Clint Miller, Plaintiff-Appellant, v. NWD 355 McConnell LLC, Defendant-Appellee.
No. 22AP-725
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
September 21, 2023
[Cite as Miller v. NWD 355 McConnell, L.L.C., 2023-Ohio-3374.]
MENTEL, J.
(C.P.C. No. 20CV-7457) (ACCELERATED CALENDAR)
DECISION
Rendered on September 21, 2023
On brief: Henderson Mokhtari & Weatherly, and Al A. Mokhtari for appellant. Argued: Al A. Mokhtari.
On brief: BakerHostetler, LLP, and Ali Haque for appellee. Argued: Ali Haque.
{1} Plaintiff-appellant, Clint Miller, appeals from a November 9, 2022 decision and entry denying his motion for reconsideration and granting the motion for summary judgment of defendant-appellee, NWD 355 McConnell LLC (“NWD“). Appellant also appeals from an August 9, 2021 entry granting NWD‘s motion to stay discovery and motion for protection order as well as a July 30, 2021 decision, granting in part and denying in part, appellant‘s motion for extension of time. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{2} This is a refiled matter originating from a dispute over various parking violations. NWD is a subsidiary of Nationwide Realty Investors, Ltd. (“NRI“), and the owner of a parking garage in the Arena District located at 355 John H. McConnell Blvd. (“Garage“). SP Plus, an independent contractor, entered into an agreement with NRI to “administer, manage and operate” all parking operations at the Garage. (Feb. 12, 2021 NWD Mot. for Summ. Jgmt., Ex. A., Master Management Agreement at ¶¶ 1, 19.)1 SP Plus agreed to patrol “all the parking facilities with a dedicated ticket writer at all times.” (NWD Mot. for Summ. Jgmt., Ex. B, Arena District Ticket Enforcement at 10.) Pursuant to the SP Plus Arena Ticketing Procedure, SP Plus also handled and organized all aspects of the immobilization of vehicles in the Garage. The SP Plus Arena Ticketing Procedure provides in relevant part:
[T]he Standard Parking employee will apply the boot, put a violation notice on the vehicle with information about the violation and the proper contact number
and apply a notice sticker on the vehicle * * *. The parking violator must contact Standard Parking directly to have the boot removed from their vehicle * * *. Payment * * * will be delivered to the Standard Parking regional office.
(Id. at 7.) Finally, SP Plus was responsible for collecting fines of violators and would “contact the violator in hopes of collecting the charge before it is sent off to collections * * *. If a ticket reaches 30 days past due it will be sent off [to] the Collection Agency.” (Id. at 6.) SP Plus retained Citation Collection Services (“CCS“) to collect payments from drivers that violated parking rules in the Garage. As acknowledged by appellant, the notices and collection letters were sent by SP Plus or CCS. (See Nov. 17, 2020 Compl. at ¶ 10-17.)2
{3} On January 2, 2019, appellant filed his initial complaint against NWD, SP Plus, and CCS. Miller v. NWD 355 McConnell, LLC, Franklin C.P. No. 19CV000033 (Jan. 2, 2019). According to appellant, he was unlawfully fined for violating the parking rules of the Garage, which resulted in the immobilization of his vehicle.3 On July 22, 2019, appellant filed a notice of dismissal, pursuant to
{4} On November 17, 2020, appellant refiled his complaint asserting causes of action for fraudulent inducement, fraudulent misrepresentation, unjust enrichment, extortion, conversion, punitive damages, violation of the Ohio Consumer Sales Practices Act, and vicarious liability. While SP Plus and CCS are extensively discussed in the refiled complaint, appellant only named NWD and “John Does One Through Five” as defendants in the case. (Compl. at 1.)
{5} On February 12, 2021, NWD filed a motion for summary judgment arguing that appellant‘s claims fail as a matter of law because he has not asserted any causes of action directly against NWD, and by dismissing SP Plus and CCS with prejudice, he cannot succeed in his vicarious liability claim. On March 12, 2021, appellant filed a motion for extension of time seeking 120 days to conduct discovery to respond to NWD‘s motion for summary judgment. On March 25, 2021, NWD filed a memorandum in opposition contending that a motion for summary judgment may be filed at any time, and appellant has failed to specify, under
{6} On March 30, 2021, NWD filed a motion to stay discovery and motion for protective order pending the resolution of its motion for summary judgment. On April 13, 2021, appellant filed a memorandum in opposition to NWD‘s motion to stay discovery. On August 9, 2021, the trial court granted NWD‘s motion to stay discovery and motion for protective order pending the outcome of NWD‘s motion for summary judgment. Appellant filed a memorandum in opposition to the motion for summary judgment on August 27, 2021. A reply brief was filed on September 10, 2021. Also on August 27, 2021, appellant filed a motion for reconsideration of the trial court‘s denial in part of his motion for extension of time and motion to stay discovery. NWD filed a memorandum in opposition on September 10, 2021.
{7} On November 9, 2022, the trial court denied appellant‘s motion for reconsideration and granted NWD‘s motion for summary judgment. Appellant filed a timely appeal.
II. ASSIGNMENTS OF ERROR
{8} Appellant assigns the following as trial court error:
[I.] THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING IN PART APPELLANT‘S MOTION FOR EXTENSION OF TIME.
[II.] THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING APPELLEE‘S MOTION TO STAY DISCOVERY AND MOTION FOR PROTECTIVE ORDER.
[III.] THE TRIAL COURT ERRED IN GRANTING APPELLEE‘S MOTION FOR SUMMARY JUDGMENT.
III. LEGAL ANALYSIS
A. Appellant‘s First and Second Assignments of Error
{9} We begin by addressing appellant‘s failure to file a brief that conforms to the Ohio Rules of Appellate Procedure. “The burden of affirmatively demonstrating error on appeal rests with the party asserting error.” Lundeen v. State Med. Bd. of Ohio, 10th Dist. No. 12AP-629, 2013-Ohio-112, ¶ 16, citing State ex rel. Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943, ¶ 51 (10th Dist.), citing
{10} In appellant‘s first assignment of error, he contends that the trial court abused its discretion granting in part and denying in part his
{11} There is a wide scope of permissible discovery in civil matters.
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party‘s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
{12} However, a party‘s efforts to conduct discovery may be interrupted as a motion for summary judgment can be filed at “any time, * * * with or without supporting affidavits for a summary judgment in the party‘s favor as to all or any part of the claim, counterclaim, cross-claim, or declaratory judgment action.”
{13} The party responding to purportedly improper discovery requests may either move for a protective order under
{14} The trial court holds broad discretion over discovery matters. MA Equip. Leasing I, LLC v. Tilton, 10th Dist. No. 12AP-564, 2012-Ohio-4668, ¶ 13, citing State ex rel. Citizens for Open, Responsive & Accountable Govt. v. Register, 116 Ohio St.3d 88, 2007-Ohio-5542, ¶ 18. An appellate court, therefore, will generally review the trial court‘s decision to grant a motion to stay discovery and motion for protective order, pursuant to
{15} In appellant‘s
{16} Upon review, appellant‘s counsel‘s affidavit amounts to a general request for additional time to conduct depositions and written discovery. The affidavit fails to sufficiently explain how the depositions would aid in opposing the motion
{17} We also note that appellant failed to pursue other methods of obtaining discovery. Barok‘s affidavit addressed several factual allegations in this case that appellant could have contested in a competing affidavit. There is also no evidence that appellant requested affidavits or other evidence from non-parties, SP Plus or CCS. Appellant had several months to pursue discovery from these non-parties before the stay was in place but elected not to do so.
{18} This court has found that a trial court does not abuse its discretion denying a request for a continuance under
{20} In Klein, the complaint concerned claims for defamation as well as intentional and malicious inference with an employment relationship. Id. at 147. During the discovery process, Klein‘s counsel refused on two occasions to allow his client to answer questions during deposition and unilaterally terminated one of the depositions. Id. at 147, 150. Klein proceeded to move for summary judgment in the case. Id. at 147. Smith filed a motion to compel discovery and motion to stay ruling on the motion for summary judgment pending the outcome of the discovery dispute. Id. The trial court denied Smith‘s motions and granted summary judgment for Klein. Id. The Eighth District Court of Appeals reversed finding that the trial court‘s refusal to allow discovery of evidence essential to the nonmoving party‘s response to a motion for summary judgment was an abuse of discretion. Id. at 151.
{21} The facts in Klein and the instant case are quite distinct. First, Klein was decided nearly 30 years before this case was filed and makes no mention of
{22} As a final point, appellant should not lose sight of the standard of review at play. Abuse of discretion review accounts for multiple reasonable outcomes. Yates v. Hassell, 10th Dist. No. 11AP-588, 2012-Ohio-328, ¶ 14 (finding the trial court did not abuse its discretion as there were “multiple reasonable bases for denying appellants’ motion for leave * * *, none of which were arbitrary or capricious“). Even in cases where the panel might find one approach better, that does not make the trial court‘s resolution an abuse of discretion. “A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive.” (Emphasis deleted.) AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990). Under an abuse of discretion standard, a reviewing court is not permitted to substitute its judgment for that of the trial court. State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, ¶ 34. Because we find appellant failed to aver in his affidavit, through particularized facts, why additional time was required to conduct discovery, we find it reasonable that the trial court did not allow the full extension of time requested by appellant to respond to the motion for summary judgment.
{23} As for the
{24} Appellant‘s first and second assignments of error are overruled.
B. Appellant‘s Third Assignment of Error
{25} In appellant‘s third assignment of error, he argues that the trial court erred by granting NWD‘s motion for summary judgment.
{26} In determining whether the trial court properly granted summary judgment, an appellate court must review the evidence according to
{27} As set forth in
{28} This court considers a trial court‘s grant of a motion for summary
{29} At the outset, we note that while appellant asserts a general assignment of error that the trial court erred in granting NWD‘s motion for summary judgment, he fails to make any mention in his brief, let alone argument, concerning causes of action for fraudulent inducement, fraudulent misrepresentation, unjust enrichment, extortion, conversion, punitive damages, violation of the Ohio Consumer Sales Practices Act. Instead, appellant limits his analysis solely to his vicarious liability claim. (See Appellant‘s Brief at 24-29.) The same was true at oral arguments where counsel focused his discussion on his claim for vicarious liability. Because appellant has failed to set forth any arguments with respect to fraudulent inducement, fraudulent misrepresentation, unjust enrichment, extortion, conversion, punitive damages, or violation of the Ohio Consumer Sales Practices Act, we will forego any analysis concerning the trial court‘s grant of summary judgment on such claims.
{30} Appellant alleges the trial court erred in granting summary judgment as, despite settlement and dismissal with prejudice of agents, SP Plus and CCS, he may still bring a vicarious liability claim against the principal, NWD. We disagree.7
{31} An employer or principal can generally be held vicariously liable for the torts of its employees or agents under the doctrine of respondeat superior. Moore v. Mount Carmel Health Sys., 10th Dist. No. 2017APE-10-754, 2020-Ohio-6695, ¶ 24, citing Clark v. Southview Hosp. & Family Health Ctr., 68 Ohio St.3d 435, 438 (1994), citing Councell v. Douglas, 163 Ohio St. 292, 295-96 (1955). While the doctrine of respondeat superior does not extend to an employer‘s vicarious liability for a tort committed by an independent contractor, “under [a] theory [for] agency by estoppel, courts
{32} It is well-established that if the agent is released from liability, through settlement and release or a favorable judgment, the secondary liability of the principal is extinguished. Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Wuerth, 122 Ohio St.3d 594, 2009-Ohio-3601, ¶ 22. See also Griswold v. Med. College of Ohio, 10th Dist. No. 96API01- 66, 1996 Ohio App. LEXIS 2534, *3 (June 18, 1996) (“Once the primary tortfeasors were released, no liability for those secondarily responsible was possible.“); Faieta v. World Harvest Church, 10th Dist. No. 08AP-527, 2008-Ohio-6959, ¶ 54, citing Comer at ¶ 21. “[T]here can be no vicarious liability imputed to a principal, if there is no liability on the part of the agent.” Id., citing Losito v. Kruse, 136 Ohio St. 183 (1940). The justification behind this rule is to protect the indemnification rights of the principal against the agent who bears the primary liability. Weiler v. Knox Community Hosp., 5th Dist. No. 20CA000018, 2021-Ohio-2098, ¶ 26. “‘It logically follows that release of the employee from liability would thwart the employer‘s ability to seek reimbursement from the employee for payments made to the plaintiff by destroying the employer‘s subrogation rights.‘” Id., quoting Comer at ¶ 24. Because appellant has settled and dismissed with prejudice all claims against the agents, SP Plus and CCS, vicarious liability against the principal, NWD, is extinguished.
{33} Appellant posits that Comer was a narrow decision limited to “liability of a hospital for actions of an independent contract physician.” (Appellant‘s Brief at 25.) Appellant‘s argument, however, misses the mark as the rule that settlement and release of an agent from liability exonerates the principal from vicarious liability is not limited solely to the Comer decision.
{34} In Clawson, the Supreme Court of Ohio provided additional analysis on this topic when it considered whether a patient could pursue a claim of chiropractic malpractice against a chiropractor‘s employer, under the doctrine of respondeat superior, if the statute of limitations had expired on the chiropractor‘s direct liability for the purported malpractice. The Clawson court wrote that in recognizing the right that a plaintiff may hold an employer liable for the wrongful act of its employees “‘[s]ettlement with and release of the servant will exonerate the master.‘” Clawson at ¶ 13, quoting Losito at 188. “Otherwise, the master would be deprived of his right of reimbursement from the servant, if the claim after settlement with the servant could be enforced against the master.‘” Id. The Clawson court went on to restate its holdings in Comer and Wuerth writing:
[In Wuerth] we cited our statement in Losito that a settlement with and release of an employee from liability exonerates the employer. Wuerth at ¶ 22, citing Losito, 136 Ohio St. at 188. We also cited our statement in Comer that “[i]f there is no liability assigned to the agent, it logically follows that there can be no liability imposed upon the principal for the agent‘s actions.‘”
(Emphasis added in Comer.) Wuerth at ¶ 22, quoting 106 Ohio St.3d 185, 2005-Ohio-4559, at ¶ 20. That rule, we emphasized, is not limited to claims based on the doctrine of respondeat superior but also applies to other types of vicarious liability. Id. at ¶ 23.
{35} The Clawson court ultimately reversed the judgment of the Second District Court of Appeal finding that the patient was precluded from bringing a respondeat superior cause of action against the employer as the statute of limitations had expired on the underlying malpractice claim. While there was some disagreement among the justices over the resolution of Clawson, both the majority and dissenting opinions agreed that settlement and release of the agent extinguishes the secondary liability of the principal.8 In fact, this point is restated in the decision on four separate occasions. See Clawson at ¶ 13, 21, 37 (Brunner, J., dissenting), 41 (Brunner, J., dissenting).
{36} Appellant cites a series of Ohio cases for the proposition that an injured party has a right to sue an employer for the actions of an employee regardless of whether the employee was named as a party to the suit.9 These cases, however, are factually distinct as they either concern instances where the primarily negligent parties were employees, rather than independent contractors, or involve cases where the agent was not included in the complaint based on immunity or the expiration of the statute of limitations. None of the cited cases support appellant‘s claim that an injured party, after settlement and release of an independent contractor from a case, may bring a vicarious liability cause of action against a principal.
{37} In the interest of completeness, we will briefly address the two remaining arguments presented in appellant‘s brief as they apply to appellant‘s third assignment of error. First, appellant argues that “the trial court abused its discretion by relying upon arguments and purported evidence from a voluntarily dismissed case.” (Appellant‘s Brief at 21.) While the appellant generally claims that the trial court improperly considered evidence, he fails to identify what evidence was improper and how the trial court impermissibly used those documents in its decision. As appellant has only asserted error in the trial
{38} The record reveals that the trial court‘s decision granting summary judgment as to appellant‘s vicarious liability claim makes no reference to any exhibits relied upon in making its decision. The only exhibits that might relate to this claim would be the inclusion of NWD‘s notices of dismissal filed in the first case. However, we need not address whether the inclusion of these notices was proper as we may take judicial notice of a dismissal entry that is available on the internet. State ex rel. Rojas v. Page, 10th Dist. No. 21AP-506, 2022-Ohio-2226, ¶ 15, citing Draughon v. Jenkins, 4th Dist. No. 16CA3528, 2016-Ohio-5364, ¶ 26, citing State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, ¶ 8, 10; see also Rojas, citing Giannelli, 1 Baldwin‘s, Ohio Practice Evidence, Section 201.6 (3d Ed.2015) (“noting that the rule generally precluding a court from taking judicial notice of other cases has been relaxed if the record is accessible on the internet“); Lane v. U.S. Bank N.A., 10th Dist. No. 22AP-358, 2023-Ohio-1552, ¶ 2, citing Ltd. Invest. Group Corp. v. Huntington Natl. Bank, 10th Dist. No. 21AP-61, 2022-Ohio-3657, ¶ 46, citing State v. Estridge, 2d Dist. No. 2021-CA-25, 2022-Ohio-208, ¶ 12, fn. 1. Because the notices of dismissal were readily available on the internet, we take judicial notice of them. Accordingly, appellant‘s argument is without merit.
{39} Finally, appellant contends that NWD erroneously argued that alternative pleadings or theories of recovery is not permissible. Again, appellant fails to identify how the trial court erred as to this issue or what cause of action this argument is intended to address. Regarding the vicarious liability claim, appellant‘s complaint only alleges claims against “John Does One Through Five.” However, appellant has failed to identify any other parties, outside SP Plus and CCS, that could be considered agents to NWD. Throughout the case, appellant, either expressly or through implication in his briefs and filings, represented that SP Plus and CCS were the primarily liable parties. As such, we are not persuaded that alternative pleadings or theories of recovery were somehow denied to appellant at any point concerning his claim for vicarious liability.
{40} Based on the foregoing, appellant‘s third assignment of error is overruled.
IV. CONCLUSION
{41} Having overruled appellant‘s three assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
BEATTY BLUNT, P.J. and DORRIAN, J., concur.
Judgment affirmed.