Zestos v. Powertrain Div., Gen. Motors Corp.

Annotate this Case

Download PDF

[Cite as Zestos v. Powertrain Div., Gen. Motors Corp., 2006-Ohio-4545.] COURT OF APPEALS THIRD APPELLATE DISTRICT DEFIANCE COUNTY JOHN K. ZESTOS CASE NUMBER 4-06-12 PLAINTIFF-APPELLANT v. OPINION POWERTRAIN DIVISION, GENERAL MOTORS CORP., ET AL., DEFENDANTS-APPELLEES CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court. JUDGMENT: Judgment affirmed. DATE OF JUDGMENT ENTRY: September 5, 2006 ATTORNEYS: JOHN G. BULL DOG RUST Attorney at Law Reg. #0000098 4628 Lewis Avenue Toledo, OH 43612 For Appellant. GREGORY B. DENNY Attorney at Law Reg. #0009401 MARK S. BARNES Attorney at Law Reg. #0064647 405 Madison, Suite 1300 Toledo, OH 43604 For Appellee. Case No. 4-06-12 BRYANT, P.J. {¶1} The plaintiff-appellant, John Zestos ( Zestos ), appeals the judgment of the Defiance County Common Pleas Court granting summary judgment in favor of the defendant-appellee, Powertrain Division, General Motors Corporation ( Powertrain ) on his appeal filed pursuant to R.C. 4123.512. Zestos asserts the following convoluted and argumentative assignment of error: The Court of Common Pelas [sic] committed reversible error when it granted on August 5, 2004, leave for [Powertrain] to filed its third motion for summary judgment based on its settlement in the Michigan Industrial Commission of all of Plaintiff s worker s [sic] compensation claims for all injuries in Michigan and also in Ohio, including specifically the claim for the nerve entrapment injury to Plaintiff s right arm, of November 11, 1993, for $12,500.00 and the Court of Common Pleas committed reversible error in then granting [Powertrain s] motion for summary judgment on March 17, 2006, because one of [Powertrain s] latches [sic] in not reporting in November 1998, and later, the settlement of the Ohio claim under [Powertrain s] duties to Plaintiff, an Ohio claimant and resident when the claim occurred, and [Powertrain] knew that it should have reported the claim under O.R.C. 4123.65 to the Ohio Industrial Commission, for that commission to determine if that settlement was a gross miscarriage of justice , and if it was clearly unfair , as [Powertrain] knew that it was, a grave miscarriage of justice and was grossly unfair and additionally, because in equity and at law, the said settlement was unconscionable , and overreaching by [Powertrain] because the settlement covered Mr. and Mrs. Zestos to give up all their claims for the right arm nerve entrapment injury, which had totally disabled [Zestos] from working since 1990 or 1991, and since, so that Mr. Zestos was entitled to total temporary, permanent total disability, wage loss for each year of around $21,000.00, so that the potential recoverable was well over 2 Case No. 4-06-12 $200,000.00; and all of [Powertrain s] acts and omissions contributed to that gross injustice and grossly unfair settlement. {¶2} Although Zestos has enumerated only one assignment of error, he has asserted two distinctly different arguments thereunder. Initially, Zestos contends the trial court erred by allowing Powertrain to file a third motion for summary judgment. An affirmative defense may not be presented for the first time in a motion for summary judgment, but must be asserted in a motion to dismiss under Civ.R. 12(B), in an answer under Civ.R. 8, or in an amended or supplemental answer under Civ.R. 15. Carmen v. Link (1997), 119 Ohio App.3d 244, 250, 695 N.E.2d 28 (citing Mills v. Whitehouse Trucking Co. (1974), 40 Ohio St.2d 55, 320 N.E.2d 668). In this case, Powertrain did not simply file a motion for summary judgment, it also filed a motion for leave to amend its answer under Civ.R. 15(E), which the trial court granted. {¶3} Civ.R. 15(E) vests broad discretion in the trial court in allowing parties to amend their pleadings. A trial court may upon reasonable notice and upon such terms as are just, permit [a party] to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Civ.R. 15(E). The purpose of a supplemental pleading is to enable the pleader to include in the record new facts that have accrued since the commencement of the action and which will modify the amount or nature of the relief sought in the 3 Case No. 4-06-12 original complaint. Staff Notes to Civ.R. 15(E) (citing 1A Barron and Holtzoff 816, 817 (Wright ed. 1960)). See also Gilson, supra at ¶ 25. However, a supplemental pleading filed pursuant to Civ.R. 15(E) must contain