[Cite as Wilmington Savs. Fund v. Lautzenheiser, 2019-Ohio-2389.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



WILMINGTON SAVINGS FUND        :                              JUDGES:
                               :                              Hon. William B. Hoffman, P.J.
     Plaintiff-Appellee        :                              Hon. Patricia A. Delaney, J.
                               :                              Hon. Earle E. Wise, Jr., J.
-vs-                           :
                               :
DONALD J. LAUTZENHEISER AKA    :
DONALD JAY LAUTZENHEISER, ET AL:                              Case No. 2018CA00131
                               :
     Defendant-Appellant       :                              OPINION




CHARACTER OF PROCEEDING:                                      Appeal from the Court of Common
                                                              Pleas Case No. 2015CV00789




JUDGMENT:                                                     Affirmed in Part and Reversed and
                                                              Remanded in Part




DATE OF JUDGMENT:                                             June 14, 2019



APPEARANCES:

For Plaintiff-Appellee                                        For Defendant-Appellant

PHILLIP BARRAGATE                                             DAVID A. VAN GAASBEEK
ASHLYN HEIDER                                                 1303 West Maple Street
4805 Montgomery Road                                          Suite 104
Suite 320                                                     North Canton, OH 44720
Norwood, OH 45212
Stark County, Case No. 2018CA00131                                                     2



Wise, Earle, J.

       {¶ 1} Defendant-appellant Donald J. Lautzenheiser appeals the decision of the

Stark County Court of Common Pleas grant of summary judgment to plaintiff-appellee

Wilmington Savings Fund Society, FSB.

                        FACTS AND PROCEDURAL HISTORY

       {¶ 2} On April 16, 2015, Citizens Bank NA filed a complaint in foreclosure against

appellant, alleging appellant had failed to make payments pursuant to his mortgage

contract.

       {¶ 3} On May 20, 2015, counsel for appellant filed a notice of appearance and a

motion for a 30-day extension of time to file an answer.

       {¶ 4} On May 21, 2015, the trial court granted counsel's motion for an extension

of time until June 18, 2015. On May 26, 2015, the trial court referred the matter to the

foreclosure mediation program and stayed proceedings pending the outcome of the

mediation. Appellant filed his answer to the complaint on June 19, 2015.

       {¶ 5} On November 24, 2015, the report of the mediator was filed indicating the

matter had not been settled as additional information was required from appellant.

Appellant was given until December 7, 2015 to produce the documents, and mediation

was rescheduled for January 21, 2016.

       {¶ 6} On January 21, 2016, the mediator filed a report indicating the matter was

not settled as additional documentation was required. Mediation was again rescheduled

for March 17, 2016.

       {¶ 7} On March 18, 2016, the mediator filed another report indicating the matter

had not been settled as Citizen's Bank required statements from appellant regarding his
Stark County, Case No. 2018CA00131                                                      3


pension benefits. Both parties desired to remain in mediation, but the matter was returned

to the trial court for that determination. On April 11, 2016, appellant filed a motion for

further mediation. On April 19, 2016, the trial court granted the motion, allowing for one

additional mediation.

       {¶ 8} Mediation was scheduled for October 20, 2016, but was cancelled on

October 19, 2016 because appellant's loan was transferred to a new provider, appellee

here, Wilmington Savings Fund Society, FSB. Appellee's motion to substitute party was

granted on November 11, 2017.

       {¶ 9} The case then sat for more than a year until January 31, 2018, when

appellant filed a motion for further mediation due to substitution of party plaintiff. The

motion was granted on February 28, 2018.

       {¶ 10} Mediation took place as scheduled on May 24, 2018. On May 25, the

mediator filed a report indicating mediation had been unsuccessful and referred the

matter back to the trial court.

       {¶ 11} On July 13, 2018, appellee filed a motion for summary judgment.

