On October 01, 2013 a
Motion-Secondary
was filed
involving a dispute between
Carter, Roger,
and
Chambers, Ethel,
Colatone, Daniel,
Considine, William,
Falatok, John,
Gates, Ann,
Gorant, Anthony,
James, David,
Johnson, Eric,
Lange, Patrice,
Mathewson, Andrea,
Mccorkle, Vincent,
O'Leary, Anthony,
Plusquellic, Donald,
Proenza, Luis,
Pry, Russell,
Strauss, Thomas,
Thomas, Jennifer,
Treier, J,
University Park Development Corporation,
University Park Village Llc,
for DECLARATORY JUDGMENT
in the District Court of Summit County.
Preview
CV-2013-10-4678 OPPO 01/13/2015 16:22:01 PM CROCE, CHRISTINE Page 1 of 5
IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO
ROGER W. CARTER, ) CASE NO. CV-2013-10-4678
)
Plaintiff, ) JUDGE CROCE
)
v. ) DEFENDANT UNIVERSITY PARK
) VILLAGE, LLC’S OPPOSITION TO
UNIVERSITY PARK DEVELOPMENT ) PLAINTIFF ROGER W. CARTER’S
CORPORATION, ET AL., ) MOTION FOR ORDER TO COMPEL
) DISCOVERY
Defendants. )
)
)
Now comes, Defendant University Park Village, LLC (“UPV”), by and through the
undersigned counsel, in opposition to Plaintiff Roger W. Carter’s (“Plaintiff”) Motion for Order
to Compel Discovery. UPV joins, and incorporates by reference herein, Defendant University
Park Development Corporation d.b.a. University Park Alliance’s (“UPA”) Opposition to
Plaintiff’s Motion to Compel Additional Depositions. For the reasons set forth in UPA’s
opposition, and those set forth below, UPV requests that this Court deny Plaintiff’s motion
because Plaintiff has not shown good cause as to why this Court’s prior decisions on the scope of
discovery should be overturned.
Plaintiff seeks the depositions of Eric Johnson, J. Bret Treier, David Lieberth, Donald
Plusquellic, and UPA’s former accountants, Meaden & Moore and Stinnett, Padrutt & Aranyosi
not for good cause, but to continue its fishing expedition against UPA, UPV, and the previously
dismissed individual defendants. On May 12, 2014, this Court dismissed Counts One through
Four and Counts Six through Eleven in their entireties against UPV. The Court also dismissed
Count Five – Breach of Contract against UPV as to all claims except for a breach relating to the
Daniel M. Horrigan, Summit County Clerk of Courts
CV-2013-10-4678 OPPO 01/13/2015 16:22:01 PM CROCE, CHRISTINE Page 2 of 5
Lease. Plaintiff’s only remaining claim against UPV is for delayed payment of real estate
taxes—which have now been paid in full. On September 19, 2014, despite Plaintiff’s knowledge
of UPV’s pending motion for a protective order, Plaintiff deposed UPV’s Civ. R. 30(B)(5)
representative, John Falatok, on Plaintiff’s remaining claim for breach of contract, as well as in
his personal capacity on a variety of other subjects. On October 6, 2014, this Court limited
Plaintiff’s discovery to the remaining breach of contract claims against UPA with respect to the
Real Estate Contribution Agreement, Lease, and Operating Agreement and against UPV with
respect to the Lease. The October 6, 2014 Order further limited the Civ. R. 30(B)(5) depositions
to 13 out of 17 generally identified topics. On November 24, 2014, this Court once again
affirmed its discovery rulings and sustained UPV’s objections from the September 19, 2014
deposition. Despite these prior rulings, Plaintiff is adamant to conduct additional unnecessary
depositions on topics well beyond the scope of this case.
While Ohio Rules of Civil Procedure do allow parties to obtain “discovery regarding any
matter, not privileged, which is relevant to the subject matter involved in the pending action,”
Civ. R. 26(B)(1), “the trial court has discretion in controlling the discovery process.” Stegawski
v. Cleveland Anesthesia Group, Inc., 37 Ohio App. 3d 78, 85 (8th Dist. 1987) (citing State ex rel.
Daggett v. Gessaman, 34 Ohio St. 2d 55 (Ohio 1973)); see also, e.g., Fagerholm v. Gen. Elec.
