[Cite as Patton v. Risner,
2010-Ohio-191.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
GREGORY V. PATTON, CASE NO. 16-09-14
PLAINTIFF-APPELLANT,
v.
NORMAN RISNER, OPINION
DEFENDANT-APPELLEE.
Appeal from Wyandot County Common Pleas Court
Trial Court No. 08-CR-0207
Judgment Affirmed
Date of Decision: January 25, 2010
APPEARANCES:
Gregory Patton, Appellant
John D. Noble for Appellee
Case No. 16-09-14
WILLAMOWSKI, P.J.
{¶1} Plaintiff-Appellant, Gregory Patton (“Patton”), appeals the decision
of the Wyandot County Court of Common Pleas, granting summary judgment in
favor of Defendant-Appellee, Norman Risner (“Risner”), on Patton’s defamation
complaint against Risner. On appeal, Patton asserts that the trial court made
several procedural errors and that Patton should have been granted a default
judgment. For the reasons set forth below, the judgment is affirmed.
{¶2} On December 2, 2008, Patton, pro se, filed a complaint seeking
$1,000,000 in damages and alleging that Risner had made libelous or slanderous
statements about him. Patton also filed additional allegations on December 30,
2008.1
{¶3} As background on this case, Patton was discharged from his
employment at the Budd Company (“the Company”) in Carey, Ohio, several years
ago. Risner was elected President of the union at the Company in July 2002, some
time after Patton’s discharge. Risner claimed that he worked to appeal the
discharge, but that the appeal/grievance was dismissed when Patton failed to
appear for a hearing. Since then, Patton has sued the union, the Company, and
individual union officers, including Risner. The Company obtained a civil
1
These allegations referenced sections of the revised code that did not appear applicable to the case and
were never pursued.
-2-
Case No. 16-09-14
protection order against Patton in 2002, which is relevant to this case.
{¶4} In response to Patton’s complaint, on December 31, 2008, Risner’s
attorneys filed a motion for extension of time to answer, and also filed Civ.R.
12(E) and (F) motions for a more definitive statement and a motion to strike.2 The
trial court granted the motion for extension of time to file an answer until February
2, 2009. On February 3, 2009, Patton filed a motion for a default judgment
claiming that Risner had failed to file an answer. The trial court denied Patton’s
motion, stating that “the defendant filed an appropriate responsive pleading on
December 31, 2008, within the period denominated by the Civil Rules to plead or
otherwise defend ….” On July 7, 2009, the trial court issued a decision
overruling Risner’s motion to strike and other Civ.R. 12 motions, and Risner then
filed a formal answer on July 14th.
{¶5} A status hearing was held on July 1, 2009, and a jury trial was
scheduled for October 2009. The trial court granted leave of court to each party to
file motions for summary judgment on or before July 31, 2009. Risner filed a
motion for summary judgment on July 31, 2009. The motion was scheduled for
hearing/review on September 3, 2009 (without oral argument), and the court
2
After Risner was served with the complaint on December 4, 2008, he contends that there was some
confusion as to whether he would be represented by the same UAW attorney representing other union
officials in the other case, or by his current counsel, Atty. Noble. Risner’s UAW attorney filed a motion to
for extension of time to file an answer. On the same date, Atty. Noble filed Civ.R. 12(E) and (F) motions.
There is no prohibition against a party having representation of more than one counsel; in fact, it is quite
commonplace. In January, the UAW attorney filed a motion to withdraw, which was granted by the trial
court on February 2, 2009. Risner continued to be represented by Atty. Noble throughout the case and this
appeal.
-3-
Case No. 16-09-14
ordered that all responses must be filed prior to the date of the hearing. Patton did
not file a motion for summary judgment nor did he file a response to Risner’s
motion.
{¶6} On September 9, 2009, the trial court issued its judgment, granting
summary judgment in favor of Risner. The trial court found that there was no
evidence that any alleged defamatory statements were made subsequent to 2002,
and therefore, the cause of action was barred by the one-year statute of limitations
for libel and slander cases. The trial court also found that Patton failed to allege
that any statements were made outside of legal proceedings pertaining to the civil
protection order, making any statements made by Risner absolutely privileged.
