Gary Stanley, et al. vs. The First City Company, et al. and Alex E. Paris Contracting Company

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STATE OF OHIO, JEFFERSON COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT GARY STANLEY, ET AL., PLAINTIFFS-APPELLEES, VS. THE FIRST CITY COMPANY, ET AL., DEFENDANTS, AND ALEX E. PARIS CONTRACTING COMPANY, DEFENDANT-APPELLANT. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 00-JE-27 O P I N I O N CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court Case No. 99CV359 JUDGMENT: Affirmed JUDGES: Hon. Gene Donofrio Hon. Joseph J. Vukovich Hon. Mary DeGenaro Dated: June 6, 2001 APPEARANCES: For Plaintiffs-Appellees: Atty. Thomas M. Taggart Atty. Alan M. Radnor Atty. Theodore P. Mattis 52 East Gay Street P.O. Box 1008 Columbus, Ohio 43216-1008 Atty. Randolph Spon 750 Sautter Road Mansfield, Ohio 44904 For Defendant-Appellant: Atty. Nicholas D. Satullo Atty. Erin Stottlemyer Gold 113 St. Clair Avenue Cleveland, Ohio 44114 - 1 - DONOFRIO, J. Defendant-appellant, Alex E. Paris Contracting Company, appeals from a judgment of the Jefferson County Court of Common Pleas that vacated its prior judgment entry granting appellant s motion for entry of final judgment. Plaintiffs-appellees are a group of homeowners who purchased units in a newly developed condominium complex known as Steeple-Chase at Steuben Woods located in Steubenville, Ohio. Appellees filed a lawsuit against seven defendants (including appellant) who were involved in the construction of the complex alleging that each of the defendants contributed to the damage conditions. to the condos caused by unfavorable sub-surface Appellant was hired as the soil engineer by co- defendant Pennsylvania Soil & Rock, Inc. to complete sub-surface remediation and site work for the development. After some discovery, appellant moved for summary judgment. The trial court granted appellant s motion on April 25, 2000. On May 3, 2000, appellant requested that the trial court make its April 25th judgment final according to Civ.R. 54(B). The trial and court granted appellant s request on May 8, 2000 designated its decision a final appealable order by including the language no just reason for delay. - 2 - On May 26, 2000, appellees filed a motion for reconsideration requesting that the trial court reconsider its order designating the summary judgment award a final appealable order. The trial court issued an order pursuant to Civ.R. 60(B) on June 15, 2000, which vacated the May 8th order to the extent that the summary judgment award was a final appealable order. The order left the award of summary judgment intact but found that just reason for the delay of final judgment existed until reaching final judgment as to all of the parties in the action. This timely appeal followed. Appellant raises a single assignment of error which states: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED PLAINTIFFS RELIEF FROM JUDGMENT UNDER CIV.R. 60(B). Appellant alleges that the trial court improperly utilized Civ.R. 60(B) in reconsideration. without response to appellees motion for Appellant argues that the trial court was authority to consider appellees motion for reconsideration since the Ohio Rules of Civil Procedure do not recognize motions for reconsideration of a final judgment. Citing, Pitts v. Ohio Dept. of Transp. (1981), 67 Ohio St.2d 378, paragraph one of the syllabus. argues, the trial court s reconsideration is a nullity. response Accordingly, appellant to the motion for - 3 - Next, appellant argues that even if the court interpreted the motion for reconsideration as a Civ.R. 60(B) motion for relief from judgment, the court still did not have sufficient grounds to alter its previous judgment. Appellant claims that appellees did not demonstrate that they have a meritorious claim as is required for them to be entitled to relief. Appellant further argues that appellees did not meet Civ.R. 60(B)(5) which is the catch-all provision that permits relief from judgment for any other reason [not identified in (B)(1) through (4)] justifying relief from judgment. Civ.R. 60(B)(5) circumstances should when be warranted Appellant points out that used by only the in extraordinary interests of justice. Citing, Cerney v. Norfolk & W. Ry. Co. (1995), 104 Ohio App.3d 482, 491. Civ.R. 60(B) states in part, The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules. The Ohio Rules of Civil Procedure do not recognize motions for reconsideration after a final judgment in the trial court. syllabus. Pitts, 67 Ohio St.2d at paragraph one of the The proper vehicle for relief from a final judgment is a motion to vacate under Civ.R. 60(B). 67 Ohio St.2d at 380. Furthermore, Civ.R. 60(B); Pitts, [i]t has long been recognized that trial courts have been allowed some discretion - 4 - to treat a motion for reconsideration as a motion to vacate under Civ.R. 60(B). Pete s Auto Sales v. Connor (Aug. 24, 2000), Cuyahoga App. No. 77014, unreported, 2000 WL 1222015, at *3. See, also, Malloy v. Kraft General Foods, Inc. (June 14, 1999), Mahoning App. Nos. 95-CA-241 and 95-CA-245, unreported, 1999 WL 420847. Accordingly, it was within the trial court s discretion to treat appellees May 26th motion as a Civ.R. 60(B) motion rather than as a motion for reconsideration. The Ohio Supreme Court set out the controlling test for Civ.R. 60(B) motions in GTE Automatic Elec., Industries, Inc. (1976), 47 Ohio St.2d 146. Inc. v. Arc The court stated: To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken. Id. at paragraph two of the syllabus. An appellate court will not reverse a trial court s ruling on a Civ.R. discretion. 