[Cite as Ogle v. Kroger Co., 2014-Ohio-1099.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                     HOCKING COUNTY

MELANIE A. OGLE,                      :    Case No. 13CA22
                                      :
     Plaintiff-Appellant,             :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
THE KROGER CO., ET AL.,               :
                                      :    RELEASED: 3/14/14
     Defendants-Appellees.            :
______________________________________________________________________
                            APPEARANCES:

Melanie A. Ogle, Rockbridge, Ohio, pro se appellant.

Mary Barley-McBride, Lane Alton & Horst, Columbus, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}    Melanie Ogle appeals the trial court’s judgment granting The Kroger

Company (Kroger) and Ernie Norris summary judgment on her claims of defamation

and intentional infliction of emotional distress. She argues that the trial court abused its

discretion and violated her due process rights by ruling on the summary judgment

motion without providing her adequate notice and an opportunity to complete discovery.

However, the court scheduled a non-oral hearing on the motion and Ogle concedes

receiving notice of the hearing. Because the notice stated that after the non-oral

hearing date the court would consider the merits of the motion, it satisfied the due

process requirements under Civ.R. 56. Thus, Ogle’s due process argument and claim

that she lacked adequate notice of when she had to complete discovery are meritless.

        {¶2}    Moreover, the remedy for a party who must respond to a summary

judgment motion before discovery is completed is a motion under Civ.R. 56(F) asking
Hocking App. No. 13CA22                                                                       2

the trial court to delay judgment. And because Ogle failed to file such a motion or

otherwise indicate she needed more time to complete discovery, we reject her claim

that the trial court abused its discretion in regulating the discovery process. Therefore

we affirm its judgment.

                                         I. FACTS

       {¶3}   We have already recounted many of the relevant facts of this case in State

v. Ogle, 4th Dist. Hocking Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, 12CA19,

2013-Ohio-3420. In September 2009, the Hocking County grand jury indicted Ogle on

one count of assault on a peace officer. Ogle at ¶ 5. While awaiting trial, the court

released her on a recognizance bond. Id. at ¶ 49. Following a trial in August 2011, the

jury found Ogle guilty and the court continued the matter for sentencing. Id. at ¶ 5. The

court also continued Ogle’s bond with the added condition that she not have any contact

with the jurors or the witnesses in her case. Id. at ¶ 49.

       {¶4}   Janette Williams was a member of the jury in Ogle’s assault case and also

a cashier at the Kroger store in Logan, Ohio. While she was awaiting sentencing, Ogle

visited Kroger and entered the checkout lane operated by Williams. While checking out,

Ogle confronted Williams about the jury’s verdict and her conviction. Thereafter,

Williams reported the incident to Norris, the store’s manager. The police responded and

took a report of the incident. The police also served Ogle with a letter from Norris

stating that her activities at the store “were disrupting and/or damaging” to its business,

advising her she was not allowed to enter its property in the future and her presence

upon Kroger property from then on would be deemed trespassing. That same week
Hocking App. No. 13CA22                                                                     3

The Logan Daily News published an article entitled “Melanie Ogle Banned From

Kroger.”

           {¶5}   In August 2012, Ogle filed a pro se complaint against Kroger and Norris

based on the no trespass order. In the complaint Ogle claims Kroger’s statement that

her conduct was disruptive and damaging was false and because she can no longer

shop at Kroger she has suffered emotional distress and financial damage.

           {¶6}   Kroger and Norris filed their answer and following a discovery dispute with

Ogle, a motion to compel their discovery requests. Ogle responded with a motion for

sanctions and a memoranda contra the motion to compel, as well as a motion for partial

summary judgment.

           {¶7}   On December 26, 2012, Kroger and Norris filed their own motion for

summary judgment asserting there were no genuine issues of material fact and they

were entitled to judgment as a matter of law. Attached to their motion was a portion of

the transcript form Ogle’s assault trial, a transcript from Ogle’s bond revocation hearing,

affidavits of Janette Williams and Ernie Norris, and a copy of the Logan Daily News

article.

           {¶8}   In a notice on January 2, 2013, the trial court set a “non-oral Motion

Hearing on all Motions” for February 1, 2013, and requested that the parties file “a

written request immediately” if they wanted an oral argument or to file a reply. The next

day, Ogle filed a “Motion for Continuance to Respond to Defendants’ Motion for

Summary Judgment,” and in an attached memorandum stated that the “depositions of

Ernie Norris, The Kroger Co. and Janette Williams [were] necessary so that [she] is able
Hocking App. No. 13CA22                                                                     4

to appropriately respond.” She also filed a notice with the court that on February 12,

2013, she would be deposing Janette Williams.

       {¶9}   The next relevant filing occurred on February 8, 2013, when the court

entered a judgment entry granting Kroger and Norris’s motion for a protective order as

to the depositions of Janette Williams and Ernie Norris for Ogle’s failure to properly

comply with discovery demands and overruled Ogle’s motion to compel. The court

ordered Ogle to “provide verified and compliant responses to the discovery requests not

later than February 28, 2013, at 4:00 p.m.” and “[o]nce [Ogle] provides discovery, this

court will expect that the depositions of defense witnesses will be scheduled.” The court

also granted Ogle’s motion for additional time to respond to Kroger and Norris’s motion

for summary judgment and overruled her motion for partial summary judgment.

