City of Marietta v. Verhovec
| Decision Date | 23 December 2020 |
| Docket Number | Case No. 19CA24 |
| Parties | CITY OF MARIETTA, Plaintiff-Appellee, v. EDWARD VERHOVEC, ET AL., Defendant-Appellants. |
| Court | Ohio Court of Appeals |
DECISION AND JUDGMENT ENTRY
APPEARANCES:
Patrick J. O' Malley, Parma, Ohio, for Appellants.
Donald A. Mausar, Cleveland, Ohio, for Appellee.
{¶1} Edward and Dorothy Verhovec appeal the September 30, 2019 ruling of the Washington County Court of Common Pleas which granted the City of Marietta's motion for summary judgment. Having reviewed the record, we find merit to Appellants' first assignment of error that Appellee failed to demonstrate each element necessary to warrant the relief sought. Accordingly, the first assignment of error is sustained and the judgment of the trial court is hereby reversed.
{¶2} On December 26, 2017, Appellee City of Marietta ("City") filed an action captioned "Creditor's Bill" in the Washington County Court of Common Pleas naming Edward Verhovec and Dorothy Verhovec, husband and wife, ("Appellants") and four other defendants.1 The City alleged it had obtained a judgment against both Appellants in Washington County Common Pleas Court Case No. 11OT202 in the amount of $274,033.49. The City further alleged that Appellants had no real or personal property sufficient to satisfy the judgment, however they owned rental properties in New Philadelphia, Ohio (Tuscarawas County). The City sought to enjoin Appellants from receiving the rents owed to them from the tenants of the properties and to direct the tenants to pay the rents owed to the City until the City's judgment against Appellants was satisfied.
{¶3} The facts giving rise to the City's obtaining a judgment against Appellants are set forth fully in State ex rel. Edward Verhovec v. Marietta, 2013-Ohio-5414 and State ex rel. Dorothy Verhovec v. Marietta, 2013-Ohio-5415. Briefly, under the Ohio Public Records Act, public offices are required to make public records available in response to a request from any person. R.C. 149.43(B)(1). Where a public office has destroyed or improperly disposed of public records, an "aggrieved" person can file an action for civil forfeiture andseek an award of damages. R.C. 149.351(B). Prior to obtaining a $274,033.49 judgment against Dorothy Verhovec, the City presented evidence that both Appellants willingly participated in a state-wide scheme to make public records requests of various municipalities and then to "take advantage of the civil forfeiture statute for purely pecuniary gain." Verhovec, 2013-Ohio-5414, at ¶ 90. The $274,033.49 judgment against Dorothy Verhovec was issued as a sanction to reimburse the City's costs and attorney fees incurred in defending the frivolous lawsuits she brought. Appellant Dorothy Verhovec's appeal was not accepted for review in the Supreme Court of Ohio. See State ex rel. Verhovec v. Marietta, 138 Ohio St. 3d 1470, 2014-Ohio-1674, 6 N.E.3d 1206.
{¶4} In the underlying lawsuit subject of the within appeal on January 29, 2018, counsel filed a notice of appearance on behalf of Appellants and requested an extension of time to respond to the Creditor's Bill. By stipulation, the City's counsel agreed to extend the time for Appellants to answer. Appellants filed an answer on February 28, 2018.
{¶5} The trial court thereafter conducted a series of case management conferences. On March 4, 2019, the City filed a motion for default judgment and a motion for summary judgment. On March 8, 2019, Appellants filed a motion for extension of time to respond. On March 29, 2019, Appellants filed a Brief in Opposition to Plaintiff's Motion for Summary Judgment and Cross Motion for Summary Judgment on Plaintiff's Complaint. On September 30, 2019, the trial court issued its Ruling granting the City's motion for summary judgment and denying Appellants' cross motion for summary judgment.
{¶6} This timely appeal followed.
{¶7} For ease of analysis, we begin with Appellants' third assignment of error regarding the City's alleged untimely motion for summary judgment.
