JERRY L. SYPHARD, et al. v. MOORE PETERSON/ACCORDIA, et al.
CASE NO. 09 MA 151
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
December 22, 2010
2010-Ohio-6501
Hоn. Mary DeGenaro, Hon. Gene Donofrio, Hon. Cheryl L. Waite
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court, Case No. 06 CV 2037. JUDGMENT: Affirmed.
For Plaintiffs-Appellant: Attorney John A. McNally, III, 100 Federal Plaza East, Suite 600, Youngstown, OH 44503
For Defendants-Appellee: Attorney Ellyn Mehendale, Janik, LLP, 9200 South Hills Bоulevard, Suite 300, Cleveland, OH 44147-3251
OPINION
{¶1} This timely appeal comes for consideration upon the record in the trial court, the parties’ briefs and their oral arguments before this court. Jerry J. Syphard appeals the August 24, 2009 decision of the Mahoning County Court of Cоmmon Pleas that granted summary judgment on a negligence action in favor of Appellee, Moore Peterson Accordia, because the action was barred by the statute of limitations. Syphard argues that because the trial court initially dеnied Accordia‘s motion for summary judgment it was required to deny the motion a second time because it was barred by the doctrine of res judicata. In a conditional cross-assignment of error, Accordia argues that the trial court‘s initial denial of thе motion for summary judgment was erroneous.
{¶2} The trial court‘s summary judgment in favor of Accordia was not barred by res judicata, as the first decision to deny summary judgment did not constitute a final order. Further, the trial court had the broad discretion to reconsider its prior ruling on the summary judgment motion, even in light of the fact that the civil rules do not explicitly provide for a party to move the court to reconsider an interlocutory order. Finally, because Syphard‘s action was barred by the statute of limitations, Accordia‘s first motion for summary judgment should have been granted. Accordingly, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶3} Syphard used the services of Accordia, a retail insurance broker, to find insurance companies to provide coverage for Syphаrd‘s various business needs. Syphard alleged that an Accordia agent encouraged him to increase the limits of his uninsured and under-insured motorist coverage with Auto-Owners Insurance Company from $300,000.00 to $1 million. Syphard alleged that he agreed with the suggestion, and аsked the agent to make that change with his automobile insurer, for the policy term beginning June 27, 1999. Soon afterward, on August 3, 1999, Syphard was involved in a motorcycle collision, in which he was severely injured. The negligent party‘s insurance carrier covered $100,000.00 fоr the accident, and Syphard‘s carrier, Auto-Owners Insurance Company, covered $200,000.00. Although Syphard‘s medical bills exceeded that amount, his coverage benefits were limited to $300,000.00, instead of the $1 million that Syphard had expected.
{¶4} Syphard filed a Cоmplaint against Accordia and the agent on May 26, 2006,
{¶5} Accordia argued in its first Motion for Summary Judgment that Syphard‘s claim was barred by the applicable statute of limitations, and that Syphard had failed to present essential elements of his claim, such as the existence of a duty and the applicable standard of care. Syphard opposed the motion, arguing among other things, that his action was timely within the fifteen-year statute of limitations for written agreements. In its reply brief, Accordia argued that Syphard‘s action was in negligence, not for breach of a written contract, and thus the four-year statute of limitations appliеd. The trial court summarily overruled Accordia‘s summary judgment motion. The original trial judge then recused himself from the case and another judge was assigned.
{¶6} Accordia filed a Motion for Reconsideration of the trial court‘s order denying of summary judgment, solely arguing the issue of the statute of limitations. Syphard opposed the motion, arguing that the
Reconsideration of Denial of Summary Judgment
{¶7} In his sole assignment of error, Syphard asserts:
{¶8} “The trial court erred by granting summary judgment in favor of the
{¶9} Syphard‘s argument is two-fold, first that the Rules of Civil Procedure do not provide for a motion for reconsideration, and second, that the trial court‘s initial decision denying Accordia‘s motion for summary judgment became res judicata, and that the trial court was thus prohibited from granting the second motion. Moreover, Syphard is asking for a review of the trial court‘s decision to reconsider its prior ruling, rather thаn a review of any of the substantive merits of the summary judgment order itself. Thus, the de novo standard of review normally applied to summary judgments does not apply here. Instead, a trial court‘s decision to make a particular procedural ruling is reviewed for abuse of discretion. Harmon v. Baldwin, 107 Ohio St.3d 232, 2005-Ohio-6264, 837 N.E.2d 1196, at ¶15-16. An abuse of discretion connotes that the trial court‘s decision was arbitrary, unreasonable, or unconscionable. Id. at ¶16.
