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LG Mayfield LLC v. United States Liability Insurance Group

Court of Appeals of Ohio, Eleventh District, Geauga

March 31, 2017

LG MAYFIELD LLC, Plaintiff-Appellant,

         Civil Appeal from the Geauga County Court of Common Pleas, Case No. 15 P 000249.

         Judgment: Affirmed in part, reversed in part, and remanded.

          Mary Jane Trapp, Thrasher, Dinsmore & Dolan, L.P.A., 1400 West Sixth Street, (For Plaintiff-Appellant).

          Susan S.R. Petro and Richard A. Williams, Williams & Schoenberger Co., L.L.C., (For Defendant-Appellee, United States Liability Insurance Group).

          Ramon C. Freudiger and David J. Oberly, Marshall Dennehey Warner Coleman & Goggin, (For Defendants-Appellees, IHT Insurance Agency Group LLC and Eisner Insurance LLC).



         {¶1} Appellant, LG Mayfield LLC ("Mayfield"), appeals from the order of summary judgment entered by the Geauga County Court of Common Pleas in favor of appellees, IHT Insurance Agency Group LLC ("IHT"), Eisner Insurance LLC ("Eisner"), and United States Liability Insurance Group ("USLI"). The following issues are before the court: (1) whether Mayfield properly complied with Civ.R. 56(F) when it moved for a continuance in order to obtain additional discovery for purposes of responding to IHT's and Eisner's motion for summary judgment; (2) whether the trial court erred when it granted IHT and Eisner summary judgment without affording Mayfield additional time to oppose IHT's motion for summary judgment; and (3) whether the trial court erred in concluding summary judgment was properly entered in each appellee's favor. We affirm in part, reverse in part, and remand the matter for further proceedings.

         {¶2} In February 2014, Eric Eisner ("Mr. Eisner") the sole owner and operator of Eisner, assisted Mayfield in applying for and procuring general liability and property damage insurance from USLI; Mr. Eisner is also an agent and producer for IHT. The policy was obtained to cover Mayfield's start-up restaurant, Oak & Embers Tavern ("Oak & Embers"). Mr. Eisner met with Gretchen Garofoli ("Mrs. Garofoli"), Oak & Embers principal, to review the application and coverages. After the policy was issued, Mr. Eisner provided a copy to Mrs. Garofoli; neither she nor her husband and agent Marc Garofoli ("Mr. Garofoli") read the policy after it was issued. On June 27, 2014, a fire damaged the restaurant. After the fire, Mr. Eisner advised the Garofolis that the policy included business interruption coverage. The policy, however, did not include such coverage.

         {¶3} In March 2015, Mayfield filed suit against various parties, including appellees IHT, Eisner, and USLI for allegedly failing to obtain business interruption coverage for Oak & Embers, as part of the insurance contract it purchased from USLI.

         {¶4} On August 24, 2015, USLI moved for summary judgment. Mayfield opposed the motion, appending the affidavit of Christopher McCauly, the manager of Oak & Embers, to the memorandum. Factual statements, other than those supported by McCauly's affidavit, remained unsupported. In its memorandum, Mayfield noted "[t]he transcripts of the depositions * * * are not yet available. The testimony citations will be provided as soon as the deposition transcripts are available."

         {¶5} Discovery proceeded and, on August 25, 2015, the trial court issued a standard pretrial order, which established a discovery cutoff date of January 25, 2016.

         {¶6} On December 7, 2015, IHT and Eisner filed their joint motion for summary judgment. On December 28, 2015, Mayfield filed a "Motion for Extension of Time to Respond to Summary Judgment Motion of IHT Insurance Agency Group LLC and Eisner Insurance LLC." In its motion, Mayfield asserted it "is engaged in good faith efforts to obtain particular documents from Defendants that Defendants have thus far withheld, without providing a privilege log or any other official affirmation that the documents are not discoverable. If Defendants remain unwilling to produce the requested documents, Plaintiff intend[s] to file a motion to compel their production."

         {¶7} IHT and Eisner subsequently filed a memorandum in opposition to Mayfield's motion in which they argued the motion should be denied because: (1) it failed to seek a continuance pursuant to Civ.R. 56(F), the rule governing extensions of time for obtaining additional discovery to oppose summary judgment when necessary affidavits are unavailable; (2) the motion failed to comply with Civ.R. 56(F); and (3) the documents Mayfield was seeking were privileged. IHT and Eisner attached several letters to its memorandum which demonstrated they had previously alerted Mayfield of their position that the documents in question were privileged and that they did not intend to produce them for the litigation.

         {¶8} On January 8, 2016, Mayfield filed a reply brief in support of its motion, noting that the discovery cutoff deadline was January 25, 2016 and it required additional time to obtain discovery to respond to IHT's and Eisner's motion. It asserted that even if documents were privileged, it still required a continuance because it intended on deposing "a third party witness who would not be available until mid-January." The parties appear to concede that third-party witness was Merrilee Stewart, the former president of IHT. Mayfield did not respond to IHT's and Eisner's argument that its motion was defective for failure to comply with the requirements of Civ.R. 56(F). No motion to compel was filed.

         {¶9} On January 15, 2016, the trial court denied Mayfield's motion and entered summary judgment in favor of USLI as well as IHT and Eisner. The court determined that Mayfield's motion for extension of time must be denied because it failed to include an affidavit containing particularized facts demonstrating the need for further discovery as required by Civ.R. 56(F). The court further observed that, although certain depositions were taken, they were not filed and, thus, any reference to facts derived from these depositions would not be considered. After considering the merits of the pending motions, the court found USLI, IHT, and Eisner met their initial burden by demonstrating, through evidentiary quality material, that no issues of material fact existed for litigation. It further determined Mayfield failed to meet its reciprocal burden. Thus, the court concluded USLI, IHT, and Eisner were entitled to summary judgment as a matter of law.