       {¶ 12} Fourteen days later, on July 27, 2018, appellant filed a "Motion for Stay of

Determining the Issues Raised in the Motion for Summary Judgment." In his motion,

appellant argued appellee had filed its motion for summary judgment before he could file

his amended answer and counterclaim instanter, and that his amended answer and

counter claim raised significant points which should be subject to discovery and further

scrutiny. On the same day, appellant filed a "Motion for Leave to File an Amended Answer

and Counterclaim Instanter." On July 30, 2018, 17 days after appellant's 28-day response
Stark County, Case No. 2018CA00131                                                        4


period under Civ.R. 56(C) began, the trial court granted appellee's motion for summary

judgement. The trial court did not address either of appellant's motions.

      {¶ 13} Appellant timely filed this appeal. The trial court stayed delivery of the deed

to the purchaser of the property at issue, pending the outcome of this matter. Appellant

raises 3 assignments of error:

                                                I

      {¶ 14} "THE TRIAL COURT ERRED IN THIS ACTION IN THAT IT DID NOT

REMOVE THE STAY THAT IT ORDERED IN THE JUDGMENT ENTRY OF MAY 26,

2015, AND DID NOT FOLLOW THE REQUIREMENTS OF LOCAL RULES 11 AND 12,

STARK COUNTY LOCAL RULES WHICH REQUIRED THAT A CASE SHOULD HAVE

A CALL OF THE DOCKET AND THAT A HEARING SHOULD BE SCHEDULED WHEN

A MOTION FOR SUMMARY JUDGMENT WAS FILED."

                                                II

      {¶ 15} "THE TRIAL COURT BY NOT LIFTING THE STAY, BY NOT FOLLOWING

THE REQUIREMENTS OF STARK COUNTY LOCAL RULE 11, BY NOT FOLLOWING

THE REQUIREMENTS OF LOCAL RULE 12, BY NOT ESTABLISHING A BRIEFING

SCHEDULE, AND BY GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT

WHILE TWO MOTIONS SEEKING LEAVE TO AMEND THE ANSWER AND THE

COUNTERCLAIM VIOLATED APPELLANT'S RIGHT TO DUE PROCESS OF LAW AS

PROTECTED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED

STATES CONSTITUTION."
Stark County, Case No. 2018CA00131                                                        5


                                                 III

      {¶ 16} "THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT TO

APPELLANT BECAUSE THE JUDGMENT WAS IN VIOLATION OF A STAY ORDER

ISSUED BY THE COURT ON MAY 26, 2015 AND HAD NOT BEEN REVOKED AND

THAT APPELLANT HAD FILED MOTIONS INDICATING THAT HE INTENDED TO FILE

ADDITIONAL DOCUMENTS IN THIS MATTER THAT WOULD CREATE A GENUINE

ISSUE OF MATERIAL FACT WHICH WOULD DEFEAT A MOTION FOR SUMMARY

JUDGMENT ALLEGATIONS."

                                             I

      {¶ 17} In his first assignment of error, appellant argues the trial court failed to

comply with Stark County Local Rules when it failed to hold a call of the docket hearing.

According to appellant, Local Rule 12.02 requires such a hearing and was a prerequisite

to lift the stay on proceedings. Appellee does not directly counter appellant's arguments,

and instead states that appellant is barred from raising these claims because he failed to

raise them below. We disagree with both parties.

      {¶ 18} First, as appellant notes, if there was error, it did not occur until the trial

court granted appellee's motion for summary judgment. We therefore find appellant may

properly raise his complaint here on appeal.

      {¶ 19} Next, as for the trial court's compliance or lack thereof with the local rules,

the Ninth District Court of Appeals in Wallner v. Thorne, 189 Ohio App.3d 161, 2010-

Ohio-2146, 937 N.E.2d 1047, set forth standards of review for such complaints at ¶ 21:
Stark County, Case No. 2018CA00131                                                           6


              Different standards of review have developed in regard to a trial

              court's failure to comply with its local rules when ruling on motions.

