[Cite as Parra v. Continental Tire, 2012-Ohio-4138.]


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

MARIA ELISA POZO PARRA, et al.                          C.A. No.        26315

        Appellants

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
CONTINENTAL TIRE THE AMERICAS                           COURT OF COMMON PLEAS
LLC, (FKA: Continental Tire North                       COUNTY OF SUMMIT, OHIO
America, Inc., an Ohio Corporation)                     CASE No.   MS 2011 00 0027

        Defendant

        and

STUART SONG

        Appellee

                                 DECISION AND JOURNAL ENTRY

Dated: September 12, 2012



        DICKINSON, Judge.

                                            INTRODUCTION

        {¶1}     Plaintiffs in three product liability suits in Arizona state court joined in this action

to petition the Summit County Common Pleas Court to issue a subpoena to a purported Ohio

resident under the Uniform Foreign Depositions Act. The trial court issued the subpoena, but

later quashed it due to a failure of service and granted the prospective deponent’s motion to

dismiss the suit with prejudice. Two weeks later, the trial court purported to sua sponte vacate

its order of dismissal. The Arizona plaintiffs timely appealed the order of dismissal and also

assigned as error the trial court’s quashing of the subpoena. This Court affirms in part and
                                                 2


reverses in part. The order dismissing the suit is reversed because the trial court incorrectly

granted the motion to dismiss without giving the opposition fourteen days to file a response as

required by local rule. The trial court’s order quashing the subpoena is affirmed because its

factual determination that the address at which residential service was attempted was not the

prospective deponent’s usual place of residence was not against the manifest weight of the

evidence.

                                        BACKGROUND

       {¶2}    In September 2011, Maria Elisa Pozo Parra, Jorge Isibar Montoya, and Josefina

Veliz petitioned the Summit County Common Pleas Court to issue a subpoena duces tecum

under the Uniform Foreign Depositions Act. See R.C. 2319.08 et seq. The three petitioners are

plaintiffs in three separate product liability actions pending in the Superior Court of Maricopa

County, Arizona, against an Ohio corporation now known as Continental Tire the Americas

LLC.    In the Arizona lawsuits, each of the plaintiffs alleged that tires manufactured by

Continental at a plant in Mayfield, Kentucky, had separated causing serious injuries and

fatalities. As part of those product liability suits, the Arizona plaintiffs sought to depose Stuart

Song, a former employee of Ford Motor Company, regarding inspections he had conducted of

the relevant Continental Tire manufacturing facility in Kentucky.

       {¶3}    The Arizona plaintiffs requested that the Summit County Common Pleas Court

issue a subpoena duces tecum to Mr. Song at 254 Filmore Avenue in Cuyahoga Falls, his

purported residence. On September 9, 2011, the Summit County Common Pleas Court granted

the petition and issued the subpoena. The return of service indicates that a specially appointed

process server delivered the subpoena to “James Swanson, Adult Co-Resident / Father In law of

Stuart Song” at the Cuyahoga Falls residence four days later.
                                                 3


       {¶4}    Mr. Song moved to quash the subpoena, arguing that he does not live in

Cuyahoga Falls, but at some undisclosed location in Europe. On January 24, 2012, the trial court

granted Mr. Song’s motion to quash the subpoena. The next day, Mr. Song moved to dismiss the

suit. Before the trial court ruled on the motion to dismiss, the Arizona plaintiffs filed a notice of

taking Mr. Swanson’s deposition. On January 31, 2012, six days after the motion to dismiss was

filed, the trial court granted it. Apparently unaware of the dismissal, the Arizona plaintiffs

responded in opposition to the motion to dismiss on February 6, 2012. On February 16, the trial

court sua sponte purported to vacate its order of dismissal. On February 24, the Arizona

plaintiffs appealed the trial court’s January 31 order granting Mr. Song’s motion to dismiss and

also assigned as error the January 24 order granting the motion to quash the subpoena.

                                     MOTION TO DISMISS

       {¶5}    Mr. Song has not filed an appellate brief. Therefore, under Rule 18(C) of the

Ohio Rules of Appellate Procedure, this Court “may accept the appellant[s’] statement of the

facts and issues as correct and reverse the judgment if appellant[s’] brief reasonably appears to

sustain such action.”

