[Cite as LG Mayfield, L.L.C. v. U.S. Liab. Ins. Group, 2017-Ohio-1203.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


LG MAYFIELD LLC,                                        :           OPINION

                 Plaintiff-Appellant,                   :
                                                                    CASE NO. 2016-G-0058
        - vs -                                          :

UNITED STATES LIABILITY                                 :
INSURANCE GROUP, et al.,
                                                        :
                 Defendants-Appellees.
                                                        :


Civil Appeal from the Geauga County Court of Common Pleas, Case No. 15 P 000249.

Judgment: Affirmed in part, reversed in part, and remanded.


Mary Jane Trapp, Thrasher, Dinsmore & Dolan, L.P.A., 1400 West Sixth Street, Suite
400, Cleveland, OH 44113-1305 (For Plaintiff-Appellant).

Susan S.R. Petro and Richard A. Williams, Williams & Schoenberger Co., L.L.C., 338
South High Street, Second Floor, Columbus, OH 43215 (For Defendant-Appellee,
United States Liability Insurance Group).

Ramon C. Freudiger and David J. Oberly, Marshall Dennehey Warner Coleman &
Goggin, 312 Elm Street, Suite 1850, Cincinnati, OH 45202 (For Defendants-
Appellees, IHT Insurance Agency Group LLC and Eisner Insurance LLC).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, LG Mayfield LLC (“Mayfield”), appeals from the order of

summary judgment entered by the Geauga County Court of Common Pleas in favor of

appellees, IHT Insurance Agency Group LLC (“IHT”), Eisner Insurance LLC (“Eisner”),

and United States Liability Insurance Group (“USLI”). The following issues are before
the court: (1) whether Mayfield properly complied with Civ.R. 56(F) when it moved for a

continuance in order to obtain additional discovery for purposes of responding to IHT’s

and Eisner’s motion for summary judgment; (2) whether the trial court erred when it

granted IHT and Eisner summary judgment without affording Mayfield additional time to

oppose IHT’s motion for summary judgment; and (3) whether the trial court erred in

concluding summary judgment was properly entered in each appellee’s favor.            We

affirm in part, reverse in part, and remand the matter for further proceedings.

       {¶2}   In February 2014, Eric Eisner (“Mr. Eisner”) the sole owner and operator

of Eisner, assisted Mayfield in applying for and procuring general liability and property

damage insurance from USLI; Mr. Eisner is also an agent and producer for IHT. The

policy was obtained to cover Mayfield’s start-up restaurant, Oak & Embers Tavern (“Oak

& Embers”). Mr. Eisner met with Gretchen Garofoli (“Mrs. Garofoli”), Oak & Embers

principal, to review the application and coverages. After the policy was issued, Mr.

Eisner provided a copy to Mrs. Garofoli; neither she nor her husband and agent Marc

Garofoli (“Mr. Garofoli”) read the policy after it was issued. On June 27, 2014, a fire

damaged the restaurant. After the fire, Mr. Eisner advised the Garofolis that the policy

included business interruption coverage. The policy, however, did not include such

coverage.

       {¶3}   In March 2015, Mayfield filed suit against various parties, including

appellees IHT, Eisner, and USLI for allegedly failing to obtain business interruption

coverage for Oak & Embers, as part of the insurance contract it purchased from USLI.

       {¶4}   On August 24, 2015, USLI moved for summary judgment.                Mayfield

opposed the motion, appending the affidavit of Christopher McCauly, the manager of

Oak & Embers, to the memorandum. Factual statements, other than those supported


                                            2
by McCauly’s affidavit, remained unsupported.       In its memorandum, Mayfield noted

“[t]he transcripts of the depositions * * * are not yet available. The testimony citations

will be provided as soon as the deposition transcripts are available.”

       {¶5}   Discovery proceeded and, on August 25, 2015, the trial court issued a

standard pretrial order, which established a discovery cutoff date of January 25, 2016.

       {¶6}   On December 7, 2015, IHT and Eisner filed their joint motion for summary

judgment. On December 28, 2015, Mayfield filed a “Motion for Extension of Time to

Respond to Summary Judgment Motion of IHT Insurance Agency Group LLC and

Eisner Insurance LLC.” In its motion, Mayfield asserted it “is engaged in good faith

efforts to obtain particular documents from Defendants that Defendants have thus far

withheld, without providing a privilege log or any other official affirmation that the

documents are not discoverable.        If Defendants remain unwilling to produce the

requested documents, Plaintiff intend[s] to file a motion to compel their production.”

       {¶7}   IHT and Eisner subsequently filed a memorandum in opposition to

Mayfield’s motion in which they argued the motion should be denied because: (1) it

failed to seek a continuance pursuant to Civ.R. 56(F), the rule governing extensions of

time for obtaining additional discovery to oppose summary judgment when necessary

affidavits are unavailable; (2) the motion failed to comply with Civ.R. 56(F); and (3) the

documents Mayfield was seeking were privileged. IHT and Eisner attached several

letters to its memorandum which demonstrated they had previously alerted Mayfield of

their position that the documents in question were privileged and that they did not intend

to produce them for the litigation.

