Wells Fargo Bank, N.A. v. Gerst

2015 Ohio 3776

• Court: Ohio Court of Appeals
• Decided: September 16, 2015
• Docket: 15 CAE 01 0004
• Status: Published

Opinion

[Cite as Wells Fargo Bank, N.A. v. Gerst, 2015-Ohio-3776.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

WELLS FARGO BANK, N.A. JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2015 CAE 01 0004 JESSICA M. GERST, ET AL.

Defendant-Appellants OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 14 CVE 08 0606

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: September 16, 2015

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellants

SCOTT A. KING ANDREW J. GERLING JESSICA E. SALISBURY-COOPER Doucet & Associates, Co., LPA. Thompson Hine LLP 700 Stonehenge Parkway, Suite 2B 10050 Innovation Drive, Suite 400 Dublin, Ohio 43017 Miamisburg, Ohio 45342 Delaware County, Case No. 2015 CAE 01 0004 2

Hoffman, P.J.

{¶1} Defendant-appellants Brandon and Jessica Gerst appeal the December

12, 2014 Order Dismissing Plaintiff's Claims entered by the Delaware County Court of

Common Pleas. Plaintiff-appellee is Wells Fargo Bank ("Wells Fargo").

STATEMENT OF THE CASE1

{¶2} On August 14, 2014, Wells Fargo filed its Complaint in Foreclosure

against Appellants. Appellants timely answered.

{¶3} On December 1, 2014, Wells Fargo moved to voluntarily dismiss its

complaint without prejudice pursuant to Civ.R. 41(A)(2). The trial court granted the

motion on December 12, 2014. It is from that order Appellants prosecute this appeal,

assigning as error:

{¶4} "I THE TRIAL COURT ERRED IN GRANTING WELLS FARGO'S

MOTION TO DISMISS BECAUSE IT DID NOT GIVE THE GERSTS AN

OPPORTUNITY TO REPLY BEFORE GRANTING THE MOTION."

{¶5} Civ.R. 41 (A)(2) provides:

{¶6} By order of court. Except as provided in division (A)(1) of this rule, a

claim shall not be dismissed at the plaintiff's instance except upon such terms and

conditions as the court deems proper.

{¶7} Civ.R. 6(C) provides:

{¶8} 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 those rules or by order of the court.

1 A rendition of the facts is unnecessary for our disposition of this appeal. Delaware County, Case No. 2015 CAE 01 0004 3

{¶9} Local rule 7.08 of Practice of the Delaware County Common Pleas Court,

General Division provides:

{¶10} Once the initial motion has been filed, any memorandum contra to the

motion shall be filed and served upon opposing counsel no later than the fourteenth day

following the filing of the motion, unless the Court orders otherwise.

{¶11} In Logsdon v. Nichols (1995), 72 Ohio St.3d 124, the Ohio Supreme Court

held "…[g]iven the need for trial court action in order to effect the dismissal under Civ.R.

41(A)(2), the opposing party to the action is entitled to be heard on the motion." Id., at

127. "If a trial court disregards the response time created by the Ohio Rules of Civil

Procedure, that court has committed reversible error." Gibson-Myers & Assoc. v.

Pearce, 9th Dist. No. 19358 (Oct. 27, 1999). See, also, Hillabrand v. Drypers Corp., 87

Ohio St.3d 517, 519-520, 2000-Ohio-468.

{¶12} Pursuant to the aforementioned authority, we find the trial court committed

reversible error by granting Wells Fargo's motion to dismiss without prejudice without

affording Appellants an opportunity to respond in accordance with Civ.R. 6(C) and Local

Rule 7.08 of the Delaware Common Pleas Court, General Division. Delaware County, Case No. 2015 CAE 01 0004 4

{¶13} Appellant's assignment of error is sustained. The December 12, 2014

order of the trial court is reversed and the matter remanded to that court for further

proceedings.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur