Wheat v. Rieser, 3:11–cv–28.

• Decision Date: 28 June 2011
• Docket Number: No. 3:11–cv–28.,3:11–cv–28.
• Citation: 452 B.R. 627
• Parties: Wayne WHEAT, et al., Appellants,v.John Paul RIESER, Trustee, Appellee.
• Court: U.S. District Court — Southern District of Ohio

452 B.R. 627

Wayne WHEAT, et al., Appellants,
v.
John Paul RIESER, Trustee, Appellee.

No. 3:11–cv–28.

United States District Court, S.D. Ohio, Western Division.

June 28, 2011.

[452 B.R. 629]

Derek A. Farmer, Columbus, OH, for Appellant.John Paul Rieser, Patricia Friesinger, Rieser and Associates LLC, Dayton, OH, for Appellee.

DECISION AND ENTRY AFFIRMING THE ORDERS OF THE BANKRUPTCY COURT TIMOTHY S. BLACK, District Judge.

This case is an appeal from the United States Bankruptcy Court for the Southern District of Ohio. Appellants, Wayne Wheat and the House of Wheat Funeral Home, appeal the Bankruptcy Court's Judgment Entry and Order Denying their Motion to Set Aside Judgment. This Court has jurisdiction pursuant to 28 U.S.C. § 158.

I. BACKGROUND

This adversary proceeding was originally filed in the Bankruptcy Court in May 2002, by the Trustee John Paul Rieser (“Appellee”), against multiple Defendants, including Wayne L. Wheat and the House of Wheat Funeral Home (hereinafter referred to as “Appellants”). While this appeal focuses almost exclusively on the procedural history of the adversary proceeding within the last two to three years, the more distant procedural history of the case, including the underlying bankruptcy matter, is set forth in more detail by the Sixth Circuit Bankruptcy Appellate Panel decision in Rieser v. Dinsmore & Shohl, LLP (In re Troutman Enterprises, Inc.), 356 B.R. 786 (6th Cir. BAP 2007).

Initially, Appellants were represented in the adversary proceeding by Attorney Derek Farmer. However, in April 2005, Mr. Farmer moved to withdraw as counsel of record, and the Bankruptcy Court later granted that motion. (See Bankruptcy Docket Text Nos. 114, 115). Thereafter, Appellants proceeded without counsel in the adversary proceeding.

While not represented by counsel, Appellants essentially failed to participate in the litigation by not attending scheduled pretrial conferences, by not participating in a Rule 26(f) conference, and by not responding to certain discovery requests propounded by Appellee. (Bankruptcy

[452 B.R. 630]

Court Docs. 203, 231).¹ The Bankruptcy Court succinctly summarized Appellants' lack of participation in the litigation as follows:

On February 9th, 2009, the Court issued an order setting a status conference on the Troutman estate case and a pretrial conference in this adversary proceeding. That order required all counsel involved in the adversary proceeding to attend, and invited, but did not require other parties to attend.

The Wheat Defendants, then unrepresented, failed to participate in the March 17th, 2009 conference.

On March 17, 2009, after the conference, the Court entered an order, as Document 154, which required each party hold a mandatory Civil Rule 26(f) conference and file preliminary pretrial statements not later than April 17,2009.

The order scheduled a further pretrial conference for May 14th, 2009 and stated in pertinent part as follows:

“Each party shall be prepared to specifically discuss proposed dates for [certain deadlines]:

...

“Failure of an attorney or any pro se party to appear at any scheduled pretrial conference, or otherwise comply with provisions of this order, may result in dismissal of the proceeding or matter, a default judgment, or such other remedy as may be appropriate.”

The Wheat Defendants, still unrepresented, failed to participate in the May 14th, 2009 conference and failed to file a pretrial statement.

Further, the Trustee indicated a Rule 26(f) conference did not occur with the Wheat Defendants because the Trustee did not have a working phone number for them, see Document 158.

On May 20th, 2009 the Court entered another pretrial order, this time scheduling a pretrial conference for August 13th, 2009, see Document 161.

This order set specific discovery cutoff dates, and noted in bold and underlined text that “Failure of an attorney or any pro se party to appear at any scheduled pretrial conference or otherwise comply with provisions of this order may result in dismissal of the proceeding or matter, a default judgment, or such other remedy as may be appropriate.”

On August 13th, 2009, the Wheat Defendants, still unrepresented, did not participate in the pretrial conference. See docket entry for pretrial conference held on August 13th, 2009.

That same day, the Court issued an order extending the discovery guidelines, scheduling the trial of this proceeding for April 29th, 2010, and a final pretrial for April 22nd, 2010, see Document 163.

In a March 5th, 2010 order, the court rescheduled the final pretrial conference for May 13th, 2010 and the trial for May 20th, 2010, see Document 175.

(See Bankruptcy Docket 231).