       {¶6}    The Arizona plaintiffs’ first assignment of error is that the trial court incorrectly

granted Mr. Song’s motion to dismiss without permitting a response in opposition as required by

local rule. Under Local Rule 7.14(A) of the General Division of the Summit County Common

Pleas Court, “[w]ithin ten (10) days after receipt of a copy of a motion, except a motion for

summary judgment, opposing counsel shall prepare and file a response to the motion . . . . At

any time after fourteen (14) days from the date of filing of the motion, the assigned judge may

rule upon the motion. In the interest of justice, the assigned judge may enter a ruling at an earlier
                                                  4


date if so required.” In this case, the trial court ruled on Mr. Song’s motion to dismiss six days

after it was filed.

        {¶7}    This Court has held that, under certain circumstances, a trial court may deviate

from its own local rule in a particular case. See, e.g., Yanik v. Yanik, 9th Dist. No. 21406, 2003-

Ohio-4155, ¶ 9. “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.” Wallner v. Thorne, 189 Ohio App. 3d 161, 2010-Ohio-2146, ¶ 21 (9th Dist.)

(citing Smith v. Conley, 109 Ohio St. 3d 141, 2006-Ohio-2035, ¶ 6–10). On the other hand, “[if]

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.” Id. (citing Hillabrand v.

Drypers Corp., 87 Ohio St. 3d 517, 518–20 (2000)).

        {¶8}    In this case, the local rule permitted the trial court to rule on the motion before 14

days had passed if “required” “in the interest of justice.” Rule 7.14(A) of the Court of Common

Pleas of Summit County, General Division. Mr. Song has not offered any argument in support

of the trial court’s decision to rule on his motion eight days early, and this Court is not aware of

any. In the case of a motion to dismiss an action, basic principles of due process require that the

opposing party be given a reasonable opportunity to defend against the motion. Therefore, the

trial court should have complied with its local rule in this case. The trial court incorrectly

granted Mr. Song’s motion to dismiss. The plaintiffs’ first assignment of error is sustained.
                                                  5


                             MOTION TO QUASH: JURISDICTION

       {¶9}    The Arizona plaintiffs’ second assignment of error is that the trial court should

not have granted the motion to quash the subpoena. Before addressing the merits of this

assignment of error, this Court must consider whether it has jurisdiction to do so.

       {¶10} Unless an exception applies, Rule 4(A) of the Ohio Rules of Appellate Procedure

requires a notice of appeal to be filed within 30 days of the entry appealed. A failure to meet the

deadline deprives this Court of jurisdiction to consider the merits of the appeal. Bank of New

York Mellon v. Wahle, 9th Dist. No. 25789, 2011-Ohio-6737, ¶ 6. In this case, the trial court

granted the motion to quash on January 24, 2012, and the Arizona plaintiffs filed a notice of

appeal 31 days later on February 24. Therefore, we must first consider whether the order

quashing the subpoena was immediately appealable when it was entered.

                                              Final Order

       {¶11} This ancillary action initiated under the Uniform Foreign Depositions Act is a

“provisional remedy” as that term is used in Section 2505.02(B)(3) of the Ohio Revised Code.

R.C. 2505.02(B)(3) (defining “[p]rovisional remedy” as “a proceeding ancillary to an action”);

see also Lampe v. Ford Motor Co., 9th Dist. No. 19388, 2000 WL 59907, *2 (Jan. 19, 2000).

Under Section 2505.02(B)(4), “[a]n order is a final order that may be reviewed, affirmed,

modified, or reversed, with or without retrial, [if] it is . . . “[a]n order that grants or denies a

provisional remedy and . . . [t]he order in effect determines the action with respect to the

provisional remedy and prevents a judgment in the action in favor of the appealing party with

respect to the provisional remedy . . . [and] [t]he appealing party would not be afforded a

meaningful and effective remedy by an appeal following final judgment as to all proceedings,

issues, claims, and parties in the action.”
                                                 6


       {¶12} The trial court’s order granting the motion to quash the subpoena denied the

Arizona plaintiffs the provisional remedy they sought. The ruling in effect determined the action

with respect to the provisional remedy. Without an immediate appeal of that decision, the

Arizona plaintiffs would not be afforded a meaningful and effective remedy by appeal in Arizona

courts following final judgment in the underlying actions. As the trial court’s January 24 order

quashing the subpoena meets the requirements of Section 2505.02(B)(4), it had to be appealed

within 30 days, unless some exception applies. App. R. 4(A).

                                       Appeal Time Tolled

       {¶13} Under Rule 4(A) of the Ohio Rules of Appellate Procedure, “[a] party shall file

the notice of appeal required by [Appellate Rule] 3 within thirty days of the later of entry of the

judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if

service is not made on the party within the three day period in Rule 58(B) of the Ohio Rules of

Civil Procedure.” “[Appellate Rule] 4(A) thus contains a tolling provision that applies in civil

matters when a judgment has not been properly served on a party according to [Civil Rule]

58(B).” In re Anderson, 92 Ohio St. 3d 63, 67 (2001). “[Civil Rule] 58(B) requires the court to

endorse on its judgment ‘a direction to the clerk to serve upon all parties . . . notice of the

judgment and its date of entry upon the journal.’” Id. (quoting Civ.R. 58(B)). “The clerk must

then serve the parties within three days of entering judgment upon the journal.” Id. “The thirty-

day time limit for filing the notice of appeal does not begin to run until the later of (1) entry of

the judgment or order appealed if the notice mandated by Civ.R. 58(B) is served within three

days of the entry of the judgment; or (2) service of the notice of judgment and its date of entry if

service is not made on the party within the three-day period in Civ.R. 58(B).” Id. (quoting

Whitehall ex rel. Fennessy v. Bambi Motel Inc., 131 Ohio App. 3d 734, 741 (10th Dist. 1998)).
                                                 7


       {¶14} In this case, the trial court seems to have attempted to direct the clerk of courts to

serve notice of the order on the parties by writing “cc:          Attorney John R. Chlysta” and

“Attorneys Justin D. McCarty / Thomas F. Dasse” below the signature line on the last page of

the entry granting the motion to quash the subpoena. See In re Anderson, 92 Ohio St. 3d 63, 67

(2001). The clerk of courts, however, did not make any notation on the docket regarding service

of the judgment on any party. Under Rule 4(A) of the Ohio Rules of Appellate Procedure, in a

civil case, if service of the notice of judgment required by Civil Rule 58(B) is not made on a

party within the three-day period provided by that rule, then the notice of appeal from that

judgment need not be filed until the party is served and service is entered on the docket. As in

Anderson, the time for the Arizona plaintiffs to file a notice of appeal in regard to the granting of

the motion to quash the subpoena never began to run because service of the notice of that order

was not made within the three-day period provided in Rule 58(B) of the Ohio Rules of Civil

Procedure. App. R. 4(A); see In re Anderson, 92 Ohio St. 3d at 67. Because the appeal was

timely filed under Appellate Rule 4(A), this Court has jurisdiction to reach the merits of the

second assignment of error.

                               Designation in the Notice of Appeal

       {¶15} There is another question this Court must consider before turning to the merits

because the notice of appeal filed by the Arizona plaintiffs did not include any reference to the

trial court’s order quashing the subpoena. Rule 3(D) of the Ohio Rules of Appellate Procedure

provides that “[t]he notice of appeal shall specify the party or parties taking the appeal; shall

designate the judgment, order or part thereof appealed from; and shall name the court to which

the appeal is taken.” Appellate Rule 3 also provides that “[f]ailure of an appellant to take any

step other than the timely filing of a notice of appeal does not affect the validity of the appeal,
                                                  8


but is ground only for such action as the court of appeals deems appropriate, which may include

dismissal of the appeal.” App. R. 3(A). Interpreting Rule 3(A), the Ohio Supreme Court has held

that “the only jurisdictional requirement for a valid appeal is the timely filing of a notice of

appeal. When presented with other defects in the notice of appeal, a court of appeals is vested

with discretion to determine whether sanctions, including dismissal, are warranted, and its

decision will not be overturned absent an abuse of discretion.” Transamerica Ins. Co. v. Nolan,

72 Ohio St. 3d 320, syllabus (1995). “The purpose of a notice of appeal . . . is to ‘. . . apprise the

opposite party of the taking of an appeal.” Maritime Mfrs. Inc. v. Hi–Skipper Marina, 70 Ohio

St. 2d 257, 259 (1982) (quoting Capital Loan & Sav. Co. v. Biery, 134 Ohio St. 333, 339

(1938)). “If this is done beyond [the] danger of reasonable misunderstanding, the purpose of the

notice of appeal is accomplished.” Id. (quoting Couk v. Ocean Accident & Guar. Corp., 128

Ohio St. 110, 116 (1941)).

       {¶16} In this case, there is no indication that Mr. Song was misled by the notice of

appeal that referred only to the order of dismissal. The Arizona plaintiffs’ second assignment of

error is that “the trial judge abused his discretion by granting the motion to quash.” They

attached to their appellate brief a copy of the trial court’s order granting the motion to quash and

certified that they served the brief by regular mail on lawyers for Continental Tire and Stuart

Song on April 9, 2012. On May 2, Continental Tire certified an automatic 20-day extension of

time to file an appellee’s brief. The deadlines passed, however, without either Mr. Song or

Continental Tire filing an appellate brief.

