Osborne v. Kroger Co.Osborne v. Kroger Co.
Rendered on December 17, 2020
On brief: Beausay and Nichols Law Firm, and Sara C. Nichols, for appellant.
On brief: James E. Arnold & Associates, LPA, James E. Arnold, and Gerhardt A. Gosnell II, for intervenor-appellee, The Donahey Law Firm, LLC.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{1} This is an appeal by plaintiff-appellant, Jeffrey K. Osborne, from a judgment of the Franklin County Court of Common Pleas vacating its prior decision granting appellant‘s
{2} On August 8, 2018, appellant filed a complaint against defendant-appellee, the Kroger Co. (“Kroger“), alleging negligence on the part of a Kroger employee in filling a drug prescription. The case was referred to a magistrate of the trial court for mediation.
{3} On February 6, 2019, appellant filed combined motions seeking: (1) relief from judgment, pursuant to
{4} On February 20, 2019, Kroger filed a memorandum in response to appellant‘s motion for relief from judgment and motion for post-settlement interest. In its memorandum, Kroger did not object to appellant‘s motion to vacate the dismissal entry for purposes of implementing the settlement, but opposed appellant‘s request for post-settlement interest. Kroger also moved the trial court to: (1) interplead the settlement funds with the court for determination and distribution, and (2) dismiss Kroger from the action.
{5} On June 28, 2019, the trial court filed an entry and order granting
{6} By entry and order issued August 9, 2019, the trial court, noting that appellant “has received the agreed upon Settlement proceeds,” and that “a draft in the amount of disputed attorneys’ fees has been deposited with the Clerk of Courts,” dismissed Kroger from the action with prejudice. (Entry and Order at 1.) The entry further provided: “The Court retains jurisdiction of the attorney fees issue only as between Plaintiff Jeffery Osborne and the Donahey Law Firm.” (Entry and Order at 1.)
{7} On August 12, 2019, the Donahey Law Firm filed a motion to intervene, as well as a complaint to intervene and an application for attorney fees. On August 23, 2019,
{8} On November 25, 2019, the trial court filed an entry and order stating in part: “The Court, sua sponte reviewed the January 25, 2019 termination order, and now changes its decision on Plaintiff‘s
{9} On appeal, appellant sets forth the following assignment of error for this court‘s consideration:
The trial court erred and abused its discretion when, in its 11/25/2019 Entry and Order, it vacated its earlier final order granting 60(B) relief to Mr. Osborne.
{10} Under his single assignment of error, appellant asserts the trial court erred in vacating its earlier order granting his request for relief under
{11} As noted under the facts, appellant‘s
{12} In general, “[t]he decision to grant a
{13} We note that ”
{14}
{15} In the present case, the trial court‘s decision vacating its prior entry in which it granted appellant relief from judgment was “a fundamental change in the court‘s position” and, as such, was “an attempt to correct a substantive mistake.” Coffman. Further, at the time the trial court vacated its prior order, the record indicates no pending
{16} Based on the foregoing, appellant‘s single assignment of error is sustained, the judgment of the Franklin County Court of Common Pleas is reversed, and this matter is remanded to the trial court for further proceedings in accordance with law and consistent with this decision.
Judgment reversed; cause remanded.
SADLER, P.J., and DORRIAN, J., concur.