Ramsey v. Edgepark, Inc.

• Decision Date: 22 March 1990
• Docket Number: No. 88AP-1048,88AP-1048
• Parties: RAMSEY et al., Appellees, v. EDGEPARK, INC. et al., Appellants. *
• Court: Ohio Court of Appeals

Page 99

66 Ohio App.3d 99

583 N.E.2d 443

RAMSEY et al., Appellees, v. EDGEPARK, INC. et al., Appellants. ^*

No. 88AP-1048.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided March 22, 1990.

Arter & Hadden, R. Douglas Wrightsel and Nancy Manougian, Columbus, for appellees.

Watts, Hoffmann, Fisher & Heinke Co., L.P.A., Kenneth D. Petrey and Steven D.A. McCarthy, Cleveland, for appellants.

BOWMAN, Judge.

During 1987, appellants, Steve Garrett, Ben Davis, John Piccone and Lawrence Crane, who are all employees of Edgepark, Inc. ("Edgepark"), became upset with the manner in which Nationwide Mutual Insurance Company ("Nationwide") was administering its Medicare Program. Specifically, appellants believed that appellees, William P. Ramsey, John E. Fisher and Raymond L. Wilson, who are officers of Nationwide, administered the Medicare Program unfairly and violated Medicare regulations. Because of their beliefs, appellants sought to inform the public, including the residents of Worthington and Westerville, where appellees reside, of Nationwide's practices by congregating, picketing and marching at appellees' homes and businesses, and distributing and mailing literature.

On May 29, 1987, appellees filed a verified complaint, a motion for a temporary restraining order, and a memorandum in support, and a motion for a preliminary injunction, including affidavits in support, in the Franklin County Court of Common Pleas seeking to enjoin appellants from congregating, marching, picketing, photographing and distributing literature at and near appellees' homes. Appellees asserted that such activity disturbed them and their families, invaded their right to privacy in their homes and interfered with their domestic lives. On May 29, 1987, after a hearing, the trial court issued a temporary restraining order prohibiting appellants from picketing at appellees' homes, from distributing literature concerning Edgepark's dispute with Nationwide at appellees' homes, from taking photographs of appellees their family members and their property and from congregating in groups of more than one person within two hundred yards of appellees' homes.

On June 19, 1987, a hearing was held before a referee on appellees' motion for preliminary injunction. Crane, Ramsey and Eloise Fisher, wife of John Fisher, testified, and evidence was admitted. The referee recommended that the court grant a preliminary injunction prohibiting appellants from picketing at, or in the vicinity of, appellees' individual residences. The referee also recommended that the court invoke Civ.R. 53(E)(7) and issue an interim order enjoining appellants from picketing appellees' residences. The trial court adopted the referee's report as to the interim order and sustained appellees' motion for preliminary injunction effective immediately. Appellants filed objections to the referee's report and, on August 24, 1987, the court overruled the objections, approved and adopted the referee's report and sustained the motion for preliminary injunction in accordance with the terms and conditions which were previously imposed. An entry to this effect was filed September 14, 1987.

On July 11, 1988, the trial court granted appellees' unopposed motion for leave to file an amended verified complaint. The amended complaint sought injunctive relief against appellants from mailing literature to appellees' homes. On August 5, 1988, appellants filed a request for a modification of the preliminary injunction to allow appellants to march within two hundred yards of appellees' residences without actually focusing the protest at appellees' homes. On August 8, 1988, appellants filed a motion for an extension of time to oppose appellees' motion to file an amended complaint. Appellants asserted that they were unable to respond to appellees' motion because their counsel was out of town for three weeks in trial on an unrelated case. Appellees filed a memorandum in opposition to appellants' motion asserting that appellants' failure to respond to their motion did not constitute excusable neglect. The court never ruled on appellants' motion.

