[Cite as Citizens Bank v. Hines,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY

THE CITIZENS BANK OF LOGAN, : : Plaintiff-Appellee, : Case No. 12CA5 : vs. : : PAM HINES, AKA PAMELA : DECISION AND JUDGMENT HINES, ET AL., : ENTRY : Defendants-Appellants. : Released: 02/07/13 _____________________________________________________________ APPEARANCES:

Thomas James Corbin, Lancaster, Ohio, for Appellant, Pam Hines.1

Jeffrey B. Sams, Pickerington, Ohio, for Appellee. _____________________________________________________________

McFarland, P. J.

{¶1} Appellant, Pam Hines, appeals from a grant of summary

judgment in favor of Appellee, The Citizens Bank of Logan, on a creditor’s

bill, as well as a decree in foreclosure related to seven different properties.

On appeal, Appellant contends that the trial court 1) committed error in

awarding summary judgment upon plaintiff’s motion given defendant’s

inability to defend against said motion, for want of opportunity to complete

intended discovery; and 2) committed error in denying her request for a

1 There were several other named defendants in the proceedings below, however, none of them have filed briefs or are otherwise participating in the present appeal. Athens App. No. 12CA5 2

continuance, given that she was without the benefit of counsel for an

extended period of time.

{¶2} In light of our finding that Appellant’s request for a continuance

did not meet the requirements of Civ.R. 56(F), we cannot conclude that the

trial court abused its discretion in denying Appellant’s request for a

continuance. As such, Appellant’s first and second assignments of error are

overruled and the decision of the trial court is affirmed.

FACTS

{¶3} On July 20, 2010, Appellee, The Citizens Bank of Logan, filed a

creditor’s bill and complaint, based upon a previously obtained judgment

against Appellant, Pamela Hines, in the amount of $1,475,890.83, together

with interest in the amount of $42,710.77, late charges and fees totaling

$14,840.20, as well as post-judgment interest. In support of its claim,

Appellee alleged that Appellant had insufficient personal or real property

subject to levy on execution to satisfy the judgment, but that Appellant had

an equitable interest in the estate of Laisa Prokos, the executor of which was

also named as a defendant in the complaint.

{¶4} On August 25, 2010, Appellee further filed a complaint for

money, foreclosure and other equitable relief. The complaint for money

related to two different promissory notes held by Appellee as against Athens App. No. 12CA5 3

Appellant, the first with a balance of $1,086,024.62 plus interest, late

charges and fees, and the second with a balance of $283,484.95 plus interest,

late charges and fees. The complaint for foreclosure and other equitable

relief sought a determination that the mortgages executed in connection with

the notes and the judgment lien held by Appellee be foreclosed.

Specifically, Appellee sought to foreclose its interest in seven parcels of real

property held by Appellant and located in Athens County, Ohio. Multiple

other defendants with various alleged interests in the subject properties were

named as defendants in the action, however, Pam Hines is the only named

defendant that has appealed the decision of the trial court.

{¶5} Appellant filed answers to both complaints and the discovery

process began. The two cases were consolidated in the trial court in April of

2011. Appellant’s original counsel withdrew from representation in May of

2011, and substitute counsel took over for Appellant from June until

September 2011, at which time substitute counsel withdrew as well.

Appellee filed a motion for summary judgment on October 3, 2011, during a

time in which Appellant was unrepresented; however upon obtaining new

counsel November 1, 2011, the trial court granted Appellant an extension

until November 30, 2011, in which to respond to the motion for summary

judgment. Athens App. No. 12CA5 4

{¶6} On November 30, 2011, Appellant filed her response to the

motion for summary judgment, which also contained a request for a

continuance in order to conduct additional discovery. This motion was

denied by the trial court on December 12, 2011. The trial court subsequently

granted Appellee’s motion for summary judgment on December 27, 2011.

Further, the trial court issued a final entry on the matter on January 12, 2012,

followed by a decree in foreclosure on January 13, 2012. It is from these

orders that Appellant now brings her timely appeal, setting forth two

assignments of error for our review.

ASSIGNMENTS OF ERROR

“I. THE TRIAL COURT COMMITTED ERROR IN AWARDING SUMMARY JUDGMENT UPON PLAINTIFF’S MOTION GIVEN DEFENDANT’S INABILITY TO ADEQUATELY DEFEND AGAINST SAID MOTION, FOR WANT OF OPPORTUNITY TO COMPLETE INTENDED DISCOVERY EFFORTS.

