[Cite as Carter-Jones Lumber Co. v. JCA Rentals, L.L.C., 2013-Ohio-863.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
CARTER-JONES LUMBER CO. ) CASE NO. 12 MA 56
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
JCA RENTALS, LLC )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Mahoning County, Ohio
Case No. 09 CV 1985
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Todd A. Harpst
Atty. Katherine S. Knouff
Daily Harpst, Ltd.
2475 Massillon Road
Akron, Ohio 44312
For Defendant-Appellant: Atty. James E. Lanzo
4126 Youngstown-Poland Road
Youngstown, Ohio 44514
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: March 8, 2013
[Cite as Carter-Jones Lumber Co. v. JCA Rentals, L.L.C., 2013-Ohio-863.]
WAITE, J.
{¶1} Appellant JCA Rentals, LLC appeals the judgment of the Mahoning
County Court of Common Pleas granting default judgment to Appellee Carter-Jones
Lumber Co. (“Carter-Jones Lumber”). Appellant contends that it filed a motion for
judgment on the pleadings that should have been granted in its favor, but a review of
the record reflects no such motion was filed. Appellant filed a motion to quash
discovery, not a motion for judgment on the pleadings. Appellant also argues that
default judgment should not have been granted because Appellant's counsel was ill
during the discovery process. Counsel’s illness purportedly led to a variety of lapses
in responding to discovery requests, leading to discovery sanctions and ultimately
providing the basis for default judgment. The record indicates that counsel failed to
promptly notify the court of the illness, and the time period during which counsel was
apparently ill does not explain or coincide with many of the deadlines that were
missed, the failures to attend hearings, and the failure to even respond to the motion
for default judgment itself. Further, the record reveals that Appellant’s failure to
cooperate in this case was willful, and default judgment is proper for willful refusal to
abide by discovery requests and orders. The judgment of the trial court is affirmed.
{¶2} On May 28, 2009, Carter-Jones Lumber filed a complaint against
Appellant for fraudulent transfer. The complaint alleged that Appellant was owned or
controlled by James M. Clifton, and that Carter-Jones Lumber had obtained a
judgment against Clifton on June 28, 2007, for $10,704.15, plus interest. The
complaint alleged that the judgment had not been paid. The complaint alleged that
Clifton had fraudulently conveyed property to Appellant for no value. In the
-2-
complaint, Carter-Jones Lumber sought judgment against Appellant in the same
amount as the judgment it had previously obtained against Clifton.
{¶3} Appellant filed an answer on July 7, 2009. The answer did not raise
any issues of personal or subject matter jurisdiction, or venue.
{¶4} Carter-Jones Lumber filed a notice of discovery on August 25, 2009,
consisting of Carter-Jones Lumber's first set of interrogatories, first set of request for
admissions, and its request for production of documents. Appellant did not reply to
the discovery request.
{¶5} On September 14, 2009, Carter-Jones Lumber filed a notice to take the
deposition of Anita Dintino, an officer or principal of Appellant, on October 22, 2009.
{¶6} On October 2, 2009, Appellant filed a “Motion to Quash All Discovery.”
In the motion, Appellant attempted to raise certain defenses to the action, such as
improper venue, lack of nexus between Appellant and Clifton, creditor fraud, res
judicata, improper timing of the fraudulent transfer, and unclean hands. Appellant
cited no caselaw, and did not explain how any of its arguments created a reason for
the court to quash discovery. No mention was made at this time that counsel was
suffering from any illness that prevented compliance with discovery. Carter-Jones
Lumber filed a memorandum opposing the motion to quash on October 21, 2009.
{¶7} On October 5, 2009, Carter-Jones Lumber filed a motion to deem
matters admitted, based on the fact that it had requested admissions on August 21,
2009, and that more than 28 days had elapsed without a response. Civ.R. 36(A)
-3-
states that a matter is deemed admitted unless an answer or objection is made within
28 days.
{¶8} On October 28, 2009, Carter-Jones Lumber filed a motion to compel
discovery. The motion noted that Appellant had failed to respond to the prior
requests for discovery or the notice of deposition, and that more than 28 days had
passed. Appellant did not respond to this motion.
{¶9} On January 8, 2010, the court overruled Appellant's motion to quash,
and sustained Carter-Jones Lumber's motion to deem matters admitted and motion
to compel discovery.
{¶10} A status hearing was set for March 4, 2010, but Appellant failed to
appear. The court was advised that Appellant still had not answered any
interrogatories.
{¶11} On March 9, 2010, Carter-Jones Lumber filed a motion for default
judgment. Carter-Jones Lumber requested the default judgment as a sanction for
Appellant's discovery violations under Civ.R. 37. Civ.R. 37(B)(2)(c) allows the court
to grant default judgment as a sanction for violation of discovery rules and orders.
The matter was referred to a magistrate.
