We review whether a trial court grants or denies a motion for mediation under an abuse of discretion standard. Bank of New York v. Stilwell, 5th Dist. Fairfield No. 12 CA 3, 2012-Ohio-4123, ¶ 40; Bank of Am. v. Litteral, 2nd Dist. No. 23900, 191 Ohio App.3d 303, 2010-Ohio-5884, 945 N.E.2d 1114, ¶ 21.
This is so even when the failure to exercise discretion is inadvertent, as may be the case here. See, e.g., Bank of Am. v. Litteral, 191 Ohio App.3d 303, 2010-Ohio-5884, 945 N.E.2d 1114, ¶ 24. On the record before us, there is no indication that the trial court actually exercised its discretion in failing to address the items taken from the marital home by Andrea during the separation.
Likewise, this court reviews the decision to order or return a matter from mediation for an abuse of discretion. Bank of Am., N.A. v. Singh, 12th Dist. Butler No. CA2012-07-146, 2013-Ohio-1305, ¶22, citing Bank of Am. v. Litteral, 191 Ohio App.3d 303, 2010-Ohio-5884, ¶20-21 (2d Dist.). Under this standard, the reviewing court must consider all the evidence in the record, the reasonable inferences, and the credibility of the witnesses to determine whether the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the decision must be reversed.
"Mediation is not a required step in the trial process." Bank of Am. v. Litteral, 191 Ohio App.3d 303, 2010-Ohio-5884, 945 N.E.2d 1114, ¶ 20 (2d Dist.). Under Loc.R. 24.2(B), "a case may be ordered to mediation at the discretion of the assigned judge."
39(A)(1) - it is not a required process. Bank of Am. v. Litteral, 191 Ohio App.3d 303, 2010-Ohio-5884, 945 N.E.2d 1114, ¶ 20 (2d Dist.). And, the denial of mediation does not constitute a denial of due-process rights.
We hold that the trial court's premature entry of summary judgment in favor of Scrofano denied Bedford a fair opportunity to respond. See Bank of Am. v. Litteral, 191 Ohio App.3d 303, 2010-Ohio-5884, 945 N.E.2d 1114 (2d Dist.); Watershed Mgt., L.L.C. v. Neff, 4th Dist. Pickaway No. 10CA42, 2012-Ohio-1020, ¶ 67; PHH Mtge. Corp. v. Galvin, 9th Dist. Summit No. 25917, 2011-Ohio-6787, ¶ 7; TimePayment Corp. v. Rite Stop, Inc., 8th Dist. Cuyahoga No. 95334, 2010-Ohio-5852, ¶ 14. And, as we explain under the second assignment of error, the trial court's error was not harmless.
Further, as this Court has previously noted, "[m]ediation is not a required step in the trial process. R.C. 2323.06 states that '[i]n an action for the foreclosure of a mortgage, the court may at any stage in the action require the mortgagor and the mortgagee to participate in mediation as the court considers appropriate * * * .'" Bank of Am. v. Litteral, 191 Ohio App.3d 303, 2010-Ohio-5884, 945 N.E.2d 1114, ¶ 20 (2d Dist.)(emphasis added). {¶ 15} Finally, we agree with JPMCB that it established the absence of a genuine issue of material fact for trial with competent Civ.R. 56 evidence, and that the Wirams failed to respond with any evidence permitted by Civ.R. 56 setting forth specific facts demonstrating a genuine factual issue for trial.
"The rules permit, but do not require, that a trial court consider mediation as an option." Bank of America v. Litteral, 191 Ohio App.3d 303, 2010-Ohio-5884, ¶ 21 (2nd Dist.). Accordingly, we review a trial court's decision to order or deny mediation in a foreclosure action for an abuse of discretion.
{¶ 5} In December 2010, we reversed the judgment and decree of foreclosure, concluding that the trial court erred when it rendered summary judgment before the deadline set by the court for a response had expired. Bank of Am. v. Litteral, 191 Ohio App.3d 303, 2010-Ohio-5884, 945 N.E.2d 1114, ¶ 24 (2d Dist.). We stated: "By prematurely entering the judgment, the trial court erroneously removed Litteral's timely filed motion for a continuance from its consideration.
Gibson-Myers & Assoc. v. Pearce (Oct. 27, 1999), 9th Dist. No. 19358, citing In re Foreclosure of Liens, 79 Ohio App.3d at 771-772. See Bank of Am. v. Litteral, 191 Ohio App.3d 303, 2010-Ohio-5884, 945 N.E.2d 1114, at ¶ 24 (holding trial court ruling on summary judgment before appellant's deadline to respond was reversible error); Cuervo v. Snell (Sept. 26, 2000), 10th Dist. Nos. 99AP-1442, 99AP-1443, 99AP-1458 (holding trial court ruling on motion to compel before adverse party had an opportunity to respond was reversible error). But, accord, Entingh v. Old Man's Cave Chalets, Inc., 4th Dist. No. 08CA14, 2009-Ohio-2242, at ¶21-22 (holding that ruling on motion to compel before adverse party had an opportunity to respond was harmless error because the court had considered the party's counterargument in a subsequent motion to vacate the premature ruling).