On May 10, 2010, days before the final pretrial conference, Mr. Farmer re-entered his appearance on behalf of Appellants and filed a motion to continue the final pretrial conference and the trial date.

[452 B.R. 631]

(Doc. 1–8). Notably, that Notice of Appearance listed Mr. Farmer's mailing address as P.O. Box 30083. Gahanna, Ohio 43230, and listed his current email address as attorney derekfarmer@ yahoo. com (hereinafter “Yahoo email address”). ( Id.) The email address listed on the Notice of Appearance did not match the email address formally associated with Mr. Farmer on the Court's CM/ECF system.

Before filing the Notice of Appearance, Mr. Farmer called the Clerk's Office to obtain his CM/ECF password so that he could access the CM/ECF system and file the Notice of Appearance and his motion to continue. (Doc. 1–15). Apparently, upon accessing the CM/ECF system, Mr. Farmer did not update his contact information through the CM/ECF system as explained in the Bankruptcy Court's CM/ECF User's Reference Manual, which is accessible from the Bankruptcy Court's website.² Nevertheless, according to Mr. Farmer, during his conversation with the Clerk to retrieve his CM/ECF password, he provided the above stated contact information to the Clerk over the phone. (Doc. 1–15). However, despite his efforts in this regard, Mr. Farmer's Yahoo email address was never updated in the CM/ECF system, and, instead, the system continued to list his former email address, farmerlaw@ sbcglobal. net, as the proper email address for notification purposes.

On May 11, 2010, the Courtroom Deputy for the Bankruptcy Court sent an e-mail to Mr. Farmer's Yahoo email address informing Mr. Farmer that the Court received his motion to continue, that the Court would not continue the final pretrial conference set for May 13, 2010, but would entertain the request to continue trial during the final pretrial conference. (Doc. 1–21).

During the final pretrial conference, the Bankruptcy Court entertained and orally granted Appellants' motion to continue the trial date. (Doc. 1–15). The Bankruptcy Court also conferred with all counsel and reset trial for August 12, 2010, a date for which Mr. Farmer specifically confirmed his availability. ( Id.) Specifically, the Bankruptcy Court asked Mr. Farmer whether he could try the case beginning on August 12, 2010, to which Mr. Farmer responded, “[t]hat's great, Your Honor.” ( Id.) The Bankruptcy Court then stated, “[o]kay. Let's set—then continue the trial to August 12th. Let's start it August 12th, and we'll continue until it's completed.” ( Id.) The Bankruptcy Court also had the following exchange with Mr. Farmer:

THE COURT: We will set another date for you, Mr. Farmer, to file your witness list, and exhibit list, and exhibits. Let's make that Friday, July 30th to file your witness list and exhibit list if you're going to have—call any witnesses or introduce any exhibits, in addition to actually filing the exhibits electronically. Okay, Mr. Farmer?

MR. FARMER: Thank you, Judge, I got that.

( Id.) Thereafter, the Bankruptcy Court stated its intent to formally docket an Order reflecting the continuance and setting certain deadlines. ( Id.)

On May 14, 2010, the Bankruptcy Court formally docketed an Order Granting Appellant's motion to continue trial. (Doc. 1–10). The Bankruptcy Court separately docketed the formal Order confirming the trial date set orally at the final pretrial conference, as well as the deadline for filing witness/exhibits lists. (Doc. 1–11). A copy of the Order resetting the trial date and setting the witness and exhibit list deadline was mailed to the parties, and

[452 B.R. 632]

in particular, “Derek A. Farmer, P.O. Box 30083, Gahanna, Ohio 43230[,]” i.e., the mailing address specifically listed on Mr. Farmer's Notice of Appearance. ( Id.) The Order was also emailed to Mr. Farmer's former email address, farmerlaw@ sbcglobal. net, but was not emailed to Mr. Farmer's current Yahoo email address. According to Mr. Farmer, he never received the Order from the Bankruptcy Court, either by mail or email.³

At some point following the final pretrial conference, Mr. Farmer admittedly forgot about the scheduled trial in the adversary proceeding and, therefore, he never calendared the trial date. Mr. Farmer attributes this failure to never having received the Bankruptcy Court's Order formally resetting the trial date, either by mail or by email notification through the CM/ECF system.

Thereafter, Mr. Farmer became immensely involved with other cases. In July 2010, Mr. Farmer was scheduled to appear at trial on behalf of a defendant in a criminal case in the Athens County, Ohio Court of Common Pleas. However, at that same time, Mr. Farmer represented a different defendant in a criminal case pending before the Honorable United States District Judge Walter H. Rice in the Southern District of Ohio. The criminal trial in Athens County was continued so that Mr. Farmer could appear at trial and defend the criminal case pending before Judge Rice. Though Judge Rice offered to personally contact other judges and to assist Mr. Farmer in requesting continuances of all matters conflicting with Mr. Farmer's criminal case pending in the District Court, Mr. Farmer contends that, because he simply forgot about trial in this case,⁴...