Grenga v. Bank One, N.A., 2005 Ohio 4474 (OH 8/26/2005), 04 MA 94.

CourtUnited States State Supreme Court of Ohio
Citation2005 Ohio 4474
Docket NumberNo. 04 MA 94.,04 MA 94.
PartiesJoseph Robert Grenga, et al., Plaintiffs-Appellants, v. Bank One, N.A., et al., Defendants-Appellees.
Decision Date26 August 2005

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2005 Ohio 4474
Joseph Robert Grenga, et al., Plaintiffs-Appellants,
Bank One, N.A., et al., Defendants-Appellees.
No. 04 MA 94.
Court of Appeals of Ohio, Seventh District, Mahoning County.
Dated: August 26, 2005.

Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio, Case No. 02 CV 2113.


Joseph Robert Grenga, Pro se, Paula Jean Grenga, Pro se, 56 Wayne Avenue, Youngstown, Ohio 44502-1988, for Plaintiffs-Appellants.

Atty. Alton L. Stephens, Atty. Timothy J. Fitzgerald, Atty. Theresa A. Richthammer, Gallagher, Sharp, Fulton & Norman, Seventh Floor — Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, for Defendants-Appellees.

Hon. Cheryl L. Waite, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro.


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{¶1} Appellants Joseph and Paula Grenga, pro se, appeal the decision of the Mahoning County Court of Common Pleas granting summary judgment to Appellees, Bank One, N.A. and Ronald Moliterno, on Mr. Grenga's claims. Appellants' complaint sought to recover against Moliterno, Bank One, one of Bank One's officers, and two attorneys, Jerry Bryan and James Beck, in a dispute arising out of a real estate transaction. None of Appellants' fifteen assignments of error have merit, and we affirm the judgment of trial court.


{¶2} Attorney Bryan represented Bank One as it sought to foreclose on real estate owned by the Hood Electric Company. Hood Electric had not fulfilled its obligations under its mortgage with Bank One. Attorney Beck represented Hood Electric. In the course of that action, Bank One scheduled a sheriff's sale. Appellants appeared at that sale and successfully bid on the property. Bryan failed to attend the sheriff's sale. Subsequently, Bank One moved for the trial court to set aside the sheriff's sale. That motion was eventually overruled and the sheriff's sale was confirmed.

{¶3} Appellants could not obtain possession of the property until the sheriff's sale was confirmed. Until that time, Bank One allegedly was caring for the property. Appellants claim to have contacted Moliterno, who promised to make sure that the

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property was maintained. After the sheriff's sale was confirmed, Appellants took possession of the property but were not satisfied with its condition. They then brought suit against Bank One, Moliterno, Bryan, and Beck.

{¶4} During the course of the litigation, Appellants filed numerous motions, many of which were irregular or improper. Among these was a motion for default judgment against Appellees, filed after Appellees had already answered the complaint. Appellants moved for default judgment due to alleged discovery violations, even though they had not yet attempted to compel discovery. They improperly attempted to subpoena Bank One's records. They also made discovery requests well after the trial court's discovery cut-off date had elapsed.

{¶5} In response to Appellants' motions, Appellees also filed a variety of motions. For instance, they moved that Mrs. Grenga be dismissed from the case primarily for the reason that Mr. Grenga was engaged in the unauthorized practice of law. They moved for a protective order from the untimely discovery requests, and they moved to quash the improper subpoena. Bank One also moved for sanctions due to the improper subpoena.

{¶6} The trial court denied each of Appellants' motions and granted many of Appellees' various motions. It eventually dismissed Mrs. Grenga from the case, granted the protective order, quashed the subpoena, and imposed sanctions upon Appellants for issuing the subpoena.

{¶7} During the course of the litigation, Appellees moved for summary judgment. Appellants responded, arguing that they needed more time to complete

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discovery in order to adequately respond to Appellees' motion. The trial court denied Appellants' motion for an extension of time and granted Appellees' motion for summary judgment. Appellants have filed a timely appeal of the order granting summary judgment to Appellees.


{¶8} In this appeal, Appellants have raised fifteen assignments of error. Most of the assignments have nothing to do with the order granting summary judgment; the order identified in their notice of appeal. An issue has been raised regarding whether we may address the assigned errors relating to prior judgments which were not specifically listed in the notice of appeal.