         {¶10} Mayfield filed a timely notice of appeal and, later, moved this court to supplement the record pursuant to App.R. 9(E), claiming certain deposition transcripts were inadvertently omitted from the trial record. IHT and Eisner opposed Mayfield's motion and moved to strike the same. This court remanded the matter to the trial court for the limited purpose of determining whether the transcripts were considered when it entered summary judgment in each appellee's favor. The trial court subsequently determined the subject transcripts were not considered in rendering its decision and thus they were not made part of the record on appeal.

         {¶11} Mayfield's first assignment of error provides:

         {¶12} "The trial court erred and abused its discretion in simultaneously denying plaintiffs motion for extension of time to respond to summary judgment motion of IHT Insurance Agency Group and Eisner Insurance LLC and granting that summary judgment motion."

         {¶13} Under its first assignment of error, Mayfield claims the trial court had an independent duty to resolve discovery disputes before proceeding to consider IHTs and Eisner's motion for summary judgment. It further contends that, in resolving the alleged dispute, the trial court should have granted relief pursuant to Civ.R. 56(F) as the rule is liberally construed to provide a nonmoving party a full opportunity to oppose a dispositive motion.

         {¶14} Civ.R. 56(F) provides:

         {¶15} When affidavits unavailable

{¶16} 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.

         {¶17} "Courts, including this one, have held that the remedy for a party who must respond to a summary judgment motion before he or she has completed adequate discovery is a motion under Civ.R. 56(F)." Reigles v. Urban, 11th Dist. Lake No. 2009- L-139, 2010-Ohio-4427, ¶12, citing Alexander v. Tullis, 11th Dist. Portage No. 2005-P- 0031, 2006-Ohio-1454, ¶22; Morantz v. Ortiz, 10th Dist. Franklin No. 07AP-597, 2008-Ohio-1046, ¶20; Hankins v. Cecil, 4th Dist. Lawrence No. 08CA1, 2008-Ohio-5275, ¶8; MacConnell v. Safeco Property, 2d Dist. Montgomery No. 21147, 2006-Ohio-2910, ¶51. A party who fails to seek relief pursuant to Civ.R. 56(F) does not preserve the issue for appeal. Hankins, supra.; see also Jackson v. Walker, 9th Dist. Summit No. 22996, 2006-Ohio-4351, ¶17.

         {¶18} Civ.R. 56(F) should be applied liberally to ensure a nonmoving party has adequate time to discover facts necessary to rebut a motion for summary judgment. Deutsche Bank Natl trust Co. v. Germano, 11th Dist. Portage No. 2012-P-0024, 2012-Ohio-5833, ¶28. The nonmoving party's entitlement to additional discovery time, however, is not absolute. Id.

         {¶19} Here, IHT and Eisner claim that the trial court's judgment relating to Mayfield's motion for extension must be affirmed because neither it nor its subsequent brief was accompanied by the necessary affidavit to support its request for additional time. Moreover, IHT and Eisner emphasize neither pleading set forth a basis regarding why or how the additional discovery was necessary to oppose IHT's and Eisner's motion.

         {¶20} Civ.R. 56(F) requires an opposing party to state, by affidavit, why it cannot present, by affidavit, facts that justify its opposition to the motion. An affidavit, therefore, is an essential element of a motion for a continuance under the rule. And Civ.R. 56(F) "requires the opposing party to submit affidavits with sufficient reasons stating why it cannot present by affidavit facts sufficient to justify its opposition." Gates Mills Inv. Co. v. Pepper Pike, 59 Ohio App.2d 155, 169 (8th Dist.1978); State ex rel. Coulverson v. Ohio Adult Parole Auth., 62 Ohio St.3d 12, 14 (1991) (a motion for continuance to conduct discovery under Civ.R. 56(F) must be supported by a proper affidavit.) Ramos v. Khawli, 181 Ohio App.3d 176, 185, 2009-Ohio-798 (7th Dist.); ("[T]he motion for additional time [pursuant to Civ.R. 56(F)] must be supported by the non-movant's affidavit, which contains sufficient reasons to show why such party cannot obtain an affidavit of facts to oppose summary judgment.")

         {¶21} If there is no proper affidavit, the court cannot grant relief pursuant to the rule. Coulverson, supra. And where no affidavit is presented, "'the court is free to rule on the motion for summary judgment.'" Wells Fargo Bank, N.A. v. Shingara, 11th Dist. Geauga No. 2007-G-2764, 2007-Ohio-6154, ¶12, quoting Theisler v. DiDomenico, 140 Ohio App.3d 379, 383 (7th Dist.2000); see also Transamerica Fin. Serv. v. Stiver, 61 Ohio App.3d 49, 52 (2d Dist.1989).

         {¶22} Mayfield did not specifically seek relief pursuant to Civ.R. 56(F) and did not respond to IHTs and Eisner's argument that doing so was necessary to obtain the relief sought. In this respect, Mayfield failed to preserve its right to appeal this issue. See Hankins, supra; Jackson, supra. Assuming, however, arguendo, Mayfield intended its motion to be filed pursuant to Civ.R. 56(F), we shall consider its arguments.

         {¶23} Mayfield contends that this court's recent decision in Moore v. Warren, Ohio Hosps. Co., LLC, 11th Dist. Trumbull No. 2015-T-0020, 2016-Ohio-1366, supports its position that the trial court erred in denying its motion for ...

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