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Ohio Case Law/Argument Needed RE: Civ. R. 10(D)

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Plaintiff's opposition to my Motion For Summary Judgment includes the following Argument below in italic. I am trying to prepare a Response to their opposition. They claim I waived my right to assert Civ. R. 10(D) as a basis for dismissing case. My motion was actually a Motion For Summary Judgment in Favor of Defendant or In the Alternative, Motion for Dismissal with Prejudice. Does anyone have any case law or arguments to this claim?

Plaintiff complied with Civ. R. 10(D) by attaching final monthly statement to its complaint. Furthermore, Defendant's concerns needed to be addressed through a Motion for More Definite Statement. (Point Rental Company v. Posani, 53 Ohio App.2d 183, 368 N.E.2d 1267 (1957). A defendant who fails to file for a more definite statement before filing his answers has waved his right to to assert Civ. R. 10(D) as a basis for dismissing the Plaintiff's complaint. State Farm Mut. Auto Ins v Loken, 2004 Ohio 5074.

Edited by ThankfullOne
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It is a JDB. They have a faulty Bill Of Sale In my Opinion. (Anyone Else Agree/Disagree?)

Bill of sale reads....

By and between G E Cap Corp, G E Mon Bnk and Retail. Cre. Srvcs (collectively "Seller")... Seller hereby transfers, sells, Conveys, grants and delivers to JDB....

The Bill Of Sale has a signature spot for a representative of each institution to sign and is labeled as such, but there is no signature for G E Cap Corp (Only signors are G E Mon Bnk and Retail. Cre. Srvcs). I pointed that out in my Motion for Summary Judgment... but JDB didn't even acknowledge it in their opposition they filed.

My thoughts are... (Collectively "Seller") means that the seller has not completed this bill of sale... kind of like only one spouse signing a joint mortgage...

I also pointed out in my Summary Judgment that they failed to provide me discovery. They filled motion to allow discovery out of time the day after I filed for Summary Judgment. I filled an objection to their motion to allow discovery out of time, but I do not think I will win that (I did not Motion to Compel Discovery). All of this stuff is to be reviewed by the judge in a few days.

In addition to the faulty bill of sale, they have the standard affidavit from employee of JDB that they just introduced into the case in their opposition to my Motion for Summary Judgment and in their Discovery Out of Time.

Additionally, they included a few non original, unauthentic Statements from the alleged account in their opposition to summary judgment and discovery out of time. No statement show any purchases.. The oldest statement they have shows an "Online payment"...

That wraps up their evidence. I denied all the claims and denied or objected to all the discovery...

The time for them to file Dispostive motions has passed per Courts Deadline. I am not sure why they did not file for Summary Judgment... My only guess is that they don't have anything....

I pointed out these deficiencies and included the Civ. R. 10(D) violation. Did I waive my right to assert this as it relates to Summary Judgment/Dismissal... or all together as a defense? I also included Asset Acceptance Corp. v. Proctor (accounting from 0) in My Motion For Summary Judgment...

My Affirmative defenses to the original complaint were:

1. The Plaintiff has failed to state a claim on which relief can be granted pursuant to Rule 12 (B) (6) of the Ohio Rules of Civil Procedure.

2. The Plaintiff has failed to prove assignment in accordance with ORC 1319.12

3. Plaintiff has failed to support its claim with account documents as required by Rule 10(D)(1) of the Ohio Rules of Civil Procedure.

4. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

5. Plaintiff’s claim is barred by the Statute of Frauds.

So now, I am trying to respond to their opposition of my summary judgment.

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I am wondering if I should just skip the reply to their opposition of my summary judgment and just strike at the evidence that my motion for summary judgment has flushed out? Your thoughts?

The Judge will review the motions outstanding this Friday and trial is Next Friday. I am thinking the Judge will just postpone the trial again and allow their Discovery Out of time when he reviews the case this Friday.

In my opinion, Two weeks is not a lot of time to review, and prepare for a trial based on the new evidence.

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Unfortunately, they may be correct. Rule 10D does require a Motion for More Definite Statement filing before answering. That does not stop you from arguing that an accounting from zero is required by Asset Acceptance Corp. v. Proctor.

Don't be discouraged. You are making them work and fight which is half the battle. Your other arguments still look strong.

I would still reply just focus on the other elements and not the Rule 10D violation.

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