{¶9} In failing to specify each of the judgments they seek to appeal, Appellants have violated App.R. 3(D), which requires, among other things, that the appellant, "designate the judgment, order or part thereof appealed from." However, the Ohio Supreme Court has held that the only jurisdictional requirement for perfecting an appeal is filing a timely notice of appeal, and that, "[w]hen presented with other defects in the notice of appeal, a court of appeals is vested with discretion to determine whether sanctions, including dismissal, are warranted, and its decision will not be overturned absent an abuse of discretion." Transamerica Ins. Co. v. Nolan (1995), 72 Ohio St.3d 320, 649 N.E.2d 1229, syllabus. We routinely allow parties to address errors relating to prior orders not specifically designated in the notice of appeal as long as none of those prior orders were final appealable orders, and if the remaining parties are not prejudiced by the failure to follow App.R. 3(D). We do not

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wish to deny Appellants the opportunity to raise their issues on purely technical grounds, and in the interest of justice, we will review those assignments of error dealing with prior orders that were not specifically listed in the notice of appeal.


{¶10} Appellants' fifteen assignments of error will be rearranged and somewhat consolidated for purposes of our review.

Default Judgment

{¶11} In their fifth and sixth assignments of error, Appellants argue:

{¶12} "The trial court erred by not granting Plaintiff's their Motion for Default Judgment against Bank One, N.A."

{¶13} "The trial court erred by not granting Plaintiff's their Motion for Default Judgment against Ronald A Moliterno."

{¶14} Appellants claim the trial court erred since Appellees' answers were untimely and cannot be considered, even though the answers were filed prior to the time that Appellants moved for default judgment. Their argument is meritless.

{¶15} Appellees filed their answer before Appellants filed their motions for default judgment. "When a party answers out of rule but before a default is entered, if the answer is good in form and substance, a default should not be entered." Fowler v. Coleman (Dec. 28, 1999), 10th Dist. No. 99AP-319. This is because of the admonition that cases should be decided upon their merits, where possible, rather than on procedural grounds. Marion Prod. Credit Assn. v. Cochran (1988), 40 Ohio St.3d 265, 271, 734 N.E.2d 782.

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{¶16} Appellants complain that Appellees never demonstrated excusable neglect for failing to timely file their answers, but Appellants never moved that those answers be stricken from the record. Thus, the issue as to whether Appellees could be excused for filing their answers late was never raised in the trial court. It is axiomatic that issues not presented for consideration in the trial court will not be considered by this court on appeal. Shover v. Cordis Corp. (1991), 61 Ohio St.3d 213, 220, 574 N.E.2d 457. Appellants' arguments in their fifth and sixth assignments of error are meritless.

Discovery Sanctions

{¶17} In their third and fourth assignments of error, Appellants argue:

{¶18} "The trial court erred by not granting Appellant's Motion for an Order of Default Against Ronald A. Moliterno."

{¶19} "The trial court erred by not granting Plaintiff's Motion for an order of Default against Bank One, N.A."

{¶20} Appellants claim that the trial court should have granted them default judgment as a sanction for Appellees' failure to timely respond to discovery requests. Their argument as to these issues is also without merit.

{¶21} Although Civ.R. 37(B) and Ohio Supreme Court caselaw allow a trial court to grant default judgment as a sanction for failing to comply with discovery orders, it is not a favored outcome. "It is an abuse of discretion for a trial court to grant a default judgment for failing to respond to discovery requests when the record does not show willfulness or bad faith on the part of the responding party." Toney v.

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Berkemer (1983), 6 Ohio St.3d 455, 6 OBR 496, 453 N.E.2d 700, syllabus. In this case, Appellants did not argue in their motion for default either that Appellees were willfully hindering discovery or that they were acting in bad faith. Furthermore, the record fails to show either that Appellees willfully failed to comply with the discovery process or that they were acting in bad faith.

{¶22} Appellants served their discovery requests upon Appellees in early November of 2002. Appellees filed a motion for an extension of time to respond to those requests on November 26, 2002. The trial court granted that request. On January 6, 2003, Appellees filed a second motion for an extension of time to respond to Appellants' requests. It was only after Appellees made this request that Appellants moved for default judgment due to Appellees' failure to respond to discovery. The trial court subsequently granted Appellees' request for a second extension of time on January 22, 2003. These facts do not support Appellant's contention that Appellees so abused the discovery process that a default judgment should have been rendered against them.

{¶23} In addition, the sanctions provided for in Civ.R. 37(B) (including default judgment) result from a violation of a discovery order, not merely from a discovery request. See staff notes to Civ.R. 37(B). In this case, Appellants did not obtain a court order for those areas of discovery in which Appellees were...

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