed serves upon the party requesting the
admission a written answer or objection addressed to the matter, signed
by the party or the party's attorney." (Emphasis added.) The Court finds
no evidence in the record before it to support the Defendant's assertion
that Attorney Janes acted outside the scope of his role as attorney for the
Plaintiff.
The Court finds that the evidence supports the Magistrate's
decision disallowing cross-examination of Attorney Charles Janes.
{¶11} Upon review, we concur with the trial court's interpretation of Civ.R.
36(A)(1), and find no error in denying the cross-examination of Mr. Janes.
{¶12} Assignment of Error I is denied.
II
{¶13} Appellant claims the trial court erred in denying his motion to compel
discovery. We disagree.
{¶14} In its February 27, 2012 judgment entry overruling appellant's objections
to the magistrate's decision, the trial court addressed this issue as follows:
The trial in this matter was initially scheduled for August 18, 2011.
By the Defendant's own admission, he did not pursue discovery prior to
this date. Upon the Plaintiff's motion, the Court continued the trial until
October 28, 2011. The Defendant contends that the continuance of the
Delaware County, Case No. 12 CAE 03 0020 5
trial date expanded the time for discovery for the Plaintiff and the
Defendant. The Plaintiff moved the Court to continue the trial so that it
could obtain the original promissory note. In the Court's entry continuing
the trial date, there is no mention of extending a discovery deadline. The
entry simply continued the trial date from August 18, 2011 until October
28, 2011.
The Defendant did not timely request discovery in this case and the
Defendant did not seek leave of court to conduct discovery after the Court
continued the trial date. Therefore, the Court finds that the Magistrate
properly denied the Defendant's Motion to Compel Discovery and for
Award of Sanctions.
{¶15} After unsuccessful mediation, the trial court returned the case to the active
docket and ordered the following pursuant to a scheduling entry filed on April 4, 2011:
Dispositive Pre-Trial Motions shall be filed with the Clerk of Courts
on or before May 16, 2011.***
Prior to submitting any dispositive pre-trial motion, the Plaintiff shall
have examined the filings in the case to ensure that all materials needed
to dispose of the case have been filed and that all parties have been
served. Failure to comply will result in an administrative dismissal
pursuant to Civil Rule 41 (B)(1) on May 23, 2011.
***
Delaware County, Case No. 12 CAE 03 0020 6
There will be no extension of any deadline or date established in
this order by agreement of the Parties. A Motion and Order are
required for any modification. (Emphasis sic.)
{¶16} Three days later, on April 7, 2011, the trial court filed an order granting
appellant until May 15, 2011 "in which to file their answer or other response in this
case." The trial court also noted that "[d]ispositive motions shall be filed by June 6,
2011." By judgment entry filed July 5, 2011, the trial court set a trial date for August 18,
2011.
{¶17} On August 19, 2011, the trial court continued the trial date at appellee's
request to October 28, 2011. Appellant's first motion for discovery was filed on
September 2, 2011 and the motion to compel was filed on October 24, 2011, some four
days before the rescheduled trial date.
{¶18} Loc.R. 15.01 of the Court of Common Pleas of Delaware County, General
Division, provides that a continuance request made after the trial confirmation date "will
not be granted except under extraordinary circumstances where there is no alternative
means of preventing a substantial injustice." Loc.R. 24.04(A) sets discovery cutoff to 40
days from the date of the filing of the case.
{¶19} When viewed most liberally, the 40 days for discovery would have
commenced after the case was returned to the active docket following the unsuccessful
mediation. See, Scheduling Entry filed April 4, 2011. Therefore, the discovery cutoff
date would have been May 14, 2011. Even using the July 5, 2011 judgment entry
setting the trial date for August 18, 2011, the discovery cutoff date would have been
Delaware County, Case No. 12 CAE 03 0020 7
August 14, 2011. We concur with the trial court that appellant's September 2, 2011
discovery request was untimely.
{¶20} Upon review, we find the trial court did not err in denying appellant's
motion to compel discovery.
{¶21} Assignment of Error II is denied.
III
{¶22} Appellant claims the trial court erred in denying his motion to disqualify
appellee's trial counsel's law firm as a current member of the firm represented him in
2009 in an unrelated matter. We disagree.
{¶23} We first note appellant's motion to disqualify the law firm was filed on
January 9, 2012, after the bench trial to the magistrate and after the cutoff date for
dispositive motions.
{¶24} Appellee responded to the motion on January 27, 2012, and explained the
attorney involved (Michael Carleton) joined the law firm on September 26, 2011, after
the discovery cutoff date, but before the continued trial date of October 28, 2011. Via
an affidavit attached to the response, Mr. Janes averred he had no knowledge of the
former representation and did not have any contact with Mr. Carleton about appellant or
any matter related to appellant.
{¶25} In support of his argument, appellant cites to DR 1.10(a) of the Ohio Rules
of Professional Conduct:
While lawyers are associated in a firm, none of them shall
represent a client when the lawyer knows or reasonably should know that
Delaware County, Case No. 12 CAE 03 0020 8
any one of them practicing alone would be prohibited from doing so by
Rule 1.7 or 1.9, unless the prohibition is based on a personal interest of
the prohibited lawyer and does not present a significant risk of materially
limiting the representation of the client by the remaining lawyers in the
firm. (Emphasis sic.)
{¶26} The previous matter involved a forcible entry and detainer action with a
counterclaim by appellant to quiet title. The matter was settled on March 30, 2010.
{¶27} In its February 27, 2012 judgment entry denying the motion to disqualify,
the trial court stated the following:
In addition, the instant action is one for foreclosure of the
Defendant's personal residence. The Defendant submits that Attorney
Carlton was an associate with the firm that represented him in another
action involving consolidated cases in which the Defendant and his
business partner, David Tushar, filed claims against each other to
determine which party had a right to occupy the property involved in the
lawsuit. The consolidated action involved a different piece of property.
Furthermore, the instant foreclosure action was not pending at the time
the prior consolidated case was pending.
The Court finds that the instant action does not involve the same
matter as that in which Attorney Carlton previously represented the
Delaware County, Case No. 12 CAE 03 0020 9
Defendant. Therefore, the Court finds that no conflict of interest exists in
this case.
{¶28} We concur with the trial court's analysis. Appellant did not meet his
burden to establish a conflict, and the motion was untimely made.
{¶29} Upon review, we find the trial court did not err in denying appellant's
motion to disqualify.
{¶30} Assignment of Error III is denied.
{¶31} The judgment of the Court of Common Pleas of Delaware County, Ohio is
hereby affirmed.
By Farmer, J.
Delaney, P.J. and
Hoffman, J. concur.
s/ Sheila G. Farmer_________________
s/ Patricia A. Delaney______________
s/ William B. Hoffman______________
JUDGES
SGF/sg 115
[Cite as Bank of Am., NA v. Valentine, 2013-Ohio-598.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BAN K OF AMERICA, NA :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
LEWIS J. VALENTINE, ET AL. :
:
Defendants-Appellants : CASE NO. 12 CAE 03 0020
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Delaware County, Ohio is affirmed. Costs to
appellant, Lewis Valentine.
s/ Sheila G. Farmer_________________
s/ Patricia A. Delaney______________
s/ William B. Hoffman______________
JUDGES