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Reo v. Allegiance Administrators LLC

Court of Appeals of Ohio, Eleventh District, Lake

June 25, 2018

BRYAN ANTHONY REO, Plaintiff-Appellant,
v.
ALLEGIANCE ADMINISTRATORS LLC, Defendant-Appellee.

          Civil Appeal from the Lake County Court of Common Pleas, Case No. 2017 CV 00363. Judgment: Affirmed.

          Bryan Reo, pro se, (Plaintiff-Appellant).

          Robert Huff Miller, Robert Huff Miller LLC, (For Defendant-Appellee).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellant, Bryan Anthony Reo, appeals the August 22, 2017 judgment of the Lake County Court of Common Pleas, granting appellee, Allegiance Administrators LLC's, motion for summary judgment. For the following reasons, the trial court's judgment is affirmed.

         {¶2} On October 6, 2016, appellant filed a complaint against appellee in the Lake County Court of Common Pleas, claiming he received phone calls from telephone marketers on behalf of appellee, despite his phone number being listed on the Federal Trade Commission's ("FTC") Do-Not-Call registry (case No. 16CV001703). The parties executed a Settlement and Release Agreement. In exchange for appellee's payment of $6, 000.00, appellant agreed to dismiss the case with prejudice. Appellant further agreed to

[waive] any and all claims against Allegiance or any Allegiance Affiliates, relating to events occurring after the dates of the alleged Disputed Calls or after the signing of this Agreement, for any alleged future acts giving rise to civil claims, specifically including for alleged violations of the TCPA [Telephone Consumer Protection Act, 47 U.S.C. §227] or the OCSPA [Ohio Consumer Sales Practices Act, R.C. 1345 et seq.].

         The action was dismissed with prejudice.

         {¶3} On March 8, 2017, appellant filed another complaint against appellee in the Lake County Court of Common Pleas. Appellant alleged: (1) appellee made phone calls to him on February 14 and February 17, 2017, for the purpose of selling appellant an extended warranty for his car; (2) appellant's phone number was listed on the FTC's Do- Not-Call registry; (3) appellee used an Automated Telephone Dialing System during the calls; (4) appellee "regularly, on behalf of itself and others, engages in telephone solicitation as a matter of business practice"; (4) and appellee obtained appellant's personal and vehicle information for the purpose of commercial solicitation. Appellant further alleged appellee violated the TCPA, the OCSPA, the Ohio Telephone Solicitation Sales Act, and the Driver's Privacy Protection Act, and he claimed he had suffered damages. Appellant requested general damages in an amount not to exceed $30, 000.00, statutory damages, treble damages, and attorney's fees in the event he retained legal counsel.

         {¶4} On March 31, 2017, appellee filed a motion to dismiss the complaint pursuant to Civ.R. 12(B)(6) & (7). Appellee argued appellant failed to state a claim upon which relief could be granted because the complaint was barred by the Settlement and Release Agreement of case No. 16CV001703. Appellee further argued appellant failed to join a necessary party, maintaining it had not made the phone calls at issue, and appellant failed to allege facts to make appellee liable under a theory of vicarious liability. Appellee attached a copy of the Settlement and Release Agreement and the affidavit of Hytham Elzayn, President and CEO of Allegiance Administrators, LLC. Appellant filed a brief in opposition on April 24, 2017, and appellee responded.

         {¶5} On April 27, 2017, the trial court issued an order converting appellee's motion to dismiss into a motion for summary judgment. The trial court ordered all parties to submit materials pursuant to Civ.R. 56 within 30 days.

         {¶6} On May 12, 2017, appellant filed a brief in opposition to summary judgment and a cross-motion for summary judgment. Appellant attached his affidavit, a disc containing the audio files of the phone calls, transcripts of the phone calls, a copy of the requests for admission sent to appellee, and a copy of an e-mail sent to appellee requesting discovery. Appellant maintained appellee failed to respond to the requests for admissions. Appellant maintained that "Request #32 provides- Admit to all allegations, factual and legal, in Plaintiffs complaint" (emphasis deleted). Appellant argued appellee's failure to respond served as an admission, and, therefore, appellee admitted to all the allegations in the complaint, leaving no genuine dispute of material fact to be litigated.

         {¶7} On May 17, 2017, appellant filed a motion to compel discovery, maintaining "Plaintiff served upon Defendant, electronically and via USPS, Plaintiff's First Request for Production of Documents, Plaintiffs First Set of Interrogatories Propounded upon Defendant, and Plaintiffs Second Set of Interrogatories Propounded Upon Defendant." Appellant maintained he did not receive any response to his discovery requests. On May 22, 2017, appellee filed a motion requesting an extension of time to respond to appellant's requests for admissions and to withdraw and amend any item deemed admitted. Attached to the motion was appellee's response to appellant's requests for admissions. On May 23, 2017, appellant filed a brief in opposition.

         {¶8} On June 2, 2017, appellee filed a motion to stay discovery until the ...


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