Laituri v. Nero

Christley, Judge,

dissenting.

I respectfully dissent from the conclusion of the majority in reference to the second issue in the first assignment of error. That issue concerns whether the trial court committed error by failing to set a hearing date or response date to the motion for summary judgment.

Despite the position of our respected colleagues in the Tenth District Court of Appeals, I agree with the contrary analysis of this issue set out by the Ninth District Court of Appeals in

Brown v. Akron Beacon Journal Publishing Co.

(1991), 81 Ohio App.3d 135 , 610 N.E.2d 507 . That court addressed the issue in terms of due process considerations. “Consistent with Loc.R. 7.14, the non-moving party is entitled simply to sufficient notice of the filing of the motion, Civ.R. 5, and an adequate opportunity to respond, Civ.R. 56(C).”

Id.

at 139 , 610 N.E.2d at 510 .

Loc.R. 7.14(a) of the Court of Common Pleas of Summit County, General Division, reads as follows:

“ Within ten (10) days after receipt of a copy of a motion, opposing counsel shall prepare and file a reply to the motion setting forth statements relied upon

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in opposition. Every motion so filed shall be deemed as submitted and shall be determined upon the written statements of reasons in support or opposition, as well as the citations of authorities. At any time after fourteen (14) days from the date of filing of the motion, the assigned judge may rule upon the motion.’ ”

Brown

at 138 , 610 N.E.2d at 509 .

The Ninth District Court of Appeals went on to indicate that it agreed that the Ohio Rules of Civil Procedure may not be circumvented through local rules. However, it found that Loc.R. 7.14 augments and does not thwart Civ.R. 56(C). It concluded:

“Properly viewed, Civ.R. 56(C) does not demand a formal hearing as a prerequisite to summary judgment. * * * Moreover, nothing in Civ.R. 56(C) requires the trial court to set a ‘date certain’ for the ruling and alert all parties that a decision is forthcoming.”

Brown

at 139 , 610 N.E.2d at 509-510 .

This position is supported by the legal commentators,

i.e.,

2 Klein & Darling Baldwin’s Ohio Practice (1997) 569, Section AT 56-17. The analysis there is that when no hearing is scheduled, a terminal date can be determined by either the local rules or Civ.R. 56 itself:

“[I]n most cases no hearing of any kind is ever scheduled or held. In such a situation, there is no clearly fixed terminal date for the service and filing of the opposition package. Consequently, a terminal date must be determined by construction, either by (1) looking to the local rules of court for the answer date, or (2) looking to Rule 56 itself.

it *

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“Rule 56 envisions the defender having a given number of days, fourteen, to prepare his defense. Using this as a touchstone, the opposition package must be served and filed on the last day of that period. Thus, the defender has fourteen days from the date of service to serve and file the opposition package if the motion for summary judgment was personally served, and seventeen days if the motion was served by mail.

“Construction according to Rule 56 does not rule out the applicability of local rules of court.” (Footnote omitted.)

Id.

In accordance with the commentators, my experience is that any defendant who fails to respond before the fourteen-day period expires, with no hearing date being set, does so at his peril.

If a defender is unsure, uncertain, or unfamiliar with local rules, the receipt of a motion for summary judgment should at least trigger a response of some sort, such as a motion for an oral hearing, a request for a hearing date certain, or a continuance in compliance with Civ.R. 56.

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In the instant matter, Loc.R. 111(D)(3) of the Court of Common Pleas of Lake County, General Division, allows twenty days for a response, well in excess of Loc.R. 7.14 at issue in

Brown .

I believe that Loc.R. 111(D)(3) is, therefore, in complete compliance with Civ.R. 56, per the authorities I have cited on this point. Therefore, for the reasons stated, I respectfully but vigorously dissent from the opinion of the majority.