Capital One Bank v. Jarvis

2012 Ohio 2606

• Court: Ohio Court of Appeals
• Decided: June 13, 2012
• Docket: 26302
• Status: Published

Opinion

[Cite as Capital One Bank v. Jarvis, 2012-Ohio-2606.]

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

CAPITAL ONE BANK (USA) N.A. C.A. No. 26302

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE REBECCA JARVIS STOW MUNICIPAL COURT COUNTY OF SUMMIT, OHIO Appellant CASE No. 2011 CVF 3342

DECISION AND JOURNAL ENTRY

Dated: June 13, 2012

WHITMORE, Presiding Judge.

{¶1} Defendant-Appellant, Rebecca Jarvis, appeals from the judgment of the Stow

Municipal Court. This Court reverses.

I

{¶2} Plaintiff-Appellee, Capital One Bank (USA), N.A. (“Capital One”), filed suit

against Jarvis, alleging that she defaulted on her MasterCard Charge account. In response to the

complaint, Jarvis filed a generic notice to cease communications under the Fair Debt Collection

Practices Act due to the fact that she was unemployed and currently unable to repay the debt.

The trial court treated Jarvis’ response as an answer to the complaint and issued a pretrial order.

The court set a discovery deadline of January 16, 2012, and a dispositive motion deadline two

weeks later.

{¶3} On January 12, 2012, Capital One filed a motion for judgment on the pleadings.

The only item Capital One attached to its motion was Jarvis’ generic notice/answer in which she 2

indicated that she was unable to pay the debt. On January 17, 2012, the court granted Capital

One’s motion without a hearing and entered judgment in favor of Capital One in the amount of

$1,279.63.

{¶4} Jarvis now appeals from the trial court’s judgment and raises one assignment of

error for our review.

II

Assignment of Error

THE TRIAL COURT ERRED BY VIOLATING CIVIL RULE 6(D) AND APPELLANT’S DUE PROCESS BY GRANTING APPELLEE’S MOTION FOR JUDGMENT ON THE PLEADINGS 5 DAYS AFTER IT WAS FILED WITH THE COURT.

{¶5} In her sole assignment of error, Jarvis argues that the trial court erred by granting

Capital One’s motion for judgment on the pleadings without setting the matter for a hearing or

affording her an opportunity to respond to the motion in accordance with Civ.R. 6. We agree.

{¶6} A party may move for judgment on the pleadings at any time “[a]fter the

pleadings are closed.” Civ.R. 12(C). Civ.R. 6 sets forth the general notice provision that applies

to written motions. That rule provides that “[a] written motion, other than one which may be

heard ex parte, and notice of the hearing thereof shall be served not later than seven days before

the time fixed for the hearing, unless a different period is fixed by these rules or by order of the

court.” Civ.R. 6(D). “Underlying this rule is the premise that the party opposing the motion

must have sufficient notice and opportunity to respond to avoid undue prejudice.” Portage

Broom & Brush Co. v. Zipper, 9th Dist. No. 16409, 1994 WL 440441, *1 (Aug. 17, 1994). “[I]f

a trial court disregards the response time created by the Ohio Rules of Civil Procedure, that court

has committed reversible error.” Gibson-Myers & Assoc., Inc. v. Pearce, 9th Dist. No. 19358, 3

1999 WL 980562, *4 (Oct. 27, 1999). Accord White v. Aztec Catalyst Co., 9th Dist. No.

00CA007589, 2000 WL 1636023, *2-3 (Nov. 1, 2000).

{¶7} The trial court granted Capital One’s motion for judgment on the pleadings five

days after it was filed. The court did not set the matter for a hearing, notify Jarvis that it would

decide the motion without a hearing, or afford Jarvis at least seven days to respond to the motion.

See Civ.R. 6(D). Although the court may not have run afoul of Civ.R. 6(D) if it had first notified

the parties by order of its intention to set a shorter response period, the court did not do so.

Compare Northern Oil and Gas Co. v. Ohio Oil and Gas Co., 9th Dist. No. 12343, 1986 WL

6673, *2 (June 11, 1986) (court did not violate Civ.R. 6(D) where it notified the parties a motion

would be heard the day after its filing). Instead, it granted Capital One’s motion without any

notice to Jarvis and well before the pretrial deadline previously set for the filing of dispositive

motions. The record reflects that Jarvis did not have a meaningful opportunity to respond to

Capital One’s motion, and the court disregarded the response period set forth in Civ.R. 6(D)

when it granted the motion. Therefore, the trial court committed reversible error. Ohio Bell Tel.

Co. v. C-5 Constr., Inc., 2d Dist. No. 23792, 2010-Ohio-4762, ¶ 24-25; Gibson-Myers & Assoc.,

Inc. at *4. Jarvis’ sole assignment of error is sustained.

III

{¶8} Jarvis’ sole assignment of error is sustained. The judgment of the Stow Municipal

Court is reversed, and the cause is remanded for further proceedings consistent with the

foregoing opinion.

Judgment reversed, and cause remanded. 4

There were reasonable grounds for this appeal.

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

Court, 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 Appellee.

BETH WHITMORE FOR THE COURT

DICKINSON, J. BELFANCE, J. CONCUR.

APPEARANCES:

WILLIAM E. LOVE, II, Attorney at Law, for Appellant.

MATTHEW G. BURG, Attorney at Law, for Appellee.