{¶ 2} On May 9, 2006, Harris filed a complaint alleging that his kitchen countertop/sink exhibited cracking and crazing as a result of the negligent manufacture of the countertop/sink by defendant-appellee Formica Corporation ("Formica") and/or the negligent installation thereof by defendant-appellee Solid Surfaces Plus.1 In response to written discovery, Harris stated that the cracking and crazing appeared around 2000-2001.
{¶ 3} On September 20, 2006, Formica moved for summary judgment, arguing that Harris's claim was barred by the applicable statute of limitations. Harris did not file a response. On November 27, 2006, the trial court granted Formica's motion for summary judgment, stating that Harris's claim was barred by the statute of limitations, citing R.C.
{¶ 4} On January 29, 2007, Harris filed a Civ.R. 60(B)(5) motion for relief from judgment, asking the court to vacate its grant of summary judgment, arguing that a genuine issue of material fact existed. The court denied said motion on February 20, 2007, and this appeal followed. *4
{¶ 5} First, Formica argues that this appeal should be dismissed because Harris failed to file a timely appeal pursuant to App.R. 4(A) after the trial court granted summary judgment against him. Formica argues that Harris's motion for relief from judgment was a substitute for a timely appeal. We disagree.
{¶ 6} The trial court's grant of summary judgment in favor of Formica was not a final appealable order pursuant to Civ.R. 54(B) because claims remained pending against Solid Surfaces Plus, another party to the case, and the journal entry did not include the language "no just cause for delay." Accordingly, Harris could not file an appeal until a final judgment was entered.
{¶ 7} In this case, Harris appeals the trial court's denial of his motion for relief from judgment. This appeal was timely taken from the date of the final judgment entry in this case.
{¶ 8} A motion for relief from judgment under Ohio Civ.R. 60(B) is addressed to the sound discretion of the trial court, and that court's ruling will not be disturbed on appeal absent a showing of abuse of discretion. Rose Chevrolet, Inc. v. Adams (1988),
{¶ 9} Harris's motion for relief from judgment argued that the two-year statute of limitations did not apply because the countertop was a fixture and not removable personal property. Harris also argued that the latent defect did not manifest itself into real damage or injury until 2004, so his complaint was not barred by the statute *6 of limitations. Finally, Harris argued that summary judgment should not have been granted as there were still genuine issues of material fact.
{¶ 10} We find that Harris attempted to employ Civ.R. 60(B) to get a second chance to oppose summary judgment, which he failed to do originally. Such a tactic is not a proper request for relief under Civ.R. 60(B). Yoder v. Edwin Shaw Dev. Found. (Apr. 17, 1996), Summit App. No. CA 17417. To reward Harris for his failure to adequately oppose summary judgment in a timely manner would undermine the purposes of both Civ.R. 56 and 60(B). Id.; see, also, Pittsburgh Press Co. v. CabinetpakKitchens of Columbus, Inc. (1984),
{¶ 11} We further recognize that the trial court properly found Harris's complaint was barred by the statute of limitations. SeeHarris v. Formica Corp., Cuyahoga App. No. 89780, 2008-Ohio____.
Judgment affirmed.
It is ordered that appellees 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 Rule 27 of the Rules of Appellate Procedure. *7
COLLEEN CONWAY COONEY, P.J., and ANTHONY O. CALABRESE, JR., J., CONCUR.