       {¶8}   On January 8, 2016, Mayfield filed a reply brief in support of its motion,

noting that the discovery cutoff deadline was January 25, 2016 and it required additional


                                             3
time to obtain discovery to respond to IHT’s and Eisner’s motion. It asserted that even if

documents were privileged, it still required a continuance because it intended on

deposing “a third party witness who would not be available until mid-January.” The

parties appear to concede that third-party witness was Merrilee Stewart, the former

president of IHT. Mayfield did not respond to IHT’s and Eisner’s argument that its

motion was defective for failure to comply with the requirements of Civ.R. 56(F). No

motion to compel was filed.

       {¶9}   On January 15, 2016, the trial court denied Mayfield’s motion and entered

summary judgment in favor of USLI as well as IHT and Eisner. The court determined

that Mayfield’s motion for extension of time must be denied because it failed to include

an affidavit containing particularized facts demonstrating the need for further discovery

as required by Civ.R. 56(F). The court further observed that, although certain

depositions were taken, they were not filed and, thus, any reference to facts derived

from these depositions would not be considered. After considering the merits of the

pending motions, the court found USLI, IHT, and Eisner met their initial burden by

demonstrating, through evidentiary quality material, that no issues of material fact

existed for litigation. It further determined Mayfield failed to meet its reciprocal burden.

Thus, the court concluded USLI, IHT, and Eisner were entitled to summary judgment as

a matter of law.

       {¶10} Mayfield filed a timely notice of appeal and, later, moved this court to

supplement the record pursuant to App.R. 9(E), claiming certain deposition transcripts

were inadvertently omitted from the trial record. IHT and Eisner opposed Mayfield’s

motion and moved to strike the same. This court remanded the matter to the trial court

for the limited purpose of determining whether the transcripts were considered when it


                                             4
entered summary judgment in each appellee’s favor. The trial court subsequently

determined the subject transcripts were not considered in rendering its decision and

thus they were not made part of the record on appeal.

      {¶11} Mayfield’s first assignment of error provides:

      {¶12} “The trial court erred and abused its discretion in simultaneously denying

plaintiff’s motion for extension of time to respond to summary judgment motion of IHT

Insurance Agency Group and Eisner Insurance LLC and granting that summary

judgment motion.”

      {¶13} Under its first assignment of error, Mayfield claims the trial court had an

independent duty to resolve discovery disputes before proceeding to consider IHT’s and

Eisner’s motion for summary judgment. It further contends that, in resolving the alleged

dispute, the trial court should have granted relief pursuant to Civ.R. 56(F) as the rule is

liberally construed to provide a nonmoving party a full opportunity to oppose a

dispositive motion.

      {¶14} Civ.R. 56(F) provides:

      {¶15} When affidavits unavailable

      {¶16} 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.

      {¶17} “Courts, including this one, have held that the remedy for a party who

must respond to a summary judgment motion before he or she has completed adequate

discovery is a motion under Civ.R. 56(F).” Reigles v. Urban, 11th Dist. Lake No. 2009-

L-139, 2010-Ohio-4427, ¶12, citing Alexander v. Tullis, 11th Dist. Portage No. 2005-P-



                                            5
0031, 2006-Ohio-1454, ¶22; Morantz v. Ortiz, 10th Dist. Franklin No. 07AP-597, 2008-

Ohio-1046, ¶20; Hankins v. Cecil, 4th Dist. Lawrence No. 08CA1, 2008-Ohio-5275, ¶8;

MacConnell v. Safeco Property, 2d Dist. Montgomery No. 21147, 2006-Ohio-2910, ¶51.

A party who fails to seek relief pursuant to Civ.R. 56(F) does not preserve the issue for

appeal. Hankins, supra.; see also Jackson v. Walker, 9th Dist. Summit No. 22996,

2006-Ohio-4351, ¶17.

       {¶18} Civ.R. 56(F) should be applied liberally to ensure a nonmoving party has

adequate time to discover facts necessary to rebut a motion for summary judgment.

Deutsche Bank Nat’l trust Co. v. Germano, 11th Dist. Portage No. 2012-P-0024, 2012-

Ohio-5833, ¶28.      The nonmoving party’s entitlement to additional discovery time,

however, is not absolute. Id.

       {¶19} Here, IHT and Eisner claim that the trial court’s judgment relating to

Mayfield’s motion for extension must be affirmed because neither it nor its subsequent

brief was accompanied by the necessary affidavit to support its request for additional

time. Moreover, IHT and Eisner emphasize neither pleading set forth a basis regarding

why or how the additional discovery was necessary to oppose IHT’s and Eisner’s

motion.

       {¶20} Civ.R. 56(F) requires an opposing party to state, by affidavit, why it cannot

present, by affidavit, facts that justify its opposition to the motion. An affidavit, therefore,

is an essential element of a motion for a continuance under the rule. And Civ.R. 56(F)

“requires the opposing party to submit affidavits with sufficient reasons stating why it

cannot present by affidavit facts sufficient to justify its opposition.” Gates Mills Inv. Co.

v. Pepper Pike, 59 Ohio App.2d 155, 169 (8th Dist.1978); State ex rel. Coulverson v.

Ohio Adult Parole Auth., 62 Ohio St.3d 12, 14 (1991) (a motion for continuance to


                                               6
conduct discovery under Civ.R. 56(F) must be supported by a proper affidavit.) Ramos

v. Khawli, 181 Ohio App.3d 176, 185, 2009-Ohio-798 (7th Dist.); (“[T]he motion for

additional time [pursuant to Civ.R. 56(F)] must be supported by the non-movant’s

affidavit, which contains sufficient reasons to show why such party cannot obtain an

affidavit of facts to oppose summary judgment.”)