{¶8} "The trial court's decision regarding whether to permit or reject a filing will not be disturbed on appeal absent an abuse of discretion." Henrickson v. Grider, 2016-Ohio-8474, 70 N.E.3d 604, (4th Dist.) at ¶ 37, quoting Sovey v. Lending Group of Ohio, 8th Dist. Cuyahoga No. 84823 2005-Ohio-195, at ¶ 10, citing State ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs., 72 Ohio St.3d 464, 650 N.E.2d 1343 (1995). An abuse of discretion connotes more than an error of law or judgment. Clough v. Watkins, 4th Dist. Washington No. 19CA20, 2020-Ohio-3446, at ¶ 11. Rather, to find an abuse of discretion, a reviewing court must determine that the trial court acted in an unreasonable, arbitrary, or unconscionable manner. Clough, at ¶ 12, citing AAAA Enterprises, Inc. v. River Place Community Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597, 601 (1990).
{¶9} The record of the underlying proceedings indicates that on January 25, 2019, a case management conference was held in the Court's chambers. The parties' attorneys participated by telephone. Subsequently, the trial court filed a "Time Frame Order" setting February 25, 2019 as the last day to file dispositive motions.
{¶10} The record further reflects that Plaintiff's Motion for Summary Judgment was file-stamped March 4, 2019. The certificate of service on the motion for summary judgment states "A copy of the foregoing Plaintiff's Motion for Summary Judgment was mailed this 22 day of February, 2019 by Regular U.S. Mail" to Appellants' counsel and the other parties to the proceeding. The date "22" was handwritten. The record next reflects that on March 8, 2019, Appellants' counsel filed a motion for extension of time to respond to the motion for summary judgment.
{¶11} The motion for extension of time indicated that Appellants' counsel would be out of town on a previously planned vacation and emphasized that no prior continuances had been requested. The motion made no mention of the asserted untimeliness of the City's motion for summary judgment. On March 15, 2019, the record contains a file-stamped copy of "Stipulation for Leave to Plead." This document indicates that the parties had stipulated to an extension of time for Appellants to respond to the motion for summary judgment. The record further reflects that counsel for the City apparently gave telephone approval to the stipulation. It appears the stipulation was signed by Appellants' counsel on behalf of the City's attorney.
{¶12} Appellants filed a brief in opposition to the motion for summary judgment and cross-motion for summary judgment, file-stamped March 29, 2019. On the first page of the brief, Appellants assert that the City's motion for summary judgment was filed untimely without leave of Court and should be denied. On pages 9 and 10 of the brief, Appellants argue the City did not obtain leave of court and that the City's motion for summary judgment contained no demonstration of the requisite cause or neglect pursuant to Civ.R. 6(B). The trial court's September 30, 2019 Ruling, subject of this appeal, does not address the issue of alleged untimeliness.
{¶13} Summary judgment motions may be filed after a matter is set for pretrial or trial only with leave of court. Civ.R. 56(A). Civ.R. 6(B) states:
When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Civ.R. 50(B), Civ.R. 59(B), Civ.R. 59(D), and Civ.R. 60(B), except to the extent and under the conditions stated in them.
{¶14} It is undisputed that the City did not seek leave of court. However, we perceive no abuse of discretion in allowing the City's untimely motion for summary judgment to be considered, nor do we perceive that the timing of the motion caused any prejudice to accrue to Appellants. Civ.R. 5(D) states: "Any paper after the complaint that is required to be served shall be filed with the court within three days after service." "Failure to file within the three-day period can result in the court striking the filing." Sovey v. Lending Group of Ohio, 8th Dist. Cuyahoga No. 84823, 2005-Ohio-195, at ¶ 9; accord Bader v. Ferri, 3rd Dist. Allen No. 1-13-01, 2013-Ohio-3074, at ¶ 34. However, "[t]he filing of the subsequent pleading, written motion, or other important paper under Rule 5(D), although obviously very important for record purposes, is a secondary act." Henrickson, supra, at ¶ 37, quoting, Nosal v. Szabo, 8th Dist. Nos. 83974 and 83975, 2004-Ohio-4076, at ¶ 17, quoting 1970 Staff Note, Civ.R. 5 (internal quotation marks omitted).
{¶15} First, while Appellants did raise the issue of untimeliness in their brief in opposition to the motion for summary judgment, they did not pursue a motion to strike. It appears that their first response to the untimely filed motion was to request an extension of time in which to respond....
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