BRIGADIER CONSTRUCTION SERVICES, L.L.C. v. JLP GLASS PRODUCTS, INC., ET AL.
No. 98672
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 7, 2013
[Cite as Brigadier Constr. Servs., L.L.C. v. JLP Glass Prods., Inc., 2013-Ohio-825.]
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-734769
JUDGMENT: AFFIRMED
BEFORE: Blackmon, J., Jones, P.J., and Keough, J.
RELEASED AND JOURNALIZED: March 7, 2013
Harlan D. Karp
850 Euclid Avenue, Suite 1330
Cleveland, Ohio 44114
Eugene I. Selker
Mazanec, Raskin & Ryder Co.
100 Franklin‘s Row
34305 Solon Road, Suite 100
Solon, Ohio 44139
ATTORNEYS FOR APPELLEE
Debra J. Horn
Rachel L. Steinlage
Alan B. Dailide
Meyers, Roman, Friedberg & Lewis
28601 Chagrin Boulevard, Suite 500
Cleveland, Ohio 44122
{1} Appellants JLP Glass Products, Inc. and James E. Ponyicky, Sr. (collectively “JLP Glass“) appeal the trial court‘s decision granting partial summary judgment to Brigadier Construction Services, L.L.C. (“Brigadier“), and assign the following errors for our review:
I. The trial court erred in failing to reconsider the grant of partial summary judgment where the settlement agreement (an instrument in writing) showed that Appellee 1) acknowledged receipt of the missing materials; 2) the 10 day time limitations period for return of materials had passed; and 3) noted the corporate status of JLP Glass Products Inc. Appellee attempted to satisfy its burden of production with an affidavit that contradicted the written terms of the settlement agreement and hence summary judgment should have been reconsidered and granted in favor of Appellants. In the alternative, if the above provisions of the Settlement Agreement were not dispositive, the conflicting affidavits of the parties showed genuine issues of material fact as to the return of materials and personal liability of Ponyicky and summary judgment was improper.
II. The trial court erred in finding that a notice of partial dismissal of Count III with prejudice under Civil Rule 41(A)(1)(a) distinguished Pattison v. Grainger, Inc., 120 Ohio St.3d 142, 2008-Ohio-5276. Rather, a partial Civil Rule 41(A)(1) with or without prejudice remains a nullity when it fails to dismiss all claims against a party. Unilateral dismissals under Rule 41(A)(1)(a) are restricted by precedent and dismissal of partial claims and parties to individual counts must be by other rules requiring a court order or stipulation. Under precedent of this district, Garber v. STS Concrete Co. L.L.C., 2011-Ohio-934, there was no final judgment on May 18, 2011 or July 5, 2012 in this case and as such because Rule 41(A)(1)(a) may not be used to sever portions of claims against a certain defendant.
III. The trial court abused its discretion in not granting a protective order from execution where there was no final judgment and reconsideration of partial summary judgment should have been granted.
{3} In November 2009, Brigadier subcontracted with JLP Glass to have the company furnish labor, materials, equipment, and supervision for the installation of panels and walls as part of the Louis Stokes Cleveland VA Medical Center construction project. On or about February 19, 2010, the parties terminated their relationship and entered into a formal settlement agreement (“Agreement“). Pursuant to the agreement, JLP Glass agreed to release all materials to Brigadier that was acquired for installation and stored in its warehouse under the subcontract agreement.
{4} On August 20, 2010, Brigadier filed a three-count complaint against JLP Glass, Ponyicky, who owned JLP Glass, and James Long, a JLP Glass employee, alleging breach of the Agreement (Counts I and II) and conversion (Count III) against all three parties. On January 28, 2011, Brigadier moved for summary judgment. The motion was unopposed; on April 26, 2011, the trial court granted the summary judgment motion as to Counts I and II, but denied the motion as to Count III.
