[Cite as Carrington Mtge. Servs., L.L.C. v. McClain, 2020-Ohio-206.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 CARRINGTON MORTGAGE                                   :
 SERVICES, LLC                                         :
                                                       :    Appellate Case No. 28456
         Plaintiff-Appellee                            :
                                                       :    Trial Court Case No. 2018-CV-5080
 v.                                                    :
                                                       :    (Civil Appeal from
 JOSHUA S. MCCLAIN, et al.                             :    Common Pleas Court)
                                                       :
         Defendant-Appellant                           :


                                               ...........

                                              OPINION

                           Rendered on the 24th day of January, 2020.

                                               ...........


CHRISTOPHER NOBLE, Atty. Reg. No. 0096814 and ANDREW GERLING, Atty. Reg.
No. 0087605, 655 Metro Place South, Suite 600, Dublin, Ohio 43017
      Attorneys for Defendant-Appellant

                                             .............

HALL, J.
                                                                                            -2-


         {¶ 1} Joshua S. McClain appeals from the trial court’s entry of summary judgment

in favor of plaintiff-appellee Carrington Mortgage Services, LLC (“Carrington”) on a

foreclosure complaint.

         {¶ 2} McClain advances two assignments of error. First, he contends the trial court

erred in entering summary judgment against him before allowing him to respond within

the court-ordered deadline. Second, he claims the trial court erred in failing to provide its

rationale for extending his response deadline to July 22, 2919 rather than August 21,

2019, which was what he requested. For its part, Carrington has not filed an appellate

brief.

         {¶ 3} The record reflects that Carrington filed a foreclosure complaint against

McClain in October 2018, alleging default on a note and residential mortgage. (Doc # 1.)

On June 11, 2019, Carrington moved for summary judgment. (Doc. # 39.) The trial court

filed an entry stating that the motion would be deemed submitted for decision on July 8,

2019. (Doc. # 43.) Thereafter, McClain requested an extension of time to respond to the

motion. He explained that he had a key deposition scheduled for July 25, 2019. He sought

an extension until August 21, 2019 so he could obtain a deposition transcript and prepare

his memorandum in opposition. (Doc. # 44.) In making his request, McClain also noted

that the trial court’s initial scheduling order had provided a discovery cut-off date of August

12, 2019 and had provided an August 21, 2019 date for summary judgment responses to

be filed.

         {¶ 4} On June 28, 2019, the trial court filed an order sustaining McClain’s

unopposed motion for an extension of time but granting him only until July 22, 2019 (three

days before his scheduled deposition) to respond to Carrington’s summary judgment
                                                                                        -3-


motion. (Doc. # 46.) The next filing in the trial court’s docket is a July 8, 2019 judgment

entry and decree of foreclosure against McClain and in favor of Carrington. (Doc. # 47.)

         {¶ 5} In his two assignments of error, McClain challenges (1) the trial court’s

unexplained decision to extend the summary judgment response deadline to July 22,

2019 rather than August 21, 2019 and (2) the trial court’s entry of summary judgment

against him on July 8, 2019 after having given him until July 22, 2019 to respond.

         {¶ 6} With regard to the first issue, we note that the order extending the summary

judgment deadline to July 22, 2019 appears to have been prepared and submitted by

counsel for McClain. (Doc. # 46 at 1.) The document includes a caption reading,

“Proposed Order Granting Unopposed Motion of Defendant Joshua McClain for an

Extension of Time to Respond to Plaintiff’s Motion for Summary Judgment.” The body of

the document, which was electronically signed by the judge, grants an extension until July

22, 2019. Near the bottom of the page, the document states:

         Approved by:

         /s/ Andrew J. Gerling

         Andrew J. Gerling (0087605)

         Attorney for Defendant Joshua McClain

         {¶ 7} If, as the record suggests, McClain’s own attorney submitted and “approved”

a proposed order granting an extension until July 22, 2019, then McClain cannot complain

on appeal about the trial court failing to grant a longer extension. Accordingly, we will

overrule McClain’s second assignment of error, which is where he primarily raises this

issue.

         {¶ 8} With regard to the remaining issue, however, we agree with McClain that the
                                                                                        -4-


trial court prejudicially erred in entering summary judgment against him on July 8, 2019

after explicitly granting him until July 22, 2019 to respond. See, e.g., Endel v. John P.

Timmerman Co., 3d Dist. Allen No. 1-95-13, 1995 WL 385516, *1 (June 23, 1995) (“The

trial court’s judgment entry indicates that appellants failed to present any evidence to

overcome appellee’s motion. However, the trial court’s filing of its judgment entry on

February 9, 1995, prior to the expiration of appellants’ time period for filing a response,

prejudiced appellants by not allowing them their full time to present evidence to overcome

appellee’s motion.”). Accordingly, we sustain McClain’s first assignment of error insofar

as he contends the trial court erred in entering summary judgment against him

prematurely.

      {¶ 9} The judgment of the Montgomery County Common Pleas Court is reversed,

and the cause is remanded for further proceedings.

                                     .............



DONOVAN, J. and WELBAUM, J., concur.


Copies sent to:

David T. Brady
Suzanne M. Godenswager
Brian S. Gozelanczyk
Michele Phipps
Christopher Noble
Andrew Gerling
Hon. Mary Katherine Huffman
