THOMAS VAN WERT, ET AL. v. AKRON METROPOLITAN REGIONAL TRANSIT AUTHORITY, ET AL.
Case No. 2016CA00052
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
December 5, 2016
2016-Ohio-8072
Hon. William B. Hoffman, P.J.; Hon. John W. Wise, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2014CV00475; JUDGMENT: AFFIRMED
For Plaintiffs-Appellants:
WARNER MENDENHALL
190 North Union St., Suite 201
Akron, OH 44304
For Defendants-Appellees:
ROBERT DAANE
ROBERT J. MCBRIDE
JOHN A. MURPHY, JR.
P.O. Box 24213
Canton, OH 44701
WILLIAM B. BENSON
DALE D. COOK
Two Miranova Place, Suite 700
Columbus, OH 43215
{¶1} Plaintiff-Appellant Thomas Van Wert, Individually and as the Executor of the Estate of Wiladine June Gilbert Van Wert appeals the February 12, 2016 judgment entry of the Stark County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
{¶2} The underlying facts of this appeal involve a collision between an automobile driven by Wiladine June Gilbert Van Wert (“Decedent“) and a train on Portage Street in North Canton, Ohio on July 13, 2012. Decedent was killed when she drove her vehicle through the rail crossing into the path of an oncoming train.
{¶3} Plaintiff-Appellant Thomas Van Wert, Individually and as the Executor of the Estate of Wiladine June Gilbert Van Wert filed a complaint in the Stark County Court of Common Pleas on June 14, 2013 alleging Defendants-Appellees Cuyahoga Valley Preservation and Scenic Railway Association dba Cuyahoga Valley Scenic Railroad, Mark C. Perri, Dennis M. Matlosz (hereinafter referred to as “CVSR“), and Akron Metropolitan Regional Transit Authority (hereinafter referred to as “AMRTA“) were jointly and severally liable for negligently causing the death of Decedent. Appellees filed answers denying the allegations contained in Van Wert‘s complaint.
{¶4} On August 12, 2013, CVSR served its First Combined Set of Interrogatories, Request for Production of Documents, and Requests for Admissions upon Van Wert. Van Wert did not respond to CVSR‘s discovery requests. CVSR filed a motion for summary judgment on November 7, 2013 and AMRTA filed a motion for summary judgment on November 8, 2015. The trial court set November 25, 2013 as the
{¶5} Van Wert refiled his complaint on February 21, 2014.
{¶6} CVSR and AMRTA filed answers to the complaint. On March 25, 2014, CVSR served First Combined Set of Interrogatories, Request for Production of Documents, and Requests for Admissions upon Van Wert.
{¶7} CVSR filed its motion for summary judgment on April 24, 2014. In its motion for summary judgment, CVSR relied in part on Van Wert‘s failure to timely respond to the Request for Admissions in the 2013 case. CVSR argued Van Wert‘s admissions in the 2013 case were binding in the refiled 2014 case. CVSR also provided the affidavit of Christopher Olson, an eyewitness to the accident on July 13, 2012. CVSR argued Van Wert‘s admissions and the affidavit of the eyewitness demonstrated CVSR was entitled to judgment as a matter of law on Van Wert‘s complaint.
{¶8} AMRTA filed its motion for summary judgment on April 25, 2014. It also argued that Van Wert‘s failure to respond to the Requests for Admissions in the 2013 case were binding in the 2014 case. AMRTA argued the admissions established there was no genuine issue of material fact to be litigated.
{¶9} The trial court filed a briefing schedule on April 29, 2014. Van Wert‘s responses to the motions for summary judgment were due on May 12, 2014. The replies were due on May 22, 2014. A case management schedule was filed on April 30, 2014. The discovery cut-off date was October 13, 2014.
{¶10} Van Wert filed a motion for extension of time to respond to the motions for summary judgment. His counsel was in trial and required an extension until May 20, 2014.
{¶11} On May 27, 2014, Van Wert filed by facsimile a motion for additional time pursuant to
{¶12} Also on May 27, 2014, Van Wert filed by facsimile a response to AMRTA‘s motion for summary judgment. In his response, he stated, “AMRTA‘s Motion for Summary Judgment is based on admissions which Plaintiff has requested to withdraw and amend contemporaneously with this Response.” Van Wert argued the amended admissions would establish genuine issues of material fact for trial. Van Wert also filed by facsimile a motion to withdraw and amend admissions. The docket for the Stark County Clerk of Courts states on May 27, 2014, a fax filing was rejected because it was more than a 10-page document. Counsel for Van Wert stated he contacted the Stark County Clerk of Courts and was told the faxed items had been docketed.
{¶13} On June 5, 2014, AMRTA filed a reply in support of its motion for summary judgment. In its reply, AMRTA addressed Van Wert‘s motion to withdraw and amend admissions. On June 6, 2014, CVSR filed a response in opposition to Van Wert‘s motion to withdraw and amend admissions.
{¶14} Van Wert served discovery requests upon AMRTA and CVSR on August 6, 2014.
{¶15} On August 7, 2014, Van Wert filed a motion requesting additional time to disclose experts and conduct discovery. The trial court denied the motion on August 12, 2014.
{¶16} On October 10, 2014, the trial court denied Van Wert‘s
{¶17} Van Wert filed a notice of appeal on November 7, 2014. In his appeal, he raised as his sole Assignment of Error that the trial court erred when it refused to allow him additional time to conduct discovery and respond CVSR‘s motion for summary judgment pursuant to
{¶18} On October 9, 2015, Van Wert filed a motion to vacate the October 10, 2014 judgment entry granting summary judgment in favor of AMRTA and CVSR pursuant to
{¶19} AMRTA and CVSR responded to Van Wert‘s motion to vacate the October 10, 2014 judgment. Both parties argued Van Wert could not utilize
{¶20} The trial court set a briefing schedule, but did not hold a hearing before ruling on the motion to vacate. On February 12, 2016, the trial court denied Van Wert‘s motion to vacate the October 10, 2014 judgment. The trial court found Van Wert‘s arguments were barred by the law of the case doctrine pursuant to this Court‘s decision in Van Wert v. Akron Metro. Regional Transit Auth., 5th Dist. Stark No. 2014CA00201, 2015-Ohio-3243. The trial court further found Van Wert could not use a motion for relief from judgment as a substitute for a direct appeal of the issue.
{¶21} Van Wert now appeals the trial court‘s February 12, 2016 judgment.
ASSIGNMENT OF ERROR
{¶22} Van Wert raises one Assignment of Error:
{¶23} “THE TRIAL COURT ERRED AS A MATTER OF LAW BY OVERRULING APPELLANTS’
ANALYSIS
Standard of Review
{¶24} The decision whether to grant a motion for relief from judgment under
{¶25} A party seeking relief from judgment pursuant to
Civ.R. 60(B) Cannot Be Used as a Substitute for an Appeal
{¶26} The trial court held the law of the case doctrine barred Van Wert from arguing that the October 10, 2014 judgment should be vacated because his motion to withdraw and amend admissions was not properly filed. The doctrine of the law of the case provides a decision of a reviewing court remains the law for that case as to all relevant legal questions in subsequent proceedings both at trial and appellate levels unless that rule of practice achieves an unjust result. State v. Moore, 5th Dist. Stark No. 2016CA00094, 2016-Ohio-7380, ¶ 23 citing Weir v. Kebe, 29 Ohio App.3d 53, 29 OBR 62, 503 N.E.2d 177 (8th Dist.1985). The rule ensures consistency in the results of the case, avoids excessive litigation, and preserves the structure of superior and inferior courts as designed by the Ohio Constitution. Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410, 412 (1984).
{¶27} The trial court determined the issue of the 2013 requests for admissions and Van Wert‘s attempt to withdraw and amend those admissions were ripe for review prior to Van Wert‘s appeal and/or during his appeal of the October 10, 2014 judgment. Counsel‘s affidavit in support of the motion for relief from judgment stated counsel became aware of the filing error when the trial court made note of the missing filing in the October 10, 2014 judgment entry. Counsel then examined the case file and determined the motion to withdraw and amend admissions was never filed. In its judgment entry denying the motion for relief from judgment, the trial court noted Van Wert did not immediately raise the issue to the trial court or to the court of appeals, but instead filed the
{¶28} “It is well established that a
{¶29} In this case, Van Wert is attempting to relitigate an issue he could have, but failed to, raise before the trial court or in the original appeal of the October 10, 2014 judgment. The October 10, 2014 judgment denied Van Wert‘s
{¶30} After the October 10, 2014 judgment, Van Wert had the opportunity to file a motion for relief from judgment based on the trial court‘s notification that it did not receive or consider Van Wert‘s motion to withdraw or amend admissions. In the alternative, Van Wert could have raised an assignment of error in his direct appeal that the trial court erred when it considered the 2013 admissions as the basis for granting summary judgment in favor of CVSR and AMRTA. The record shows that both CVSR and AMRTA responded to Van Wert‘s motion to withdraw and amend admissions, arguing the trial court should deny the motion and the 2013 admissions were admissible. These arguments were available to Van Wert prior to his October 9, 2015 motion for relief from judgment.
{¶31} Van Wert‘s failure to raise his arguments about the improper filing of the motion to withdraw and amend admissions prior to or during the direct appeal limited the
CONCLUSION
{¶32} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Wise, J., concur.