[Cite as Farm Credit Servs. of Mid-Am. v. Fox, 2012-Ohio-5446.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
FARM CREDIT SERVICES OF : JUDGES:
MID-AMERICA, FLCA : Hon. Patricia A. Delaney, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. Julie A. Edwards, J.
:
-vs- :
:
MICHAEL A. FOX, ET AL. : Case No. 12-CA-57
:
Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 11CV1497
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: November 20, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellee
JOHN E. BOWERS JOHN SHERROD
233 North Court Street 503 South Front Street
Circleville, OH 43113 Suite 240
Columbus, OH 43215
Licking County, Case No. 12-CA-57 2
Farmer, J.
{¶1} On November 7, 2011, appellee, Farm Credit Services of Mid-America,
FLCA, filed a foreclosure complaint against appellants, Michael and Barbara Fox, as
well as others not pertinent to this appeal. On March 16, 2012, appellants filed their
answer and counterclaim.
{¶2} On April 18, 2012, appellee filed a motion for summary judgment. On May
7, 2012, appellants filed a Civ.R. 56(F) motion for discovery. The following day, on May
8, 2012, the trial court issued a scheduling order, setting September 12, 2012 as the
discovery completion date and June 6, 2012 as the non-oral hearing date for dispositive
motions. On June 8, 2012, without specifically ruling on the Civ.R. 56(F) discovery
motion, the trial court granted summary judgment to appellee.
{¶3} Appellants filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO RULE
ON APPELLANTS' CIV.R. 56(F) MOTION FOR DISCOVERY, WHICH WAS AN
IMPLICIT DENIAL OF SAID MOTION FOR DISCOVERY, PRIOR TO GRANTING
APPELLEE'S MOTION FOR SUMMARY JUDGMENT."
I
{¶5} Appellants claim the trial court erred in granting appellee's motion for
summary judgment without first ruling on their request for discovery and additional time
pursuant to Civ.R. 56(F). We agree.
{¶6} Civ.R. 56(F) states the following:
Licking County, Case No. 12-CA-57 3
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.
{¶7} In reviewing the docket, we find the trial court, on May 8, 2012, the day
immediately after the filing of appellants' motion for a Civ.R. 56(F) extension, filed the
following scheduling order:
Deadline for Completion of Discovery September 12, 2012
Responses to Dispositive Motions May 29, 2012
Replies to Responses to Dispositive Motions June 5, 2012
Motions Hearing Date Non-Oral (no appearance required) June 6, 2012
{¶8} The trial court granted summary judgment to appellee on June 8, 2012,
after the time set for ruling on dispositive motions, but some three months before the
discovery completion date. The scheduling order can be viewed as a granting of the
Civ.R. 56(F) motion when it set a discovery completion date for September 12, 2012,
and the granting of the summary judgment motion can be justified by the dispositive
motion order.
Licking County, Case No. 12-CA-57 4
{¶9} We note a fundamental tenet of judicial review in Ohio is that courts
should decide cases on their merits. DeHart v. Aetna Life Insurance Co. (1982), 69
Ohio St.2d 189. Upon review, we find the confusion created by the scheduling order
should be resolved in favor of appellants.
{¶10} The sole assignment of error is granted.
{¶11} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby reversed.
By Farmer, J.
Delaney, P.J. and
Edwards, J. concur.
_______________________________
_______________________________
_______________________________
JUDGES
SGF/sg 1017
[Cite as Farm Credit Servs. of Mid-Am. v. Fox, 2012-Ohio-5446.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
FARM CREDIT SERVICES OF :
MID-AMERICA, FLCA :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
MICHAEL A. FOX, ET AL. :
:
Defendants-Appellants : CASE NO. 12-CA-57
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio is reversed, and the
matter is remanded to said court for further proceedings consistent with this opinion.
Costs to appellee.
_______________________________
_______________________________
_______________________________
JUDGES