HUNTINGTON NATIONAL BANK v. DEBRA DIXON, ET AL.
No. 101273
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 7, 2015
2015-Ohio-1735
BEFORE: Stewart, J., E.T. Gallagher, P.J., and Laster Mays, J.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-06-585873
RELEASED AND JOURNALIZED: May 7, 2015
Brent L. English
Law Offices of Brent L. English
The 820 Building, 9th Floor
820 Superior Avenue, West
Cleveland, OH 44113
ATTORNEYS FOR APPELLEES
For Huntington National Bank
Jennifer M. Monty Reiker
Weltman, Weinberg & Reis Co., L.P.A.
Lakeside Place, Suite 200
323 West Lakeside Avenue
Cleveland, OH 44113
For Cobblestone Chase
David A. Head
Weltman, Weinberg & Reis Co., L.P.A.
Lakeside Place, Suite 200
323 West Lakeside Avenue
Cleveland, OH 44113
For Third Federal Savings & Loan Assn. of Cleveland
Janeane R. Cappara
Kirk W. Roessler
Ziegler & Metzger, L.L.P.
2020 Huntington Building
925 Euclid Avenue
Cleveland, OH 44115
For Debra Dixon
Debra Dixon
1515 Stone Court
Westlake, OH 44145
{¶1} This is an appeal from a summary judgment entered in a foreclosure action against defendant-appellees Penny and James Dixon (the “Dixons“) on their conspiracy counterclaim against plaintiff-appellee Huntington National Bank. The counterclaim alleged that Huntington conspired with another bank to deprive them of service of Huntington‘s complaint in foreclosure as a means of preventing them from asserting their lien rights over the property for which foreclosure was sought. Although the Dixons raise four assignments of error, the primary focus of their appeal is that the court wrongfully denied them discovery relating to Huntington‘s attempts at service by mail and that the court lacked jurisdiction to render judgment against Huntington because the Dixons dismissed their claims against Huntington before summary judgment was entered. We affirm the court‘s judgment.
{¶2} Huntington National Bank brought this action on a promissory note and sought foreclosure on property owned by defendant Debra Dixon (the Dixons’ daughter). Also named as defendants were defendant Third Federal Savings and Loan and the Dixons, all of whom claimed to have a lien on the property. When certified mail service to the Dixons went unclaimed, Huntington served the complaint by publication. The Dixons did not answer the complaint and the court entered a default judgment against them. The default judgment was later vacated by agreement of the parties. Answering the complaint, the Dixons filed a counterclaim against Huntington alleging that it violated the Racketeer Influenced and Corrupt Organizations Act (“RICO“),
{¶4} We first consider the Dixons’ second assignment of error because it is potentially dispositive: they argue that the voluntary dismissal of their claims against Huntington was effective as to all claims, depriving the court of jurisdiction to proceed, thus rendering the summary judgment a nullity.
{¶5} As we will address in more detail in our discussion of the Dixons’ first assignment of error, their RICO claim against Huntington was premised on the idea that Huntington conspired with its attorneys to attempt service by mail at an address that it knew was not a valid address for the Dixons. According to the Dixons, this allowed Huntington to serve the complaint by publication, thus ensuring that the Dixons would not answer, resulting in a default judgment entered against them. To prove that allegation, the Dixons wished to depose the attorney handling the case for Huntington and inquire into his thought process regarding service
{¶6} Huntington asked the court to strike the motion to dismiss the counterclaim on grounds that the Dixons essentially filed a single RICO claim that was a compulsory counterclaim. The characterization of the counterclaim as either compulsory or non-compulsory was important because the Dixons were likely aware that if they voluntarily dismissed a compulsory counterclaim, that dismissal would be with prejudice. See Sec. Natl. Bank & Trust Co. v. Reynolds, 2d Dist. Greene No. 2007 CA 66, 2008-Ohio-4145, ¶ 32; Ward v. Cent. Invest. LLC, 1st Dist. Hamilton No. C-100081, 2010-Ohio-6114, ¶ 21. Hence, their desire that the court dismiss the compulsory counterclaim without prejudice. The court ruled that the counterclaim was compulsory and denied the motion to dismiss on that basis.
