Sizemore v. Esis, Inc. , 2012 Ohio 4004 ( 2012 )

[Cite as Sizemore v. Esis, Inc., 2012-Ohio-4004.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
DR. TERRIE SIZEMORE RN DVM C.A. No. 11CA0107-M
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ESIS, INC. COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellee CASE No. 10 CIV 1622
DECISION AND JOURNAL ENTRY
Dated: September 4, 2012
WHITMORE, Presiding Judge.
{¶1} Plaintiff-Appellant, Dr. Terrie Sizemore, appeals from the judgment of the
Medina County Court of Common Pleas granting Defendant-Appellee, ESIS, Inc.’s (“ESIS”),
motion to dismiss. This Court affirms.
I
{¶2} In 2008, Sizemore was involved in an accident while driving a Chevrolet
Silverado. The airbag did not deploy and Sizemore evidently contacted General Motors (“GM”)
about a possible product defect. ESIS, the company responsible for handling product liability
claims against GM, conducted an investigation. As a result, John Sprague, an ESIS Field
Performance Assessment Engineer, compiled a report.
{¶3} According to Sprague’s report, Sizemore was involved in a single car accident
when she lost control after hitting a patch of ice. Her car “slid off the left side of the roadway,
went through a ditch, and struck a utility pole with the right side of the vehicle.” Sizemore
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suffered a “large cut to the forehead.” According to Sprague, Sizemore admitted to not wearing
a seatbelt at the time of the accident. Sprague noted that because the accident involved was “not
a full frontal rigid barrier impact,” the airbag did not deploy. Sprague concluded that there was
no defect in the airbag system and GM denied Sizemore’s claim.
{¶4} Subsequently, Sizemore filed a products liability lawsuit (09CIV1748) against
GM, Norris Chevrolet, and ESIS. GM was in the midst of bankruptcy and was voluntarily
dismissed. The court granted ESIS’s motion to dismiss for failure to state a claim and, because
Norris was not properly served, the case was dismissed. Sizemore then filed an Action for
Discovery (09CIV2471) against GM, which she voluntarily dismissed.
{¶5} In January 2010, Sizemore filed another products liability action (10CIV0102)
against GM and several John Does. The case was dismissed with prejudice and is currently on
appeal in this Court.
{¶6} In August 2010, Sizemore filed an Action for Discovery (10CIV1622) against
ESIS, alleging she needed facts to support claims of fraud and negligence. Essentially, Sizemore
argued ESIS withheld information she needed to support her products liability claim, or that
ESIS produced documents with false information. The court granted ESIS’s motion to dismiss,
and Sizemore now appeals listing one long assignment of error for our review. To facilitate the
analysis, we break her assignment of error into six separate issues.
II
Assignment of Error, Issue Number One
THE TRIAL COURT ERRED IN DISMISSING PETITIONER-APPELLANT’S
ACTION FOR DISCOVERY.
3
Assignment of Error, Issue Number Four
THE TRIAL COURT ERRED IN DISMISSING PETITIONER-APPELLANT’S
ACTION FOR DISCOVERY BY CONFIRMING FACTS THAT DR.
SIZEMORE STATED SHE WAS NOT “FILING THIS ACTION FOR
DISCOVERY TO DETERMINE A ‘CAUSE OF ACTION,’” BUT THE TRIAL
COURT FAILED TO PROVIDE ANY LEGAL JUSTIFICATION FOR
IGNORING HER VALID AND LEGAL REASONS FOR FILING THIS
LEGALLY EXECUTED ACTION FOR DISCOVERY.
Assignment of Error, Issue Number Five
THE TRIAL COURT ERRED IN DISMISSING PETITIONER-APPELLANT’S
ACTION FOR DISCOVERY BASED ON REASONS NOT FOUNDED IN
LAW. TO CLARIFY, THE TRIAL COURT FINDS “FAULT WITH THE
QUESTIONS THEMSELVES,” HOWEVER, FAILS TO PROVIDE A LEGAL
BASIS FOR DEFEATING THIS ACTION FOR DISCOVERY BASED ON THE
COURT “NOT LIKING THE QUESTIONS.” THE PLAIN WORDS OF ORC
2317.48, ONLY REQUIRE A PETITIONER HAVE A “CAUSE OF ACTION.”
THE TRIAL COURT HAS PROVIDED NO LEGAL BASIS FOR DEFEATING
THE ACTION FOR DISCOVERY BASED ON A CLAIM THE QUESTIONS
ARE NOT “APPROPRIATE.” PETITIONER-APPELLANT, DR. SIZEMORE
CONTENDS THE APPEARANCE OF ESIS INC AND THEIR COUNSEL
MERELY ATTEMPTING TO EVADE THE LEGALLY PERMITTED
QUESTIONS DEPRIVES HER OF EQUAL PROTECTION, FUNDAMENTAL
FAIRNESS, DUE PROCESS, RIGHT TO PETITION GOVERNMENT FOR
THE REDRESS OF GRIEVANCES, TRIAL BY JURY AND OTHER
FEDERALLY PROTECTED RIGHTS. SHE CONTENDS THIS EVASION
CONFIRMS WRONGDOING OF THE PART OF THE ADVERSE PARTY,
ESIS INC. AND POSSIBLY GM. (Sic.)
