[Cite as Herb v. Loughlin, 2012-Ohio-4351.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




STEVEN M. HERB                                :     JUDGES:
                                              :     Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellant                   :     Hon. Sheila G. Farmer, J.
                                              :     Hon. John W. Wise, J.
-vs-                                          :
                                              :
KEITH S. LOUGHLIN, ET AL.                     :     Case No. 12-CA-11
                                              :
        Defendants-Appellees                  :     OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 2011CV330


JUDGMENT:                                           Affirmed/Reversed in Part and
                                                    Remanded


DATE OF JUDGMENT:                                   September 21, 2012



APPEARANCES:

For Plaintiff-Appellant                             For Keith S. Loughlin

RAYMOND L. EICHENBERGER                             ROBERT C. BUCHBINDER
7620 Slate Ridge Boulevard                          500 South Front Street, Suite 1200
Reynoldsburg, OH 43068                              Columbus, OH 43215

For State Farm                                      For Newark Area Soccer Association

DAVID L. LESTER                                     CARL A. ANTHONY
DAVID L. EIDELBERG                                  65 East State Street
Skylight Office Tower                               Suite 800
1660 West 2nd Street, Suite 100                     Columbus, OH 43215
Cleveland, OH 44113-1448
Licking County, Case No. 12-CA-11                                                        2

Farmer, J.

      {¶1}   In January of 2010, appellant, Steven Herb, accused appellee, Keith

Loughlin, of having an affair with his wife, Randi Herb (Carroll).      Appellee was the

soccer coach of the Herbs' son, and worked for appellee, Newark Area Soccer

Association (hereinafter "NASA").      Following a verbal dispute, appellee Loughlin

received a civil protection order against appellant on April 21, 2010.       Although not

included in the civil protection order, appellant believed he could attend his son's soccer

games that were being coached by appellee Loughlin.

      {¶2}   On October 9, 2010, appellant attended his son's soccer game being

coached by appellee Loughlin.       Appellee Loughlin called the police which caused

appellant to be arrested in light of his violating the civil protection order. An amended

civil protection order was filed on October 14, 2010 permitting appellant to attend his

son's soccer games as long as he made no contact with appellee Loughlin.              Any

charges against appellant were dismissed.

      {¶3}   On March 7, 2011, appellant filed a complaint against appellees for

negligence, negligent infliction of intentional harm, intentional infliction of emotional

harm, false imprisonment, abuse of process, and malicious prosecution. On May 11,

2011, appellee State Farm Fire and Casualty Company was granted leave to intervene

in order to seek a declaratory judgment as to its duty to defend and indemnify appellee

Loughlin under his condominium policy. On October 11, 2011, appellee State Farm

filed a motion for summary judgment. Appellees Loughlin and NASA filed motions for

summary judgment on December 1, 2011.
Licking County, Case No. 12-CA-11                                                      3


      {¶4}   On December 12, 2011, appellant filed a Civ.R. 56(F) motion to stay the

summary judgment motions of Loughlin and NASA because of two pending discovery

motions. By decision and order filed January 12, 2012, the trial court denied appellant's

two discovery motions and denied appellant's Civ.R. 56(F) motion. By judgment entry

filed January 30, 2012, the trial court granted summary judgment to all appellees.

      {¶5}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

      {¶6}   "THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS

DISCRETION WHEN IT FAILED TO GRANT PLAINTIFF'S CIVIL RULE 56 F MOTION

FOR EXTENSION OF TIME TO REPLY TO DEFENDANT'S MOTIONS FOR

SUMMARY JUDGMENT, SO THAT PLAINTIFF COULD CONCLUDE HIS DISCOVERY

FROM DEFENDANT LOUGHLIN AND NON-PARTY RANDI HERB CARROLL."

                                           II

      {¶7}   "THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS

DISCRETION BY FAILING TO AFFORD THE PLAINTIFF THE OPPORTUNITY TO

RESPOND TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT WHEN IT

DENIED PLAINTIFF'S CIVIL RULE 56 F MOTION."

                                           III

      {¶8}   "THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS

DISCRETION      IN   DEEMING      ALL   OF THE        REQUESTS     FOR    ADMISSIONS

SUBMITTED BY THE DEFENDANTS TO BE ADMITTED."
Licking County, Case No. 12-CA-11                                                         4


                                            IV

       {¶9}   "THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS

DISCRETION IN GRANTING THE MOTIONS FOR SUMMARY JUDGMENT OF THE

DEFENDANTS."

                                            I, II

       {¶10} Appellant claims the trial court erred and abused its discretion in denying

his Civ.R. 56(F) motion to stay the summary judgment motions of appellees Loughlin

and NASA in light of two pending discovery motions. Appellant also claims the trial

court erred and abused its discretion in failing to afford him the opportunity to respond to

the summary judgment motions once his Civ.R. 56(F) motion was denied.

       {¶11} Civ.R. 56(F) governs "when affidavits unavailable" and states the

following:

       {¶12} "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."

       {¶13} Appellant based his December 12, 2011 Civ.R. 56(F) request on the fact

that there were two pending discovery motions: a November 16, 2011 motion relative to

a subpoena for non-party Randi Herb (Carroll) to take her deposition and produce her

cell phone containing text messages and any emails between her and appellee

Loughlin, and a December 12, 2011 motion to compel appellee Loughlin to respond to a

second request for production of documents. In a December 14, 2011 memorandum
Licking County, Case No. 12-CA-11                                                        5


contra to appellant's Civ.R. 56(F) motion, appellee Loughlin noted that he responded to

appellant's second request for production of documents, as evidenced by a notice filed

on November 29, 2011.

      {¶14} In order to properly review these assignments, it is necessary to look at

the entire procedural history of the case. Once all parties were in answer, the trial court

on May 12, 2011 journalized a scheduling order and trial notice setting forth dates to

facilitate and expedite the effective management of the case. All parties agreed to the

following schedule:

      {¶15} "Deadline for Completion of Discovery             Nov. 4, 2011

      {¶16} "Dispositive Motions Deadline                     Dec. 2, 2011

      {¶17} "Responses to Dispositive Motions                 Dec. 16, 2011

      {¶18} "Replies to Responses to Dispositive Motions Dec. 30, 2011

      {¶19} "Motions Hearing Date                             Jan. 6, 2012

      {¶20} "Deadline for Disclosure of Expert Witnesses

      {¶21} "Plaintiff                                        August 26, 2011

      {¶22} "Defendant                                        Sept. 30, 2011"

      {¶23} The discovery cutoff date was set for November 4, 2011.             There was

never a request to extend discovery prior to December 12, 2011.

      {¶24} Via a letter addressed to appellant's counsel dated November 1, 2011 and

docketed on November 3, 2011, Randi Herb (Carroll) objected to the subpoena. As

noted in her letter, the subpoena was received on October 26, 2011, some nine days

before all discovery was to be completed. The subpoena had requested that her cell

phone containing text messages and any emails between her and appellee Loughlin be
Licking County, Case No. 12-CA-11                                                         6


produced by November 2, 2011. In the letter, Randi Herb (Carroll) objected to the

subpoena on various grounds, including the argument that the request was overbroad

and created an undue burden.         Appellant did not pursue the enforcement of this

subpoena until November 16, 2011 which was after the discovery cutoff date.

       {¶25} By decision and order filed January 12, 2012, the trial court addressed

appellant's motion to enforce subpoena as follows:

       {¶26} "Based on the arguments and evidence presented, the Court finds that

Plaintiff's motions are not well taken. Specifically, the Court finds that the Plaintiff had

been aware of the discovery deadlines for nearly seven (7) months.***

       {¶27} "The Court also finds that Plaintiff's discovery request to Defendant

Loughlin and the subpoena issued to Ms. Carroll are overly broad and unduly infringes

upon their privacy rights.***"

       {¶28} The trial court went on to deny appellant's Civ.R. 56(F) motion, stating the

following:

       {¶29} "Based on the arguments of the parties, and the evidence presented to the

Court on January 10, 2012, the Court finds that Plaintiff has not established that the

discovery sought would be fruitful and relevant to the issues involved in this case. Nor

does the Court find a sufficient reason to delay its ruling on the pending Motions for

Summary Judgment. Even without the additional discovery Plaintiff argues for, he could

have filed a response to the pending motions. The fact that he chose not to was his

decision."

       {¶30} Appellant was informed of the trial court's decision not to delay ruling on

the summary judgment motions on January 12, 2012. Instead of preparing responses
Licking County, Case No. 12-CA-11                                                     7


to the motions, appellant filed an affidavit of prejudice against the judge pursuant to

R.C. 2701.03 on January 18, 2012.          The Chief Justice denied the affidavit of

disqualification on January 27, 2012 (docketed on January 31, 2012). The judgment

entry granting the motions for summary judgment was filed on January 30, 2012.

       {¶31} The filing of the affidavit pursuant to R.C. 2701.03 stayed the case. Also,

the filing of the December 12, 2011 Civ.R. 56(F) motion stayed the case until resolution

by the trial court on January 12, 2012. Pursuant to Civ.R. 56(C), appellant had fourteen

days to respond to the summary judgment motions or up until the day before the

scheduled hearing. Appellant had until December 15, 2011 to respond or as per the

May 12, 2011 pretrial scheduling order, until December 16, 2011. As a result, appellant

had four days after the Chief Justice's ruling to respond. We therefore conclude it was

error not to at least have waited until February 4, 2012 to rule on the summary judgment

motions.

       {¶32} Assignments of Error I and II are granted as to appellees Loughlin and

NASA, but denied as to appellee State Farm pursuant to our decision in Assignment of

Error IV.

                                           III

       {¶33} Appellant claims the trial court erred in granting appellees' joint July 8,

2011 motion to deem his admissions filed on May 17, 2011 as admitted.

       {¶34} Civ.R. 36 governs requests for admissions. Subsections (A)(2) and (3)

state the following:

       {¶35} "(2) If objection is made, the reasons therefor shall be stated. The answer

shall specifically deny the matter or set forth in detail the reasons why the answering
Licking County, Case No. 12-CA-11                                                           8


party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance

of the requested admission, and when good faith requires that a party qualify his or her

answer, or deny only a part of the matter of which an admission is requested, the party

shall specify so much of it as is true and qualify or deny the remainder. An answering

party may not give lack of information or knowledge as a reason for failure to admit or

deny unless the party states that the party has made reasonable inquiry and that the

information known or readily obtainable by the party is insufficient to enable the party to

admit or deny. A party who considers that a matter of which an admission has been

requested presents a genuine issue for trial may not, on that ground alone, object to the

request; the party may, subject to the provisions of Civ.R. 37(C), deny the matter or set

forth reasons why the party cannot admit or deny it.

       {¶36} "(3) The party who has requested the admissions may move for an order

with respect to the answers or objections. Unless the court determines that an objection

is justified, it shall order that an answer be served. If the court determines that an

answer does not comply with the requirements of this rule, it may order either that the

matter is admitted or that an amended answer be served. The court may, in lieu of

these orders, determine that final disposition of the request be made at a pretrial

conference or at a designated time prior to trial. The provisions of Civ.R. 37(A)(4) apply

to the award of expenses incurred in relation to the motion."

       {¶37} In their joint motion filed July 8, 2011, appellees requested the following:

       {¶38} "As to Request for Admissions Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10,

Defendants respectfully request that this Court deem Plaintiff's responses to be

admitted. Plaintiff has been placed on notice by all parties as to the insufficiency of
Licking County, Case No. 12-CA-11                                                       9


Plaintiff's Responses to Request for Admissions, yet Plaintiff has refused, in writing, to

amend the Request for Admissions in dispute. Defendants request that this Court find

that Plaintiff Herb's responses to the above-referenced Request for Admissions do not

comply with Civil Rule 36(A)."

       {¶39} The trial court granted the request on August 23, 2011.

       {¶40} On May 17, 2011, appellant filed his replies to the admissions. There

were thirteen admissions in toto. Admissions 1 through 10 involved the civil protection

order between appellant and appellee Laughlin, its authenticity, as well as admissions

on the Common Pleas Court case file. Appellant denied these requests based upon the

fact that the attached copies were not properly authenticated, and further stated, "[t]he

contents of Court Entries and Orders speak for themselves and are only subject to

interpretation by the Court." No objections were filed. Appellant's statements in his

replies in fact admitted the validity of the civil protection order and the trial court's

judgment entries.

       {¶41} Upon review, we find no error in admitting admissions 1 through 10.

       {¶42} Assignment of Error III is denied.

                                           IV

       {¶43} Appellant claims the trial court erred in granting summary judgment to

appellees as he was not given the opportunity to respond, and questions of material fact

exist which should be tried by a jury.

       {¶44} We note, as does appellee State Farm, that this assignment of error does

not dispute the granting of summary judgment to appellee State Farm. In fact, no one

responded to appellee State Farm's summary judgment motion filed on October 11,
Licking County, Case No. 12-CA-11                                                      10


2011 on the issue of coverage.       We therefore find no error in granting summary

judgment to appellee State Farm. However, the portion of the entry granting summary

judgment to appellees Loughlin and NASA is vacated pursuant to our ruling in

Assignment of Error I.

      {¶45} Assignment of Error IV is granted in part and denied in part.

      {¶46} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed in part and reversed in part.

By Farmer, J.

Delaney, P.J. and

Wise, J. concur.




                                                S / Sheila G. Farmer_______________



                                                S / Patricia A. Delaney_____________



                                                S / John W. Wise_________________

                                                            JUDGES




SGF/sg 816
[Cite as Herb v. Loughlin, 2012-Ohio-4351.]


                   IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT




STEVEN M. HERB                                :
                                              :
        Plaintiff-Appellant                   :
                                              :
-vs-                                          :        JUDGMENT ENTRY
                                              :
KEITH S. LOUGHLIN, ET AL.                     :
                                              :
        Defendants-Appellees                  :        CASE NO. 12-CA-11




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio is affirmed in part and

reversed in part, and the matter is remanded to said court for further proceedings

consistent with this opinion. Costs to be divided equally between appellant, appellee

Loughlin, and appellee NASA.




                                              S / Sheila G. Farmer_______________



                                              S / Patricia A. Delaney_____________



                                              S / John W. Wise_________________

                                                          JUDGES