60(B) motion absent a showing of abuse of Cermak v. Cermak (1998), 126 Ohio App.3d 589, 598. Abuse of discretion connotes more than an error in judgment, it - 5 - implies that the trial court s arbitrary or unconscionable. attitude is unreasonable, Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. The first requirement under GTE is that appellees must have a meritorious Automatic claim Elec., to present Inc., if supra. relief To meet is granted. this GTE requirement appellees need only to allege a meritorious claim, they need not prevail on the merits. Moore v. Emmanuel Training Ctr. (1985), 18 Ohio St.3d 64, 67. In their complaint, appellees allege that appellant was negligent in performing sub-surface remediation and, due to such negligence, the subsoil within the condominium development was unstable and therefore unsuitable for the construction of their residential dwellings. In their motion, appellees stated that their negligence claims against the other defendants in this case are appellant. intertwined with the negligence claim against Thus, appellees have alleged a meritorious claim that the summary judgment order in question should not be a final appealable order. The second requirement under GTE is that appellees must demonstrate that they are entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5). Elec., Inc., supra. GTE Automatic - 6 - Civ.R. 60(B) states the grounds for relief as follows: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, excusable neglect; surprise or (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud * * *, misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. Since relief appellees listed in did Civ.R. not allege 60(B)(1) any through of the (4), grounds if they for are entitled to relief it is on the basis of Civ.R. 60(B)(5). Civ.R. 60(B)(5) gives the court power to relieve a person from the unjust operation of a judgment. Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, at paragraph one of the syllabus. In their May 26th motion, which they termed a motion for reconsideration, appellees argued that there is a long-standing - 7 - policy against piecemeal appeals. Appellees further asserted that the court s order granting appellant summary judgment did not meet the Civ.R. 54(B) requirements because there is ample reason to delay appeal of that order. the postponement economy. of Appellees appeal also serves argued Appellees asserted that the in interest their of motion judicial that an immediate appeal would be an undue hardship on them because many of them are retired and living on fixed incomes. Appellees complaint asserts against seven defendants: Associates, Casa various causes of action First City Company, Steuben Woods Properties Partners, Casa Properties, Inc., Ohio River Collieries Company, Pennsylvania Soil and Rock, Inc., and appellant. These defendants were all involved in various stages of building the condominium development where appellees reside. The intertwined. causes of action against these defendants are Appellees complaint alleges that the defendants were negligent in building the condos since they were aware of unfavorable sub-surface conditions. misrepresentation on the part It also alleges fraud and of several defendants for concealing from appellees the fact that the development was being constructed on voids, strip-mine fill, and highwall. Ohio has a strong policy against piecemeal appeals. Whitaker v. Kear (1996), 113 Ohio App.3d 611, 615; Alexander v. - 8 - Buckeye Pipe Line Co. (1977), 49 Ohio St.2d 158, 160. Since there are seven defendants who were all involved in constructing the condos, it is possible that some may be at fault while others may not be at fault. It is not judicially practical to allow one of these defendants to appeal a decision until all claims against all defendants have been resolved. Furthermore, waiting to resolve all of the claims may eliminate the need to appeal certain rulings, including the decision granting appellant summary judgment. Given relief the from above the trial reasoning, court s appellees decision were that entitled classified to its previous judgment entry as a final appealable order. The final requirement under GTE that appellees must demonstrate is that they filed their motion within a reasonable time. GTE Automatic Elec., Inc., supra. entered its judgment on May 8, 2000. motion on May 26, 2000, just The trial court Appellees filed their eighteen days later. Thus, appellees met the timeliness requirement. Since appellees met all three GTE requirements, the trial court properly granted their motion. Therefore, appellant s sole assignment of error lacks merit. Accordingly, the trial court s decision is hereby affirmed. - 9 - Vukovich, J., concurs DeGenaro, J., concurs

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