On August 31, 1988, the trial court granted appellees' motion for leave to file a motion for summary judgment, which included affidavits, written admissions and transcripts of evidence. On September 13, 1988, appellants filed a request for an extension of time to respond to appellees' motion for summary judgment stating that the issues alleged in the amended complaint were substantially different from the issues in the original complaint and, consequently, the regularly allotted response time for motions for summary judgment was not sufficient for appellants to address the new matters. In addition, appellants alleged that their counsel was out of town for four days regarding another matter in federal district court. The trial court did not rule on appellants' motion for extension of time or their motion for modification of the preliminary injunction. Instead, on October 4, 1988, the trial court granted summary judgment to appellees stating that there were no genuine issues of material fact and that appellees were entitled to judgment as a matter of law. Appellants raise the following assignments of error:

"1. The Court of Common Pleas erred in that it abused its discretion by refusing to rule on:

"(A) 'Request for Extension of Time to Response [sic ] to Motion for Summary Judgment' filed on September 13, 1988; and

"(B) 'Defendant's Request for Modification of Preliminary Injunction' filed on August 4, 1988.

"2. The Court of Common Pleas erred as a matter of law by refusing to grant 'Defendant's Request for Modification of Preliminary Injunction' by granting the Plaintiffs a preliminary and permanent injunction which effectively prevented Edgepark from conducting peaceful marches through the streets and sidewalks of the cities of Westerville and Worthington, both in Franklin County, Ohio.

"3. The Court of Common Pleas erred as a matter of law by granting the Plaintiffs a summary judgment where the record indicated that genuine issues of fact existed.

"4. The Court of Common Pleas erred as a matter of law by granting the Plaintiffs a summary judgment where the plaintiffs failed to establish a prima facie case for any cause of action recognized by the Ohio courts."

In Assignment of Error No. 1(A), appellants assert that the trial court abused its discretion by refusing to rule on their request for an extension of time to respond to appellees' motion for summary judgment. Civ.R. 56(F), states in part as follows:

" * * * Should it appear from the affidavits of a party opposing the motion for summary judgment that he cannot for sufficient reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be had or may make such other order as is just."

When a request for a continuance to respond to a motion for summary judgment is not supported by affidavits, a trial court is free to consider the merits of the motion without first ruling on the motion for continuance. Grange Mut. Cas. Co. v. State Auto. Mut. Ins. Co. (1983), 13 Ohio App.3d 217, 13 OBR 267, 468 N.E.2d 909. Thus, before we can find error by the trial court, we must first determine whether appellants supported their motion by affidavits and presented sufficient reasons to justify a continuance. Hartwell v. Volunteers of America (1981), 2 Ohio App.3d 37, 2 OBR 40, 440 N.E.2d 609. In Hartwell, the party moving for a continuance stated in its affidavit that facts central to the determination of summary judgment were totally within the knowledge of the opposing party and that a continuance was necessary for further discovery. This court held that the plaintiffs had demonstrated sufficient reasons why they could not oppose the summary judgment by affidavit and, thus, a continuance should have been granted.

In this case, appellants requested an extension of time to respond to appellees' motion for summary judgment and stated that the request was made for the following reasons:

"1. Plaintiffs have recently been given permission by this court and have amended the Complaint in the within matter which now includes new and substantially different issues as those from the original Complaint. Said issues were not address [sic ] at the temporary Restraining Order here in this matter.

"2. Further, due to the schedule of Defendants' Counsel and the above mentioned additional issues the regularly allotted fourteen (14) days within which to respond is not sufficient time to accomplish those matters on behalf of Defendants.

"3. Further, the fourteen (14) day response time period in this matter also included the Labor Day holidays plus Counsel for Defendants was required to be in Milwaukee, Wisconsin on the 8th and 9th of September for Depositions in the Federal United States Court there and is further required to be in Milwaukee on the 13th and 14th of September for further Depositions with respect to the same matter.

"4. Additionally, without discussing the merits in this matter it is Defendants good faith belief that after this Court Rules upon the motions now pending for Stay of Discovery and Modification of the current Preliminary Injunction this matter may require discovery in order to respond to the Summary Judgment issues."

Appellants attached an affidavit in support of the request for continuance which stated:

"Kenneth D. Petrey, is the attorney of the record in the above caption case, that the reasons set forth in the Motion for an Extension of Time are true and correct to the best of my knowledge and that the same is not done for purposes of delay."

In Gates Mills Investment Co. v. Pepper Pike (1978), 59 Ohio App.2d 155, 13 O.O.3d 191, 392 N.E.2d 1316, the court stated:

" * * * Civ.R. 56(F) requires the opposing party to submit...