      [Cite as In re Healthwarehouse.com, Inc., 2012-Ohio-2266.]


                        IN THE COURT OF APPEALS
              FIRST APPELLATE DISTRICT OF OHIO
                         HAMILTON COUNTY, OHIO



   IN RE: HEALTHWAREHOUSE.COM, :                            APPEAL NO. C-110736
   INC.                                                     TRIAL NO. M-1101203
                               :

                                                  :
                                                                   O P I N I O N.
                                                  :




Civil Appeal From: Hamilton County Common Pleas Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: May 23, 2012


Kohnen & Patton LLP, Joseph L. Dilts and Rebecca L. Cull, for Petitioner-Appellee
Healthwarehouse.com, Inc.,

Ulmer & Berne LLP, Richik Sarkar, Joshua A. Klarfeld and Regan N. Schmidt, for
Respondent-Appellant Devos, Ltd., d.b.a. Guaranteed Returns.




Please note: This case has been removed from the accelerated calendar.
                             OHIO FIRST DISTRICT COURT OF APPEALS




S YLVIA S IEVE H ENDON , Judge.

        {¶1}      Respondent-appellant, Devos, Ltd., d.b.a. Guaranteed Returns appeals the

trial   court’s    orders   granting   the   petition   for   discovery   of   petitioner-appellee

Healthwarehouse.com, Inc., (“HWI”). In two assignments of error, Guaranteed Returns

argues that the trial court erred by granting the petition and by subjecting them to personal

jurisdiction in Ohio.


                                       The Petition for Discovery


        {¶2}      On October 18, 2011, HWI filed a petition for discovery pursuant to R.C.

2317.48 and Civ.R. 34(D). The trial court entered identical orders granting the petition on

the same day and on the following day. The record does not reflect an explanation for the

second entry. The petition and the orders were served on Guaranteed Returns on October

24, 2011, seven days after the first order granting the petition had been entered.


                                              Due Process


        {¶3}      First, Guaranteed Returns argues that the trial court erred when it granted

HWI’s petition for discovery without permitting them an opportunity to respond. We agree.

        {¶4}      Procedural due process is required by the Fourteenth Amendment to the

United States Constitution and by the Ohio Constitution, Article I, Section 16. See State ex

rel. Plain Dealer Publishing Co. v. Floyd, 111 Ohio St.3d 56, 2006-Ohio-4437, 855 N.E.2d

35, ¶ 45.      Courts have long recognized that due process requires both notice and an

opportunity to be heard. See In re Thompkins, 115 Ohio St.3d 409, 2007-Ohio-5238, 875

N.E.2d 582, ¶ 13; Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652,

94 L.Ed. 865 (1950). To avoid undue prejudice, a party is entitled to sufficient notice and



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                           OHIO FIRST DISTRICT COURT OF APPEALS



time to prepare for a hearing on a motion. See Lindsay v. Jackson, 1st Dist. No. C-990786,

2000 Ohio App. LEXIS 4043 (Sept. 8, 2000), citing In re Foreclosure of Liens for

Delinquent Taxes, 79 Ohio App.3d 766, 771, 607 N.E.2d 1160 (2nd Dist.1992).

       {¶5}   “However hurried a court may be in its efforts to reach the merits of a

controversy, the integrity of procedural rules is dependent upon consistent enforcement

because the only fair and reasonable alternative thereto is complete abandonment.” Miller

v. Lint, 62 Ohio St.2d 209, 215, 404 N.E.2d 752 (1980). “Thus, if a trial court disregards the

response time created by the Ohio Rules of Civil Procedure, that court has committed

reversible error,” absent a showing that the error was harmless. Gibson-Myers & Assoc. v.

Pearce, 9th Dist. No. 19358, 1999 Ohio App. LEXIS 5010 (Oct. 27, 1999), following In re

Foreclosure of Liens.

       {¶6}   Pre-suit discovery actions under R.C. 2317.48 and Civ.R. 34(D) specifically

contemplate the application of the Rules of Civil Procedure. R.C. 2317.48 expressly allows

for the filing of a motion to dismiss pursuant to Civ.R. 12:

           When a person claiming to have a cause of action or a defense to an action

           commenced against him, without the discovery of a fact from the adverse

           party, is unable to file his complaint or answer, he may bring an action for

           discovery, setting forth in his complaint in the action for discovery the

           necessity and the grounds for the action, with any interrogatories relating

           to the subject matter of the discovery that are necessary to procure the

           discovery sought. Unless a motion to dismiss the action is filed under

           Civil Rule 12, the complaint shall be fully and directly answered under

           oath by the defendant. Upon the final disposition of the action, the costs

           of the action shall be taxed in the manner the court deems equitable.

           (Emphasis added.)




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                           OHIO FIRST DISTRICT COURT OF APPEALS



       {¶7}   In addition, Civ.R. 34(D) requires a petition for discovery to be served in

accordance with the Rules:

       (1) * * * [A] person who claims to have a potential cause of action may file a

       petition to obtain discovery as provided in this rule. Prior to filing a petition

       for discovery, the person seeking discovery shall make reasonable efforts to

       obtain voluntarily the information from the person from whom the discovery

       is sought.

       (2) The petition shall be served upon the person from whom discovery is

       sought and, if known, any person the petitioner expects will be an adverse

       party in the potential action, by one of the methods provided in these rules for

       service of summons. (Emphasis added.)

       {¶8}   In this case, Guaranteed Returns was not served with the petition until a week

after it had been granted by the trial court. Not only was Guaranteed Returns denied the

opportunity to answer or file a motion to dismiss, they had no notice of the action before the

discovery orders were entered.

       {¶9}   In a similar case, the Tenth Appellate District reversed a trial court’s order

that granted a Civ.R. 34(D) petition for discovery on the same day that it had been filed,

because the respondent had been given no notice and no opportunity to be heard. See

Westfield Ins. Co. v. Universal Underwriters Group, 10th Dist. No. 98AP-1116, 1999 Ohio

App. LEXIS 2559 (June 3, 1999). The court held that the trial court had violated the

respondent’s rights to due process.

       {¶10} In this case, we hold that the trial court violated Guaranteed Returns’ due-

process rights by granting HWI’s petition for discovery on the date it was filed because

Guaranteed Returns had been given neither notice of the action nor an opportunity to

answer or to file a motion to dismiss. Consequently, we sustain the first assignment of error




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                            OHIO FIRST DISTRICT COURT OF APPEALS



and reverse the trial court’s judgments granting HWI’s petition for discovery.            Our

resolution of the first assignment of error renders moot the second assignment of error

challenging the court’s jurisdiction. We remand this case to the trial court with instructions

that it allow Guaranteed Returns time to respond to HWI’s petition for discovery.

                                                      Judgments reversed and cause remanded.




SUNDERMANN, P.J., and DINKELACKER, J., concur.

Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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