{¶12} On June 7, 2010, Appellant filed a motion to vacate the order of
January 8, 2010. Here, for the first time, counsel states that she was incapacitated
due to serious illness at or near the time the order was issued. The court denied the
motion to vacate on July 8, 2010.
-4-
{¶13} Also on June 7, 2010, Appellant filed a motion to enlarge the time for
discovery, as well as a “Brief in Opposition to Motion for Summary Judgment.” The
record indicates that no summary judgment motion had yet been filed in this action.
In its brief, Appellant attacked the merits of Carter-Jones Lumber's claim, but did not
address the issues regarding discovery; neither did Appellant challenge the decision
to grant default judgment as a sanction for Appellant's discovery violations. Counsel
once again noted that she had been ill. The court denied the motion on July 8, 2010.
{¶14} The magistrate granted default judgment to Carter-Jones Lumber on
June 24, 2010.
{¶15} On July 14, 2010, Appellant filed objections to the magistrate's
decision. Counsel argued that she had been ill, that Carter-Jones Lumber never
called with a new date for the deposition, and that counsel wrote down the wrong day
for the hearing she missed. No law was cited as to why these might constitute legally
valid reasons to overturn the magistrate's decision. Carter-Jones Lumber filed a
responsive memo on August 4, 2010.
{¶16} On July 30, 2010, Appellant's counsel filed a motion to withdraw. In the
motion counsel stated that she became ill beginning in November of 2009, that her
client had not paid her retainer fee, and that there had been a complete breakdown in
the relationship between counsel and client. At this point in the record, various
handwritten pro se documents started to appear on behalf of Appellant.
-5-
{¶17} On February 22, 2012, the trial court overruled the objections and
adopted the magistrate's decision, granting default judgment to Carter-Jones
Lumber. This timey appeal followed.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT THE
DEFENDANT-APPELLANTS’ MOTION FOR JUDGMENT UPON THE
PLEADINGS PURSUANT TO CIVIL RULE 12 (C) ERRONEOUSLY
TITLED “MOTION TO QUASH ALL DISCOVERY.”
{¶18} Appellant contends that the trial court erred when it failed to grant a
motion for judgment on the pleadings in its favor. This argument is baseless,
because there is no such motion filed of record.
{¶19} Appellant contends that a motion dated October 2, 2009, captioned
“Motion to Quash All Discovery” was, in actuality, a motion for judgment on the
pleadings. A court is entitled to rely on the caption of a motion when ruling on it, but
also has the discretion to construe the motion based on the contents in the body of
the motion, itself. Downtown Properties Ltd. v. Haddad, 8th Dist. No. 96023, 2011-
Ohio-4117, ¶12. In this case, the trial court reasonably took the motion at face value
as a motion to quash based on the caption of the motion.
{¶20} More importantly, there is nothing contained in Appellant’s motion to
quash that could be construed as seeking a motion for judgment on the pleadings. A
motion for judgment on the pleadings pursuant to Civ.R. 12(C) tests the sufficiency of
the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d
-6-
545, 548, 605 N.E.2d 378 (1992). A party may move for judgment on the pleadings
after the pleadings are closed but within such time as not to delay the trial. This type
of motion has been characterized as a belated Civ.R. 12(B)(6) motion to dismiss for
failure to state a claim. State ex rel. Pirman v. Money, 69 Ohio St.3d 591, 592, 635
N.E.2d 26 (1994).
{¶21} In ruling on Civ.R. 12(C) motions, the Ohio Supreme Court has stated:
In applying the Civ.R. 12(C) standard, judgment on the pleadings may
be granted where no material factual issue exists and the moving party
is entitled to judgment as a matter of law. The determination is
restricted solely to the allegations of the pleadings and the nonmoving
party is entitled to have all material allegations in the complaint, with all
reasonable inferences to be drawn therefrom, construed in her favor as
true. (Internal citation omitted.)
Id. at 592-593, 635 N.E.2d 26.
{¶22} The motion to quash cites no law relevant to judgment on the
pleadings. Instead, the body of the motion argues that discovery is being sought in
an improper venue, that there is no nexus between Appellant and Mr. Clifton, that
Appellant is an innocent bystander in the transaction, that Carter-Jones Lumber is
engaging in creditor fraud, that res judicata applies, and that the property in question
was transferred to Appellant after Carter-Jones Lumber had received its judgment
against Clifton. In essence, the motion asserts a number of defenses to suit. While
the relief requested was to quash all discovery and also to dismiss the complaint,
-7-
nowhere in the motion does Appellant assert that Carter-Jones Lumber can present
no set of facts to prove its claim.