{5} Subsequent to the trial court‘s partial denial of its motion for summary judgment, Brigadier moved to amend its complaint to amend Counts I and II to name just JLP Glass and Ponyicky and to dismiss Count III. The trial court denied the motion. Brigadier then moved to dismiss Count III with prejudice pursuant to
{7} Concurrent with its motion for relief from judgment, JLP Glass sought a protective order from a
{8} However, in Brigadier Constr. Servs. LLC v. JLP Glass Prods., 8th Dist. No. 97624, 2012-Ohio-2314, we dismissed the appeal for lack of a final appealable order. There, we found that despite Brigadier‘s dismissal of Count III with prejudice, the claims against Long for breach of contract, contained in Counts I and II, remained pending, because the trial court had denied Brigadier‘s motion to amend the complaint.
{9} Following the dismissal, Brigadier filed a
Final Judgment
{10} We begin with the second assigned error, wherein JLP Glass argues the underlying case did not become final and appealable despite Brigadier‘s dismissal of all claims against defendant Long.
{12} In the instant case, we originally dismissed the appeal for lack of a final appealable order because there were pending claims against defendant Long in Counts I and II, despite Brigadier having dismissed Count III with prejudice. Following our dismissal of the first appeal, Brigadier dismissed with prejudice all claims against defendant Long as contained in Counts I and II. Hence, we have jurisdiction over the matter. Accordingly, we overrule the second assigned error.
Summary Judgment
{13} In the first assigned error, JLP Glass argues the trial court erred in failing to reconsider its decision granting partial summary judgment in favor of Brigadier on Counts I and II of the complaint.
{14} We review an appeal from summary judgment under a de novo standard of review. Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist.2000), citing Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th
{15} Under
{16} The moving party carries an initial burden of setting forth specific facts that demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the movant fails to meet this burden, summary judgment is not appropriate; if the movant does meet this burden, summary judgment will be appropriate only if the nonmovant fails to establish the existence of a genuine issue of material fact. Id. at 293.
{17} Preliminarily, and as previously noted, JLP Glass did not oppose Brigadier‘s motion for summary judgment. In addition, JLP Glass did not file a direct appeal of the trial court‘s decision granting partial summary judgment in favor of Brigadier on Counts I and II.
{18} Instead, approximately five months later, after Brigadier began executing on the judgment and garnishing bank accounts, JLP Glass filed a motion for relief from judgment under
{19} Thereafter, post-dismissal motion practice resulted in a perfected appeal. JLP Glass again appeals, among other things, the trial court‘s denial of its motion for relief from judgment.
{20} A motion for relief from judgment under
{21} In order to prevail on a
{22} In the instant case, the thrust of JLP Glass‘s motion for relief from judgment is that the trial court should not have granted partial summary judgment on Counts I and II of Brigadier‘s complaint. However, we have repeatedly held that utilizing
{23} To rule in JLP Glass‘s favor after it failed to oppose summary judgment would undermine the purposes of both
{24} Moreover, our review of JLP Glass‘s motion for relief from judgment indicates that the very averments contained therein, is exactly what should have been addressed in a motion in opposition to summary judgment, had they filed one. Specifically, JLP Glass alleged that Brigadier engaged in a fraud on the Court, because they had already received the materials and was seeking to obtain a double recovery.
{25} Because the averments in Ponyicky‘s affidavits would have conflicted with Brigadier‘s claim of non-receipt of the materials, summary judgment would not have been proper. Unfortunately, JLP Glass failed to file a motion in opposition and thus cannot be afforded a second chance to oppose summary judgment. Therefore the trial court did not abuse its discretion in denying JLP Glass‘s motion for relief from judgment. Accordingly, we overrule the first assigned error.
Protective Order
{26} In the third assigned error, JLP Glass argues the trial court erred in denying the motion, filed pursuant to
{27}
Upon motion by any party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense * * *.
{28} A trial court‘s ruling concerning protective orders sought pursuant to
{30} Further, JLP Glass waited five months to file a motion for relief from judgment, alleging what they should have alleged in a motion in opposition to Brigadier‘s motion for summary judgment. Under the circumstances, we find no abuse of discretion in the trial court‘s decision. Accordingly, we overrule the third assigned error.
{31} Judgment affirmed.
It is ordered that appellee recover from appellants 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 Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
LARRY A. JONES, SR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR