Henderson v. Speedway L.L.C.

2018 Ohio 4605

BRANDON J. HENDERSON PLAINTIFF-APPELLANT CROSS-APPELLEE v. SPEEDWAY L.L.C. DEFENDANT-APPELLEE CROSS-APPELLANT

No. 106737

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

November 15, 2018

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

Civil Appeal from the Rocky River Municipal Court

Case No.16 CVF 1521

BEFORE: Jones, J., E.A. Gallagher, A.J., and E.T. Gallagher, J.

ATTORNEY FOR APPELLANT/CROSS-APPELLEE

Al A. Mokhtari

Henderson Mokhtari & Weatherly Co.

713 S. Front Street, Suite 212

Columbus, Ohio 43206

ATTORNEYS FOR APPELLEE/CROSS-APPELLANT

Nicholas Pavel Resetar

Bradley A. Wright

Roetzel & Andress Co., L.P.A.

222 S. Main Street, Suite 400

Akron, Ohio 44308

LARRY A. JONES, SR., J.:

{¶1} This case involves whether gasoline Brandon Henderson ("Henderson") purchased at a Speedway gas station and put into his car was contaminated by water and caused damage to his vehicle. The trial court in this matter granted defendant-appellee/cross-appellant Speedway L.L.C.'s motion for summary judgment. Plaintiff-appellant/cross-appellee Henderson appeals the trial court's decision. Speedway's cross-appeal challenges the trial court's denial of its motion for sanctions. For the following reasons, we affirm.

Procedural History and Facts

{¶2} On April 19, 2016, Henderson went to the Speedway gas station in Bay Village to fill up his 2012 Audi. He put 16.721 gallons of fuel into the tank and drove his car to his fiancée's house, where he left it while he went on vacation. He tried to start it a week later, but the car would not start, and he had it towed to the dealership, Audi Bedford.

{¶3} Service technician Douglas Patterson ("Patterson") worked on the car. Patterson noted that the vehicle had 50,143 miles on it and would not start. According to the invoice Patterson generated, the car had been damaged from water mixed with gasoline. Neither Audi Bedford nor Henderson retained a sample of the fuel or the damaged auto parts long enough for a third-party inspection.

{¶4} Henderson contacted Speedway and asked that he be reimbursed for the damage to his car. Speedway denied the claim, finding that its gasoline was not the cause or source of the mechanical problems and declined to assume responsibility. Henderson requested Speedway reevaluate the incident. Speedway did so, and again denied responsibility for the damage to Henderson's vehicle.

{¶5} In September 2016, Henderson filed a complaint against Speedway in Rocky River Municipal Court alleging breach of contract, negligence, and violations of the Ohio Products Liability Act ("OPLA") and the Ohio Consumer Sales Practices Act ("CSPA").

{¶6} On February 6, 2017, Henderson filed a notice of deposition to depose 11 Speedway witnesses. In response, Speedway moved for a protective order, arguing that only 2 of those 11 witnesses had knowledge of discoverable matter. On February 23, 2017, Henderson filed a combined motion to compel, memorandum in opposition to Speedway's motion for protective order, and motion to extend the discovery deadline. Also in February, Speedway filed a counterclaim against Henderson for spoilation of evidence.

{¶7} The trial court set the motions for a March hearing; the hearing was held in front of a magistrate, but not on the record. The magistrate issued a journal entry after the hearing that stated, in part: "The hearing was had and the [p]arties have agreed that the Discovery deadline shall be extended an additional 60 days and the parties have also agreed that the depositions of the two witnesses that Defendant plans to call at trial shall be taken during that 60 day period."

{¶8} In May, the magistrate held a pretrial and set a discovery deadline of July 30, 2017, and a dispositive motion deadline of August 30, 2017.

{¶9} On August 17, 2017, Speedway moved for sanctions pursuant to Civ.R. 37 due to spoilation of the allegedly contaminated gasoline. On August 18, Speedway moved for summary judgment.

{¶10} On August 31, Henderson moved for an extension of time to respond to Speedway's motions. On September 8, Henderson filed an amended motion for an extension of time to respond to Speedway's motion for summary judgment or, in the alternative, a memorandum in opposition to the motion for summary judgment. In this filing, Henderson argued that the court had yet to rule upon his motions seeking "complete answers to interrogatories and requests for production of documents from Speedway, as well as discovery depositions of certain Speedway employees and agents." The trial court granted Henderson's request for an extension and ordered that his motion opposing summary judgment was due by September 18, 2017.

{¶11} On September 19, 2017, the day after the response deadline, Henderson filed a second amended motion for extension of time to respond to Speedway's motion for summary judgment or, in the alternative, a memorandum in opposition to Speedway's motion for summary judgment. Henderson's second amended motion contained an affidavit signed by his counsel in support of his contention that additional discovery was needed in order to oppose summary judgment.

{¶12} The magistrate set the motions for a hearing and a hearing was held on all pending motions. The magistrate subsequently granted Speedway's motion for summary judgment on Henderson's complaint, dismissed Speedway's counterclaim, and denied Speedway's motion for sanctions. Both parties filed objections to the magistrate's decision. The trial court overruled the objections and adopted the magistrate's decision. In so doing, the trial court stated, in part:

Plaintiff's first Objection is that the Court allowed Defendant to obstruct Plaintiff's discovery. On March 6, 2017, counsel for both Plaintiff and Defendant attended the hearing on Defendant's Motion for Protective Order. At that time, Plaintiff agreed to limit his depositions to key witnesses rather than the extensive list he had proposed to Defendant.

Assignments of Error

{¶13} Henderson appeals, raising the following assignments of error:

I. The trial court erred in denying appellant's motion to compel discovery.

II. The trial court erred in dismissing appellant's claims on summary judgment.

III. The trial court erred in overruling appellant's objections to the magistrate's decision.

Motion to Compel

{¶14} In the first assignment of error, Henderson claims that the trial court erred in denying his motion to compel discovery.

{¶15} Appellate courts review the denial of a motion to compel discovery for an abuse of discretion. State ex rel. V Cos. v. Marshall, 81 Ohio St.3d 467, 469, 692 N.E.2d 198 (1998). "The admission or exclusion of relevant evidence rests within the sound discretion of the trial court." State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987). Pursuant to Evid.R. 401, relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." However, "[t]he court may permissibly limit discovery so as to prevent mere 'fishing expeditions' in an effort to locate incriminating evidence." Bland v. Graves, 85 Ohio App.3d 644, 659, 620 N.E.2d 920 (9th Dist.1993).

{¶16} On appeal, Henderson claims that the trial court abused its discretion by failing to order Speedway to file "more complete" discovery answers. Henderson, however, fails to outline what discovery he found lacking and instead summarily concludes that the court erred by denying his motion. In his appellate brief under this assigned error, Henderson makes no specific reference to the discovery he sought to compel, other than incorporating his trial court briefs by reference. '"[P]arties cannot simply incorporate by reference arguments that they made to the trial court in their appellate brief."' Young v. Kaufman, 2017-Ohio-9015, 101 N.E.3d 655, ¶ 44 (8th Dist.), quoting State ex rel. Midview Local School Dist. Bd. of Edn. v. Ohio School Facilities Comm., 9th Dist. Lorain No. 16CA010991, 2017-Ohio-6928, ¶ 20.

{¶17} Henderson's February 2017 motion to compel does not offer further assistance. In his motion to compel, Henderson alleged that Speedway attempted to avoid depositions of witnesses, provided deficient responses to his written discovery requests, refused to provide a privilege log, and failed to correct "the multitude of deficiencies in the purported responses."

{¶18} The trial court set the motion to compel and Speedway's motion for a protective order for a March 6, 2017 hearing; as mentioned, the hearing was held in front of a magistrate, but not on the record. The magistrate issued a journal entry after the hearing that stated, in part: "The hearing was had and the [p]arties have agreed that the Discovery deadline shall be extended an additional 60 days and the parties have also agreed that the depositions of the two witnesses that Defendant plans to call at trial shall be taken during that 60 day period."

{¶19} In its order granting summary judgment, the trial court noted that the parties had attended the March 6, 2017 hearing and, at that time, Henderson had agreed "to limit his depositions to key witnesses rather than the extensive list he had proposed to [Speedway]."

{¶20} Thus, although Henderson maintains that the trial court abused its discretion by failing to compel the deposition testimony of additional witnesses, the record clearly shows that Henderson agreed to limit his deposition to two key witnesses whose depositions he took prior to the discovery deadline.

{¶21} Henderson's appellate brief and motion to compel likewise fail to designate which discovery responses Henderson found deficient. The record shows that Speedway provided supplemental discovery responses on November 11 and December 5, 2016, and Henderson has not shown, either to the trial court or with this court, how those responses were insufficient.

{¶22} Moreover, as mentioned, the magistrate held a pretrial on May 8, 2017, and set a...