Court of Appeals of Ohio, Eleventh District, Lake
Appeal from the Lake County Court of Common Pleas, Case No.
2017 CV 00363. Judgment: Affirmed.
Reo, pro se, (Plaintiff-Appellant).
Huff Miller, Robert Huff Miller LLC, (For
TIMOTHY P. CANNON, J.
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.
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.].
action was dismissed with prejudice.
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.
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.
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.
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.
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
On June 2, 2017, appellee filed a motion to stay discovery
until the ...