Co., 8th Dist. Cuyahoga No. 91986, 2009-Ohio-2390 (trial court did not abuse its discretion in
issuing a protective order because allowing unlimited inquiry would have been unduly
burdensome and overbroad); Fairfield Commons Condominium Assoc. v. Stasa, 30 Ohio App. 3d
11, 15 (6th Dist. 1985) (trial court did not abuse its discretion in granting a protective order
where the evidence sought was potentially irrelevant). Accordingly, “[i]n exercising its
discretion in a discovery matter, the court balances the relevancy of the discovery request, the
Daniel M. Horrigan, Summit -2- County Clerk of Courts
CV-2013-10-4678 OPPO 01/13/2015 16:22:01 PM CROCE, CHRISTINE Page 3 of 5
requesting party’s need for the discovery, and the hardship upon the party from whom the
discovery was requested.” Stegawski, 37 Ohio App. 3d at 85 (citation omitted).
Plaintiff’s only remaining claim against UPV for delayed payment of real estate taxes
does not require any additional discovery. UPV has provided a Civ. R. 30(B)(5) representative,
who has responded to all of Plaintiff’s questions on the only remaining claim against UPV.
Plaintiff does not contend that UPV’s representative was unable to answer any questions
concerning UPV’s real estate taxes. Nor does Plaintiff even dispute the fact that the real estate
taxes are fully paid. Moreover, other than Plaintiff’s conclusory statements combining UPA and
UPV, Plaintiff cannot provide any reason for further discovery against UPV.1 Accordingly, there
is no reason for Plaintiff to depose any additional party on its remaining claim against UPV.
Based on the foregoing, it is proper for this Court to deny Plaintiff’s Motion for Order to
Compel Discovery, as Plaintiff is unable to provide good cause as to why additional depositions
must take place to determine the remaining breach of contract claim against UPV. In the
alternative, for the reasons set forth within UPA’s opposition, UPV requests that this Court deny
all additional depositions, except for the deposition of Eric Johnson provided that his deposition
be confined to the scope of inquiry set forth in this Court’s October 6, 2014 Order.
1
In support of deposing J. Bret Treier on UPV’s real estate taxes, Plaintiff cites to the September 19, 2014 UPV
deposition, to state that “[t]he only other individual that would perhaps have as much knowledge as I would might
be Bret Treier.” Memo. of Law in Supp. of Pl. Roger W. Carter’s Mot. for Order to Compel Depositions, p. 7
(emphasis added). However, such a tentative response, encompassed by the terms “perhaps as much” and “might”
is not sufficient to require the deposition of Mr. Treier.
Daniel M. Horrigan, Summit -3- County Clerk of Courts
CV-2013-10-4678 OPPO 01/13/2015 16:22:01 PM CROCE, CHRISTINE Page 4 of 5
Respectfully submitted,
VORYS, SATER, SEYMOUR AND PEASE LLP
/S/ ANDREW P. GURAN
Philip F. Downey (0040308)
Jessica L. Knopp (0089165)
Andrew P. Guran (0090649)
106 South Main Street, Suite 1100
Akron, Ohio 44308
(330) 208-1000
(330) 208-1001 facsimile
pfdowney@vorys.com
jlknopp@vorys.com
apguran@vorys.com
Counsel for Defendant
University Park Village, LLC
Daniel M. Horrigan, Summit -4- County Clerk of Courts
CV-2013-10-4678 OPPO 01/13/2015 16:22:01 PM CROCE, CHRISTINE Page 5 of 5
CERTIFICATE OF SERVICE
I hereby certify pursuant to Civ. R. 5(B)(2)(c), that a true and accurate copy of the
foregoing was served this 13th day of January, 2015, via regular United States Mail, postage
prepaid upon the following:
Bradley S. LeBoeuf, Esq. Owen J. Rarric, Esq.
Bradley S. LeBoeuf Co., L.P.A. Karen Soehnlen McQueen, Esq.
190 N. Union Street, Ste. 201 Krugliak, Wilkins, Griffiths & Dougherty
Akron, OH 44304-1362 Co., L.P.A.
Attorney for Plaintiff 4775 Munson Street N.W.
PO Box 36963
Sidney N. Freeman, Esq. Canton, OH 44735-6963
12370 Cleveland Ave., NW Attorneys for Defendants University Park
PO Box 687 Development Corporation dba University
Uniontown, OH 44685 Park Alliance
Attorney for Plaintiff
/s/Andrew P. Guran
Philip F. Downey (0040308)
Jessica L. Knopp (0089165)
Andrew P. Guran (0090649)
106 South Main Street, Suite 1100
Akron, Ohio 44308
(330) 208-1000
(330) 208-1001 facsimile
pfdowney@vorys.com
jlknopp@vorys.com
apguran@vorys.com
Counsel for Defendant
University Park Village, LLC
Daniel M. Horrigan, Summit -5- County Clerk of Courts
20891827
Preview
CV-2013-10-4678 OPPO 01/13/2015 16:22:01 PM CROCE, CHRISTINE Page 1 of 5 IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO ROGER W. CARTER, ) CASE NO. CV-2013-10-4678 ) Plaintiff, ) JUDGE CROCE ) v. ) DEFENDANT UNIVERSITY PARK ) VILLAGE, LLC’S OPPOSITION TO UNIVERSITY PARK DEVELOPMENT ) PLAINTIFF ROGER W. CARTER’S CORPORATION, ET AL., ) MOTION FOR ORDER TO COMPEL ) DISCOVERY Defendants. ) ) ) Now comes, Defendant University Park Village, LLC (“UPV”), by and through the undersigned counsel, in opposition to Plaintiff Roger W. Carter’s (“Plaintiff”) Motion for Order to Compel Discovery. UPV joins, and incorporates by reference herein, Defendant University Park Development Corporation d.b.a. University Park Alliance’s (“UPA”) Opposition to Plaintiff’s Motion to Compel Additional Depositions. For the reasons set forth in UPA’s opposition, and those set forth below, UPV requests that this Court deny Plaintiff’s motion because Plaintiff has not shown good cause as to why this Court’s prior decisions on the scope of discovery should be overturned. Plaintiff seeks the depositions of Eric Johnson, J. Bret Treier, David Lieberth, Donald Plusquellic, and UPA’s former accountants, Meaden & Moore and Stinnett, Padrutt & Aranyosi not for good cause, but to continue its fishing expedition against UPA, UPV, and the previously dismissed individual defendants. On May 12, 2014, this Court dismissed Counts One through Four and Counts Six through Eleven in their entireties against UPV. The Court also dismissed Count Five – Breach of Contract against UPV as to all claims except for a breach relating to the Daniel M. Horrigan, Summit County Clerk of Courts CV-2013-10-4678 OPPO 01/13/2015 16:22:01 PM CROCE, CHRISTINE Page 2 of 5 Lease. Plaintiff’s only remaining claim against UPV is for delayed payment of real estate taxes—which have now been paid in full. On September 19, 2014, despite Plaintiff’s knowledge of UPV’s pending motion for a protective order, Plaintiff deposed UPV’s Civ. R. 30(B)(5) representative, John Falatok, on Plaintiff’s remaining claim for breach of contract, as well as in his personal capacity on a variety of other subjects. On October 6, 2014, this Court limited Plaintiff’s discovery to the remaining breach of contract claims against UPA with respect to the Real Estate Contribution Agreement, Lease, and Operating Agreement and against UPV with respect to the Lease. The October 6, 2014 Order further limited the Civ. R. 30(B)(5) depositions to 13 out of 17 generally identified topics. On November 24, 2014, this Court once again affirmed its discovery rulings and sustained UPV’s objections from the September 19, 2014 deposition. Despite these prior rulings, Plaintiff is adamant to conduct additional unnecessary depositions on topics well beyond the scope of this case. While Ohio Rules of Civil Procedure do allow parties to obtain “discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action,” Civ. R. 26(B)(1), “the trial court has discretion in controlling the discovery process.” Stegawski v. Cleveland Anesthesia Group, Inc., 37 Ohio App. 3d 78, 85 (8th Dist. 1987) (citing State ex rel. Daggett v. Gessaman, 34 Ohio St. 2d 55 (Ohio 1973)); see also, e.g., Fagerholm v. Gen. Elec. Co., 8th Dist. Cuyahoga No. 91986, 2009-Ohio-2390 (trial court did not abuse its discretion in issuing a protective order because allowing unlimited inquiry would have been unduly burdensome and overbroad); Fairfield Commons Condominium Assoc. v. Stasa, 