[Cite as Fifth Third Bank v. Watkins, 2016-Ohio-1524.]


STATE OF OHIO                    )                           IN THE COURT OF APPEALS
                                 )ss:                        NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

FIFTH THIRD BANK                                             C.A. No.   27781

        Appellee

        v.                                                   APPEAL FROM JUDGMENT
                                                             ENTERED IN THE
THOMAS W. WATKINS                                            COURT OF COMMON PLEAS
                                                             COUNTY OF SUMMIT, OHIO
        Appellant                                            CASE No.   CV 2013-12-5762

                                DECISION AND JOURNAL ENTRY

Dated: April 13, 2016



        WHITMORE, Judge.

        {¶1} Appellant, Thomas W. Watkins, appeals from the judgment of the Summit County

Court of Common Pleas. This Court affirms.

                                                         I

        {¶2} Watkins obtained a loan from Fifth Third Bank (“Fifth Third”) to finance the

purchase of a boat. Several years later, Watkins fell behind in the payments and listed the boat

for sale. A number of months later, Fifth Third repossessed and sold the boat. The sale did not

generate enough funds to pay the loan balance. Fifth Third filed an action to collect the

deficiency from Watkins. Watkins answered asserting, inter alia, that Fifth Third failed to sell

the boat in a commercially reasonable manner.

        {¶3} Each party requested discovery from the other party.               Among its discovery

requests, Fifth Third made a request for admissions. Watkins’ requests included a request for

production of documents.
                                               2


       {¶4} On April 30, 2014, Fifth Third moved for summary judgment attaching

unanswered requests for admissions as its Civ.R. 56(C) evidence. Watkins, subsequently, sought

and received additional time from the trial court to respond to Fifth Third’s discovery requests.

In its brief to this Court, Fifth Third states that it received Watkins’ discovery responses on

August 4, 2014. Neither Fifth Third nor Watkins filed a copy of his answers to the requests for

admissions with the trial court.

       {¶5}    After filing its motion for summary judgment, Fifth Third requested and received

an extension of time to respond to Watkins’ request for production of documents.

       {¶6} Watkins also requested and received an extension of time to respond to the motion

for summary judgment. In his response, he “object[ed]” to the motion arguing it was premature

as discovery had not been completed. More particularly, he contended that Fifth Third refused to

provide necessary documentation regarding whether the sale occurred in a commercially

reasonable manner.

       {¶7} Watkins filed a motion to compel Fifth Third to produce the documents that he had

requested in discovery. That same day, Fifth Third’s discovery responses were filed in the trial

court1. The trial court denied the motion to compel as moot.

       {¶8} Several months later, the trial court granted Fifth Third’s motion for summary

judgment.

       {¶9} Watkins appeals raising one assignment of error for review.




1
  It is unclear who filed these discovery responses. It appears that the clerk made a notation on
the trial court’s docket indicating Watkins filed the responses. But, in his brief to this Court,
Watkins states: “Appellant [Watkins] filed a motion to compel. On the same day the Appellee
[Fifth Third] filed a copy of the answers and refusals previously given to Appellant [Watkins].”
                                                 3


                                                II

                                       Assignment of Error

        COURT ERRED IN FINDING DEFENDANTS (sic) MOTION TO COMPEL
        DISCOVERY MOOT AND BY GRANTING SUMMARY JUDGMENT
        WITHOUT AFFORDING THE DEFENDANT FULL DISCOVERY
        REQUESTED.

        {¶10} In his sole assignment of error, Watkins argues that the trial court should have

granted his motion to compel discovery. More particularly, he contends that he was unable to

defend against the motion for summary judgment without access to documents in Fifth Third’s

possession “if they exist at all.”

        {¶11} We note that Watkins’ argument concerns the denial of his motion to compel, not

the grant of summary judgment itself. Our review is, thus, limited to the discovery issue.

        {¶12} “This [C]ourt reviews a trial court’s disposition of discovery matters for an abuse

of discretion.” Lampe v. Ford Motor Co., 9th Dist. Summit No. 19388, 2000 WL 59907, *3

(Jan. 19, 2000). An abuse of discretion implies that the trial court’s decision was unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

        {¶13} In the instant matter, the trial court filed a three-sentence order denying Watkins’

motion to compel. The order states: “This matter is before the [c]ourt on [d]efendant’s [m]otion

to [c]ompel, filed on September 10, 2014. Plaintiff has responded by filing its responses on

September 10, 2014. Upon review, [d]efendant’s motion to compel is MOOT, and dismissed.”

        {¶14} Watkins did not, thereafter, file anything with the trial court arguing that although

the responses had been filed, they were incomplete and, therefore, his motion was not moot.

Four months later, the trial court granted Fifth Third’s motion for summary judgment.

        {¶15} In his brief to this Court, Watkins acknowledges: “Appellant [Watkins] filed a

motion to compel. On the same day the Appellee [Fifth Third] filed a copy of the answers and
                                                 4


refusals previously given to Appellant [Watkins].” Under these circumstances, we cannot say

that the trial court abused its discretion in finding the motion to compel moot.

       {¶16} Moreover, within the context of a motion for summary judgment, the rule itself

provides a mechanism for seeking discovery prior to a ruling on the motion. Civ.R. 56(F)

provides:

       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.

“A party needing evidence to oppose a motion for summary judgment, but ‘who fails to seek

relief under Civ.R. 56(F) in the trial court does not preserve his rights under the rules for

purposes of appeal.’” Jackson v. Walker, 9th Dist. Summit No. 22996, 2006-Ohio-4351, ¶ 17,

quoting R&R Plastics, Inc. v. F.E. Myers Co., 92 Ohio App.3d 789, 798 (6th Dist.1993).

       {¶17} Watkins argued to the trial court that the plaintiff’s motion for summary judgment

was premature as plaintiff had not provided “necessary documents requested” regarding whether

the boat was sold in a commercially reasonable manner2. He did not, however, file an affidavit

or seek a continuance under Civ.R. 56(F). Consequently, he cannot argue to this Court that the




2
  We observe that the burden of demonstrating whether the boat was sold in a commercially
reasonable manner rested on Fifth Third in this case. See Huntington Nat. Bank v. Legard, 9th
Dist. Lorain No. 03CA008285, 2004-Ohio-323, ¶ 7 (“In an action where the secured party’s
compliance is at issue, ‘the secured party has the burden of establishing that the * * * disposition
* * * was conducted in accordance with [R.C. 1309.601 to 1309.628.]’ R.C. 1309.626(B).”).
Nonetheless, the “[f]ailure to answer [requests for admissions] is not excused because the matters
requested to be admitted are central to the case or must be proven by the requesting party at
trial.” L.E. Sommer Kidron, Inc. v. Kohler, 9th Dist. Wayne No. 06CA0044, 2007-Ohio-885, ¶
45. While the parties appear to agree that Watkins answered the requests for admissions after the
summary judgment motion was filed, neither party filed a copy of those answers with the court.
We express no opinion on whether Fifth Third met its burden.
                                                 5


trial court erred in ruling on the summary judgment motion without affording him an opportunity

for further discovery.

       {¶18}    Watkins’ sole assignment of error is overruled.

                                                III

       {¶19} Watkins’ assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                      BETH WHITMORE
                                                      FOR THE COURT
                                        6


HENSAL, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

THOMAS W. WATKINS, pro se, Appellant.

YALE R. LEVY and KRISHNA K. VELAYUDHAN, Attorneys at Law, for Appellee.