{¶7} In what we have determined to be the first, fourth, and fifth issues raised in her
assignment of error, Sizemore essentially argues that the court erred by finding she had not met
the requirements to maintain her Action for Discovery and by dismissing her case. We disagree.
{¶8} Discovery orders are generally reviewed for an abuse of discretion. See State ex
rel. Sawyer v. Cuyahoga Cty. Dept. of Children and Family Servs., 110 Ohio St.3d 343, 2006-
Ohio-4574, ¶ 9. However, the question of whether the plaintiff has met the requirements for an
Action for Discovery is a question of law. See Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d
181, 2009-Ohio-2496, ¶ 13 (applying de novo standard of review to a discovery order because
4
the question of whether information sought was confidential and privileged is a question of law).
When reviewing questions of law, we apply a de novo standard of review. See id. See also Cruz
v. Kettering Health Network, 2d Dist. No. 24465, 2012-Ohio-24, ¶ 21-22. “A de novo review
requires an independent review of the trial court’s decision without any deference to the trial
court’s determination.” State v. Baumeister, 9th Dist. No. 23805, 2008-Ohio-110, ¶ 4, citing
Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711 (4th Dist.1993).
{¶9} Civ.R. 34(D) and R.C. 2317.48 afford a potential plaintiff with a means of
obtaining facts required for pleading by providing a means of discovery prior to the filing of a
lawsuit. However, this action of discovery “occupies a small niche between an unacceptable
‘fishing expedition’ and a short and plain statement of a complaint * * * filed pursuant to the
Civil Rules.” Poulos v. Parker Sweeper Co., 44 Ohio St.3d 124, 127 (1989).
{¶10} R.C. 2317.48, in part, provides:
When a person claiming to have a cause of action * * *, without the discovery of
a fact from the adverse party, is unable to file his complaint * * *, 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.
{¶11} The complaint for discovery must “aver sufficient facts to reveal a ‘potential
cause of action.’” Bridgestone/Firestone, Inc. v. Hankook Tire Mfg. Co., Inc., 116 Ohio App.3d
228, 232 (9th Dist.1996); Civ.R. 34(D)(1)(a). Further, the discovery requested must be narrowly
tailored to the specific facts necessary for pleading. Bridgestone/Firestone, Inc. at 232. Accord
Colegate v. Lohbeck, 78 Ohio App.3d 727, 730 (1st Dist.1992).
A complaint for fraud must include five elements: (1) a false representation [or
failure to disclose a fact when one has a duty to do so]; (2) knowledge by the
person making the representation that it is false; (3) intent by the person making
the representation to induce the other to rely on the representation; (4) rightful
reliance by the other to his detriment; and (5) an injury as a result of the reliance.
5
Korodi v. Minot, 40 Ohio App.3d 1, 3 (10th Dist.1987). In Korodi, the court
noted three requirements that must be met in order for a complaint sounding in
fraud to state a cause of action: (1) the plaintiff must specify the alleged false
statement; (2) the complaint must state the time and place the statement was
made; and (3) the plaintiff must identify the defendant who made the statement.
Id. at 4.
Johnson’s Janitorial Serv. v. Alltel Corp., 92 Ohio App.3d 327, 329 (9th Dist.1993). Of course,
a complaint for discovery cannot contain the level of detail required to support a complaint for
fraud. An action for discovery by its very nature is seeking some additional facts required by the
pleadings. However, a complaint for discovery must provide enough facts to support a potential
cause of action. Bridgestone/Firestone, Inc. at 232; Civ.R. 34(D)(1)(a).
{¶12} After reviewing the record, we conclude Sizemore has not averred sufficient facts
to reveal even a potential cause of action for fraud. Sizemore makes no mention of her basis for
believing she has a valid fraud claim. She merely “states her allegations revolve around ESIS
Inc. providing fraudulent material to the Ohio Attorney General’s office as well as being
negligent in their duties to do so as well as identify if any other party is joined in this allegation.”
There is no mention of what information Sizemore believes to be fraudulent, or why she believes
she would have standing to bring a claim for allegedly fraudulent material being provided to the
Attorney General’s office. It is unclear what duty Sizemore feels ESIS has been negligent in
performing, or why ESIS would have to identify another party to an action that has not been
filed.
{¶13} The trial court found the interrogatories were all “directed toward obtaining
information in furtherance of the underlying Products Liability and/or Negligence claims joined
in the previous case or cases.” Having concluded the discovery sought did not support her
underlying claim of fraud, the court dismissed her action for discovery. However, because
Sizemore has failed to explain any basis for her allegations of fraud, we are unable to determine
6
whether the interrogatories were narrowly tailored to the specific facts necessary for pleading her
claim of fraud. See Bridgestone/Firestone, Inc., 116 Ohio App.3d at 232; Colegate, 78 Ohio
App.3d at 730.
