IN RE: HEALTHWAREHOUSE.COM, INC.
APPEAL NO. C-110736
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
May 23, 2012
2012-Ohio-2266
TRIAL NO. M-1101203; Civil Appeal From: Hamilton County Common Pleas Court; Judgment Appealed From Is: Reversed and Cause Remanded
Kohnen & Patton LLP, Joseph L. Dilts and Rebecca L. Cull, for Petitioner-Appellee Healthwarehouse.com, Inc.,
Ulmer & Berne LLP, Richik Sarkar, Joshua A. Klarfeld and Regan N. Schmidt, for Respondent-Appellant Devos, Ltd., d.b.a. Guaranteed Returns.
Please note: This case has been removed from the accelerated calendar.
{¶1} Respondent-appellant, Devos, Ltd., d.b.a. Guaranteed Returns appeals the trial court‘s orders granting the petition for discovery of petitioner-appellee Healthwarehouse.com, Inc., (“HWI“). In two assignments of error, Guaranteed Returns argues that the trial court erred by granting the petition and by subjecting them to personal jurisdiction in Ohio.
The Petition for Discovery
{¶2} On October 18, 2011, HWI filed a petition for discovery pursuant to
Due Process
{¶3} First, Guaranteed Returns argues that the trial court erred when it granted HWI‘s petition for discovery without permitting them an opportunity to respond. We agree.
{¶4} Procedural due process is required by the
{¶5} “However hurried a court may be in its efforts to reach the merits of a controversy, the integrity of procedural rules is dependent upon consistent enforcement because the only fair and reasonable alternative thereto is complete abandonment.” Miller v. Lint, 62 Ohio St.2d 209, 215, 404 N.E.2d 752 (1980). “Thus, if a trial court disregards the response time created by the Ohio Rules of Civil Procedure, that court has committed reversible error,” absent a showing that the error was harmless. Gibson-Myers & Assoc. v. Pearce, 9th Dist. No. 19358, 1999 Ohio App. LEXIS 5010 (Oct. 27, 1999), following In re Foreclosure of Liens.
{¶6} Pre-suit discovery actions under
When a person claiming to have a cause of action or a defense to an action commenced against him, without the discovery of a fact from the adverse party, is unable to file his complaint or answer, he may bring an action for discovery, setting forth in his complaint in the action for discovery the necessity and the grounds for the action, with any interrogatories relating to the subject matter of the discovery that are necessary to procure the discovery sought. Unless a motion to dismiss the action is filed under Civil Rule 12, the complaint shall be fully and directly answered under oath by the defendant. Upon the final disposition of the action, the costs of the action shall be taxed in the manner the court deems equitable. (Emphasis added.)
(1) * * * [A] person who claims to have a potential cause of action may file a petition to obtain discovery as provided in this rule. Prior to filing a petition for discovery, the person seeking discovery shall make reasonable efforts to obtain voluntarily the information from the person from whom the discovery is sought.
(2) The petition shall be served upon the person from whom discovery is sought and, if known, any person the petitioner expects will be an adverse party in the potential action, by one of the methods provided in these rules for service of summons. (Emphasis added.)
{¶8} In this case, Guaranteed Returns was not served with the petition until a week after it had been granted by the trial court. Not only was Guaranteed Returns denied the opportunity to answer or file a motion to dismiss, they had no notice of the action before the discovery orders were entered.
{¶9} In a similar case, the Tenth Appellate District reversed a trial court‘s order that granted a
{¶10} In this case, we hold that the trial court violated Guaranteed Returns’ due process rights by granting HWI‘s petition for discovery on the date it was filed because Guaranteed Returns had been given neither notice of the action nor an opportunity to answer or to file a motion to dismiss. Consequently, we sustain the first assignment of error
Judgments reversed and cause remanded.
SUNDERMANN, P.J., and DINKELACKER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.