II. THE TRIAL COURT COMMITTED ERROR IN DENYING DEFENDANT’S REQUEST FOR A CONTINUANCE, GIVEN THAT DEFENDANT WAS WITHOUT BENEFIT OF COUNSEL FOR AN EXTENDED PERIOD OF TIME.”2

LEGAL ANALYSIS

2 Appellant initially raised three assignments of error on appeal, but later withdrew her first assignment of error, which challenged the trial court’s grant of summary judgment in Appellee’s favor. Thus, we address Appellant’s second and third assignments of error, which have been renumbered as Appellant’s first and second assignments of error. Athens App. No. 12CA5 5

{¶7} As the two assignments of error raised by Appellant are

interrelated, we address them in conjunction with one another. In her

assignments of error, Appellant essentially contends that the trial court erred

in not granting her request for a continuance to respond to Appellee’s

motion for summary judgment, in part because she was unrepresented by

counsel for a period of time, and in part because she desired to conduct

additional discovery. Appellee responds by arguing that the trial court did

not abuse its discretion in denying Appellant’s motion for a continuance in

light of Appellant’s failure to comply with Civ.R. 56(F) in seeking a

continuance.

{¶8} “Pursuant to Civ.R. 56(F), a party may seek additional time in

which to develop the facts needed to adequately oppose a motion for

summary judgment.* * * Absent an abuse of discretion, an appellate court

will not reverse a trial court's ruling on a Civ.R. 56(F) motion.” Ford Motor

Credit Co. v. Ryan, 10th Dist. Nos. 09AP-501, 09AP-555, 09AP-263, &

10AP-274,

,

,

;

citing State ex rel. Sawyer v. Cuyahoga Cty. Dept. of Children and Family

Servs.,

,

,

(internal

citations omitted). An abuse of discretion connotes more than a mere error of

judgment; it implies that the court's attitude is arbitrary, unreasonable, or Athens App. No. 12CA5 6

unconscionable. Blakemore v. Blakemore,

,

(1983).

{¶9} Civ.R. 56(F) provides: “Should it appear from the affidavits of a

party opposing the motion for summary judgment that the party cannot for

sufficient reasons stated present by affidavit facts essential to justify the

party's opposition, the court may refuse the application for judgment or may

order a continuance to permit affidavits to be obtained or discovery to be had

or may make such other order as is just.”

{¶10} “Civ.R. 56(F) requires the party seeking a continuance to

submit an affidavit stating sufficient reasons why the party cannot present

facts essential to justify the party's opposition to the summary judgment

motion.” Perpetual Fed. Sav. Bank v. TDS2 Property Mgt., LLC, 10th Dist.

No. 09AP-285,

, ¶ 13; citing ABN AMRO Mortgage Group,

Inc. v. Roush, 10th Dist. No. 04AP-457,

. “ ‘ When no

affidavit is presented in support of a motion for extension under Civ.R.

56(F), a court may not grant an extension pursuant thereto. ’ ” Comisford et

al. v. Erie Ins. Property Casualty Co., 4th Dist. No. 10CA3, 2011-Ohio-

1373, ¶27; citing Cook v. Toledo Hosp.,

, 2006-Ohio-

5278,

; citing Vilardo v. Sheets, 12th Dist. No. CA2005-

09-091,

. See, also, St. Joseph's Hosp. v. Hoyt, 4th Dist. Athens App. No. 12CA5 7

No. 04CA20,

; Coleman v. Beachwood, 8th Dist. No.

92399,

, ¶ 12.

{¶11} Here, a review of the record reveals that Appellee filed its

initial complaints, one for a creditor’s bill and the other for foreclosure, in

July and August of 2010, respectively. Discovery was begun in each, and

the matters were consolidated in April of 2011. Appellant was represented

by Attorney Susan Gwinn during this time period, which was approximately

nine months. Ms. Gwinn filed a motion to withdraw on May 5, 2011, which

was granted by the court the next day. Attorney James Vargo filed a notice

of appearance on June 7, 2011, and continued to represent Appellant until

his withdrawal on September 8, 2011. Appellee filed its motion for

summary judgment on October 3, 2011, during a time in which Appellant

was unrepresented.

{¶12} However, on October 20, 2011, the trial court issued a journal

entry granting Appellant’s motion to extend time to hire an attorney.