{¶10} Syphard first argues that the
{¶11} In Taylor, the appellee filed two cross-assignments of error, first asserting that the trial court “erred as a matter of law” in overruling the appellee‘s motion for summary judgment, and second asserting that the trial court “erred as a matter of law” in overruling appellee‘s motion for reconsideration of that same summary judgment motion. Id. at 86. This Court found that the appellee‘s substantive argument regarding thе summary judgment motion was meritless, and quickly disposed of the reconsideration argument by noting that “the Civil Rules do not provide for motions for reconsideration in the trial court” and thus that “a trial court does not err by denying such a motion without explanation.” Id., quoting Dunfee v. Midwestern Indemn. Co. (1990), 70 Ohio App.3d 301, 305, 590 N.E.2d 1365, citing Pitts v. Ohio Dept. of Transp. (1981), 67 Ohio St.2d 378, 21 O.O.3d 238, 423 N.E.2d 1105, paragraph one of the syllabus.
{¶12} Syphard seems to conclude that the language “the Civil Rules do not provide for motions for reconsideration in the trial court” indicates that the trial court is prohibited from considering any motion for reconsideration. Syphard‘s reasoning conflаtes the discretion to deny with a requirement to deny. This Court‘s decision in
{¶13} Additionally, Syphard‘s argument does not acknowledge the difference between a motion to reconsider a final judgment and a motion to rеconsider an interlocutory order. In Pitts, the Ohio Supreme Court explained that judgments and final orders are not subject to motions for reconsideration, “either expressly or impliedly,” because
{¶14} Second, Syphard argues that the doctrine of res judicata barred the trial court from considering the second motion for summary judgment. The doctrine of res judicata applies to a court‘s final judgment or decree. “A valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.” Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 653 N.E.2d 226, at syllabus. However, the denial of a motion for summary judgment generally does not constitute a final order pursuant to
{¶15} Given the foregoing, neither the Civil Rules nor the doctrine of res judicata prohibited the trial court from entertaining Accordia‘s Motion for Reconsideration. Accordingly, Syphard‘s assignment of error is meritless.
Statute of Limitations
{¶16} Pursuant to
{¶17} “The trial court erred in initially denying defendant‘s summary judgment.”
{¶18} Summary judgment is proper when (1) there remains no genuine issue of material fact, (2) the moving party is entitled to judgmеnt as a matter of law, and (3) reasonable minds can come to but one conclusion, and with the evidence construed in favor of the party against whom the motion is made, that conclusion is adverse to that party.
{¶19} Where the statute of limitations has expired prior to the filing of the complaint, the plaintiff‘s action is time-barred, and must fail as a matter of law.
{¶20} In Syphard‘s First Amended Complaint he asserted three claims. First, that Accordia‘s agent agreed to procure an insurance policy with a certain amount of coverage for Syphard, that the agent failed to procure such cоverage through misfeasance or
{¶21} Syphard does not make any claims that Accordia or the agent had breached a written contract that existed between them and Syphard. Instead, Syphard has solely pleaded the basic elements of a negligence claim: duty, breach, causation and damages. Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio St.3d 677, 680, 693 N.E.2d 271. Thus, Syphard‘s complaint sounds in tort.
{¶22} Because Syphard‘s complaint sounded in tort, it is governеd by the four-year statute of limitations provided by
{¶23} For the foregoing reasons, Syphard‘s sole assignment of error is meritless, and Accordia‘s conditional cross-assignment of error is meritorious, and the judgment of the trial court is affirmed.
Donofrio, J., concurs.
Waite, J., concurs.