       {¶17} There is no evidence that Mr. Song was prejudiced or taken by surprise by the

Arizona plaintiffs’ inclusion on appeal of the substantive dispute in the case, that is, the quashing

of the subpoena. See, e.g., In re C.S., 9th Dist. No. 08CA0050, 2009-Ohio-1298, ¶ 21-22 (citing
                                                9


Armbruster v. Hampton, 9th Dist. No. 05CA008716, 2006-Ohio-4530). “[J]ustice is ultimately

best served by an attitude of judicial tolerance toward minor errors, made in good faith, which

pose no danger of prejudice to the opposing party or to the court’s essential functions.” S.

Christian Leadership Conference v. Combined Health Dist., 191 Ohio App. 3d 405, 2010-Ohio-

6550, ¶ 11 (2d Dist.) (quoting Nat’l Mut. Ins. Co. v. Papenhagen, 30 Ohio St. 3d 14, 16 (1987)).

As there is no indication of prejudice or bad faith and the time for appeal of the January 24,

2012, entry granting the motion to quash has not yet begun to run, we will consider the merits of

the second assignment of error.

                                  MOTION TO QUASH: MERITS

       {¶18} The Arizona plaintiffs’ second assignment of error is that the trial court should

not have granted the motion to quash the subpoena of Mr. Song. In his motion to quash, Mr.

Song argued that, because he has lived in Europe for years, the subpoena was not properly served

on him in Cuyahoga Falls, he is beyond the subpoena power of any Ohio court, and his

compliance with the subpoena would be unduly burdensome for him. The trial court granted the

motion to quash because it determined that Mr. Song was not properly served with the subpoena

and is beyond the subpoena power of the court. The trial court found that 254 Filmore Avenue

in Cuyahoga Falls is not Mr. Song’s usual place of residence.

       {¶19} Rule 45(B) of the Ohio Rules of Civil Procedure provides that a subpoena may be

served “by delivering a copy of the subpoena to the person, by reading it to him or her in person,

[or] by leaving it at the person’s usual place of residence . . . .” In this case, the Arizona

plaintiffs attempted residential service by leaving the subpoena at Mr. Song’s father-in-law’s

residence in Cuyahoga Falls. The efficacy of such service depends on whether, at the time of

service, that was Mr. Song’s “usual place of residence.”
                                                 10


       {¶20} Mr. Song filed a motion to quash the subpoena supported by an affidavit. In the

affidavit, he testified that he lives in Europe and has never lived at his father-in-law’s address in

Cuyahoga Falls. The Arizona plaintiffs opposed the motion to quash with evidence from the

Ohio Bureau of Motor Vehicles, showing that on December 29, 2008, the State of Ohio issued

Mr. Song a driver’s license. The record contains an application for the license indicating that

Mr. Song told the Bureau of Motor Vehicles that his address was “254 Filmore Ave., Cuyahoga

Falls 44221.” The application also indicated that Mr. Song had been a “[r]esident” of Ohio for

the prior 10 years and that, at the time of the application, he had a current Ohio driver’s license.

The Arizona plaintiffs also opposed the motion to quash with a hearing transcript from a similar

motion to quash filed by Mr. Song in another Summit County case in 2009. They did not,

however, include the transcript of the hearing the trial court conducted on the motion to quash in

this case. Therefore, if any further evidence was taken at that hearing, we cannot consider it.

       {¶21} The issue in this case is whether the subpoena was properly served on Mr. Song.

That issue turns on the question of whether, on the date of the attempted service, Mr. Song’s

“usual place of residence” was 254 Filmore Avenue in Cuyahoga Falls. The Ohio Rules of Civil

Procedure do not define the term “usual place of residence,” as used in Rule 45.

       {¶22} In Hayes v. Kentucky Joint Stock Land Bank of Lexington, 125 Ohio St. 359, 361-

63 (1932), the Ohio Supreme Court reviewed the sufficiency of the evidence supporting the trial

court’s determination that a woman’s “usual place of residence” was her adult daughter’s house

in Canton, where she happened to be visiting at the time residence service of process was

attempted. The Supreme Court determined that an exhibit indicating that the woman’s mail was

sent to her daughter’s house was “lacking in probative value.” Id. The woman testified that she

had given up her residence in Canton months before service was attempted and had moved to a
                                                11


hotel in Washington, D.C. She said that she did not live with her daughter, but was merely

visiting her from late December until late January.

