The Commons at Royal Landing, LLC, Plaintiff-Appellant, v. The City of Whitehall et al., Defendants-Appellees.
No. 15AP-240
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
February 2, 2016
2016-Ohio-362
(C.P.C. No. 14CV-10243) (REGULAR CALENDAR)
Rendered on February 2, 2016
Peterson, Conners, Fergus & Peer LLP, Gregory S. Peterson and Jerry E. Peer, Jr., for appellant.
Eastman & Smith Ltd., Joseph R. Durham and René L. Rimelspach, for appellees.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, P.J.
{¶ 1} Plaintiff-appellant, The Commons at Royal Landing, LLC (“appellant“), appeals the March 3, 2015 judgment of the Franklin County Court of Common Pleas granting the motion for summary judgment filed by defendants-appellees, The City of Whitehall (“Whitehall“), and the City of Whitehall Board of Zoning and Building Appeals (the “Board“). For the reasons that follow, we affirm the judgment of the trial court.
I. Facts and Procedural History
{¶ 2} Appellant is a limited liability company that owns and operates a residential apartment complex of the same name in Whitehall, Ohio. On February 28, 2014, Whitehall‘s chief building inspector issued appellant fоur warnings for code violations related to four residential apartment units at appellant‘s complex. On March 19, 2014,
{¶ 3} On May 29, 2014, the Board provided appellant with notice that it would meet to deliberate and decide on appellant‘s appeals. On June 9, 2014, the Board held a regularly scheduled meeting, during which time it entered into executive session to deliberate on appellant‘s appeals. Following the exeсutive session, the Board voted to deny appellant‘s appeals. On July 2, 2014, appellant filed administrative appeals from the decision of the Board to the Franklin County Court of Common Pleas.1
{¶ 4} On October 2, 2014, appellant filed a complaint for declaratory judgment, injunctive relief, and statutory damages against appellees. Appellant alleged that appellеes violated
{¶ 5} On October 15, 2014, appellees filed a motion to dismiss, which the trial court denied on December 2, 2014. On January 7, 2015, appellees filed a motion for summary judgment. On January 21, 2015, appellant filed a memorandum contra, arguing that it must be “afforded the opportunity to conduct reasonable discovery.” (Memorandum Contra, 6.) Counsel for appellant filed with the motion for summary judgment an affidаvit, in which he stated that Whitehall responded to written discovery requests but denied appellant the opportunity to deposе the Chairman of the Board. Counsel for appellant stated in his affidavit that no depositions had taken place and that such depositions were “essential to thorough investigation of the legal and factual allegations contained in the Complаint.” (Memo Contra, exhibit A.) On March 3, 2015, the trial court granted appellees’ motion for summary judgment.
II. Assignment of Error
{¶ 6} Appellant appeals assigning thе following single assignment of error for our review:
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT AND NOT PROVIDING PLAINTIFF WITH AN OPPORTUNITY TO CONDUCT MEANINGFUL DISCOVERY, PURSUANT TO CIV.R. 56(F).
{¶ 7} Appellant asserts that the trial court erred and abused its discretion by failing to provide it with sufficient opportunity to complete discovery. We note that appellant raised an argument related to sеlf-imposed limitations on Whitehall‘s powers. However, as appellant did not assert an assignment of error related to this argument, we decline to further address appellant‘s argument. Ellinger v. Ho, 10th Dist. No. 08AP-1079, 2010-Ohio-553, ¶ 70, citing In re the Estate of Taris, 10th Dist. No. 04AP-1264, 2005-Ohio-1516, ¶ 5 (“[T]his court rules on assignments of error only, and will not address mere arguments.“); Bradley v. Ohio Dept. of Transp., 10th Dist. No. 11AP-409, 2012-Ohio-451, ¶ 25, citing Thompson v. Thompson, 196 Ohio App.3d 764, 2011-Ohio-6286, ¶ 65 (10th Dist.).
{¶ 8} “[A] pаrty is not entitled to rely on the discovery cutoff date as a threshold before which the trial court may not entertain a motion for summary judgment.” Pickens v. Kroger Co., 10th Dist. No. 14AP-215, 2014-Ohio-4825, ¶ 18, citing Whiteside v. Conroy, 10th Dist. No. 05AP-123, 2005-Ohio-5098, ¶ 38, citing Doriott v. MVHE, Inc., 2d Dist. No. 20040, 2004-Ohio-867, ¶ 45. “When a party finds itself having to respond to a summary judgment motion before adequate discovery is completed, the рroper remedy is to move the trial court to delay judgment under Civ.R. 56(F).” Taylor v. XRG, Inc., 10th Dist. No. 06AP-839, 2007-Ohio-3209, ¶ 16, citing Maschari v. Tone, 103 Ohio St.3d 411, 2004-Ohio-5342.
{¶ 9}
{¶ 11} A party who fails to file a motion under
{¶ 12} Here, because appellant failed to file a
{¶ 13} Having overruled appellant‘s single assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK, J., concurs.
BROWN, J., concurs in judgment only.