       {¶21} If there is no proper affidavit, the court cannot grant relief pursuant to the

rule. Coulverson, supra. And where no affidavit is presented, “‘the court is free to rule

on the motion for summary judgment.’” Wells Fargo Bank, N.A. v. Shingara, 11th Dist.

Geauga No. 2007-G-2764, 2007-Ohio-6154, ¶12, quoting Theisler v. DiDomenico, 140

Ohio App.3d 379, 383 (7th Dist.2000); see also Transamerica Fin. Serv. v. Stiver, 61

Ohio App.3d 49, 52 (2d Dist.1989).

       {¶22} Mayfield did not specifically seek relief pursuant to Civ.R. 56(F) and did

not respond to IHT’s and Eisner’s argument that doing so was necessary to obtain the

relief sought. In this respect, Mayfield failed to preserve its right to appeal this issue.

See Hankins, supra; Jackson, supra. Assuming, however, arguendo, Mayfield intended

its motion to be filed pursuant to Civ.R. 56(F), we shall consider its arguments.

       {¶23} Mayfield contends that this court’s recent decision in Moore v. Warren,

Ohio Hosps. Co., LLC, 11th Dist. Trumbull No. 2015-T-0020, 2016-Ohio-1366, supports

its position that the trial court erred in denying its motion for extension.        Moore,

however, is distinguishable from the facts of this case.

       {¶24} In Moore, a plurality opinion, the plaintiff filed interrogatories and

document requests on September 19, 2014. Months passed without a response. On

December 31, 2014, the defendant moved for summary judgment. On January 22,

2015, the plaintiff filed a “motion to compel and motion for sanctions,” alleging the


                                             7
defendant had not responded to her discovery request. On the same date, the plaintiff

filed a memorandum in opposition to the dispositive motion. The trial court ultimately

granted the defendant’s motion for summary judgment without ruling on her motion to

compel.

       {¶25} On appeal, this court reversed the trial court, noting that the plaintiff had

made timely and reasonable efforts to obtain discovery; the defendant failed and/or

refused to respond to the plaintiff’s requests; and the plaintiff was not responsible for

any delays in the proceedings. This court determined the motion to compel should have

been granted and the plaintiff was entitled to additional time to respond under the

circumstances.

       {¶26} The procedural facts of this case differ from Moore.          Here, although

Mayfield asserted IHT and Eisner failed to produce certain documents, IHT and Eisner

advised Mayfield of their belief that the documents were privileged over a month before

Mayfield filed its motion for extension. Mayfield made no additional attempts to obtain

the reports until over two weeks after IHT and Eisner filed their motion for summary

judgment. And, significantly, Mayfield, unlike the plaintiff in Moore, did not file a motion

to compel production of the documents. Moreover, Mayfield did not claim IHT and

Eisner otherwise refused to comply with its discovery requests. Hence, contrary to

Mayfield’s representations, the record fails to disclose any active discovery dispute at

the time the dispositive motion was filed.

       {¶27} Furthermore, unlike Moore, the trial court in this matter did not gloss over

the fact that discovery was ongoing. In Moore, no discovery was provided when the

dispositive motion was filed. Here, Mayfield concedes some discovery was completed.

And simply because the discovery deadline had not passed does not imply the trial


                                             8
court erred in ruling on the dispositive motion. The motion for summary judgment had

been pending for over 30 days. And Mayfield was on notice, by virtue of IHT’s and

Eisner’s arguments in opposition for an extension, of the requirements of Civ.R. 56(F).

Mayfield consequently elected not to comply with the rule even after it was alerted to its

motion’s defect. Pursuant to the rule, Mayfield was required, via affidavit, to state why it

was unable to present facts that justify its opposition to IHT’s and Eisner’s motion. It

failed to do so.

       {¶28} Although the primary writing judge in Moore classified the plaintiff’s motion

to compel as a “de facto Civ.R. 56(F) motion,” the opinion ultimately stated that the trial

court erred “in not granting the motion to compel.” Moore, at ¶28. The facts of Moore

are therefore distinguishable from the case sub judice.

       {¶29} Mayfield was required to file an affidavit justifying why it was unable to

oppose IHT’s and Eisner’s motion. Contrary to IHT’s and Eisner’s position, however,

the affidavit need not explain the need for additional discovery and what the discovery

would likely uncover. See e.g. J & B Fleet Indus. Supply v. Miller, 7th Dist. Mahoning

No. 09 MA-173 2011-Ohio-3165, ¶34. The rule appears to simply require a party to

aver why it cannot present sufficient facts to oppose the pending motion. If the rule

required a party to divine what the additional discovery would uncover, an affidavit is an

inappropriate vehicle for advancing such a prediction. An affidavit includes averments

of fact, made under oath, that are within the personal knowledge of the affiant. It stands

to reason that neither Mayfield, its representatives, nor its counsel had personal

knowledge of the contents of the documents requested and could not have possessed

personal knowledge of Ms. Stewart’s testimony prior to taking the deposition.

Accordingly they could not have filed an affidavit attesting to how this additional


                                             9
discovery was necessary to oppose IHT’s and Eisner’s motion. It would, of course, be

impossible to make factual averments under oath about which one has no knowledge.

Mayfield could have filed an affidavit averring that, given the state of discovery at the

time of the motion, it had insufficient facts to oppose IHT’s and Eisner’s motion, e.g.,

after conducting discovery and deposing IHT’s and Eisner’s representatives, there are

inadequate facts to oppose the motion. It chose to proceed allowing its motion to stand

by itself. Its decision was fatal to the motion.

       {¶30} Strictly applying the requirements of Civ.R. 56(F) in this case appears to

elevate form over substance. Mayfield’s motion and brief in support indicated that, at

this stage, it had insufficient facts to oppose the motion and therefore needed to depose

the additional witness. The problem is compounded by the procedural backdrop of the

case, i.e., the discovery deadline had not passed, the litigation had commenced a mere

nine months prior to Mayfield’s motion, no prior continuances had been sought, and the

extension sought was very short (30 days). Nevertheless, because Mayfield failed to

include or reduce its motion to an affidavit stating a factual basis why opposition was not

immediately possible, Mayfield’s motion was insufficient.

       {¶31} We appreciate Mayfield’s unfortunate position. Our review, however, is

limited to whether the trial court abused its discretion. Because an affidavit is required

by rule as well as the case law interpreting that rule, we must conclude the trial court’s

ruling was neither unreasonable nor contrary to sound legal decision-making.            We

therefore hold the trial court did not abuse its discretion in denying Mayfield’s motion for

extension.

       {¶32} Mayfield’s first assignment of error lacks merit.

       {¶33} Its second assignment of error provides:


                                             10
       {¶34} “The trial court erred as a matter of law, denied LG Mayfield procedural

due process, and abused its discretion by ruling on the motions for summary judgment

without affording LG Mayfield the opportunity to respond after it denied its motion for

extension of time.”

       {¶35} Under this assignment of error, Mayfield contends the motion for

extension of time stays the time to respond to a dispositive motion until the court rules

upon the motion for extension. Pursuant to Geauga Loc.R. 7, Mayfield had 30 days to

respond to IHT’s and Eisner’s motion.         Mayfield filed its motion for extension on

December 28, 2015, which, it argues, stayed the case until the court ruled upon the

same. Thus, Mayfield contends it was entitled to additional time to respond to the

dispositive motion.

       {¶36} First, Mayfield had an opportunity to file a memorandum in opposition and,

even if it required additional discovery to fully contest IHT’s and Eisner’s motion, it still

could have opposed the motion and noted, as it did when it opposed USLI’s motion,

supportive materials were forthcoming. Accordingly, Mayfield had the opportunity to

respond, but elected to wait until the motion for extension was considered.

       {¶37} Moreover, as stated above, once a Civ.R. 56(F) motion is deemed

deficient, e.g., because it lacks an affidavit, a court is free to rule upon a motion for

summary judgment. Shingara, supra.; Theisler, supra. Mayfield had notice of the need

to respond and was afforded an opportunity to do so. We discern no due process

violation and, under the circumstances, the trial court acted within its discretion.

       {¶38} Mayfield’s second assignment of error lacks merit.

       {¶39} Mayfield’s third assignment of error provides:




                                             11
        {¶40} “The trial court erred as a matter of law in granting IHT/Eisner’s motion for

summary judgment.”

        {¶41} Under this assignment of error, Mayfield maintains there are genuine

issues of material fact for trial relating to its claims against IHT and Eisner. Specifically,

it argues Mr. Eisner had a duty to obtain business interruption insurance because there

was direct evidence Oak & Ember’s principal, Gretchen Garofoli, and her agent, Marc

Garofoli, specifically requested the coverage. Mayfield therefore concludes Mr. Eisner’s

failure to do so created a question of fact regarding his negligence.1

        {¶42} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the

evidence shows “that there is no genuine issue as to any material fact” to be litigated;

(2) “the moving party is entitled to judgment as a matter of law;” and (3) “it appears from

the evidence * * * that reasonable minds can come to but one conclusion and that

conclusion is adverse to the party against whom the motion for summary judgment is

made, that party being entitled to have the evidence * * * construed most strongly in the

party’s favor.” A trial court's decision to grant summary judgment is analyzed by an

appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, (1996). “A de novo review requires the appellate court to conduct

an independent review of the evidence before the trial court without deference to the

trial court's decision.” (Citation omitted.) Peer v. Sayers, 11th Dist. Trumbull No. 2011-T-

0014, 2011-Ohio-5439, ¶27.

        {¶43} Although Mayfield failed to oppose IHT’s and Eisner’s motion, that motion

included, inter alia, portions of Mr. Garofoli’s deposition. We recognize that the entirety

of Mr. Garofoli’s deposition was not filed with the court and, as such, the portions of the

1. Mayfield only contests the trial court’s award of summary judgment as it relates to its negligence claim.


                                                    12
deposition attached to the motion did not comport with Civ.R. 56. Civ.R. 56(C) controls

the materials that the court may consider when it determines whether there are any

triable issues of fact.   That rule directs the court to consider only “the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence in the pending case, and written stipulations of fact, if any, timely filed in the

action[.]” (Emphasis added.) Where, however, the opposing party fails to object to the

admissibility of the non-compliant evidence, the trial court may, but need not, consider

the evidence when it determines the propriety of entering summary judgment. State ex

rel. Spencer v. E. Liverpool Planning Comm. (1997), 80 Ohio St.3d 297, 301 (1997)

citing Bowmer v. Dettelbach, 109 Ohio App.3d 680, 684 (6th Dist.1996). Here, the

portion of the deposition was neither objected to nor otherwise stricken; by implication,

we shall presume the trial court considered the attachment in rendering summary

judgment in IHT’s and Eisner’s favor.