only matters in common with the original complaint . Gilson, supra at ¶ 25 (quoting Mork, supra). A trial court s decision granting leave to file a supplemental pleading will not be reversed on appeal absent an abuse of discretion. Gilson v. Windows and Doors Showcase, LLC, 6th Dist. Nos. F-05-017 and F-05-024, 2006-Ohio-2921, at ¶ 24 (citing Civ.R. 15(E); Mork v. Waltko Truck Equip. Co. (1990), 70 Ohio App.3d 458, 461, 591 N.E.2d 379). An abuse of discretion connotes more than an error of law or judgment; it implies that the court s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (quoting State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (internal citations omitted)). {¶4} Powertrain alleged it discovered the settlement agreement, executed as part of the Michigan workers compensation claim as it prepared for trial on July 28, 2004. Powertrain filed its motion to supplement answer on August 4, 2004. In its motion, Powertrain asserted that the settlement agreement was executed after it filed its original answer in this litigation. On August 4, 2005, the trial court held a pre-trial conference, at which counsel for both parties were present. On that same date, the court filed its order granting Powertrain s motion 4 Case No. 4-06-12 to supplement its answer. At the pre-trial conference, the court also granted leave for Powertrain to file its motion for summary judgment, though its orders were not journalized until August 5, 2004. We cannot find the trial court abused its discretion in allowing Powertrain to supplement its answer. Therefore, Powertrain followed the appropriate procedure in raising its affirmative defense. {¶5} The trial court also has broad discretion in allowing a party to file a motion for summary judgment after the case has been set for pre-trial or trial. Civ.R. 56(B). The court s decision will not be reversed absent an abuse of discretion. See Kott Ent., Inc. v. Brady, 6th Dist. No. L-03-1342, 2004-Ohio-7160; Brinkman v. Toledo (1992), 81 Ohio App.3d 429, 432, 611 N.E.2d 380; Indermill v. United Sav. (1982), 5 Ohio App.3d 243, 244, 451 N.E.2d 538. Because the supplemental answer raised an affirmative defense that could bar Zestos claim, we cannot find the trial court abused its discretion in allowing Powertrain to file its motion for summary judgment. Therefore, we find Zestos first argument not well-taken. {¶6} In his second argument, Zestos contends the trial court erred in granting summary judgment in favor of Powertrain. Zestos essentially argues that Powertrain failed to file the settlement agreement with the Industrial Commission as required under R.C. 4123.65, and the settlement agreement was unconscionable. In response, Powertrain contends that the clear and unambiguous 5 Case No. 4-06-12 language of the settlement agreement bars Zestos workers compensation claim in Ohio; that it was not required to file the settlement agreement under R.C. 4123.65; and that Zestos claim is barred under the doctrine of election of remedies. {¶7} Because Zestos has appealed the trial court s grant of summary judgment, we review the record de novo. See Baraby v. Swords, 166 Ohio App.3d 527, 2006-Ohio-1993, 851 N.E.2d 559, at ¶ 7 (citing Lorain Natl. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127, 129, 572 N.E.2d 198). As to the merits of Zestos appeal, our review of the record indicates that the trial court has thoroughly addressed the relevant factual and legal issues in its judgment entry filed on February 15, 2006, which is attached hereto as Exhibit A.1 Therefore, we incorporate the trial court s judgment entry and adopt it as part of our opinion. For the reasons stated therein, Zestos second argument is meritless, and the sole assignment of error is overruled. {¶8} The judgment of the Defiance County Common Pleas Court is affirmed. Judgment affirmed. SHAW and CUPP, JJ., concur. 1 On page 4 of the trial court s February 15, 2006 judgment entry, we note that the citation Dorsey v. Contemporary Obstetrics & Gynecology, Inc. (1996), 113 Ohio App.3d 75, should state: Dorsey v. Contemporary Obstetrics & Gynecology, Inc. (1996), 113 Ohio App.3d 75, 80, 680 N.E.2d 240 (quoting Collins v. Click Camera & Video, Inc. (1993), 86 Ohio App.3d 826, 834, 621 N.E.2d 1294 (internal citations omitted)). 6 Case No. 4-06-12 7 Case No. 4-06-12 8 Case No. 4-06-12 9 Case No. 4-06-12 10 Case No. 4-06-12 11 Case No. 4-06-12 12

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.