{¶23} The only arguable point of law that can be gleaned from the motion to
quash that may relate to possible dismissal is that the complaint alleges that the
fraudulent transfer occurred in 2005, but the debt that Carter-Jones Lumber was
attempting to collect arose in 2007. In other words, the alleged fraud occurred before
the corresponding debt arose. Appellant appears to assume that one may only
attempt to collect on fraudulent transfers that occur after a debt or obligation is
incurred. As pointed out by Carter-Jones Lumber though, R.C. 1336.04 allows for a
civil action on fraudulent transfers “before or after” the debt that a plaintiff is
attempting to collect was incurred: “(A) A transfer made or an obligation incurred by
a debtor is fraudulent as to a creditor, whether the claim of the creditor arose before
or after the transfer was made or the obligation was incurred * * *.” Therefore, the
fact that the debt may have arisen after the fraudulent transfer is not a basis for
dismissing the claims at the pleading state of the proceedings.
{¶24} Thus, even if the motion to quash could have been construed in any
way as a motion for judgment on the pleadings, it should have been denied based on
Appellant's own reference to facts outside the pleadings, the lack of any legal theory
why judgment on the pleadings should have been granted, and Appellant’s incorrect
legal theory regarding the filing of the alleged fraudulent transfer. Appellant's first
assignment of error is overruled.
-8-
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE
DEFAULT JUDGMENT IN FAVOR OF PLAINTIFF-APPELLEE AS A
DISCOVERY SANCTION.
{¶25} Appellant believes that the granting of default judgment in this case was
an abuse of discretion by the trial court. Appellant contends that its counsel was
seriously ill, and that a court abuses its discretion in dismissing a case due to the
illness of the party's counsel. Appellant argues that default judgment as a discovery
sanction is only available when the party's failure to comply with discovery is due to
willfulness, bad faith, or any fault of the party.
{¶26} Appellant is correct that even though dismissal is permitted as a
sanction under Civ.R. 37, it is a harsh sanction that should only be granted as a last
resort. We have held that:
One of the possible sanctions for discovery violations is dismissal of the
lawsuit. Civ.R. 37(B)(2)(c). Dismissal is a drastic sanction that should
be imposed only as a last resort. Furcello v. Klammer (1980), 67 Ohio
App.2d 156, 159, 21 O.O.3d 454, 426 N.E.2d 187. It is an abuse of
discretion to dismiss a case due to discovery violations unless there
has been a showing of willfulness, bad faith, or fault. Toney v.
Berkemer (1983), 6 Ohio St.3d 455, 458, 453 N.E.2d 700; Societe
Internationale v. Rogers (1958), 357 U.S. 197, 212, 78 S.Ct. 1087, 2
L.Ed.2d 1255.
-9-
Monigold v. Gossman, 7th Dist. No. 07 CO 41, 2008-Ohio-6213, ¶26.
{¶27} In this case, though, the willfulness, bad faith, and fault of both counsel
and client are apparent from the record. Counsel claims that she was ill starting in
November of 2009, even though the intransigence regarding discovery began
months earlier. Carter-Jones Lumber's notice of discovery was filed on August 25,
2009. Appellant failed to respond. Carter-Jones Lumber filed a notice of deposition
on September 14, 2009. Counsel filed no objection or even response to any aspect
of discovery within the required 28 days. See Civ.R. 33(A)(3), 34(B)(1), and 36(A)(1).
Counsel was apparently well enough to file the motion to quash discovery on October
2, 2009. No mention of any illness appears on or before this date. Carter-Jones
Lumber filed a motion to compel discovery on October 28, 2010, prior to the time
counsel claims to have become ill, but counsel filed no response to the motion. It
was not until many months after the trial court ruled in favor of Carter-Jones Lumber
on each of its motions that counsel was finally inclined to report to the court that she
had been previously ill. This claim simply does not explain the numerous failures to
respond to the various motions and orders in this case related to discovery.
{¶28} It is apparent from the record that Appellant and its counsel were at
odds with one another, that Appellant had not paid for counsel's services, and that
counsel wanted to withdraw based on her inability to get along with Appellant.
Counsel's belated claim to have taken ill only partially explains counsel's failure to
respond to discovery requests and discovery orders in this case. This record
certainly does not indicate any abuse of discretion or reversible error in granting
-10-
default judgment when reports of counsel's illness only arose long after many of the
discovery violations had already taken place. Appellant's second assignment of error
is overruled.
{¶29} There is no reversible error indicated in this appeal. The trial court
construed Appellant’s motion filed on October 2, 2009, as a motion to quash
discovery based on both the heading and the content of the motion, and the court
was not required to construe it as a motion for judgment on the pleadings. Even if
the motion could have been interpreted as a Civ.R. 12(C) motion for judgment on the
pleadings, it was properly denied. Finally, the trial court acted within its discretion in
granting default judgment to Carter-Jones Lumber as a discovery sanction against
Appellant when Appellant and its counsel appear to have committed the discovery
violations willfully and with fault, based on this record. Although counsel may have
been seriously ill during part of the litigation, the timing of the illness does not explain
the discovery violations. The judgment of the trial court is affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.