[Cite as Matrix Acquisitions, L.L.C. v. Merriman, 2011-Ohio-4419.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96280




                          MATRIX ACQUISITIONS, L.L.C.

                                                  PLAINTIFF-APPELLEE

                                                     vs.


                                  SCOTT R. MERRIMAN

                                                  DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CV-716873
       BEFORE:     Kilbane, A.J., Boyle, J., and Rocco, J.

    RELEASED AND JOURNALIZED: September 1, 2011
ATTORNEY FOR APPELLANT

Orville E. Stifel, II
5310 Franklin Boulevard
P.O. Box 602780
Cleveland, Ohio 44102

ATTORNEY FOR APPELLEE

Parri J. Hockenberry
Cheek Law Office, L.L.C.
471 East Broad Street - 12th Floor
Columbus, Ohio 43215
MARY EILEEN KILBANE, A.J.:

      {¶ 1} This case came to be heard upon the accelerated calendar pursuant

to App.R. 11.1 and Loc.R. 11.1.

      {¶ 2} Defendant-appellant, Scott Merriman (Merriman), appeals from

the trial court’s order granting plaintiff-appellee, Matrix Acquisitions, L.L.C.

(Matrix), summary judgment and awarding Matrix $31,057.33.             Finding

merit to the appeal, we reverse and remand.

      {¶ 3} In January 2010, Matrix filed suit against Merriman, alleging that

Merriman defaulted on a credit card issued to him by Chase Bank USA, N.A.

(Chase). Matrix purchased the obligations allegedly owed by Merriman from

Turtle Creek Assets, Ltd., which purchased the debt from Chase.             The

complaint alleges that Merriman owes $26,921.22 ($19,596.08 plus $7,325.14

in accrued interest) and future interest and costs. In response, Merriman

filed an answer denying that he ever had a credit card with Chase.
         {¶ 4} On July 26, 2010, Matrix moved for summary judgment, arguing

that it is the assignee of Chase and is entitled to recover from Merriman the

amount owed on Merriman’s Chase account.1 On August 3, 2010, the trial

court held a settlement conference, at which the court ordered that “discovery

cut-off is 10/29/2010” and the “response to dispositive motion(s) to be filed by

11/30/2010.”        Merriman did not file anything with the court from August

3, 2010 to November 10, 2010. On November 10, 2010, which was prior to the

expiration of the response time (November 30, 2010) stated in the trial court’s

order, the court granted Matrix’s motion for summary judgment. Then on

December 10, 2010, the trial court issued a judgment in Matrix’s favor in the

amount of $19,596.08, plus $11,461.25 in accrued interest, future interest, and

costs.

         {¶ 5} It is from this order that Merriman appeals, raising two

assignments of error for review.

                          ASSIGNMENT OF ERROR ONE

         “The court erred and denied [Merriman] due process by
         ruling on and granting Matrix’s motion for summary
         judgment prior to [the] expiration of the response time
         provided by the court’s own previous order.”




         1Matrix
              filed two separate supplemental memoranda in support of its motion
for summary in August 2010.
      {¶ 6} Merriman argues the trial court prematurely granted Matrix’s

motion for summary judgment, in direct contradiction to its August 3, 2010

order. Matrix concedes this point and we agree.

      {¶ 7} In the instant case, the trial court set a schedule for discovery, the

filing of dispositive motions, and the responses.        The order provides in

pertinent part:    “discovery cut-off is 10/29/2010” and the “response to

dispositive motion(s) to be filed by 11/30/2010.” On November 10, 2010, prior

to the expiration of the stated response time, the trial court granted the

following order:

      “[Matrix’s] motion for summary judgment as to
      [Merriman] * * * filed 07/26/2010, is granted. * * * The
      court, having considered all the evidence and having
      construed the evidence most strongly in favor of the
      non-moving party, determines that reasonable minds can
      come to but one conclusion, that there are no genuine
      issues of material fact, and that [Matrix] is entitled to
      judgment as a matter of law.”

      {¶ 8} In Mackey v. Steve Barry Ford, Inc. (May 30, 1991), Cuyahoga App.

No. 58681, this court addressed an analogous situation where the trial court

granted defendants’ motions for summary judgment prior to its stated

response deadline.     We stated that:      “[t]he trial court, in its inherent

authority to set a briefing schedule for one of its cases, told the parties that

they had until October 31, 1989 to respond to any dispositive motion. This

order clearly afforded plaintiff the opportunity until the end of October to file
any responsive pleadings.       The court’s action on September 26, 1989

[granting defendants’ motions for summary judgment] deprived plaintiff of the

stated response time in which he was entitled to file briefs and evidentiary

materials.” As a result, we found that the trial court “has inherent authority

to conduct the management of its cases and set discovery and briefing

schedules. To simply collapse the time for responses, without notice, after

previously setting down a specific response time amounts in our opinion to an

abuse of discretion.”

      {¶ 9} Just as in Mackey, the trial court in the instant case granted Matrix

summary judgment prior to the expiration of the response time it set for

dispositive motions. As such, we find the trial court abused its discretion.

      {¶ 10} Thus, the first assignment of error is sustained.

                          ASSIGNMENT OF ERROR TWO

      “The court erred in granting summary judgment where
      Matrix failed to carry the moving party’s initial burden.”

      {¶ 11} In the second assignment of error, Merriman argues Matrix failed

to produce evidence demonstrating that he was the individual who opened,

used, or was responsible for the Chase account.        However, based on our

disposition of the first assignment of error, we overrule the second assignment

of error as moot. See App.R.12(A)(1)(c).
       {¶ 12} Accordingly, judgment is reversed.               The case is remanded so

Merriman shall have the remainder of time set by the trial court to respond to

Matrix’s motion for summary judgment.



       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

MARY J. BOYLE, J., and
KENNETH A. ROCCO, J., CONCUR