              In cases where the local rule is merely administrative, is designed to

              facilitate case management, and does not implicate constitutional

              rights, the trial court is not bound to comply with it. See, e.g., Smith

              v. Conley, 109 Ohio St.3d 141, 2006-Ohio-2035, 846 N.E.2d 509, at

              ¶ 6-10. In other situations, this court has recognized that a trial court

              has discretion in regard to its enforcement of local procedural rules

              when the peculiar circumstances of the case warrant deviation from

              the local rule. See, e.g., Yanik v. Yanik, 9th Dist. No. 21406, 2003-

              Ohio-4155, 2003 WL 21804802, at ¶ 8-11. However, when the trial

              court's failure to comply with local rules implicates issues of due

              process, depriving a party of a “reasonable opportunity to defend”

              against the disposition of the case in favor of the other party, the trial

              court is bound to comply with its local rules. See, e.g., Hillabrand v.

              Drypers Corp. (2000), 87 Ohio St.3d 517, 518–520, 721 N.E.2d

              1029. * * *



       {¶ 20} Appellant complains Stark County Local Rule 12.02 required the trial court

to hold a hearing/call of the docket, and lift the stay of proceedings before it could consider

appellee's motion for summary judgment. We find, however, the rule is administrative in

nature. Section 12.01 evidences the administrative nature of the rule, stating its purpose

is "to ensure the efficient and comprehensive management of civil cases," and further that
Stark County, Case No. 2018CA00131                                                          7


the purpose of the call of the docket is to "select pretrial and trial dates, and determine

whether the case can be submitted to compulsory arbitration pursuant to Rule 16.02(B).

* * *"

         {¶ 21} Because the rule is administrative in nature, the trial court was not bound to

comply with it. Further, when appellant's case was referred to mediation, the trial court's

May 26, 2015 judgment entry clearly indicated the matter was "stayed pending the

outcome of the mediation." On May 25, 2018, the Report of Mediation was filed indicting

"Mediation was unsuccessful; case referred back to trial court." This effectively lifted the

stay.

         {¶ 22} Appellant's first assignment of error is overruled.

                                             II, III

         {¶ 23} We address appellant's second and third assignments of error together. In

his second assignment of error, appellant argues his due process rights were violated

when the trial court (1) proceeded without first lifting the stay and holding a call of the

docket hearing, (2) ignored his July 27, 2018 motions – "Motion for Leave to File an

Amended Answer and Counterclaim Instanter," and "Motion for Stay of Determining the

Issues Raised in the Motion for Summary Judgment," (3) failed to hold a hearing on

appellee's motion for summary judgment in violation of Local Rule 11, and (4) ruled on

appellee's motion for summary judgment without giving appellant the right to respond. In

his third assignment of error, appellant again argues the trial court ignored/failed to

consider his July 27, 2018 motions requesting a stay in determining appellee's motion for

summary judgment and his motion for leave to file an amended answer and counter claim.

We disagree with appellant's first three arguments, but agree with the fourth.
Stark County, Case No. 2018CA00131                                                       8


       {¶ 24} First, appellant essentially reiterates the arguments set forth in his first

assignment of error, framing them as constitutional violations. He complains that the stay

in proceedings was never lifted, and a call of the docket hearing was never held, depriving

him of property without a hearing or an opportunity to respond. As we have found above,

however, Local Rule 12.02 is administrative in nature, and therefore does not implicate

constitutional rights. Additionally, as stated above, the stay was lifted when mediation

concluded according to the trial court's May 21, 2015 judgment entry. Indeed, appellant

himself filed two motions after mediation concluded. Appellant's complaints, therefore,

remain without merit.

       {¶ 25} Appellant next complains that the trial court ignored his July 27, 2018

motions. However, “[a] motion not expressly decided by a trial court when the case is

concluded is ordinarily presumed to have been overruled.” Kostelnik v. Helper, 96 Ohio

St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 13, citing State ex rel. The V. Cos. v. Marshall,

81 Ohio St.3d 467, 469, 1998-Ohio-329, 692 N.E.2d 198.

       {¶ 26} Third, appellant argues the trial court was required to hold a hearing on

appellee's motion for summary judgement pursuant to Local Rule 11. We first note that