       {¶10} Thereafter in April 2013, Ogle deposed Janette Williams, however she did

not file a transcript of the deposition with the trial court and she did not schedule or

provide notice of any further depositions or discovery. On September 16, 2013, Kroger

and Norris filed a “Motion to Establish a Briefing Schedule and For a Non-Oral

Argument,” arguing that its motion for summary judgment was “ripe for consideration,”

because it had been over seven months since the court allowed Ogle to take her

depositions and all discovery requests had been completed. On September 19, 2013,

the trial court sent the parties notice that it would hold a “Non Oral Motion for Summary

Judgment Hearing” on October 9, 2013, and consider the merits of the motion after this

time. Again the court requested that the parties file “a written request immediately” if

they wanted an oral argument or to file a reply. Thereafter the court granted Kroger and
Hocking App. No. 13CA22                                                                       5

Norris’s motion for summary judgment without a response from Ogle. This appeal

followed.

                             II. ASSIGNMENTS OF ERROR

       {¶11} Ogle raises two assignments of error for our review:

       1. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A
       MATTER OF LAW TO THE PREJUDICE OF PLAINTIFF-APPELLANT IN
       REGARD TO DISCOVERY AND RULING ON DEFENDANTS-
       APPELLES’ DISPOSITIVE MOTION.

       2. THE TRIAL COURT VIOLATED PLAINTIFF-APPELLANT’S DUE
       PROCESS RIGHTS TO THE PREJUDICE OF PLAINTIFF-APPELLANT
       IN REGARD TO DISCOVERY AND RULING ON DEFENDANTS-
       APPELLEES’ DISPOSITIVE MOTION.

                               III. STANDARD OF REVIEW

       {¶12} Normally, when reviewing a trial court’s decision on a motion for summary

judgment, we conduct a de novo review governed by the standards set forth in Civ.R.

56. Vacha v. N. Ridgeville, 136 Ohio St.3d 199, 2013-Ohio-3020, 992 N.E.2d 1126, ¶

19. However, Ogle does not challenge the merits of the trial court’s summary judgment

decision. i.e. whether there remained genuine issues of material fact and Kroger was

entitled to judgment as a matter of law. Rather, her assigned errors focus on whether

the trial court erred by ruling on Kroger’s motion without giving her adequate notice and

a chance to complete discovery. Thus, we apply a different standard of review.

       {¶13} “A trial court maintains broad discretion in regulating the discovery

process. * * * Accordingly, the standard of review on a trial court’s decision in a

discovery matter is whether the court abused its discretion. * * * A trial court abuses its

discretion if its decision is unreasonable, arbitrary, or unconscionable.” Watson v.

Highland Ridge Water & Sewer Assn., Inc., 4th Dist. Washington No. 12CA12, 2013-
Hocking App. No. 13CA22                                                                     6

Ohio-1640, ¶ 20 (applying abuse of discretion standard to review appellant’s claim that

he had inadequate time to complete discovery before court ruled on motion for

summary judgment).

                                IV. LAW AND ANALYSIS

                    A. Ogle’s Failure to Comply with App.R. 16(A)(7)

      {¶14} Initially we note that Ogle has failed to argue her assigned errors

separately, as required by App.R. 16(A)(7). Thus, it would be within our authority to

summarily overrule her assignments of error and affirm the trial court’s judgment. See

App.R. 12(A)(2); Marietta College v. Valiante, 4th Dist. Washington No. 13CA12, 2013-

Ohio-5405, ¶ 12. Nevertheless, we afford “some degree of leniency to pro se litigants”

and in the interests of justice will address the merits of her argument. State v. Evans,

4th Dist. Pickaway No. 11CA24, 2012-Ohio-4143, ¶ 7, fn. 2.

                 B. Ogle’s Notice & Opportunity to Complete Discovery

      {¶15} Ogle argues that trial court abused its discretion and violated her due

process rights by ruling on Kroger and Norris’s motion for summary judgment without

providing her “a full opportunity to conduct discovery in order to respond to Defendant’s-

Appellees’ summary judgment motion * * *.” Specifically, Ogle argues that she did not

have “adequate notice” to complete discovery because the trial court “did not schedule

discovery or dispositive motions deadlines,” and gave her less than 20 days notice of a

non-oral hearing date.

      {¶16} Civ.R. 56(C) provides that a motion for summary judgment “shall be

served at least fourteen days before the time fixed for hearing. The adverse party, prior

to the day of hearing, may serve and file opposing affidavits.” Although, “Civ.R. 56(C)
Hocking App. No. 13CA22                                                                    7

anticipates a cutoff date for a response to a motion for summary judgment * * * the rule

is not sufficiently explicit to apprise the parties of that date. Notice must come from

some other source or sources.” Hooten v. Safe Auto Ins. Co., 100 Ohio St.3d 8, 2003-

Ohio-4829, 795 N.E.2d 648, ¶ 22. “Obviously, if the trial court does set an explicit

hearing date for the summary judgment motion, it succeeds in providing the requisite

notice.” Id. at ¶ 23. Likewise, the due process requirements under Civ.R. 56

necessitate “that the nonmoving party receive notice of the deadline date for the

opposing party’s response to the summary judgment motion or of the date on which the

motion is deemed submitted for decision.” (Emphasis added.) Id. at ¶ 17.

