Fodor v. Baur

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[Cite as Fodor v. Baur, 2010-Ohio-4466.] COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT JARED A. FODOR, et al. Plaintiffs-Appellants JUDGES: Hon. Julie A. Edwards, P. J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vsCase No. 10 CA 2 JOSHUA C. BAUR, et al. Defendants-Appellees OPINION CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 08 PI01-0058 JUDGMENT: Dismissed DATE OF JUDGMENT ENTRY: September 22, 2010 APPEARANCES: For Plaintiffs-Appellants For Defendants-Appellees CHRISTOPHER J. BURCHINAL Post Office Box 412 Delaware, Ohio 43035 C. JOSEPH MCCULLOUGH ANTHONY B. HOLMAN WHITE, GETGEY & MEYER 8977 Columbia Road, Suite A Loveland, Ohio 45140 Knox County, Case No. 10 CA 2 2 Wise, J. {¶1} Appellants Jared A. Fodor and Scott A. Fodor appeal the decision of the Knox County Court of Common Pleas, which awarded summary judgment in favor of Appellee Kerry L. Dobbins, in a negligence action. The relevant facts leading to this appeal are as follows. {¶2} On January 18, 2006, Appellant Jared Fodor (hereinafter Jared ), then age seventeen, was operating a 2000 Jeep Cherokee on State Route 657 in Knox County, when his Jeep was allegedly struck at an intersection by a vehicle driven by Appellee Joshua Barr. {¶3} On January 24, 2008, Jared filed an action in the Knox County Court of Common Pleas alleging negligence and negligence per se against Appellee Baur and negligent entrustment against Appellee Kerry L. Dobbins (the owner of Baur s vehicle). {¶4} On February 25, 2008, Appellee Dobbins filed an answer to Jared s complaint.1 {¶5} On March 10, 2009, Jared filed a Motion for Leave to Substitute Real Party in Interest and/or Motion for Leave to Amend Complaint. Jared therein maintained that through discovery it had been determined that the titled owner of Jared s Jeep Cherokee was actually Scott Fodor, his father. Jared thus urged that Scott should be added to the case either as a real party in interest or a co-plaintiff. {¶6} In the meantime, on March 26, 2009, Appellee Dobbins filed a request for leave and a proposed motion for summary judgment. The trial court granted Dobbins leave to file same on April 8, 2009. 1 Appellee Baur does not appear to have filed an answer; however, he did file a motion to dismiss the claims against him on December 24, 2009. Knox County, Case No. 10 CA 2 {¶7} 3 On March 27, 2009, Dobbins filed a response to Jared s motion for leave to substitute real party in interest and/or motion for leave to amend complaint. {¶8} On April 15, 2009, the trial court denied Jared s said motion to substitute/amend. Jared thereupon sought a direct appeal to this Court, but we dismissed the appeal for want of a final appealable order. {¶9} The trial court thereafter reassumed jurisdiction, and on October 6, 2009, issued a judgment entry granting summary judgment in favor of Dobbins and dismissing all claims against him, finding no just reason for delay under Civ.R. 54(B). The clerk of courts sent notice of the judgment entry on or about January 7, 2010. {¶10} Appellants timely appealed and herein raise the following three Assignments of Error:2 {¶11} I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS JARED A. FODOR AND SCOTT A. FODOR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE KERRY L. DOBBINS BECAUSE APPELLEES JOSHUA C. BAUER (SIC) AND KERRY L. DOBBINS WERE NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW. {¶12} II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS JARED A. FODOR AND SCOTT A. FODOR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE KERRY L. DOBBINS SINCE APPELLEE WAS NOT ENTITLED TO SUMMARY JUDGMENT UNDER CIVIL RULE 56 BECAUSE GENUINE 2 In the interest of judicial economy, we will label Scott Fodor as a Plaintiff-Appellant in this matter, even though he never became a party. We note that both parties and proposed intervenors have standing to appeal a trial court decision. Davis v. Border, 170 Ohio App.3d 758, 869 N.E.2d 46, ¶ 32, citing In re Rundio (Sept. 8, 1993), Pickaway App.No. 92 CA 35, 1993 WL 379512. Cf., also, In re Fell, Guernsey App.No. 05 CA 9, 2005-Ohio-5299, ¶13-¶15. Knox County, Case No. 10 CA 2 4 ISSUES OF MATERIAL FACT WERE PRESENTED FOR DETERMINATION BY THE JURY. {¶13} III. THE TRIAL COURT S ACTION IN GRANTING THE MOTION FOR SUMMARY JUDGMENT OF APPELLEE KERRY L. DOBBINS ABRIDGED THE CONSTITUTIONAL RIGHTS OF APPELLANTS JARED A. FODOR AND SCOTT A. FODOR TO A REMEDY AND TO JUSTICE AS GUARANTEED BY ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION. I, II, III {¶14} In their First, Second, and Third Assignment of Error, appellants present various challenges to the trial court s grant of summary judgment in favor of Appellee Dobbins. However, on September 1, 2010, appellants filed a motion to dismiss the present appeal. See App.R. 28. As an appellate court, we are not required to issue an advisory or merely academic ruling. See, e.g., In re Merryman/Wilson Children, Stark App.Nos. 2004 CA 00056 and 2004 CA 00071, 2004-Ohio-3174, ¶ 59, citing State v. Bistricky (1990), 66 Ohio App.3d 395, 584 N.E.2d 75.3 {¶15} We therefore will not reach the merits of appellants First, Second, and Third Assignments of Error. 3 Ordinarily, we would not issue a dismissal decision of this nature in a memorandum opinion. See App.R. 12(A). However, in this instance appellants did not formally move to dismiss the appeal until several weeks after the scheduled oral argument. Knox County, Case No. 10 CA 2 5 {¶16} For the reasons stated in the foregoing opinion, the appeal of the decision of the Court of Common Pleas, Knox County, Ohio, is hereby dismissed. By: Wise, J. Edwards, P. J., and Farmer, J., concur. ___________________________________ ___________________________________ ___________________________________ JUDGES JWW/d 0830 Knox County, Case No. 10 CA 2 6 IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT JARED A. FODOR, et al. Plaintiffs-Appellants -vsJOSHUA C. BAUR, et al. Defendants-Appellees : : : : : : : : : JUDGMENT ENTRY Case No. 10 CA 2 For the reasons stated in our accompanying Memorandum-Opinion, the appeal of the judgment of the Court of Common Pleas of Knox County, Ohio, is dismissed. Costs assessed to appellants. ___________________________________ ___________________________________ ___________________________________ JUDGES

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