       {¶23} The Supreme Court acknowledged that the term “residence” is used slightly

differently in various legal contexts, but noted that “[w]hatever differences are found in the

decisions are the logical distinctions of different purposes and subject-matters.”        Hayes v.

Kentucky Joint Stock Land Bank of Lexington, 125 Ohio St. 359, 363 (1932). For the purpose of

invoking jurisdiction through service of process, the Court explained that “no particular time is

required to establish a residence, but it must have the character of a settled or fixed abode, which

includes an element of permanency.        Permanency is necessary only in the sense of being

indefinite in point of time and that there be no present intention of a future removal therefrom.”

Id. at 364. The Supreme Court explained that “a wholly different situation would be presented”

if another witness had given contradictory testimony or if the woman had contradicted herself on

essential points. Id. at 365. As it was, the Court held that the trial court could not wholly

disregard the woman’s uncontradicted testimony that her daughter’s house was not her residence

despite her extended stay at that location during the holiday season. Id.

       {¶24} The Arizona plaintiffs have essentially argued that the trial court’s finding that

254 Filmore was not Mr. Song’s usual place of residence was against the manifest weight of the

evidence. When reviewing the manifest weight of the evidence in a civil case, this Court

“weighs the evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way

and created such a manifest miscarriage of justice that the [judgment] must be reversed and a

new trial ordered.” Eastley v. Volkman, 132 Ohio St. 3d 328, 2012–Ohio–2179, ¶ 20 (quoting

Tewarson v. Simon, 141 Ohio App. 3d 103, 115 (9th Dist. 2001)).
                                                12


       {¶25} On October 13, 2011, Mr. Song signed an affidavit indicating that he has never

lived at 254 Filmore Avenue, that he has lived in Europe for six years, and he intends to continue

living overseas for the foreseeable future. Mr. Song also testified by affidavit that he does not

own any real property in Ohio, although he does occasionally receive mail forwarded to him

from his father-in-law who resides at 254 Filmore Avenue in Cuyahoga Falls. The opposition

presented documentary evidence tending to show that, on December 29, 2008, Mr. Song applied

for an Ohio’s driver’s license and claimed to be an Ohio resident living at 254 Filmore Avenue

in Cuyahoga Falls. The primary problem with the quality of evidence presented to contradict

Mr. Song’s affidavit is the timing of his license application. Evidence that Mr. Song claimed to

live at 254 Filmore Avenue in December 2008 may be some evidence that it was his usual place

of residence at that time, but it does not tend to show that it was his usual place of residence in

September 2011 when service was attempted. We cannot say that the trial court created a

manifest miscarriage of justice by determining that, in September 2011, Mr. Song’s usual place

of residence was not 254 Filmore Avenue in Cuyahoga Falls. The second assignment of error is

overruled.

                                         CONCLUSION

       {¶26} The first assignment of error is sustained because the trial court should have

followed its own local rule requiring the trial court to wait fourteen days before ruling on the

motion to dismiss.    The second assignment of error is overruled because the trial court’s

conclusion that 254 Filmore Avenue in Cuyahoga Falls was not Mr. Song’s usual place of

residence in September 2011 is not against the manifest weight of the evidence. The judgment

of the Summit County Common Pleas Court is affirmed in part and reversed in part.

                                                                       Judgment affirmed in part,
                                                                                reversed in part,
                                                13


                                                                                   and remanded.




       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 equally to both parties.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT




WHITMORE, P. J.
CONCURS.
                                                 14


BELFANCE, J.
CONCURRING IN JUDGMENT ONLY.

       {¶27} Assuming this Court possessed all the evidence submitted with respect to the

motion to quash, I would have analyzed the issue differently and possibly come to a different

result. However, because the transcript of the hearing on the motion to quash is not part of the

record on appeal, this Court is unable to properly review the trial court’s ruling as it is not clear

that this Court possesses the same evidence the trial court had before it. See Rice v. Bowler, 9th

Dist. No. 25960, 2012-Ohio-2612, ¶ 6. Thus, in light of the limited record on appeal, I concur in

the majority’s judgment.

       {¶28} I also write separately to point out that to the extent that paragraph 14 of the

majority opinion implies that the trial court complied with Civ.R. 58(B) and directed the clerk of

courts to serve the parties by merely writing “cc: Attorney John R. Chlysta” and “Attorneys

Justin D. McCarty / Thomas F. Dasse” at the bottom of the judgment entry, I disagree.


APPEARANCES:

PAUL W. FLOWERS, Attorney at Law, for Appellant.

JOHN R. CHLYSTRA, Attorney at Law, for Appellee.

CHAD L. MOWERY, Attorney at Law, for Defendant