       {¶17} “Civ.R. 56 does not mandate that full discovery must be completed before

a defending party moves for summary judgment.” Wiltz v. Clark Schaefer Hackett & Co.,

10th Dist. Franklin Nos. 11AP-64, 11AP-282, 2011-Ohio-5616, ¶ 32. To the contrary, if

the case has not been set for trial or pretrial, “[a] party against whom a claim,

counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any

time, move with or without supporting affidavits for a summary judgment in the party’s

favor as to all or any part of the claim, counterclaim, cross-claim, or declaratory

judgment action.” (Emphasis added.) Civ.R. 56(B).

       {¶18} “The remedy for a party who must respond to a summary judgment motion

before discovery is completed is a motion under Civ.R. 56(F),” asking the trial court to

delay judgment. Hankins v. Cecil, 4th Dist. Lawrence No. 08CA1, 2008-Ohio-5275, ¶ 8.

Consequently, a party who fails to seek relief under Civ.R. 56(F) does not preserve the

issue for appeal. Id.
Hocking App. No. 13CA22                                                                      8

       {¶19} Here, Ogle concedes that she received the trial court’s notice of a non-oral

hearing on Kroger’s pending motion for summary judgment. The court’s September 19,

2013 notice stated:

       NOTICE TO:

       Melanie Ogle, Plaintiff * * *.
       Mary Barley McBride, Attorney for the Defendant * * *.

       To All Concerned:

             Please be advised that a Non Oral Motion for Summary Judgment Hearing
       has been scheduled for October 9, 2013 at 1:00 p.m. on the above case.

              “Parties are NOT required to appear in court for a non-oral hearing. The
       non-oral hearing sets a date and time after which the court will consider the
       merits of the motion. If the parties want a chance to file a reply or want oral
       argument, they should file a written request immediately.”

       {¶20} The record shows that Ogle was served with Kroger and Norris’s motion

for summary judgment via ordinary mail on December 21, 2012. Therefore, the trial

court’s non-oral hearing date on October 9, 2013, far exceeded the 14 day requirement

in Civ.R. 56(C). In addition, the court’s notice of the non-oral hearing provided her with

clear notice of the date on which the motion was deemed submitted for decision and

accordingly does not raise any due process concerns.

       {¶21} The record also shows that on October 8, 2013, the day before the non-

oral hearing, Ogle filed a “Motion for Discovery and Dispositive Motions Deadlines, Trial

Date Confirmation, and Rule 38(B) Scheduling.” In this motion she asked the court “to

set discovery and dispositive motions deadlines, witness disclosure deadlines, as well

as confirmation of the date this Court has scheduled the above-captioned case for trial,

and scheduling dates pursuant to Ohio Rules of Civil Procedure Rules 38(B).” Nowhere

in the motion did Ogle request that the court delay ruling on Kroger and Norris’s motion
Hocking App. No. 13CA22                                                                    9

for summary judgment or indicate she needed additional time to complete discovery and

file her response. Therefore, we cannot fault the trial court for not allowing Ogle

additional discovery time if she failed to make a request. See Hankins, 4th Dist.

Lawrence No. 08CA1, 2008-Ohio-5275, at ¶ 9.

       {¶22} Ogle cites no law or rule to support her conclusion that 20 days was

inadequate notice to complete discovery and respond to Kroger and Norris’s motion for

summary judgment. To the contrary, following the trial court’s February 2013 order

Ogle had over seven months to complete discovery and in fact did depose Williams

during that time. Moreover, at the time the court granted summary judgment there were

no outstanding discovery requests filed by any party and on appeal Ogle fails to identify

what discovery she was unable to complete. Because Ogle did not avail herself of the

remedies Civ.R. 56(F) provides, any purported lack of discovery is not a basis to

reverse the trial court’s judgment. See CitiMortgage, Inc., v. Guarnieri, 8th Dist.

Cuyahoga No. 99504, 2013-Ohio-4913, ¶ 19. Based on these facts we cannot

conclude that the trial court abused its discretion in regulating the discovery process.

See Watson, 4th Dist. Washington No. 12CA12, 2013-Ohio-1640, ¶ 26-27 (concluding

the trial court did not abuse its discretion in regulating discovery and ruling on summary

judgment motion when appellant failed to file a motion under Civ.R. 56(F)).

                                    V. CONCLUSION

       {¶23} We overrule Ogle’s two assignments of error and affirm the trial court’s

judgment.

                                                                 JUDGMENT AFFIRMED.
Hocking App. No. 13CA22                                                                10

                                   JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Hocking
County Court of Common Pleas to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

McFarland, J. & Hoover, J.: Concur in Judgment and Opinion.



                                   For the Court




                                   BY: ________________________________
                                       William H. Harsha, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
