Allen v. P.E. Technologies, Inc.Allen v. P.E. Technologies, Inc.
Sam Thomas, III
614 W. Superior Avenue, #1106
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Mark I. Wallach
Kevin R. Carter
Nathan A. Wheatley
Calfee, Halter & Griswold, LLP
1400 KeyBank Center
800 Superior Avenue
Cleveland, OH 44114-2688
CHRISTINE T. McMONAGLE, P.J.:
{¶ 1} Plaintiff-appellant, John Allen, appeals the trial court‘s judgment denying his motion for relief from judgment. We affirm.
I
{¶ 2} Allen initiated this wrongful termination action against defendant-appellee, P.E. Technologies, Inc., in 2000.1 In August 2000, Allen filed a “motion to add the name of P.E. Acquisition that succeeded P.E. Technologies in ownership and operation of the P.E. Technologies facility.” The following day, P.E. Technologies, Inc. filed a notice that it had filed a
{¶ 3} In April 2001, the Chapter 7 trustee filed a “special report of no distribution.” Based on the trustee‘s recommendation, the bankruptcy court entered an order approving the trustee‘s final account and finding that all of P.E. Technologies’ assets were either exempt, overburdened by valid liens, or of inconsequential value.
{¶ 4} In December 2006, Allen filed a motion to reactivate the case and a motion for substitution of parties. On April 21, 2008, after a hearing on the motions, the trial court issued a decision and order with findings of fact and conclusions of law denying Allen‘s motions. Allen filed a notice of appeal with this court on May 23, 2008, but the appeal was dismissed as untimely.2
{¶ 5} On April 21, 2009, Allen filed a motion for relief from judgment under ”
II
{¶ 6} We review appeals from the award or denial of
{¶ 8} “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:
{¶ 9} “(1) mistake, inadvertence, surprise or excusable neglect;
{¶ 10} “(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under
{¶ 11} “(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct by an adverse party;
{¶ 12} “* * *
{¶ 13} “(5) any other reason justifying relief from the judgment.
{¶ 14} “The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.”
{¶ 15} In order to prevail on a motion for relief from judgment under
{¶ 16} A
III
{¶ 17} A review of the history of this case demonstrates that Allen attempted to use his
{¶ 18} After the conclusion of the bankruptcy proceedings, Allen filed a motion to reactivate and a motion for substitution of parties. In these motions, Allen contended that through “various manipulations” P.E.
{¶ 19} After a hearing, the court denied those motions in a decision and order dated April 21, 2008. In that decision and order, the trial court found, in relevant part, the following: “Plaintiff has failed to demonstrate any basis to overcome [the general rule that a purchaser of a corporation‘s assets is not liable for the debts and obligation of the seller corporation.] P.E. Acquisition did not agree to assume P.E. Technologies’ liabilities to the Plaintiff, the asset sale was not a de facto merger of the two companies, P.E. Acquisition was not a mere continuation of P.E. Technologies, and there is no evidence that the asset sale was entered into fraudulently.” The trial court concluded that “neither P.E. Acquisition nor Enprotech, its successor by merger, are liable for the debts or obligations of P.E. Technologies[,]” and found that there was “[n]o just reason for delay.”
{¶ 20} Allen appealed, but this court dismissed the appeal because it was untimely. He filed his motion for relief from the April 21, 2008 decision and order one year later, on April 21, 2009. In his motion, Allen contended that: (1) newly discovered evidence demonstrated that Enprotech was a mere continuation of P.E. Technologies; and (2) P.E. Technologies and/or
{¶ 21} “A
{¶ 22} In his first assignment of error, Allen contends that the trial court abused its discretion by denying him relief on the grounds of mistake, inadvertence, surprise, or excusable neglect under
{¶ 23} Allen waived all but plain error in regard to relief on the grounds of mistake, inadvertence, surprise, or excusable neglect because he did not raise those grounds in his motion. A party who raises an issue for the first time on appeal waives all but plain error. Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 1997-Ohio-401, 679 N.E.2d 1099. “In appeals of civil cases, the plain error doctrine is not favored and may be applied only in the
{¶ 24} We do not find plain error here. Allen contends that, given the succession history in this case, it was excusable neglect that he did not name Enprotech as a defendant. But, as the trial court found, Enprotech would not have been liable to him. Thus, there was no plain error in the trial court‘s denial of Allen‘s motion based on excusable failure of not naming Enprotech as a defendant. The first assignment of error is therefore overruled.
{¶ 25} The “newly discovered” evidence that Allen relied on in support of his motion for relief from judgment included a certificate of merger and a news release and excerpt from Enprotech‘s website. The certificate of merger was not new; it was filed with the Ohio Secretary of State in December 2004. Further, at least one of the website excerpts has a copyright date of 2006. Allen has not demonstrated why this information could not have been discovered with due diligence. On this record, the evidence that
{¶ 26} For his third assigned error, Allen contends that “the trial court abused its discretion in finding that P.E. Acquisition and New P.E. Technologies were neither a ‘mere continuation’ of old P.E. Technologies nor was the asset sale between the old P.E. Technologies and P.E. Acquisition a de facto merger.” For his fourth assigned error, Allen contends that “the trial court abused its discretion in finding that Enprotech, as the successor by merger with new P.E. Technologies, is free from liability for old P.E. Technologies’ debts or obligations.”
{¶ 27} But the bankruptcy proceeding rendered these arguments moot. Specifically, the bankruptcy court entered an order approving the trustee‘s final account and finding that all of P.E. Technologies’ assets were either exempt, overburdened by valid liens, or of inconsequential value.
{¶ 28} Finally, Allen has not demonstrated that his
{¶ 29} On this record, the trial court did not abuse its discretion in denying Allen‘s
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
CHRISTINE T. McMONAGLE, PRESIDING JUDGE
MELODY J. STEWART, J., and
COLLEEN CONWAY COONEY, J., CONCUR