UNITED GULF MARINE, LLC, PLAINTIFF-APPELLEE, v. CONTINENTAL REFINING COMPANY, LLC, DEFENDANT-APPELLANT.
CASE NO. 1-17-40
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
December 18, 2017
[Cite as United Gulf Marine, L.L.C. v. Continental Refining Co., L.L.C., 2017-Ohio-9083.]
PRESTON, P.J.
Appeal from Allen County Common Pleas Court Trial Court No. CV 2017 0040 Judgment Affirmed
Matthew C. Huffman for Appellant
Anthony J. Hornbach and Jesse J. Jenike-Godshalk for Appellee
PRESTON, P.J.
{¶1} Defendant-appellant, Continental Refining Company, L.L.C. (“CRC“), appeals the April 16, 2017 judgment entry of the Allen County Court of Common Pleas granting summary judgment in favor of plaintiff-appellee, United Gulf Marine, L.L.C. (“UGM“). For the reasons that follow, we affirm.
{¶2} On January 27, 2017, UGM filed a complaint in which it alleged that CRC breached two commercial contracts—the Transmix Agreement and the Naphtha Agreement. (Doc. No. 1). On February 21, 2017, CRC filed a motion requesting additional time to respond to UGM‘s complaint, which the trial court granted on February 23, 2017. (Doc. Nos. 5, 6). Before CRC filed its answer, UGM filed an amended complaint on March 7, 2017. (Doc. No. 7).
{¶3} On March 23, 2017, CRC filed its answer to UGM‘s amended complaint and filed counterclaims against UGM alleging that UGM breached the Transmix Agreement. (Doc. No. 8). In its answer, CRC admitted “that the parties agreed to Allen County, Ohio relating to Counts I through V of the Amended Complaint but denie[d] that the parties agreed to Allen County for Counts VI and VII.”1 (Id.). Further, CRC alleged as its first defense that “[t]he Naphtha Agreement provides for exclusive jurisdiction and venue in Denver, Colorado” and, as such,
{¶4} On April 7, 2017, UGM filed its answer to CRC‘s counterclaims. (Doc. No. 9). That same day, UGM filed a motion for leave to file a second amended complaint, which the trial court granted on April 25, 2017. (Doc. Nos. 10, 11). UGM filed its second amended complaint on April 26, 2017. (Doc. No. 12). In its second amended complaint, Counts I through IV relate to the Transmix Agreement and Counts V and VI relate to the Naphtha Agreement. (Id.).
{¶5} On May 22, 2017, CRC filed its answer to UGM‘s second amended complaint. (Doc. No. 15). In its answer, CRC admitted “that the parties agreed to Allen County, Ohio relating to Counts I through IV of the Second Amended Complaint but denie[d] that the parties agreed to Allen County for Counts V and VI.” (Id.). Further, CRC again alleged as its first defense that “[t]he Naphtha Agreement provides for exclusive jurisdiction and venue in Denver, Colorado” and, as such, that the Allen County Court of Common Pleas “is without jurisdiction with respect to disputes relating to the Naphtha Agreement.” (Id.).
{¶6} On May 31, 2017, UGM filed a motion for summary judgment seeking judgment in favor on Counts I and V of its second amended complaint and CRC‘s counterclaims. (Doc. No. 16).
{¶8} On June 15, 2017, UGM filed its response to CRC‘s counterclaims. (Doc. No. 22).
{¶9} On June 23, 2017, CRC filed a motion requesting additional time to respond to UGM‘s motion for summary judgment. (Doc. No. 24). UGM filed a memorandum in opposition to CRC‘s motion requesting additional time to respond to UGM‘s motion for summary judgment. (Doc. No. 25). On June 30, 2017, the trial court granted CRC‘s motion and ordered it to respond by July 10, 2017. (Doc. No. 26).
{¶10} On July 10, 2017, CRC filed its response to UGM‘s motion for summary judgment. (Doc. No. 28). In its response, CRC requested that the trial court dismiss UGM‘s claims regarding the Naphtha Agreement or deny summary judgment in favor of UGM regarding those claims based on the forum-selection
{¶11} On July 13, 2017, CRC filed its notice that it provided to UGM its requests for admissions, request for production, and interrogatories. (Doc. No. 30).
{¶12} On July 21, 2017, UGM filed its response to CRC‘s memorandum in opposition to its motion for summary judgment. (Doc. No. 32). On July 27, 2017, UGM filed its memorandum in opposition to CRC‘s motion for summary judgment. (Doc. No. 33).
{¶13} On August 16, 2017, the trial court awarded summary judgment in favor of UGM after concluding that there was no genuine issue of material fact that CRC breached the Transmix and Naphtha Agreements. (Doc. No. 35). The trial court awarded UGM $172,777.60 plus interest in damages as a result of CRC‘s breach of the Transmix Agreement and $77,937.43 plus interest in damages as a result of CRC‘s breach of the Naphtha Agreement. (Id.). The trial court concluded
{¶14} CRC filed its notice of appeal on September 14, 2017. (Doc. No. 41). It raises one assignment of error for our review.
Assignment of Error
The Trial Court Incorrectly Determined that Appellant Waived the Defense of Lack of Jurisdiction Within the Naphtha Agreement by Responding to Appellee‘s Second Amended Complaint and Filing its Own Counterclaim, Both of Which Were Unrelated to the Naphtha Agreement.
{¶15} In its assignment of error, CRC argues that the trial court erred by concluding that it “waived its defense of lack of jurisdiction” regarding the Naphtha Agreement because it “fil[ed] an answer or counterclaim.” (Appellant‘s Brief at 7). Stated differently, CRC argues that the trial court erred by granting summary judgment in favor of UGM regarding the Naphtha Agreement after concluding that CRC waived its argument regarding the forum-selection clause contained in the Naphtha Agreement.2
{¶16} We review a decision to grant summary judgment de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can reach but one conclusion when viewing the
{¶17} “The party moving for summary judgment has the initial burden of producing some evidence which demonstrates the lack of a genuine issue of material fact.” Carnes v. Siferd, 3d Dist. Allen No. 1-10-88, 2011-Ohio-4467, ¶ 13, citing Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). “In doing so, the moving party is not required to produce any affirmative evidence, but must identify those portions of the record which affirmatively support his argument.” Id., citing Dresher at 292. “The nonmoving party must then rebut with specific facts showing the existence of a genuine triable issue; he may not rest on the mere allegations or denials of his pleadings.” Id., citing Dresher at 292 and
{¶18} As an initial matter, we must address CRC‘s confusion of venue with jurisdiction. Indeed, “[v]enue should not be confused with jurisdiction as they are distinct legal concepts.” In re W.W., 190 Ohio App.3d 653, 2010-Ohio-5305, ¶ 25 (11th Dist.), citing Craig v. Consolidated Rail Corp., 9th Dist. Summit No. 13332, 1988 WL 37626, *2 (April 6, 1988). “Venue is a procedural matter concerned with choosing a convenient forum and raises no jurisdictional implications.” (Emphasis added.) Id. See 1970 Staff Notes,
{¶19} Although CRC asserts that its argument is jurisdictional, it is not. Rather, CRC‘s argument regarding the forum-selection clause contained in the Naphtha Agreement relates to improper venue. Indeed, the clause in the Naphtha Agreement to which CRC cites states, in relevant part, “The parties agree that the venue for any litigation pertaining to this Agreement shall be in a court of competent jurisdiction in Denver County, Colorado.” (Appellant‘s Brief at 7). Stated another way, the clause in the Naphtha Agreement to which CRC cites addresses only venue, not jurisdiction. As such, to determine whether the trial court erred by granting summary judgment in favor of UGM on the merits of its claims relating to the Naphtha Agreement, we must first determine whether the trial court abused its discretion by failing to transfer venue.
{¶20} “The decision to grant or deny a motion to change venue is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.” Sheet Metal Workers Local 98, Pension Fund v. Whitehurst, 5th Dist. Knox No. 03 CA 29, 2004-Ohio-191, ¶ 23, citing Grenga v. Smith, 11th Dist. Trumbull No. 2001-T-0040, 2002 WL 409022, *2 (Mar. 15, 2002). An abuse
{¶21} Because it is waivable, “[v]enue is a defense which may be made by answer or by motion.” Domestic Linen Supply and Laundry Co. v. Sanray Corp., 7th Dist. Mahoning No. 88 CA 9, 1988 WL 132953, *2 (Dec. 7, 1988). See
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: * * * (3) improper venue * * *. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse
party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief.
{¶22} “If a party raises any of the
{¶23} CRC filed answers to UGM‘s amended complaint and second amended complaint. In its answers, CRC denied that the Allen County Court of
[I]t is not enough that a party raises the defense of improper venue in that party‘s answer. Rather, a party must properly raise the defense and must also apply to the court for a transfer of venue. Under
Civ.R. 12(D) , a party possesses an affirmative duty to seek a transfer of venue and may not simply rely upon an allegation in its answer of improper venue.
{¶24} Moreover, although CRC requested that the trial court dismiss UGM‘s claims regarding the Naphtha Agreement in its response to UGM‘s motion for summary judgment and in its own motion for summary judgment, “[i]mproper venue * * * is never a ground for dismissal of a lawsuit.” Janet‘s Reporting and Video Service v. Rauchman, 12th Dist. Butler No. CA89-10-150, 1990 WL 70929, *1 (May 29, 1990), citing Romanchik v. Lucak, 44 Ohio App.3d 215 (8th Dist.1988), paragraph one of the syllabus and Price v. Wheeling Dollar Savs. & Trust Co., 9 Ohio App.3d 315 (12th Dist.1983). Accord Palmer v. O‘Brien, 5th Dist. Richland No. 04 CA 38, 2004-Ohio-5365, ¶ 10-11 (“‘The issue of improper venue is governed by
{¶25} For these reasons, even though the parties agreed to the forum-selection clause in the Naphtha Agreement, we conclude that CRC‘s failure to comply with
{¶26} CRC‘s assignment of error is overruled.
{¶27} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
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