McGrath v. Dean , 2012 Ohio 1358 ( 2012 )

[Cite as McGrath v. Dean, 2012-Ohio-1358.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97304
JOSEPH McGRATH
PLAINTIFF-APPELLANT
vs.
JAMES DEAN, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-716670
BEFORE: Cooney, J., Stewart, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: March 29, 2012
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FOR APPELLANT
Joseph McGrath, pro se
Inmate No. 570-434
Grafton Correctional Institution
2500 South Avon Belden Rd.
Grafton, OH 44044
ATTORNEYS FOR APPELLEES
James F. Shannon
75 Public Square
Suite 700
Cleveland, OH 44102
Andrew R. Malone
Malone Law, L.L.C.
614 W. Superior Ave., #1150
Cleveland, OH 44113
Also listed:
Jennifer Bassett
Michele I. Bassett
James Dean
3416 W. 46th Street
Cleveland, OH 44102
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COLLEEN CONWAY COONEY, J.:
{¶1} This case came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1.
{¶2} Plaintiff-appellant, Joseph McGrath (“McGrath”), appeals the trial court’s
denial of his motion for summary judgment against defendants-appellees, James Dean, et
al. (“Dean” or “defendants”). Finding no merit to the appeal, we affirm.
{¶3} McGrath filed suit against Michele Bassett (“Michele”), Jennifer Bassett,
and James Dean, alleging in his complaint that the three defendants had conspired to have
McGrath assaulted. McGrath claimed to have $100,000 in damages. The case was
transferred from the Ashtabula County Common Pleas Court to the Cuyahoga County
Common Pleas Court in January 2010. McGrath filed a motion for summary judgment
in April 2011. Dean filed a cross-motion for summary judgment. In August 2011, the
trial court denied McGrath’s motion and granted Dean’s.
{¶4} McGrath now appeals, raising three assignments of error.
Request for Admissions
{¶5} In his first assignment of error, McGrath argues that the trial court abused
its discretion by sua sponte ordering the defendants to answer the request for admissions
after discovery was completed.
{¶6} An appellate court reviews any claimed error relating to a discovery matter
under an abuse-of-discretion standard. Lightbody v. Rust, 137 Ohio App.3d 658, 663,
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739 N.E.2d 840 (8th Dist.2000). An abuse of discretion means more than an error of
law or an error of judgment. It implies an attitude on the part of the trial court that is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
{¶7} After a thorough review of the record, we find that the trial court did not
abuse its discretion in allowing the defendants to respond to McGrath’s requests for
admissions after the discovery period was complete. The trial court issued a journal
entry on June 16, 2011, ordering McGrath to re-serve the requests for admissions to
defense counsel. The entry also ordered the defendants to reply to the requests within 30
days. This order came in response to both McGrath’s multiple motions to have the
admissions deemed admitted, and to the defendants’ motions to compel McGrath to serve
their counsel with all motions, pleadings, and/or discovery in compliance with the civil
rules. Defense counsel claimed that defendants had never been served with McGrath’s
requests for admissions.
{¶8} It is clear from the record that there was considerable dispute regarding
whether McGrath had properly served defense counsel with the requests for admissions.
Therefore, due to the transfer from another common pleas court, the addition of Andrew
Malone as counsel for the defendants, and the uncertainty of proper service, the trial court
was well within its discretion to order McGrath to re-serve the requests and to allow the
defendants 30 days in which to respond. The defendants did respond to McGrath’s
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re-served requests on July14, 2011. In light of the unique circumstances surrounding the
discovery process of this case, there is no evidence in the record to support McGrath’s
contention that the trial court’s order was unreasonable, arbitrary, or unconscionable.
{¶9} Accordingly, the first assignment of error is overruled.
Leave to Answer
{¶10} In his second assignment of error, McGrath argues that the trial court
abused its discretion by granting defendants leave to answer the complaint.
{¶11} As was the case in McGrath v. Bassett, 8th Dist. No. 96360,
2011-Ohio-5666, this case was originally filed in the Ashtabula County Common Pleas
Court. After service was obtained on the defendants, the case was transferred to the
Cuyahoga County Common Pleas Court. In October 2010, the trial court granted
defendants’ motion to file their answer instanter.
{¶12} Civ.R. 6(B) provides in relevant that:
When by these rules * * * an act is required or allowed to be done at or
within a specified time, the court for cause shown may at any time in its
discretion * * * upon motion made after the expiration of the specified
period permit the act to be done where the failure to act was the result of
excusable neglect * * *.
{¶13} Thus, “[i]f a defendant moves for leave to answer after the date the answer
is due, Civ.R. 6(B)(2) permits the trial court to grant the defendant’s motion upon a
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showing of excusable neglect.” Brooks v. Progressive Speciality Ins. Co., 9th Dist. No.
C.A. 16639, 1994 WL 376768 (July 20, 1994). A trial court’s determination of whether
neglect is excusable “must take into consideration all the surrounding facts and
circumstances, and courts must be mindful of the admonition that cases should be decided
on their merits, where possible, rather than [on] procedural grounds.” Fowler v.
Coleman, 10th Dist. No. 99AP–319, 1999 WL 1262052 (Dec. 28, 1999).
{¶14} Thus, based on the transfer of the case, we find that the trial court did not
abuse its discretion in allowing the defendants to file their answer instanter.
{¶15} Accordingly, the second assignment of error is overruled.
Summary Judgment
{¶16} In his third assignment of error, McGrath argues that the trial court abused
its discretion by denying his motion for summary judgment.
{¶17} Appellate review of summary judgment is de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). The Ohio Supreme Court
stated the appropriate test in Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370,
696 N.E.2d 201 (1998), as follows:
Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is
no genuine issue of material fact, (2) the moving party is entitled to
judgment as a matter of law, and (3) reasonable minds can come to but one
conclusion and that conclusion is adverse to the nonmoving party, said party
being entitled to have the evidence construed most strongly in his favor.
Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 653 N.E.2d 1196(1995), paragraph three of the syllabus. The party moving for summary
judgment bears the burden of showing that there is no genuine issue of
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material fact and that it is entitled to judgment as a matter of law. Dresher
v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274 (1996).
{¶18} It is well established that the party seeking summary judgment bears the
burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1987). The record on
summary judgment must be viewed in the light most favorable to the opposing party.
Williams v. First United Church of Christ, 37 Ohio St.2d 150, 309 N.E.2d 924 (1974).
{¶19} In moving for summary judgment, the “moving party bears the initial
responsibility of informing the trial court of the basis for the motion, and identifying those
portions of the record which demonstrate the absence of a genuine issue of fact or
material element of the nonmoving party’s claim.” Dresher at 292. A motion for
summary judgment forces the plaintiff to produce probative evidence on all essential
elements of his case for which he has the burden of production at trial. Celotex at 330.
Plaintiff’s evidence must be such that a reasonable jury might return a verdict in his favor.
Seredick v. Karnok, 99 Ohio App.3d 502, 651 N.E.2d 44 (8th Dist.1994). See also
Ford Motor Credit Co. v. Walker, 8th Dist. No. 82828, 2003-Ohio-6163.
{¶20} McGrath argues that the trial court erred in denying his motion for
summary judgment because Dean failed to produce any evidence to overcome his motion.
McGrath argues that the defendants’ opposition to his motion for summary judgment is
supported by only an affidavit from Michele, in which she denies any wrongdoing and
claims to have no knowledge of any assault. While it is true that “a party’s unsupported
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and self-serving assertions, offered by way of affidavit, standing alone and without
corroborating materials under Civ.R. 56, will not be sufficient to demonstrate material
issues of fact,” it is clear from the record that the trial court did not deny McGrath’s
motion for summary judgment based solely on Michele’s self-serving affidavit. Davis v.
Cleveland, 8th Dist. No. 83665, 2004-Ohio-6621, ¶ 23, quoting Bell v. Beightler, 10th
Dist. No. 02AP-569, 2003-Ohio-88, ¶ 33.
{¶21} The record illustrates that the trial court denied McGrath’s motion for
summary judgment based on his failure to produce probative evidence on all essential
elements of his case for which he has the burden of production at trial. McGrath alleged
in his complaint that he suffered “financial loss, medical expense, legal expenses and
other damages,” although he failed to provide supporting documentation of such
expenses. Moreover, McGrath alleged that he suffered “serious personal injuries, such
as chronic pain, suffering, emotional distress, permanent disfiguration, lacerations, nerve
damage,” but he failed to provide any documentation of any of these injuries. A
photocopy of what appears to be his missing teeth does not suffice.
{¶22} In his appellate brief, McGrath now asserts claims for negligence,
premises liability, and fraud. However, none of these claims are contained in his
original complaint. None of McGrath’s claims are supported in his motion for summary
judgment by sufficient evidence, such that a reasonable jury might return a verdict in his
favor.
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{¶23} Thus, the trial court did not err in denying McGrath’s motion for summary
judgment.
{¶24} Accordingly, the third assignment of error is overruled.
{¶25} Judgment affirmed.
It is ordered that appellees 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 common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
COLLEEN CONWAY COONEY, JUDGE
MELODY J. STEWART, P.J., and
JAMES J. SWEENEY, J., CONCUR