       {¶44} With this in mind, the excerpts of Mr. Garofoli’s deposition, attached to the

dispositive motion, reveal that he “believed” he advised Mr. Eisner that he and his wife

wanted business interruption coverage and that Mr. Eisner advised him that they

“needed” the coverage. “In the insurance context, an action for negligence may be

based upon an insurance agent’s failure to procure insurance.” Tornado Techs., Inc. v.

Quality Control Inspection, Inc., 8th Dist. Cuyahoga No. 97514, 2012-Ohio-3451, ¶18.

“Whether an agent has negligently failed to procure insurance is ordinarily a question of

fact.” Id.

       {¶45} A court considering a summary judgment need not afford the non-moving

party every inference to be drawn from the evidence, but only every reasonable

inference. Colville v. Meijer Stores Ltd., 2d Dist. No. 2011-CA-011, 2012-Ohio-2413,


                                            13
¶37. Viewing the evidence most strongly in Mayfield’s favor, the reasonable inference

can be drawn that the Garofolis desired business interruption insurance and/or Mr.

Eisner, despite his averments to the contrary, advised them it was necessary. If Mr.

Eisner advised Mr. Garofoli that the restaurant “needed” business interruption coverage,

and Mr. Garofoli indicated he wanted such coverage, but Mr. Eisner failed to procure

the same, there is a genuine issue of material fact as to whether he was negligent in

procuring the insurance policy that did not include business interruption coverage. We

therefore hold there is a genuine issue of material fact for litigation relating to Mayfield’s

negligence claim against IHT and Eisner.

       {¶46} Mayfield’s third assignment of error has merit.

       {¶47} Mayfield’s fourth assignment of error provides:

       {¶48} “The trial court erred as a matter of law in granting USLI’s motion for

summary judgment.”

       {¶49} Mayfield asserts a genuine issue of material fact remains regarding USLI’s

liability for breach of an oral contract because Mr. Eisner, acting as its agent, orally

promised to obtain business interruption coverage. It further argues that, even though

Mr. and Mrs. Garofoli failed to read the policy, Mr. Eisner, as USLI’s agent, represented

he would obtain business interruption coverage; hence, Mr. and Mrs. Garofoli’s failure to

read the policy creates a jury issue regarding comparative negligence. Finally, Mayfield

asserts there is a genuine issue of fact regarding whether the parties were mutually

mistaken when they entered the agreement.           Given the lack of evidentiary quality

material in the record, each of Mayfield’s arguments must fail.

       {¶50} In responding to USLI’s motion for summary judgment, Mayfield submitted

only the affidavit of Christopher McCauley, the manager of Oak & Embers. McCauley


                                             14
averred that, after the fire, Mr. Eisner assured Mr. and Mrs. Garofoli that the policy

contained business interruption coverage. Mr. McCauley also averred he heard a voice

message left by Mr. Eisner shortly after the fire. In the message, Mr. Eisner stated he

reviewed the subject policy and represented it included business interruption coverage.

Obviously, Mr. Eisner’s representations were misleading because the policy did not

include business interruption coverage. Nevertheless, it does not establish that, in the

course of his discussions with Mr. and Mrs. Garofoli, Mr. Eisner was asked to procure

the coverage. Mr. McCauley’s affidavit does not speak to this crucial issue.

          {¶51} In order to formulate a sustainable theory of liability against USLI, Mayfield

was required to advance some evidentiary quality material, whether by affidavit or

deposition, that would allow for the reasonable inference that Oak & Embers, through

Mr. and/or Mrs. Garofoli, requested Mr. Eisner to obtain business interruption coverage.

Without this preliminary nexus, it is inconsequential whether Mr. Eisner was acting as

USLI’s agent.

          {¶52} Although Mayfield’s complaint alleges Mr. and Mrs. Garofoli requested Mr.

Eisner to obtain business interruption coverage, Mayfield was not entitled to “rest upon

the mere allegations or denials of the party’s pleadings, but the party’s response, by

affidavit or as otherwise provided in this rule, must set forth specific facts showing that

there is a genuine issue for trial.” Civ.R. 56(E); see also Dresher v. Burt, 75 Ohio St.3d

280, 293 (1996). Because Mayfield failed to provide any evidentiary materials that

would indicate the initial request was made, USLI was entitled to judgment as a matter

of law.

          {¶53} Assuming arguendo that Mayfield did introduce some evidence that the

request was made in its memorandum opposing USLI’s motion, the record fails to


                                               15
establish Mr. Eisner was acting as USLI’s agent during his discussions with the

Garofolis.

       {¶54} R.C. 3929.17 provides: “A person who solicits insurance and procures the

application therefor shall be considered as the agent of the party, company, or

association thereafter issuing a policy upon such application or a renewal thereof,

despite any contrary provisions in the application or policy.”

       {¶55} In Damon’s Missouri, Inc. v. Davis, 63 Ohio St.3d 605 (1992), the

Supreme Court of Ohio held:

       {¶56} An insurance broker (or independent insurance agent) becomes an
             agent for a particular insurer when: (1) the broker notifies its
             customer, the potential insured, that he or she intends to place the
             customer’s insurance coverage with a particular insurer; or (2) the
             broker accepts an application for insurance on behalf of the
             customer. (R.C. 3929.27, construed.) Damon’s, syllabus.