{¶14} Because Sizemore’s Action for Discovery did not state a potential cause of action,
it was properly dismissed by the trial court. See Bridgestone/Firestone at 232. Accordingly, her
assignment of error, as it relates to her first, fourth, and fifth issues, is overruled.
Assignment of Error, Issue Number Six
THE TRIAL COURT ERRED IN DISMISSING THIS ACTION FOR
DISCOVERY PROVIDING VEILED THREATS TO THIS PETITIONER-
APPELLANT REGARDING IMPROPER SANCTIONS AGAINST HER FOR
ASSERTING HER FEDERALLY PROTECTED RIGHTS TO LITIGATE.
ALSO, SHE ALLEGES THE COURT HAS VIOLATED HER EQUAL
PROTECTION RIGHTS BY IGNORING WHAT SHE CONTENDS HAS BEEN
MISCONDUCT BY ESIS INC.’S ATTORNEY AND THREATENING HER
IMPROPERLY.
{¶15} In her sixth issue, Sizemore argues that the court’s dismissal of her Action for
Discovery is a denial of her right to litigate. She further argues the court violated her
constitutional rights by ignoring alleged misconduct by opposing counsel. We disagree.
{¶16} The crux of Sizemore’s first argument appears to be that “[t]he Florida
Constitution * * * mandatorily requires the courts to afford a remedy, by due course of law, to
every person for any injury done to him.” Presumably, Sizemore is referring to Article 1,
Section 16 of the Ohio Constitution, which states that “[a]ll courts shall be open, and every
person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due
course of law, and shall have justice administered without denial or delay.” Sizemore reads the
section of the Constitution too broadly.
{¶17} “Despite the paramount importance placed on the ability to access the courts for
redress of injuries, the right is not absolute.” Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-
7
Ohio-6442, ¶ 11. For example, “[l]itigants may find their claims barred by a reasonable statute
of limitations, stayed by lawful injunction, [or] dismissed by summary judgment * * *.”
Chambers v. Merrell-Dow Pharmaceuticals, Inc., 35 Ohio St.3d 123, 132 (1988). In addition, a
lawsuit may be dismissed if the minimum requirements for maintaining the claim are not met.
See Bland v. Ajax Magnethermic Corp., 8th Dist. No. 95249, 2011-Ohio-1247, ¶ 37-44. This
does not deny the claimant access to the courts in violation of his or her Constitutional rights.
See id. Sizemore has not met the requirements necessary to sustain an Action for Discovery and
the dismissal of her complaint does not violate her Constitutional rights.
{¶18} Sizemore has not developed her second argument regarding alleged misconduct
by opposing counsel. While the record does indicate Sizemore disagreed with counsel’s
arguments and opposed his various motions, there is no evidence of misconduct. However,
because Sizemore has not properly developed this argument, we decline to address it. See id.;
App.R. 16(A)(7). This Court has repeatedly held, “[i]f an argument exists that can support [an]
assignment of error, it is not this [C]ourt’s duty to root it out.” Cardone v. Cardone, 9th Dist.
No. 18349, 1998 WL 224934, * 8 (May 6, 1998). Sizemore’s assignment of error, as it relates to
her sixth issue, is overruled.
Assignment of Error, Issue Number Two
THE TRIAL COURT FAILED TO STATE ANY LEGALLY BASED REASON
A “MOTION TO DISMISS IS WELL-TAKEN…IS THE PROPER PLEADING
BY WHICH A DEFENDANT CHALLENGES A PETITION FOR
DISCOVERY.” THIS FAILURE TO PROVIDE A LEGAL BASIS TO
DISMISS DEPRIVES THIS PETITIONER-APPELLANT OF HER
FEDERALLY PROTECTED RIGHTS TO EQUAL PROTECTION UNDER
THE LAW AND DUE PROCESS OF LAW BECAUSE SHE IS NOT ABLE TO
FOCUS THIS APPELLATE ARGUMENT ON ANY LEGAL BASIS FOR THIS
DISMISSAL.
8
Assignment of Error, Issue Number Three
THE TRIAL COURT ERRED IN DISMISSING PETITIONER-APPELLANT’S
ACTION FOR DISCOVERY BY NOT ADDRESSING THE ISSUE OF THE
“COURT REQUESTED DEFENDANT FILE AN ADDITIONAL MOTION
FOR SUMMARY JUDGMENT…IS MOOT.”
{¶19} In what we have determined to be the second and third issues raised in her
assignment of error, Sizemore argues that the court’s order of dismissal is somehow defective or
deficient. We disagree.
{¶20} Sizemore does not properly develop either of these arguments nor does she cite to
any authority. We, therefore, decline to address them. See App.R. 16(A)(7); Cardone at * 8.
Sizemore’s assignment of error, as it relates to her second and third issues, is overruled.
III
{¶21} Sizemore’s assignment of error is overruled. The judgment of the Medina County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
DICKINSON, J.
BELFANCE, J.
CONCUR.
APPEARANCES:
DR. TERRI SIZEMORE, RN, DVM, pro se, Appellant.
JAMES M. POPSON, Attorney at Law, for Appellee.