{¶7} Patton, continuing pro se, has filed a timely appeal from this
judgment. He has not challenged the summary judgment decision but claims that
the trial court failed to properly follow and apply the Rules of Civil Procedure.
Patton’s five assignments of error are summarized below:
First Assignment of Error
The trial court erred when it allowed the case to continue
without an answer to the original complaint filed December 2,
2008.
Second Assignment of Error
The trial court erred when it denied Patton’s request for a
default hearing, filed February 2, 2009.
-4-
Case No. 16-09-14
Third Assignment of Error
The trial court erred by accepting an untimely answer, filed July
14, 2009, to the original charges.
Fourth Assignment of Error
The trial court erred when it submitted a judgment entry
allowing each party to file summary judgment on or before July
31, 2009.
Fifth Assignment of Error
The trial court erred when it failed to answer motions properly
submitted before it by Patton on January 7, 2009.
{¶8} Because Patton’s first three assignment of error are closely related
and pertain to the timeframe for filing an answer, we shall address them together.
Essentially, Patton is arguing that Risner failed to file a timely answer to the
complaint as required by Civ.R. 12(A)(1). Therefore, Patton believes that the trial
court erred in denying his request for a default hearing when Risner did not file an
answer, or demonstrate excusable neglect, by the February 2, 2009 extension date
set by the trial court. He also claims that the trial court erred by accepting the
answer that Risner filed on July 14, 2009 because it was untimely.
{¶9} The Ohio Rules of Civil Procedure provide that, generally, a
defendant must serve the answer within twenty-eight days after service of the
complaint. Civ.R. 12(A). However, Civ.R. 12(B) provides for an exception
whereby certain enumerated defenses may be made by motion. Civ.R. 12(B) lists
seven specific defenses that may be made by motion, including the “failure to state
-5-
Case No. 16-09-14
a claim upon which relief can be granted.” Civ.R. 12(B)(6). The rules further
state that “[a] motion making any of these defenses shall be made before pleading
…,” i.e., before filing an answer. See Civ.R. 12(B).
Filing a Civ.R. 12(B)(6) motion is an alternative to answering the
complaint. A defendant who files such a motion need not answer
the complaint until after the motion is decided. If the defendant
prevails on the motion, he or she may never have to answer.
Baker v. Ohio Dept. of Rehab. & Corr. , 144 Ohio App.3d 740, 754, 2001-Ohio-
2553,
761 N.E.2d 667, ¶12. (Emphasis added.) Likewise, Civ.R. 12(E) provides
that a defendant “may move for a definitive statement before interposing his
responsive pleading,” and Civ.R. 12(F) states that a motion to strike may be made
“[u]pon motion made by a party before responding to a pleading.” (Emphasis
added.)
{¶10} The rules clearly state that the filing of certain Civ.R. 12 motions
delays the time period the defendant has for filing his answer.
When a defendant elects to defend by filing an answer, the
answer must be filed within 28 days after service. Civ.R.
12(A)(2). When the defendant elects to defend by way of motion,
the service of the motion alters the periods of time for filing an
answer. When the trial court denies the motion, the defendant's
responsive pleading, delayed because of service of the motion,
must be filed within 14 days after notice of the court's action.
Civ.R. 12(A)(2)(a).
Bridge v. Park Natl. Bank, 169 Ohio App.3d 384, 388,
2006-Ohio-5691,
863
N.E.2d 180, ¶16. See, also, Guillory v. Ohio Dept. of Rehab. & Corr., 10th Dist.
No. 07AP-861,
2008-Ohio-2299, ¶5.
-6-
Case No. 16-09-14
{¶11} Risner’s attorney3 properly and timely filed a responsive motion
encompassing Civil Rules 12(E) and (F) as an alternative to filing an answer.
And, although the motion did not specify in the heading, it also contained a Civ.R.
12(B)(6) motion for failure to state a claim upon which relief may be granted.
According to the Ohio Rules of Civil Procedure, Risner was not required to file an
answer until fourteen days after the trial court ruled on the motions. The trial
court denied Risner’s motions on July 7, 2009, and Risner timely filed an answer
seven days later. Therefore, it was proper for the trial court to accept Risner’s
answer at that time.