Local Rule 11 pertains to the reproduction of hospital records. Local Rule 10, however,

pertains to hearings and submission of motions. Section 10.01 indicates: "This rule is not

applicable to motions for summary judgment taken pursuant to Civil Rule 56. Motions for

summary judgment taken pursuant to Civil Rule 56 will be set for hearing and briefs will

be due as required by Civil Rule 56(C)." Thus no Stark County Local Rule governs

motions for summary judgment.
Stark County, Case No. 2018CA00131                                                         9


      {¶ 27} Civil Rule 56(C) sets forth the procedure following a party's filing of a motion

for summary judgment. The rule provides:



             (C) Motion and Proceedings. The motion shall be served in

             accordance with Civ.R. 5. Unless otherwise provided by local rule or

             by order of the court, the adverse party may serve responsive

             arguments and opposing affidavits within twenty-eight days after

             service of the motion, and the movant may serve reply arguments

             within fourteen days after service of the adverse party’s response.

             Summary judgment shall be rendered forthwith if the pleadings,

             depositions,   answers     to   interrogatories,   written   admissions,

             affidavits, transcripts of evidence, and written stipulations of fact, if

             any, timely filed in the action, show that there is no genuine issue as

             to any material fact and that the moving party is entitled to judgment

             as a matter of law. No evidence or stipulation may be considered

             except as stated in this rule. A summary judgment shall not be

             rendered unless it appears from the evidence or stipulation, and only

             from the evidence or stipulation, that reasonable minds can come to

             but one conclusion and that conclusion is adverse to the party

             against whom the motion for summary judgment is made, that party

             being entitled to have the evidence or stipulation construed most

             strongly in the party’s favor. A summary judgment, interlocutory in

             character, may be rendered on the issue of liability alone although
Stark County, Case No. 2018CA00131                                                     10


             there is a genuine issue as to the amount of damages. (Emphasis

             added.)



      {¶ 28} The rule does not require a hearing, and instead permits the trial

court to render a decision by considering the memoranda and evidentiary materials

submitted by the parties.

      {¶ 29} Nonetheless, the trial court here ruled on appellee's motion for

summary judgment 17 days after it was filed. Pursuant to Civ.R. 56(C), appellant

should have been afforded 28 days to respond to appellee's motion for summary

judgment. By failing to permit appellant the opportunity to respond, the trial court

denied appellant his right to due process. State v. Marcus Garner, 5th Dist. Stark

No. 2009-Ohio-00855, 2011-Ohio-1209 ¶ 20-21.

      {¶ 30} The arguments contained in appellant's second and third

assignments of error are overruled in part and sustained in part.
Stark County, Case No. 2018CA00131                                                    11


       {¶ 31} This matter is remanded to the trial court for proceedings consistent

with this opinion.




By Wise, Earle, J.

Hoffman, P.J. concurs in part, dissents in part and

Delaney, J. concur.




EEW/rw
Stark County, Case No. 2018CA00131                                                                12


Hoffman, P.J., concurring in part and dissenting in part

       {¶32} I concur in the majority’s analysis and disposition of Appellant’s first

assignment of error. I further concur in the majority’s analysis of Appellant’s second and

third assignments of error with the singular exception regarding his claim the trial court

was required to hold a hearing on Appellee’s motion for summary judgment.

       {¶33} The majority correctly directs its analysis to Local Rule 10. The local rule

specifically states motions for summary judgment taken pursuant to Civil Rule 56 will be

set for hearing and briefs will be due as required by Civil Rule 56(C). While I agree Civil

Rule 56(C) does not require a hearing, it seems clear to me the local rule does.

       {¶34} While I agree Appellant’s claim the call of the docket hearing provided for in

Local Rule 12.02 is administrative in nature, I find the hearing provided for in Local Rule

10.01 is not, but rather does implicate constitutional due process rights.

       {¶35} From my review of the record, I find no notice from the trial court as to the

date a hearing on the motion for summary judgment was to be held.1 While the local rule

does not specify the nature of the hearing; i.e., evidentiary, oral or non-oral, it

nevertheless still provides for a hearing.




1 Appellee’s motion for summary judgment provides Appellant “NOTICE” a ruling on its motion will take
place “at the convenience of the Court.”
