Geico Casualty Insurance Co. v. Maria Durant-Baker et al.
No. 13AP-573
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
April 10, 2014
2014-Ohio-1530
(C.P.C. No. 13CV-01-432) (REGULAR CALENDAR)
Rendered on April 10, 2014
Kreiner & Peters Co., LPA, and Daran P. Kiefer, for appellant.
Jurca & Lаshuk, LLC, Jeffrey J. Jurca and Jason P. Grable, for appellees.
APPEAL from the Franklin County Court of Common Pleas
McCORMAC, J.
{1} Plaintiff-appellant, Geico Casualty Insurance Co., appeals from the Junе 3, 2013 judgment of the Franklin County Court of Common Pleas dismissing plaintiff‘s complaint upon the motion of defendants-appellees, Maria Durant-Baker and Univеrsity Corp. For the reasons that follow, we reverse and remand the judgment of the trial court.
I. Facts and Procedural History
{2} On January 11, 2013, plaintiff filed a complaint seeking monetаry judgment against defendants. Plaintiff asserted it was the insurer and subrogee of Natosha M. Mills, whose vehicle was damaged by Maria Durant-Baker while she was acting as an agent of University Corp. On February 20, 2013, defendants filed an answer, denying the allegations of the complaint.
{3} On May 3, 2013, defendants filed a motion tо compel discovery, alleging that plaintiff failed to respond to defendants’ interrogatories and request for production of documents, which were served on February 26, 2013. On May 23, 2013, the trial court granted defendants’ motion to compel, ordering plaintiff to respond within ten days of the order. The trial court stated in its judgment entry that “[f]ailure to abide by this Court‘s Order shall result in sanctions.” (R. 38.)
{4} On June 3, 2013, defendants filed a motion pursuant to
II. Assignments of Error
{5} Plaintiff timely appeals, assigning the following three errors:
- The trial court abused its discretion by “Dismissing With Prejudice” under Rule 37 discovery sanctions before the time granted by the Court and Civil Rules to Plaintiff to answer discovery had actually expired.
- The trial court abused its discretion by dismissing Plaintiff‘s case with prejudiсe without giving any notice to Plaintiff and violating the due process rights of the Plaintiff.
- The trial Court abused its discretion by awarding $2,500.00 in sanctions as no evidence of expenses or attorney fees were submitted by Defendant‘s counsel with their motion.
{6} Because plaintiff‘s first and second assignments of error are interrelated, we will consider them together. Plaintiff contends that the trial court abused its discretion by dismissing plaintiff‘s complaint with prejudice without giving nоtice of the possibility of dismissal and before the expiration of the period the trial court set for complying with the May 23, 2013 judgment. Defendant responds that plaintiff was on notice regarding the possibility of dismissal because the trial court‘s May 23, 2013 order contained an admonition that failing to comply could result in sanctions.
{7} Dismissal of a case pursuant to
{8}
{9} Here, defendants concede the trial court granted dismissal prior to the expiration of time afforded to plaintiff to respond to the May 23, 2013 judgment.1 Regardless of whether the trial court‘s admonition regarding sanctions in the May 23, 2013 order impliedly аlerted plaintiff that the complaint was subject to dismissal, the trial court dismissed the action before the expiration of the time allotted tо plaintiff to respond. As the trial court fixed the period of time for plaintiff to be afforded a meaningful opportunity to respond at ten days, it could not preemptively terminate such period without destroying the presumption of notice. Quonset at syllabus (“For purposes of
{10} Accordingly, we sustain defendant‘s first and second assignments of error.
{11} Plaintiff‘s third assignment of error asserts the trial cоurt erred by ordering plaintiff to pay defendants’ attorney fees and expenses because plaintiff did not supply evidence of the cоst. Having found that the trial court erred by granting defendants’ motion to dismiss, the trial court‘s award of attorney fees and costs is rendered moot.
V. Disposition
{12} Having sustainеd plaintiff‘s first and second assignments of error and having found the third assignment of error moot, we reverse the judgment of the Franklin County Court of Common Pleas аnd remand to that court for proceedings consistent with this decision.
Judgment reversed; cause remanded.
SADLER, P.J., and DORRIAN, J., concur.
McCORMAC, J., retired, of the Tenth Appellate District, assigned to active duty under authоrity of the Ohio Constitution, Article IV, Section 6(C).
Thus, under