Citibank, N.A. v. Slop

[Cite as Citibank, N.A. v. Slop, 2013-Ohio-5331.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Citibank, N.A., as Trustee for :
Bear Stearns Alt-A Trust 2006-4,
Mortgage Pass-Through Certificates, :
Series 2006-4,
:
Plaintiff-Appellee, No. 13AP-513
: (C.P.C. No. 13CV 001577)
v.
: (REGULAR CALENDAR)
Rick A. Slorp et al.,
:
Defendants-Appellants .
:
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D E C I S I O N
Rendered on December 5, 2013
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Thompson Hine LLP, Thomas Wyatt Palmer and Stephen D.
Williger, for appellee.
Doucet & Associates Inc., and Troy J. Doucet; Manley Deas
Kochalski LLC, Charles R. Janes, Benjamin W. Ogg, and
Kyle E. Timken, for appellants Rick A. Slorp and Slorp
Properties, LLC.
______
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendants-appellants, Rick A. Slorp and Slorp Properties, LLC
("appellants"), appeal from a judgment of the Franklin County Court of Common Pleas
granting the motion to dismiss, pursuant to Civ.R. 41(A)(2), of plaintiff-appellee,
Citibank, N.A. ("appellee"). Because the trial court erred in granting the motion prior to
the time appellants' time to respond to the motion had lapsed, we reverse.
{¶ 2} Appellants and appellee agree on the facts as outlined herein. Appellee filed
a complaint in foreclosure on August 11, 2010 ("first case"). Ultimately, appellee
No. 13AP-513 2
dismissed the first case pursuant to a Civ.R. 41(A)(1) notice of dismissal. Appellee re-filed
the complaint in foreclosure on February 11, 2013 ("re-filed case"). The re-filed case is the
subject of this appeal.
{¶ 3} On April 15, 2013, appellants moved to dismiss the re-filed case without
prejudice for lack of standing. While this motion was still pending, on May 23, 2013,
appellee moved the court to dismiss the case without prejudice pursuant to Civ.R.
41(A)(2). Appellee conceded that it was filing the motion in order "to avoid the possibility
of voluntarily dismissing the action twice under Rule 41(A)(1), which might result in an
adjudication upon the merits." (Appellee's Motion to Dismiss, 2.) Appellants' counsel
contacted the court's staff attorney to inform the judge that he would oppose appellee's
motion and to ensure that the court would not grant appellee's motion before giving
appellants an opportunity to respond.
{¶ 4} Five days later, on May 28, 2013, the trial court converted appellants'
motion to dismiss into a summary judgment motion and ordered the parties to brief their
arguments. Several hours later, on the same day, the trial court granted appellee's Civ.R.
41(A)(2) motion to dismiss without prejudice.
{¶ 5} Appellants timely filed a notice of appeal and assert the following
assignment of error:
THE TRIAL COURT ERRED IN GRANTING CITIBANK,
N.A.'S MOTION TO DISMISS BECAUSE IT DID NOT
AFFORD MR. SLORP AN OPPORTUNITY TO REPLY
BEFORE GRANTING THE MOTION.
{¶ 6} Appellants argue that the trial court granted appellee's motion to dismiss
before the time had lapsed for appellants to respond. Appellee argues that, to the extent
the trial court erred, the error was harmless because the trial court dismissed the case
without prejudice, which is the exact same result appellants had requested in their motion
to dismiss for lack of standing, which was still pending when appellee filed its motion to
dismiss pursuant to Civ.R. 41(A)(2). Appellants responded that the error is not harmless
because they could be subject to potential litigation for a third time arising out of the same
transaction and also because they had a summary judgment motion pending before the
court. Appellants further argue that appellee did not do its due diligence to ensure
No. 13AP-513 3
standing before it filed its complaint, and further delay would subject appellants to
additional costs and attorney fees.
{¶ 7} Civ.R. 6(C) requires that a written motion, and notice of the hearing thereof,
shall be served not later than seven days before the time fixed for the hearing. Loc.R.
21.01 of the Franklin County Court of Common Pleas, General Division, requires that
answers to motions be filed "on or before the 14th day after the date of service as set forth
on the certificate of service attached to the motion."
{¶ 8} In Logsdon v. Nichols, 72 Ohio St. 3d 124, 126 (1995), the Supreme Court of
Ohio stated that, "[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. Failure to afford that opportunity can be reversible error." Furthermore, in
Cuervo v. Snell, 10th Dist. No. 99AP-1442 (Sept. 26, 2000), we held that " '[h]owever
hurried a court may be in its efforts to reach the merits of a controversy, the integrity of
procedural rules is dependent upon consistent enforcement because the only fair and
reasonable alternative thereto is complete abandonment.' " Id., quoting Miller v. Lint, 62
Ohio St. 2d 209, 215 (1980). "[I]f a trial court disregards the response time created by the
Ohio Rules of Civil Procedure, that court has committed reversible error." Id., citing
Gibson-Myers & Assoc. v. Pearce, 9th Dist. No. 19358 (Oct. 27, 1999), following In re
Foreclosure of Liens for Delinquent Taxes, 79 Ohio App. 3d 766, 771-72 (2d Dist.1992).
{¶ 9} In Thyssen Krupp Elevator Corp. v. Constr. Plus, Inc., 10th Dist. No. 09AP-
788, 2010-Ohio-1649, we acknowledged the Loc.R. 21 requirement that "[t]he opposing
counsel or a party shall serve any answer brief on or before the 14th day after the date of
service as set forth on the certificate of service attached to the served copy of the motion,"
and further that "[o]n the 28th day after the motion is filed, the motion shall be deemed
submitted to the Trial Judge." Id. at ¶ 29. We observed in that case that the trial court
erred when it granted a motion to reconsider 11 days after the motion was filed before the
plaintiff's response time had lapsed. Nevertheless, although the trial court's granting of
the motion was premature, we found the error to be harmless because the defendants did
not challenge the merits of the trial court's decision in granting the motion. We noted
that, "[e]ven if the trial court had waited until the parties had completed the briefing
process, the end result" as to the appellants would be the same. Id. at ¶ 32, citing
No. 13AP-513 4
Robinson v. Kokosing Constr. Co., Inc., 10th Dist. No. 05AP-770, 2006-Ohio-1532,
¶ 16 (holding that a trial court will not require reversal due to a violation of Loc.R. 21.01
when that violation is harmless error).
{¶ 10} Here, as noted above, appellee argues that, if the trial court erred in
deciding its motion to dismiss prematurely, the error was harmless as the result would
have been the same had the trial court granted appellants' motion to dismiss: a dismissal
without prejudice. We disagree. Here, the trial court had converted appellants' motion to
dismiss to a motion for summary judgment and ordered the parties to submit briefs
regarding the same. That motion was pending at the time the trial court prematurely
dismissed the case pursuant to appellee's Civ.R. 41(A)(2) motion. It is conceivable that
the outcome of this case may have been different if the trial court, upon reviewing the
briefs, granted judgment in favor of appellants.
{¶ 11} Therefore, we find that the trial court's error in prematurely granting
appellee's motion to dismiss was not harmless.
{¶ 12} Accordingly, we sustain appellants' assignment of error.
{¶ 13} Having sustained appellants' assignment of error, we reverse the decision of
the Franklin County Court of Common Pleas and remand this case to that court to give
appellants an opportunity to respond to appellee's motion to dismiss, pursuant to Civ.R.
41(A)(2), within the time allowed by Loc.R. 21.01.
Judgment reversed; cause remanded with instructions.
SADLER and O'GRADY, JJ., concur.
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