{¶12} Furthermore, Civ.R. 55 provides for a default judgment against a
party who has “failed to plead or otherwise defend as provided by these rules.”
Since Risner did “otherwise defend,” the trial court did not abuse its discretion
when it denied Patton’s motion for default judgment, or a hearing on default
motion.
{¶13} For the reasons stated above, Patton’s first, second and third
assignments of error are overruled.
{¶14} In his fourth assignment of error, Patton maintains that the trial court
should not have set a date for the submission of motions for summary judgment
because he believes that Civ.R. 56(A) provides that such motions can only be
3
These motions were filed by Atty. Noble. Risner’s UAW attorney, who had filed the motion for
extension of time to answer, withdrew from the case and there was no need to file an answer because Atty.
Noble’s motions had tolled the time for filing an answer until after the court ruled on the motions.
-7-
Case No. 16-09-14
made with the consent of the court “after leave of the court is sought by a motion
by the plaintiff or defendant.” (Appellant’s Brief, p. 4.) Because neither party
filed such a motion, Patton believes that the trial court did not have the right to
direct the parties to file a motion for summary judgment.
{¶15} At the July 1st pre-trial status conference, the trial court did not
direct anyone to file a motion for summary judgment; it merely established a
timetable for the case and set a date for trial. “To be sure, trial courts have
inherent power to manage their own dockets.” State ex rel. Charvat v. Frye, 114
Ohio St.3d 76,
2007-Ohio-2882,
868 N.E.2d 270, ¶ 23.
{¶16} Civ.R. 56(A) states the time limitations for when a party may file a
motion for summary judgment. It further states that “[i]f the action has been set
for pretrial or trial, a motion for summary judgment may be made only with leave
of court.” Because the trial court was setting the date for trial, it was merely
granting leave to file for anyone who might want to submit a motion for summary
judgment. The rule does not have any requirement that a party must first file a
motion requesting such leave. It is within the trial court’s discretion and authority
to manage its own docket to establish the schedule for the submission of such
motions. Furthermore, there is no requirement in Civ.R. 56 that a hearing must be
held upon the submissions. Concerning the handling of motions before the trial
court, Civ.R. 7(B)(2) states that:
-8-
Case No. 16-09-14
[t]o expedite its business, the court may make provision by rule
or order for the submission and determination of motions
without oral hearing upon brief written statements or reason in
support and opposition.
{¶17} Risner submitted a motion for summary judgment. Patton did not
submit a reply or any evidence of his own to support his cause of action.
Therefore, the only evidence before the court showed that the alleged defamation
had occurred many years earlier and that the case was filed long after the statute of
limitations had expired. Without any other contrary evidence before it, the trial
court appropriately granted summary judgment in favor of Risner. Patton’s fourth
assignment of error is overruled.
{¶18} In his final assignment of error, Patton complains that the trial court
did not respond to two “motions” for “proof of legal counsel” that he had filed on
January 7, 2009, requesting Risner’s attorneys to provide information and details
about their representation of Risner.
{¶19} Civil Rule 7(B)(1) concerning “Motions” states that “[a]n
application to the court for an order shall be by motion ….” (Emphasis added.)
The documents Patton filed were not requests to the court for an order; they
amounted to discovery requests to Risner’s attorneys. Not only do we fail to see
how the information sought was relevant to the case, it would also likely be
information that was covered by the attorney-client privilege.
-9-
Case No. 16-09-14
{¶20} It is well settled that when a trial court fails to rule upon a pretrial
motion, it may be presumed that the court overruled it. State ex rel. Cassels v.
Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 223,
1994-Ohio-92,
631
N.E.2d 150, citing Newman v. Al Castrucci Ford Sales, Inc. (1988),
54 Ohio
App.3d 166,
561 N.E.2d 1001. In addition, Patton has not expressed how he was
prejudiced by the trial court's failure to rule on his pretrial motions. See Brown v.
Weidner, 3d Dist. No. 13-06-08,
2006-Ohio-6852, ¶15. Patton’s fifth assignment
of error is overruled.
{¶21} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgment of the Wyandot County
Court of Common Pleas.
Judgment Affirmed
ROGERS and PRESTON, J.J., concur.
/jnc
-10-
