[Cite as Bank of Am., NA v. Valentine, 2013-Ohio-598.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



BANK OF AMERICA, NA                               :      JUDGES:
                                                  :      Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                        :      Hon. William B. Hoffman, J.
                                                  :      Hon. Sheila G. Farmer, J.
-vs-                                              :
                                                  :
LEWIS J. VALENTINE, ET AL.                        :      Case No. 12 CAE 03 0020
                                                  :
        Defendants-Appellants                     :      OPINION



CHARACTER OF PROCEEDING:                                 Appeal from the Court of Common
                                                         Pleas, Case No. 10 CVE 09-1425



JUDGMENT:                                                Affirmed




DATE OF JUDGMENT:                                        February 13, 2013




APPEARANCES:

For Plaintiff-Appellee                                   For Defendant-Appellant

LAURA A. HAUSER                                          LEWIS VALENTINE, PRO SE
127 Public Square                                        4642 Aberdeen Avenue
3900 Key Tower                                           Dublin, OH 43016
Cleveland, OH 44114

MICHAEL L. DILLARD, JR.
41 South High Street
Suite 1700
Columbus, OH 43215
Delaware County, Case No. 12 CAE 03 0020                                            2

Farmer, J.

      {¶1}   On September 29, 2010, appellee, Bank of America, N.A., filed a

complaint in foreclosure against Debra Valentine and appellant, Lewis Valentine, for

failure to pay on a note secured by a mortgage.

      {¶2}   A bench trial before a magistrate was held on October 28, 2011.       By

decision dated December 28, 2011, the magistrate found in favor of appellee as against

appellant in the amount of $674,918.76 plus interest. Appellant filed objections. By

judgment entry filed February 27, 2012, the trial court denied the objections and

approved and adopted the magistrate's decision.

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

consideration. Assignments of error are as follows:

                                           I

      {¶4}   "THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT THE

RIGHT TO QUESTION A MATERIAL WITNESS, HENCE JUDGMENT BECOMES

INAPPROPRIATE AND MUST BE DENIED."

                                           II

      {¶5}   "TRIAL COURT ERRED IN DENYING APPELLANT DISCOVERY AND

THE OPPORTUNITY TO OBTAIN THE NEEDED INFORMATION TO CONDUCT ANY

DEFENSE OF THE ALLEGATIONS LEVIED AGAINST APPELLANT."

                                          III

      {¶6}   "THE TRIAL COURT ERRED IN KNOWINGLY ALLOWING APPELLEE'S

COUNSEL MANLEY-DEAS-KOCHALSKI TO REPRESENTING APPELLEE WHEN
Delaware County, Case No. 12 CAE 03 0020                                                 3


ONE OF THEIR CURRENT, ON STAFF, PRACTICING ATTORNEY'S HAD

PREVIOUSLY REPRESENTED APPELLANT."

                                              I

       {¶7}      Appellant claims the trial court erred in not permitting him to cross-

examine appellee's trial counsel, Charles Janes, as Mr. Janes had signed the

responses to his request for admissions. We disagree.

       {¶8}      Mr. Janes signed the responses to appellant's first request for admissions

following the language: "As to all objections, general and specific, mentioned above,

and otherwise as to the above responses on behalf of Plaintiff."            In response to

Admission No. 1 which stated, "[a]dmit you have the proper authority to answer these

questions," Mr. Janes wrote: "Objection. It is unknown to whom 'you' refers, other than

the Plaintiff.    This is not a proper request under Civ. R. 36.       Without waiving the

objection, Plaintiff admits that it has proper authority to answer these questions."

       {¶9}      Essentially the responses consisted of general denials of the request for

admissions, along with objections.       From our review, Mr. Janes did not offer any

admission that would qualify as an admission of a party and therefore, the admissions

did not have any evidentiary value. In addition, the admissions were not made under

oath. Further, Mr. Janes was not identified as a witness for trial. See, Scheduling Entry

filed April 4, 2011.

       {¶10} In its February 27, 2012 judgment entry overruling appellant's objections

to the magistrate's decision, the trial court addressed this issue as follows:
Delaware County, Case No. 12 CAE 03 0020                                               4


               Civ.R. 36(A)(1) states that a matter is admitted unless "the party to

       whom the request is directed serves upon the party requesting the

       admission a written answer or objection addressed to the matter, signed

       by the party or the party's attorney." (Emphasis added.) The Court finds

       no evidence in the record before it to support the Defendant's assertion

       that Attorney Janes acted outside the scope of his role as attorney for the

       Plaintiff.

               The Court finds that the evidence supports the Magistrate's

       decision disallowing cross-examination of Attorney Charles Janes.



       {¶11} Upon review, we concur with the trial court's interpretation of Civ.R.

36(A)(1), and find no error in denying the cross-examination of Mr. Janes.

       {¶12} Assignment of Error I is denied.

                                             II

       {¶13} Appellant claims the trial court erred in denying his motion to compel

discovery. We disagree.

       {¶14} In its February 27, 2012 judgment entry overruling appellant's objections

to the magistrate's decision, the trial court addressed this issue as follows:



               The trial in this matter was initially scheduled for August 18, 2011.

       By the Defendant's own admission, he did not pursue discovery prior to

       this date. Upon the Plaintiff's motion, the Court continued the trial until

       October 28, 2011. The Defendant contends that the continuance of the
Delaware County, Case No. 12 CAE 03 0020                                                  5


      trial date expanded the time for discovery for the Plaintiff and the

      Defendant. The Plaintiff moved the Court to continue the trial so that it

      could obtain the original promissory note. In the Court's entry continuing

      the trial date, there is no mention of extending a discovery deadline. The

      entry simply continued the trial date from August 18, 2011 until October

      28, 2011.

             The Defendant did not timely request discovery in this case and the

      Defendant did not seek leave of court to conduct discovery after the Court

      continued the trial date. Therefore, the Court finds that the Magistrate

      properly denied the Defendant's Motion to Compel Discovery and for

      Award of Sanctions.



      {¶15} After unsuccessful mediation, the trial court returned the case to the active

docket and ordered the following pursuant to a scheduling entry filed on April 4, 2011:



             Dispositive Pre-Trial Motions shall be filed with the Clerk of Courts

      on or before May 16, 2011.***

             Prior to submitting any dispositive pre-trial motion, the Plaintiff shall

      have examined the filings in the case to ensure that all materials needed

      to dispose of the case have been filed and that all parties have been

      served. Failure to comply will result in an administrative dismissal

      pursuant to Civil Rule 41 (B)(1) on May 23, 2011.

             ***
Delaware County, Case No. 12 CAE 03 0020                                                  6


              There will be no extension of any deadline or date established in

        this order by agreement of the Parties.         A Motion and Order are

        required for any modification. (Emphasis sic.)



        {¶16} Three days later, on April 7, 2011, the trial court filed an order granting

appellant until May 15, 2011 "in which to file their answer or other response in this

case." The trial court also noted that "[d]ispositive motions shall be filed by June 6,

2011." By judgment entry filed July 5, 2011, the trial court set a trial date for August 18,

2011.

        {¶17} On August 19, 2011, the trial court continued the trial date at appellee's

request to October 28, 2011.        Appellant's first motion for discovery was filed on

September 2, 2011 and the motion to compel was filed on October 24, 2011, some four

days before the rescheduled trial date.

        {¶18} Loc.R. 15.01 of the Court of Common Pleas of Delaware County, General

Division, provides that a continuance request made after the trial confirmation date "will

not be granted except under extraordinary circumstances where there is no alternative

means of preventing a substantial injustice." Loc.R. 24.04(A) sets discovery cutoff to 40

days from the date of the filing of the case.

        {¶19} When viewed most liberally, the 40 days for discovery would have

commenced after the case was returned to the active docket following the unsuccessful

mediation. See, Scheduling Entry filed April 4, 2011. Therefore, the discovery cutoff

date would have been May 14, 2011. Even using the July 5, 2011 judgment entry

setting the trial date for August 18, 2011, the discovery cutoff date would have been
Delaware County, Case No. 12 CAE 03 0020                                             7


August 14, 2011. We concur with the trial court that appellant's September 2, 2011

discovery request was untimely.

      {¶20} Upon review, we find the trial court did not err in denying appellant's

motion to compel discovery.

      {¶21} Assignment of Error II is denied.

                                            III

      {¶22} Appellant claims the trial court erred in denying his motion to disqualify

appellee's trial counsel's law firm as a current member of the firm represented him in

2009 in an unrelated matter. We disagree.

      {¶23} We first note appellant's motion to disqualify the law firm was filed on

January 9, 2012, after the bench trial to the magistrate and after the cutoff date for

dispositive motions.

      {¶24} Appellee responded to the motion on January 27, 2012, and explained the

attorney involved (Michael Carleton) joined the law firm on September 26, 2011, after

the discovery cutoff date, but before the continued trial date of October 28, 2011. Via

an affidavit attached to the response, Mr. Janes averred he had no knowledge of the

former representation and did not have any contact with Mr. Carleton about appellant or

any matter related to appellant.

      {¶25} In support of his argument, appellant cites to DR 1.10(a) of the Ohio Rules

of Professional Conduct:



             While lawyers are associated in a firm, none of them shall

      represent a client when the lawyer knows or reasonably should know that
Delaware County, Case No. 12 CAE 03 0020                                              8


       any one of them practicing alone would be prohibited from doing so by

       Rule 1.7 or 1.9, unless the prohibition is based on a personal interest of

       the prohibited lawyer and does not present a significant risk of materially

       limiting the representation of the client by the remaining lawyers in the

       firm. (Emphasis sic.)



       {¶26} The previous matter involved a forcible entry and detainer action with a

counterclaim by appellant to quiet title. The matter was settled on March 30, 2010.

       {¶27} In its February 27, 2012 judgment entry denying the motion to disqualify,

the trial court stated the following:



              In addition, the instant action is one for foreclosure of the

       Defendant's personal residence.    The Defendant submits that Attorney

       Carlton was an associate with the firm that represented him in another

       action involving consolidated cases in which the Defendant and his

       business partner, David Tushar, filed claims against each other to

       determine which party had a right to occupy the property involved in the

       lawsuit. The consolidated action involved a different piece of property.

       Furthermore, the instant foreclosure action was not pending at the time

       the prior consolidated case was pending.

              The Court finds that the instant action does not involve the same

       matter as that in which Attorney Carlton previously represented the
Delaware County, Case No. 12 CAE 03 0020                                              9


       Defendant. Therefore, the Court finds that no conflict of interest exists in

       this case.



       {¶28} We concur with the trial court's analysis.     Appellant did not meet his

burden to establish a conflict, and the motion was untimely made.

       {¶29} Upon review, we find the trial court did not err in denying appellant's

motion to disqualify.

       {¶30} Assignment of Error III is denied.

       {¶31} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Farmer, J.

Delaney, P.J. and

Hoffman, J. concur.




                                             s/ Sheila G. Farmer_________________



                                             s/ Patricia A. Delaney______________



                                             s/ William B. Hoffman______________

                                                           JUDGES




SGF/sg 115
[Cite as Bank of Am., NA v. Valentine, 2013-Ohio-598.]


                 IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



BAN K OF AMERICA, NA                                     :
                                                         :
        Plaintiff-Appellee                               :
                                                         :
-vs-                                                     :        JUDGMENT ENTRY
                                                         :
LEWIS J. VALENTINE, ET AL.                               :
                                                         :
        Defendants-Appellants                            :        CASE NO. 12 CAE 03 0020




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

judgment of the Court of Common Pleas of Delaware County, Ohio is affirmed. Costs to

appellant, Lewis Valentine.




                                                         s/ Sheila G. Farmer_________________



                                                         s/ Patricia A. Delaney______________



                                                         s/ William B. Hoffman______________

                                                                     JUDGES