{¶7} We agree with Huntington that the Dixons filed a single RICO counterclaim. As pleaded, the counterclaim stated: “[t]his is a claim” under the RICO act. The counterclaim alleged that Huntington “combined and conspired” with Third Federal and the law firm that represented both banks “to conduct or participate, directly or indirectly,” in the affairs of the law firm‘s enterprise “through a pattern of racketeering activity, involving mail fraud, wire fraud, bank fraud, and money laundering predicates.”
{¶8} There were no other identifiable counterclaims filed against Huntington, so the question before the court at the time the Dixons filed their notice of dismissal was whether the
{¶9} The claims against Huntington in CV-13-806584 were identical to those alleged in this case, so the law-of-the-case doctrine applies. The law-of-the-case doctrine provides that the “‘decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.‘” Hubbard ex rel. Creed v. Sauline, 74 Ohio St.3d 402, 404, 1996-Ohio-174, 659 N.E.2d 781, quoting Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984).
{¶10} With this court having held that the Dixons’ RICO counterclaims were compulsory counterclaims that could only be brought in the foreclosure action, the Dixons are precluded from asserting any argument in this case that its RICO counterclaim was not a compulsory
{¶11} The Dixons next argue that the court abused its discretion by denying their motion to compel discovery and their motion for sanctions on Huntington‘s alleged discovery violations. The motion to compel discovery was premised on Huntington‘s providing for deposition a witness whom the Dixons maintain was “utterly unprepared to testify” about what Huntington knew regarding the facts giving rise to the Dixons’ counterclaim. The Dixons maintain that by denying the motion with Huntington‘s motion for summary judgment pending, the court left them with no alternative but to seek permissive dismissal of their compulsory counterclaim against Huntington.
{¶12} The discovery dispute between the Dixons and Huntington has consumed this foreclosure action. The genesis of the discovery dispute is Huntington‘s resorting to service by publication after attempts at certified mail service of the complaint in foreclosure failed. The Dixons did not answer the complaint following service by publication and the court entered a default judgment against them. As a sheriff‘s sale of the property was about to begin, the Dixons claimed that there had been a failure of service against them and sought to vacate the order of sale on that basis. The court denied the motion but informed the Dixons that it would entertain a motion for partial relief from judgment and a motion to plead. The Dixons appealed from that ruling and we held that the court erred by failing to hold a hearing before granting the default judgment against them. See Huntington Natl. Bank v. Dixon, 8th Dist. Cuyahoga No. 90414, 2008-Ohio-5250, ¶ 18-19.
{¶14} Following the second remand, the parties filed a joint motion to vacate the decree of foreclosure against the Dixons — a decree that found that all necessary parties, including the Dixons, had been properly served and were properly before the court. The parties agreed to ask the court to vacate only that part of the foreclosure decree relating to the Dixons and leave intact the judgment against Debra Dixon. By so agreeing, the Dixons agreed to accept service of Huntington‘s complaint and Third Federal‘s counterclaim. The Dixons also agreed that they “shall waive all objections relating to service.”
{¶15} The Dixons then answered Huntington‘s complaint and filed their counterclaim against Huntington. Huntington filed a motion for summary judgment on two grounds: first, that the Dixons’ agreement to waive all claims regarding service of process in their agreement to vacate the foreclosure against them mooted their counterclaim for conspiracy to deprive them of
{¶16} The Dixons responded to the motion for summary judgment by filing a motion to compel discovery and a notice under
{¶17} The court denied the motion to compel discovery, refused to stay the matter for additional discovery, and found insufficient justification for the Dixons’ claim that they were unable to offer affidavits in support of their opposition to the motion for summary judgment. The court ordered the Dixons to submit their brief in opposition to the motion for summary judgment within 14 days. On the date established by the court as the deadline for responding to the motion for summary judgment, the Dixons filed their notice/motion for voluntary dismissal against Huntington.