       {¶57} Here, the record reflects that after discussing Oak & Embers’ insurance

needs, Mr. Eisner contacted three separate insurance companies to obtain an

insurance quote for the restaurant. One of the companies was USLI. According to Mr.

Eisner, USLI was the only company willing to offer a quote. After receiving the quote,

Mr. Eisner contacted Mr. Garofoli and, eventually, Mrs. Garofoli signed the policy.

       {¶58} When Mr. Eisner contacted USLI, he was not “soliciting” or “procuring”

insurance as contemplated by R.C. 3929.27. Instead, he was acting as a “broker.” In

Damon’s, the Court observed:

       {¶59}    “An ‘insurance broker’ is one who acts as middleman between the
               insured and the insurer, and who solicits insurance from the public
               under no employment from any special company and who, upon
               securing an order, places it with a company selected by the
               insured, or, in the absence of such a selection, with a company
               selected by himself; whereas an ‘insurance agent’ is one who
               represents an insurer under an employment by it. Whether a
               person acts as a broker or agent is not determined by what he is


                                            16
              called but is to be determined from what he does. In other words,
              his acts determine whether he is an agent or a broker.” Id. at 610,
              quoting 3 Couch on Insurance 2d, supra, at 442-443, Section
              25:93

      {¶60} At the time he sent the restaurant’s information to the companies, which

did not include a business interruption coverage option, i.e., the essence of Mayfield’s

negligent procurement claim, he was performing activities particular to his role as an

insurance broker, not a soliciting agent. The alleged negligent act occurred when he

was acting “as middleman between the insured and the insurer,” during the pre-

application stage, and not as a representative of USLI. Mr. Eisner could be deemed an

agent of USLI only after he advised the Garofolis that he would be placing coverage

with USLI or once he accepted the finalized application on behalf of Mrs. Garofoli.

Damon’s, syllabus. He was not, however, an agent at the time he provided the

information to USLI to obtain a quote. Mayfield’s argument to the contrary lacks merit.

      {¶61} Finally, Mayfield contends that because, after the fire, Mr. Eisner

represented that the policy included business interruption coverage and the Garofoli’s

believed such coverage was included, there was a mutual mistake justifying reformation

of the contract. We do not agree.

      {¶62} Unambiguous insurance policies are usually enforced as written. Where,

however, clear and convincing evidence demonstrates a mutual mistake in the policy, a

court may employ the equitable tool of reformation to deviate from the terms of the

written agreement and correct the mistake. Ryan v. Nationwide Ins. Co., 8th Dist.

Cuyahoga No. 84569, 2005-Ohio-885, ¶13. A court may also reform a policy in the

case of a unilateral mistake that “affects the insurance policy to such an extent that the




                                           17
contract is not ‘a correct integration of the agreement of the parties.’” Id., quoting

Snedegar v. Midwestern Idemn. Co., 44 Ohio App.3d 64, 69 (10th Dist.1988).

       {¶63} Nevertheless, a court should not reform an insurance policy where the

party seeking reformation has failed to fulfill his duty to read the policy. Allstate Ins. Co.

v. Croom, 8th Dist. Cuyahoga No. 95508, 2011-Ohio-1697, ¶11. Reformation is a

remedy in equity, and “[e]quity aids the vigilant.” Marconi v. Savage, 8th Dist. Cuyahoga

No. 99163, 2013-Ohio-3805, ¶23 (discussing the equitable doctrine of laches and

explaining that “a person is not entitled to relief when there has been an ‘[u]nreasonable

delay; neglect to do a thing or to seek to enforce a right at a proper time’”), quoting

Russell v. Fourth Natl. Bank, 102 Ohio St. 248, 265, (1921). See also Jacubenta v.

Ranch, 8th Dist. Cuyahoga No. 98750, 2013-Ohio-586, ¶15 (“An insurance policyholder

has a duty to read its insurance policy.”); Hts. Driving School v. Motorists Ins. Co., 8th

Dist. Cuyahoga No. 81727, 2003-Ohio-1737, ¶38 (charging a policyholder with

knowledge about the contents of his insurance policy). “An agent or broker is not liable

when a customer’s loss is due to the customer’s own act or omission.” Id.

       {¶64} Here, the record demonstrates that Mr. and Mrs. Garofoli did not read the

policy. Had they done so, they would have known business interruption coverage was

omitted. In this respect, the Garofolis were not vigilant in verifying their alleged

assumptions about the coverage. Alternatively, it is uncontroverted that USLI provided

insurance coverage that was requested and did not deprive Mayfield of any benefits

owed under the policy.      There is no indication that it was mistaken regarding the

coverage that was sought. Under these circumstances, therefore, reformation would be

inequitable.

       {¶65} Mayfield’s final assignment of error lacks merit.


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       {¶66} For the reasons discussed in this opinion, the judgment of the Geauga

County Court of Common Pleas is affirmed in part, reversed in part, and remanded for

further proceedings.



THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a Dissenting
Opinion.
                      ______________________


COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a Dissenting
Opinion.


       {¶67} I agree with the majority’s finding of error regarding Mayfield’s third

assignment.    I disagree, however, with the majority’s finding of no error regarding

Mayfield’s remaining assignments.        Because I would reverse and remand the trial

court’s judgment in its entirety, I concur in part and dissent in part.