Appellant’s current counsel, Thomas Corbin, filed a notice of appearance on

November 1, 2011. On the same day, the trial court issued an entry

extending the time for Appellant to respond to the motion for summary

judgment until November 30, 2011. Appellant filed her memorandum

contra to Appellee’s motion for summary judgment on November 30, 2011. Athens App. No. 12CA5 8

This was a dual filing, being titled “Memorandum and Request for

Continuance.”

{¶13} As part of this filing, Appellant requested a continuance

pursuant to Civ.R. 56(F) in order to conduct additional discovery, claiming

that “more time is needed by defendants in order to adequately defend

against a motion for summary judgment.” The affidavit of Appellant was

attached in support of her request. However, other than generally

referencing that additional discovery was needed, Appellant’s affidavit

provided little to support her request. Specifically, although Appellant

averred that certain depositions were scheduled and then cancelled, she

provided no detail as to the efforts she made to conduct this discovery, and

provided no information as to how these depositions might advance her

cause. Further, although Appellant averred that the “discovery process was

disrupted upon withdrawal of counsel[;]” a review of the record reveals that

Appellant was only briefly unrepresented from May 6, 2011, until June 7,

2011, and then again from September 8, 2011, until November 1, 2011.

{¶14} The record further reflects that the trial court granted Appellant

one extension of time until November 30, 2011, in which to respond to the

motion for summary judgment. Appellant waited until the day her response

was due to file a request for a continuance. Further, her November 30, 2011, Athens App. No. 12CA5 9

request and affidavit failed to indicate what discovery efforts had taken place

since obtaining new counsel. Additionally, Appellee’s response to

Appellant’s request for a continuance, which was unrefuted below, indicated

it had made available to Appellant over 9000 pages of discovery and had

only objected to one discovery request, which it complied with after it was

tailored by the trial court. Further, Appellee’s response below pointed out

that Appellant made no effort to conduct additional discovery during the

period of the second extension, which was from November 1 until

November 30, 2011.

{¶15} Based upon these facts, we cannot conclude that the trial court

abused its discretion in denying Appellant’s request for a continuance to

conduct additional discovery in order to respond to Appellee’s motion for

summary judgment. See Sabo v. Hollister Water Association, 4th Dist. No.

06CA8,

(finding no abuse of discretion in denying

request for continuance where party failed to sufficiently explain how

discovery would have aided them); Fifth Third Mortgage Co. v. Rankin, 4th

Dist. No. 10CA45,

(reasoning that the trial court is

under no obligation to permit a party to conduct a fishing expedition when

they have failed to demonstrate a likelihood of uncovering any pertinent

facts) (internal citations omitted); Evans v. Sayers, 4th Dist. No. 04CA2783, Athens App. No. 12CA5 10

(noting that a trial court “has the inherent authority to

control its own docket and to decide discovery matters[.]”); TPI Asset Mgmt.

LLC v. Baxter, 5th Dist. No. 2011CA000007,

(“ ‘

Mere allegations requesting a continuance or deferral of action for the

purpose of discovery are not sufficient reasons why a party cannot present

affidavits in opposition to the motion for summary judgment.’ ”) (internal

citations omitted).

{¶16} We are mindful of Appellant’s argument that the discovery

cutoff deadline, according to the trial court’s scheduling order issued

September 1, 2011, was not until December 23, 2011. However, because a

dispositive motion had already been filed, and the trial court had already

granted one extension of time in which to respond to it, and bearing in mind

that the trial court’s decision is judged under an abuse of discretion standard,

we find no error by the trial court. Further, based upon the record before us,

it appears Appellant had ample time to conduct discovery, and was, in fact,

provided with extensive discovery.

{¶17} In light of the foregoing, we find that Appellant’s request for a

continuance failed to meet the requirements of Civ.R. 56(F). As such, we

cannot conclude that the trial court erred or abused its discretion in denying

Appellant’s request for a continuance in which to conduct further discovery Athens App. No. 12CA5 11

and to respond to Appellee’s motion for summary judgment. Thus, we

conclude that Appellant’s first and second assignments of error are without

merit. Accordingly, the decision of the trial court is affirmed.

JUDGMENT AFFIRMED. Athens App. No. 12CA5 12

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that the 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 Athens County Common Pleas Court to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, J. & Kline, J.: Concur in Judgment and Opinion.

For the Court,

BY: _________________________ Matthew W. McFarland Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.