Wedemeyer v. U.S.S. F.D.R. (CV-42) Reunion Assn., 2010 Ohio 1502 (Ohio App. 4/5/2010)
| Decision Date | 05 April 2010 |
| Docket Number | No. 1-09-57.,1-09-57. |
| Citation | 2010 Ohio 1502 |
| Parties | Albert Wedemeyer, Plaintiff-Appellant, v. USS FDR (CV-42) Reunion Association, Defendant-Appellee. |
| Court | Ohio Court of Appeals |
Appeal from Allen County Common Pleas Court, Trial Court No. CV2009 0736.
Judgment Affirmed.
Thomas A. Sobecki for Appellant.
Richard E. Siferd for Appellee.
{¶1} Although originally placed on our accelerated calendar, we have elected pursuant to Loc.R. 12(5) to issue a full opinion in lieu of a summary journal entry.
{¶2} Plaintiff-appellant, Albert Wedemeyer (hereinafter "Wedemeyer"), appeals the Allen County Court of Common Pleas' judgment granting defendant-appellant's, U.S.S. F.D.R. (CV-42) Reunion Association's (hereinafter "Reunion Association"), motion to dismiss. For the reasons set forth below, we affirm.
{¶3} On July 23, 2009, Wedemeyer, a resident of Georgia, filed a two-count complaint against the Reunion Association alleging, in pertinent part, that the Reunion Association is a non-profit unincorporated association organized for social purposes whose membership is open to all active duty, retired, and honorably discharged members of the Armed Forces who served on the U.S.S. Franklin D. Roosevelt (CV-42). (Complaint, Doc. No. 1, at ¶¶1-2). In count one Wedemeyer alleged that he was regular member of the Reunion Association until May 16, 2009 when he was expelled for life from membership due to his allegedly disruptive conduct, which conduct he denied. (Id. at ¶¶5-7). Wedemeyer alleged that he "was not provided reasonable notice and hearing with an opportunity to defend against the charges prior to his expulsion." (Id. at ¶8). Wedemeyer further alleged that the Reunion Association's treasurer's address is 7925 Bechtol Road Lima, Ohio 45801, and that Article I, Section 2, of the Reunion Association's constitution and by-laws provided that the Reunion Association "shall have as its address for official correspondence the address of the Secretary or of the Treasurer as designated from time to time by the Executive Board." (Id. at ¶¶3-4). In count two of the complaint, Wedemeyer alleged that, as a result of his expulsion, he has suffered severe emotional distress and humiliation, as well as special damages of $700 for hotel expenses, transportation, and meals, and over $4,600 in expenses regarding a film that was to be converted to DVD format for the benefit of the Reunion Association. (Id. at ¶¶11-12).
{¶4} With respect to count one, Wedemeyer asked the court for an order enjoining the Reunion Association from removing his name from its membership roster; ordering the Reunion Association to reinstate his membership as if he had never been removed; and further ordering the Reunion Association to desist from excluding him from membership rights. (Complaint, Doc. No. 1). With respect to count two, Wedemeyer sought compensatory damages in excess of $25,000.00. (Id.). With respect to both counts, Wedemeyer sought attorney's fees, prejudgment interest, post-judgment interest, costs, expenses, and such other relief as the court deemed just and proper. (Id.).
{¶5} On August 19, 2009, the Reunion Association filed a motion to dismiss on the basis that "the Court lacks jurisdiction over this defendant." (Doc No. 3). On September 3, 2009, the trial court granted the motion to dismiss. (Doc. No. 4). On September 4, 2009, Wedemeyer filed a response to the motion along with an affidavit and accompanying documents. (Doc. No. 5).
{¶6} On September 29, 2009, Wedemeyer filed an appeal from the trial court's dismissal, which was assigned appellate case no. 1-09-52. (Doc. Nos. 7, 9). On October 7, 2009, this Court determined sua sponte that it lacked jurisdiction for want of a final appealable order. (Doc. No. 10). On that same day, the trial court entered judgment again, this time specifically ordering that Wedemeyer's complaint be dismissed. (Doc. No. 11).
{¶7} On October 29, 2009, Wedemeyer filed this present appeal, assigned appellate case no. 1-09-57. (Doc. Nos. 13-14). Wedemeyer now appeals raising three assignments of error for our review. We have elected to address Wedemeyer's assignments of error out of the order they appear in his brief and to combine his first and second assignments of error for discussion.
THE COURT OF COMMON PLEAS COMMITTED REVERSIBLE ERROR IN NOT CONSIDERING PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS INCLUDING THE AFFIDAVIT OF ALBERT WEDEMEYER.
{¶8} In his third assignment of error, Wedemeyer argues that the trial court erred by ruling on the Reunion Association's motion to dismiss without considering his response. Specifically, Wedemeyer argues that his response was timely because the motion was served upon him by regular mail, and Civ.R. 6(E) provided three (3) additional days beyond Local Rule 3.03's fourteen (14)-day time limit. We disagree.
{¶9} The interpretation of a civil rule, as well as local rules promulgated pursuant to Civ.R. 83, presents a question of law, which we review de novo. Cf. State v. South, 162 Ohio App.3d 123, 2005-Ohio-2152, 832 N.E.2d 1222, ¶9 (). De novo review is independent and without deference to the trial court's determination. Wilson v. AC & S, Inc., 169 Ohio App.3d 720, 2006-Ohio-6704, 864 N.E.2d 682, ¶61; In re J.L., 176 Ohio App.3d 186, 2008-Ohio-1488, 891 N.E.2d 778, ¶33.
{¶10} Pursuant to Civ.R. 83, the Allen County Court of Common Pleas adopted Local Rule 3.03 (eff. 12/3/07), which provides, in pertinent part:
All motions shall be accompanied by a brief stating the grounds thereof and citing the authorities relied upon. The opposing counsel or party may file an answer brief by the fourteenth day after the day on which the motion was filed. Thereafter, the motion shall be deemed submitted to the judge to whom the case is assigned. * * * This rule shall apply to all motions * * * except as otherwise provided herein.
(Emphasis added). Civ.R 6(E)1 provides, in pertinent part:
(E) Time: additional time after service by mail
Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period.
(Emphasis added).
{¶11} In Harvey v. Hwang, the Ohio Supreme Court decided whether Civ.R. 6(E) extended the time for filing a motion for a new trial under Civ.R. 59(B) and a motion for judgment notwithstanding the verdict under Civ.R. 50(B) beyond fourteen (14) days after the entry of judgment when the judgment entry is mailed to the parties. 103 Ohio St.3d 16, 2004-Ohio-4112, 812 N.E.2d 1275, ¶9. The Ohio Supreme Court ultimately answered this question in the negative. Id. at ¶10.
{¶12} In reaching its decision, the Court in Harvey first noted that the clear language of Civ.R. 50(B) and 59(B) both stated that the motions may be filed "not later than fourteen days after the entry of judgment." Id. at ¶11. The Court then noted that the language of Civ.R. 6(E) specifically referred to taking action "within a prescribed period after service"; whereas, Civ.R. 50(B) and 59(B) "provides parties the right to file a motion for JNOV and to serve a motion for a new trial within the prescribed period of 14 days after entry of judgment—not `within a prescribed period after the service of a notice or other paper.'" Id. at ¶12 (emphasis in original). The Court went on to provide several examples of rules wherein Civ.R. 6(E) would be applicable:
Civ.R. 12 supplies an example where Civ.R. 6(E) applies. Civ.R. 12(A)(1) provides, "The defendant shall serve his answer within twenty-eight days after service of the summons and complaint upon him." (Emphasis added.) Civ.R. 12(A)(2) provides that a party served with a pleading stating a cross-claim against him shall serve an answer thereto within 28 days after the service upon him of the pleading . Similarly, Civ.R. 15(A), governing amended pleadings, provides that a party "shall plead in response to an amended pleading within the time remaining for response to the original pleading or within fourteen days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders." (Emphasis added.) See, also, Civ.R. 31(A) (); Civ.R. 38(C) ().
Id. at ¶13. The Court also noted that its holding in Harvey—that Civ.R. 6(E) does not extend Civ.R. 50(B) and 59(B)'s fourteen-day filing deadline—was consistent with the greater weight of authority in Ohio, as well as its holding in Duganitz v. Ohio Adult Parole Auth., wherein it held that Civ.R. 6(E) does extend Civ.R. 53(E)(3)(a)'s fourteen-day filing deadline for objections to a magistrate's decision. Id. at ¶¶16-17, citing Martin v. Lesko (1999), 133 Ohio App.3d 752, 756, 729 N.E.2d 839 (); Weissenberger's Ohio Civil Procedure 2000 Litigation Manual (1999) 63 ( ); 1 Baldwin's Ohio Practice: Klein & Darling, Civil Practice (1997) 604, Section AT 6-42 (); Duganitz (2001), 92 Ohio St.3d 556, 557, 751 N.E.2d...
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