30 Ohio App. 3d 11, 15 (6th Dist. 1985) (trial court did not abuse its discretion in granting a protective order where the evidence sought was potentially irrelevant). Accordingly, “[i]n exercising its discretion in a discovery matter, the court balances the relevancy of the discovery request, the Daniel M. Horrigan, Summit -2- County Clerk of Courts CV-2013-10-4678 OPPO 01/13/2015 16:22:01 PM CROCE, CHRISTINE Page 3 of 5 requesting party’s need for the discovery, and the hardship upon the party from whom the discovery was requested.” Stegawski, 37 Ohio App. 3d at 85 (citation omitted). Plaintiff’s only remaining claim against UPV for delayed payment of real estate taxes does not require any additional discovery. UPV has provided a Civ. R. 30(B)(5) representative, who has responded to all of Plaintiff’s questions on the only remaining claim against UPV. Plaintiff does not contend that UPV’s representative was unable to answer any questions concerning UPV’s real estate taxes. Nor does Plaintiff even dispute the fact that the real estate taxes are fully paid. Moreover, other than Plaintiff’s conclusory statements combining UPA and UPV, Plaintiff cannot provide any reason for further discovery against UPV.1 Accordingly, there is no reason for Plaintiff to depose any additional party on its remaining claim against UPV. Based on the foregoing, it is proper for this Court to deny Plaintiff’s Motion for Order to Compel Discovery, as Plaintiff is unable to provide good cause as to why additional depositions must take place to determine the remaining breach of contract claim against UPV. In the alternative, for the reasons set forth within UPA’s opposition, UPV requests that this Court deny all additional depositions, except for the deposition of Eric Johnson provided that his deposition be confined to the scope of inquiry set forth in this Court’s October 6, 2014 Order. 1 In support of deposing J. Bret Treier on UPV’s real estate taxes, Plaintiff cites to the September 19, 2014 UPV deposition, to state that “[t]he only other individual that would perhaps have as much knowledge as I would might be Bret Treier.” Memo. of Law in Supp. of Pl. Roger W. Carter’s Mot. for Order to Compel Depositions, p. 7 (emphasis added). However, such a tentative response, encompassed by the terms “perhaps as much” and “might” is not sufficient to require the deposition of Mr. Treier. Daniel M. Horrigan, Summit -3- County Clerk of Courts CV-2013-10-4678 OPPO 01/13/2015 16:22:01 PM CROCE, CHRISTINE Page 4 of 5 Respectfully submitted, VORYS, SATER, SEYMOUR AND PEASE LLP /S/ ANDREW P. GURAN Philip F. Downey (0040308) Jessica L. Knopp (0089165) Andrew P. Guran (0090649) 106 South Main Street, Suite 1100 Akron, Ohio 44308 (330) 208-1000 (330) 208-1001 facsimile pfdowney@vorys.com jlknopp@vorys.com apguran@vorys.com Counsel for Defendant University Park Village, LLC Daniel M. Horrigan, Summit -4- County Clerk of Courts CV-2013-10-4678 OPPO 01/13/2015 16:22:01 PM CROCE, CHRISTINE Page 5 of 5 CERTIFICATE OF SERVICE I hereby certify pursuant to Civ. R. 5(B)(2)(c), that a true and accurate copy of the foregoing was served this 13th day of January, 2015, via regular United States Mail, postage prepaid upon the following: Bradley S. LeBoeuf, Esq. Owen J. Rarric, Esq. Bradley S. LeBoeuf Co., L.P.A. Karen Soehnlen McQueen, Esq. 190 N. Union Street, Ste. 201 Krugliak, Wilkins, Griffiths & Dougherty Akron, OH 44304-1362 Co., L.P.A. Attorney for Plaintiff 4775 Munson Street N.W. PO Box 36963 Sidney N. Freeman, Esq. Canton, OH 44735-6963 12370 Cleveland Ave., NW Attorneys for Defendants University Park PO Box 687 Development Corporation dba University Uniontown, OH 44685 Park Alliance Attorney for Plaintiff /s/Andrew P. Guran Philip F. Downey (0040308) Jessica L. Knopp (0089165) Andrew P. Guran (0090649) 106 South Main Street, Suite 1100 Akron, Ohio 44308 (330) 208-1000 (330) 208-1001 facsimile pfdowney@vorys.com jlknopp@vorys.com apguran@vorys.com Counsel for Defendant University Park Village, LLC Daniel M. Horrigan, Summit -5- County Clerk of Courts 20891827