Capital One Bank v. Jarvis ( 2012 )


Menu:
  • [Cite as Capital One Bank v. Jarvis, 
    2012-Ohio-2606
    .]
    STATE OF OHIO                    )                          IN THE COURT OF APPEALS
    )ss:                       NINTH JUDICIAL DISTRICT
    COUNTY OF SUMMIT                 )
    CAPITAL ONE BANK (USA) N.A.                                 C.A. No.   26302
    Appellee
    v.                                                  APPEAL FROM JUDGMENT
    ENTERED IN THE
    REBECCA JARVIS                                              STOW MUNICIPAL COURT
    COUNTY OF SUMMIT, OHIO
    Appellant                                           CASE No.   2011 CVF 3342
    DECISION AND JOURNAL ENTRY
    Dated: June 13, 2012
    WHITMORE, Presiding Judge.
    {¶1}    Defendant-Appellant, Rebecca Jarvis, appeals from the judgment of the Stow
    Municipal Court. This Court reverses.
    I
    {¶2}    Plaintiff-Appellee, Capital One Bank (USA), N.A. (“Capital One”), filed suit
    against Jarvis, alleging that she defaulted on her MasterCard Charge account. In response to the
    complaint, Jarvis filed a generic notice to cease communications under the Fair Debt Collection
    Practices Act due to the fact that she was unemployed and currently unable to repay the debt.
    The trial court treated Jarvis’ response as an answer to the complaint and issued a pretrial order.
    The court set a discovery deadline of January 16, 2012, and a dispositive motion deadline two
    weeks later.
    {¶3}    On January 12, 2012, Capital One filed a motion for judgment on the pleadings.
    The only item Capital One attached to its motion was Jarvis’ generic notice/answer in which she
    2
    indicated that she was unable to pay the debt. On January 17, 2012, the court granted Capital
    One’s motion without a hearing and entered judgment in favor of Capital One in the amount of
    $1,279.63.
    {¶4}    Jarvis now appeals from the trial court’s judgment and raises one assignment of
    error for our review.
    II
    Assignment of Error
    THE TRIAL COURT ERRED BY VIOLATING CIVIL RULE 6(D) AND
    APPELLANT’S DUE PROCESS BY GRANTING APPELLEE’S MOTION
    FOR JUDGMENT ON THE PLEADINGS 5 DAYS AFTER IT WAS FILED
    WITH THE COURT.
    {¶5}    In her sole assignment of error, Jarvis argues that the trial court erred by granting
    Capital One’s motion for judgment on the pleadings without setting the matter for a hearing or
    affording her an opportunity to respond to the motion in accordance with Civ.R. 6. We agree.
    {¶6}    A party may move for judgment on the pleadings at any time “[a]fter the
    pleadings are closed.” Civ.R. 12(C). Civ.R. 6 sets forth the general notice provision that applies
    to written motions. That rule provides that “[a] written motion, other than one which may be
    heard ex parte, and notice of the hearing thereof shall be served not later than seven days before
    the time fixed for the hearing, unless a different period is fixed by these rules or by order of the
    court.” Civ.R. 6(D). “Underlying this rule is the premise that the party opposing the motion
    must have sufficient notice and opportunity to respond to avoid undue prejudice.” Portage
    Broom & Brush Co. v. Zipper, 9th Dist. No. 16409, 
    1994 WL 440441
    , *1 (Aug. 17, 1994). “[I]f
    a trial court disregards the response time created by the Ohio Rules of Civil Procedure, that court
    has committed reversible error.” Gibson-Myers & Assoc., Inc. v. Pearce, 9th Dist. No. 19358,
    3
    
    1999 WL 980562
    , *4 (Oct. 27, 1999). Accord White v. Aztec Catalyst Co., 9th Dist. No.
    00CA007589, 
    2000 WL 1636023
    , *2-3 (Nov. 1, 2000).
    {¶7}    The trial court granted Capital One’s motion for judgment on the pleadings five
    days after it was filed. The court did not set the matter for a hearing, notify Jarvis that it would
    decide the motion without a hearing, or afford Jarvis at least seven days to respond to the motion.
    See Civ.R. 6(D). Although the court may not have run afoul of Civ.R. 6(D) if it had first notified
    the parties by order of its intention to set a shorter response period, the court did not do so.
    Compare Northern Oil and Gas Co. v. Ohio Oil and Gas Co., 9th Dist. No. 12343, 
    1986 WL 6673
    , *2 (June 11, 1986) (court did not violate Civ.R. 6(D) where it notified the parties a motion
    would be heard the day after its filing). Instead, it granted Capital One’s motion without any
    notice to Jarvis and well before the pretrial deadline previously set for the filing of dispositive
    motions. The record reflects that Jarvis did not have a meaningful opportunity to respond to
    Capital One’s motion, and the court disregarded the response period set forth in Civ.R. 6(D)
    when it granted the motion. Therefore, the trial court committed reversible error. Ohio Bell Tel.
    Co. v. C-5 Constr., Inc., 2d Dist. No. 23792, 
    2010-Ohio-4762
    , ¶ 24-25; Gibson-Myers & Assoc.,
    Inc. at *4. Jarvis’ sole assignment of error is sustained.
    III
    {¶8}    Jarvis’ sole assignment of error is sustained. The judgment of the Stow Municipal
    Court is reversed, and the cause is remanded for further proceedings consistent with the
    foregoing opinion.
    Judgment reversed,
    and cause remanded.
    4
    There were reasonable grounds for this appeal.
    We order that a special mandate issue out of this Court, directing the Stow Municipal
    Court, County of Summit, 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
    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 Appellee.
    BETH WHITMORE
    FOR THE COURT
    DICKINSON, J.
    BELFANCE, J.
    CONCUR.
    APPEARANCES:
    WILLIAM E. LOVE, II, Attorney at Law, for Appellant.
    MATTHEW G. BURG, Attorney at Law, for Appellee.
    

Document Info

Docket Number: 26302

Judges: Whitmore

Filed Date: 6/13/2012

Precedential Status: Precedential

Modified Date: 10/30/2014