       {¶68} “Summary judgment is a procedural tool that terminates litigation and thus

should be entered with circumspection. Davis v. Loopco Industries, Inc., 66 Ohio St.3d

64, 66 * * * (1993). Summary judgment is proper where (1) there is no genuine issue of

material fact remaining to be litigated; (2) the movant is entitled to judgment as a matter

of law; and (3) it appears from the evidence that reasonable minds can come to but one

conclusion, and, viewing the evidence in the non-moving party’s favor, that conclusion

favors the movant. See e.g. Civ.R. 56(C).

       {¶69} “When considering a motion for summary judgment, the trial court may not

weigh the evidence or select among reasonable inferences.                 Dupler v. Mansfield

Journal Co., 64 Ohio St.2d 116, 121 * * * (1980). Rather, all doubts and questions must



                                              19
be resolved in the non-moving party’s favor. Murphy v. Reynoldsburg, 65 Ohio St.3d

356, 359 * * * (1992). Hence, a trial court is required to overrule a motion for summary

judgment where conflicting evidence exists and alternative reasonable inferences can

be drawn. Pierson v. Norfork Southern Corp., 11th Dist. No. 2002-A-0061, 2003-Ohio-

6682, ¶36. In short, the central issue on summary judgment is, ‘whether the evidence

presents sufficient disagreement to require submission to a jury or whether it is so one-

sided that one party must prevail as a matter of law.’ Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251-252 * * * (1986). On appeal, we review a trial court’s entry of

summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 * * *

(1996).” Meloy v. Circle K Store, 11th Dist. Portage No. 2012-P-0158, 2013-Ohio-2837,

¶5-6. (Parallel citations omitted.)

       {¶70} This writer agrees with Mayfield that Moore v. Warren Ohio Hosps. Co.,

LLC, 11th Dist. Trumbull No. 2015-T-0020, 2016-Ohio-1366 (Cannon, J., concurred in

part and concurred in judgment only in part with a Concurring Opinion, and Grendell, J.,

dissented with a Dissenting Opinion), supports its position that the trial court erred in

denying its motion for extension. As Moore is procedurally quite similar to the instant

case, this writer disagrees with the majority that Moore is inapplicable.

       {¶71} Specifically, this court stated the following in Moore, supra, at ¶17-25:

       {¶72} “* * * In her first assignment, Ms. Moore argues the trial court erred in

granting TMH’s motion for summary judgment. Ms. Moore alleges the court did not

allow her an adequate opportunity to complete discovery before ruling on the summary

judgment motion. She contends the court should have first ruled on her ‘Motion to

Compel and Motion for Sanctions’ before granting summary judgment in favor of TMH.




                                            20
       {¶73} “Appellate courts generally apply the abuse of discretion standard when

reviewing discovery rulings. State ex rel. Sawyer v. Cuyahoga Cty. Dept. of Children

and Family Servs., 110 Ohio St.3d 343, 2006-Ohio-4574, ¶9 * * *.           Regarding this

standard, we recall the term ‘abuse of discretion’ is one of art, connoting judgment

exercised by a court which neither comports with reason, nor the record. State v.

Ferranto, 112 Ohio St. 667, 676-678 * * * (1925). An abuse of discretion may be found

when the trial court ‘applies the wrong legal standard, misapplies the correct legal

standard, or relies on clearly erroneous findings of fact.’ Thomas v. Cleveland, 176

Ohio App.3d 401, 2008-Ohio-1720, ¶15 * * * (8th Dist.).

      {¶74} “This court stated in Deutsche Bank Nat’l Trust Co. v. Germano, 11th Dist.

Portage No. 2012-P-0024, 2012-Ohio-5833, ¶28-30:

      {¶75} “‘“In interpreting Civ.R. 56(F), this court has indicated that a trial court

should apply the rule liberally to ensure that the nonmoving party in any summary

judgment exercise has sufficient time to discover any fact which is needed to properly

rebut the argument of the moving party.” Marshall v. Silsby, 11th Dist. No. 2004-L-094,

2005-Ohio-5609, ¶18, citing King v. Zell, 11th Dist. No. 97-T-0186, 1998 Ohio App.

LEXIS 6364, *10 (Dec. 31, 1998). The nonmoving party’s right to additional discovery

time, however, is not absolute in every instance. To be entitled to a continuance under

the rule, the nonmoving party has the burden of establishing a sufficient reason for the

additional time. Id., citing Kane v. Kane, 10th Dist. No. 02-AP-933, 2003-Ohio-4021,

¶14. “That is, the party requesting more time must show that the additional discovery

will actually aid in either the demonstration or negation of a fact relevant to an issue in

the motion for summary judgment.” Id., citing King 1998 Ohio App. LEXIS 6364 at *11.




                                            21
       {¶76} “‘“(B)ecause such a request for additional time under Civ.R. 56(F) involves

a matter of discovery, the disposition of such a request falls within the sound discretion

of a trial court.” Id. at ¶19, citing Westcott v. Associated Estates Realty Corp., 11th Dist.

Nos. 2003-L-059 and 2003-L-060, 2004-Ohio-6183, ¶17. “Thus, the ruling of the trial

court will be upheld on appeal unless it can be shown that the decision was arbitrary,

unreasonable or unconscionable.” Id.

       {¶77} “‘“(W)here discovery proceedings would not, if allowed to proceed, aid in

the establishment or negation of facts relating to the issue to be resolved, Ohio’s

appellate courts have been reluctant to find that the trial court abused its discretion by

granting a motion for summary judgment before the discovery proceedings were

completed.” King 1998 Ohio App. LEXIS 6364 at *11, citing Ball v. Hilton Hotels, 32

Ohio App.2d 293, 295 * * * (* * *) (1st Dist.1972). See also Gates Mills Investment Co.

v. Pepper Pike, 59 Ohio App.2d 155 * * * (* * *) (8th Dist.1978).’ (Parallel citations

omitted.)

       {¶78} “This court also stated in Waldorf v. Waldorf, 11th Dist. Trumbull No.

2013-T-0094, 2015-Ohio-1207, ¶11:

       {¶79} “‘When an appellate court reviews a trial court’s ruling on a motion to

continue, the court “‘“‘appl(ies) a balancing test, thereby weighing the trial court’s

interest in controlling its own docket, including the efficient dispensation of justice,

versus the potential prejudice to the moving party.’”’” In re K.M.D., 4th Dist. Ross No.

11CA3289, 2012-Ohio-755, ¶50, quoting Foley v. Foley, 10th Dist. Franklin Nos. 05AP-

242 & 05AP-463, 2006-Ohio-946, ¶16, quoting Fiocca v. Fiocca, 10th Dist. Franklin No.

04AP-962, 2005-Ohio-2199, ¶7.        In dealing with a motion to continue, a trial court

should consider the following factors: (1) the length of the delay requested; (2) whether


                                             22
other continuances have been requested and received; (3) the inconvenience to

litigants, witnesses, opposing counsel and the court; (4) whether the requested delay is

for legitimate reasons or whether it is dilatory, purposeful, or contrived; (5) whether the

defendant contributed to the circumstance which gives rise to the request for a

continuance; and (6) other relevant factors, depending on the unique facts of each case.

K.M.D. at ¶51, quoting State v. Unger, 67 Ohio St.2d 65, 67-68 * * * (* * *) (1981).’

(Parallel citation omitted).

       {¶80} “Before a court may rule on summary judgment, it must allow the parties

adequate opportunity to complete discovery * * *.”

       {¶81} In Moore, the parties did not have an adequate opportunity to complete

discovery.   TMH filed a motion for summary judgment before it had responded to

discovery properly served on it by Ms. Moore. She later filed a timely and well laid out

“Motion to Compel and Motion for Sanctions,” requesting, by implication, more time

pursuant to Civ.R. 56(F). The trial court did not construe her motion to compel as a

motion to delay ruling on TMH’s motion for summary judgment and the court never

acted on her motion. Thus, the court erred in never clearing discovery before ruling on

the motion for summary judgment. See Moore, supra, at ¶25-29.

       {¶82} Based on the foregoing, this court in Moore articulated a standard that

should have been followed by the trial court in the instant matter, i.e., that that trial court

judge had an independent duty to get discovery resolved. As Ms. Moore was effectively

stopped “‘halfway around the track’” and the “‘win’” was given to the other side “‘before

the race was over,’” so too was Mayfield in this case as the trial court’s pretrial order

indicated there was still more time for discovery. See Moore, supra, at ¶29.




                                              23
       {¶83} As stated, “‘“In interpreting Civ.R. 56(F), this court has indicated that a trial

court should apply the rule liberally to ensure that the nonmoving party in any summary

judgment exercise has sufficient time to discover any fact which is needed to properly

rebut the argument of the moving party.”’” Moore, supra, at ¶20, quoting Germano,

supra, at ¶28. Mayfield correctly points out that “the trial court strictly construed Civ.R.

56(F), elevating form over substance and denied a reasonable request for an extension

of time to complete discovery within the period originally established by the trial

court.” (Emphasis sic.) (Appellant’s brief page 11). “Before a court may rule on

summary judgment, it must allow the parties adequate opportunity to complete

discovery (prior to acting on a prematurely filed motion for summary judgment.)” Moore,

supra, at ¶25. Procedural fairness envisions a discovery process that leads to a just

result. The court is the guarantor of procedural fairness, a core competency of the court

and an expectation of the public.

       {¶84} In addition, this writer agrees with Mayfield that “the scales in this

particular balancing test tip very heavily in favor of an extension of time, and the trial

court abused its discretion in not granting it in the first instance * * *.” (Appellant’s brief

page 12); Waldorf, supra, at ¶11 (As stated, “[i]n dealing with a motion to continue, a

trial court should consider the following factors: (1) the length of the delay requested; (2)

whether other continuances have been requested and received; (3) the inconvenience

to litigants, witnesses, opposing counsel and the court; (4) whether the requested delay

is for legitimate reasons or whether it is dilatory, purposeful, or contrived; (5) whether

the defendant contributed to the circumstance which gives rise to the request for a

continuance; and (6) other relevant factors, depending on the unique facts of each

case.”)


                                              24
         {¶85} Here, this was the first request for an extension. Mayfield’s counsel was

diligent in pursuing discovery. The motion was not made to cause delay. A short

extension of time would not have inconvenienced the parties, other counsel, or the

court.    Mayfield correctly points out that the deposition at issue was important to

developing admissible evidence which would have allowed it to rebut the dispositive

motion. Thus, a genuine issue of material fact existed as to whether Mayfield requested

and Mr. Eisner placed business interruption coverage. It is this writer’s position that the

trial court erred in not allowing Mayfield the opportunity to present this evidence to the

court before proceeding to rule on the dispositive motion.

         {¶86} Accordingly, because I would reverse and remand the trial court’s

judgment in its entirety, I concur in part and dissent in part.




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