{¶18} The Dixons maintain that Huntington violated
{¶19} Courts have broad discretion over discovery matters. State ex rel. Citizens for Open, Responsive & Accountable Govt. v. Register, 116 Ohio St.3d 88, 2007-Ohio-5542, 876 N.E.2d 913, ¶ 18. And we agree with Huntington that the court did not abuse its discretion by refusing to grant the motion to compel discovery on grounds that Dixons had “ample time” to conduct discovery in this case.
{¶20} As our recitation of the facts shows, the Dixons’ counterclaim against Huntington had been pending for well over one year before the Dixons sought to compel discovery. At no point during that time had the Dixons acted with the kind of alacrity in proceeding with the counterclaim that would justify their later position that Huntington was willfully impeding discovery. It was only when faced with imminent summary judgment did the Dixons actually seek to compel discovery.
{¶21} Huntington filed its motion for summary judgment on February 15, 2013. On March 8, 2013, the Dixons sought a 14-day extension of time to respond to the motion for summary judgment. They claimed that Huntington had not been forthcoming with discovery, particularly by offering for deposition a witness who they claimed was “woefully ill-prepared to
{¶22} The Dixons did not “contemporaneously” file a motion to compel discovery with the request for an extension of time in which to respond to Huntington‘s motion for summary judgment as promised. Instead, they waited until April 1, 2013 (the deadline established by the court for a response to Huntington‘s motion for summary judgment) to file their motion to compel discovery. In that same motion, the Dixons told the court that they were unable to respond to the motion for summary judgment, again citing the inadequacy of the person Huntington provided for deposition.
{¶23} With respect to the motion to compel discovery, the court ruled that the Dixons had been provided “ample time” to conduct discovery, particularly with respect to their ability to conduct a deposition of Huntington‘s representative. The court ruled that the Dixons “failed to provide sufficient reasons for their inability to present affidavits in support of their opposition of the pending motion for summary judgment and for a
{¶24}
{¶25} The third assignment of error complains that the court erred by denying the Dixons’ request for findings of fact and conclusions of law on a decision issued February 11,
{¶26} Huntington correctly notes that at no point have the Dixons asserted a claim based on their alleged lien against the property owned by Debra Dixon. Nor, for that matter, have the Dixons established by proof the priority of their alleged lien or even the dollar amount that they are allegedly owed by Debra Dixon. The Dixons’ counterclaim against Huntington was premised on an alleged conspiracy to deny them service of the complaint in foreclosure related to a purported lien. The Dixons’ arguments that the magistrate failed to specify the value of an unstated lien is without merit.2
{¶27} Finally, the Dixons’ fourth assignment of error complains that the court failed to give them leave to file supplemental objections to the magistrate‘s decision.
{¶28}
{¶29} The magistrate released his decision on February 11, 2014. The Dixons filed their “preliminary” objections on February 25, 2014. In those objections, the Dixons informed the court that they “will supplement these preliminary objections within seven days.” Eight days later the Dixons sought an extension of time in which to file supplemental objections. The court denied the motion for an extension of time, noting that the Dixons failed to request an additional period of time in which to file objections before the time period for filing objections had lapsed.
{¶30} The court did not abuse its discretion by refusing to grant additional time for the Dixons to file “supplemental” objections to the magistrate‘s decision. Apart from the motion for an extension of time being untimely, the initial objections gave no reason why the Dixons would supplement their initial objections at a later date. Without giving the court any basis for understanding why they did not file all of their objections at once, the decision to deny the motion for an extension of time was not arbitrary or irrational.
{¶31} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the court of common pleas to carry this judgment into execution.
MELODY J. STEWART, JUDGE
EILEEN T. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR