[Cite as Farm Credit Servs. of Mid-Am. v. Fox, 2012-Ohio-5446.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




FARM CREDIT SERVICES OF                           :           JUDGES:
MID-AMERICA, FLCA                                 :           Hon. Patricia A. Delaney, P.J.
                                                  :           Hon. Sheila G. Farmer, J.
        Plaintiff-Appellee                        :           Hon. Julie A. Edwards, J.
                                                  :
-vs-                                              :
                                                  :
MICHAEL A. FOX, ET AL.                            :           Case No. 12-CA-57
                                                  :
        Defendants-Appellants                     :           OPINION




CHARACTER OF PROCEEDING:                                      Appeal from the Court of Common
                                                              Pleas, Case No. 11CV1497



JUDGMENT:                                                     Reversed and Remanded




DATE OF JUDGMENT:                                             November 20, 2012




APPEARANCES:

For Plaintiff-Appellee                                        For Defendant-Appellee

JOHN E. BOWERS                                                JOHN SHERROD
233 North Court Street                                        503 South Front Street
Circleville, OH 43113                                         Suite 240
                                                              Columbus, OH 43215
Licking County, Case No. 12-CA-57                                                     2

Farmer, J.

      {¶1}   On November 7, 2011, appellee, Farm Credit Services of Mid-America,

FLCA, filed a foreclosure complaint against appellants, Michael and Barbara Fox, as

well as others not pertinent to this appeal. On March 16, 2012, appellants filed their

answer and counterclaim.

      {¶2}   On April 18, 2012, appellee filed a motion for summary judgment. On May

7, 2012, appellants filed a Civ.R. 56(F) motion for discovery. The following day, on May

8, 2012, the trial court issued a scheduling order, setting September 12, 2012 as the

discovery completion date and June 6, 2012 as the non-oral hearing date for dispositive

motions. On June 8, 2012, without specifically ruling on the Civ.R. 56(F) discovery

motion, the trial court granted summary judgment to appellee.

      {¶3}   Appellants filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶4}   "THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO RULE

ON APPELLANTS' CIV.R. 56(F) MOTION FOR DISCOVERY, WHICH WAS AN

IMPLICIT DENIAL OF SAID MOTION FOR DISCOVERY, PRIOR TO GRANTING

APPELLEE'S MOTION FOR SUMMARY JUDGMENT."

                                            I

      {¶5}   Appellants claim the trial court erred in granting appellee's motion for

summary judgment without first ruling on their request for discovery and additional time

pursuant to Civ.R. 56(F). We agree.

      {¶6}   Civ.R. 56(F) states the following:
Licking County, Case No. 12-CA-57                                                       3




                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.



      {¶7}      In reviewing the docket, we find the trial court, on May 8, 2012, the day

immediately after the filing of appellants' motion for a Civ.R. 56(F) extension, filed the

following scheduling order:



      Deadline for Completion of Discovery                    September 12, 2012

      Responses to Dispositive Motions                               May 29, 2012

      Replies to Responses to Dispositive Motions                    June 5, 2012

      Motions Hearing Date Non-Oral (no appearance required)         June 6, 2012



      {¶8}      The trial court granted summary judgment to appellee on June 8, 2012,

after the time set for ruling on dispositive motions, but some three months before the

discovery completion date. The scheduling order can be viewed as a granting of the

Civ.R. 56(F) motion when it set a discovery completion date for September 12, 2012,

and the granting of the summary judgment motion can be justified by the dispositive

motion order.
Licking County, Case No. 12-CA-57                                                4


      {¶9}    We note a fundamental tenet of judicial review in Ohio is that courts

should decide cases on their merits. DeHart v. Aetna Life Insurance Co. (1982), 69

Ohio St.2d 189. Upon review, we find the confusion created by the scheduling order

should be resolved in favor of appellants.

      {¶10} The sole assignment of error is granted.

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

hereby reversed.

By Farmer, J.

Delaney, P.J. and

Edwards, J. concur.




                                             _______________________________



                                             _______________________________



                                             _______________________________

                                                        JUDGES

SGF/sg 1017
[Cite as Farm Credit Servs. of Mid-Am. v. Fox, 2012-Ohio-5446.]


                   IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT




FARM CREDIT SERVICES OF                               :
MID-AMERICA, FLCA                                     :
                                                      :
        Plaintiff-Appellee                            :
                                                      :
-vs-                                                  :           JUDGMENT ENTRY
                                                      :
MICHAEL A. FOX, ET AL.                                :
                                                      :
        Defendants-Appellants                         :           CASE NO. 12-CA-57




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

judgment of the Court of Common Pleas of Licking County, Ohio is reversed, and the

matter is remanded to said court for further proceedings consistent with this opinion.

Costs to appellee.




                                                      _______________________________



                                                      _______________________________



                                                      _______________________________

                                                                     JUDGES
