Brigadier Constr. Servs., L.L.C. v. JLP Glass Prods., Inc.

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2013-Ohio-825

Case Date: 03/07/2013

Plaintiff: Brigadier Constr. Servs., L.L.C.

Defendant: JLP Glass Prods., Inc.

Preview:[Cite as Brigadier Constr. Servs., L.L.C. v. JLP Glass Prods., Inc., 2013-Ohio-825.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98672
BRIGADIER CONSTRUCTION SERVICES, L.L.C.
PLAINTIFF-APPELLEE
vs.
JLP GLASS PRODUCTS, INC., ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-734769
BEFORE:      Blackmon, J., Jones, P.J., and Keough, J.
RELEASED AND JOURNALIZED:                                                              March 7, 2013

ATTORNEYS FOR APPELLANTS
Harlan D. Karp
850 Euclid Avenue, Suite 1330
Cleveland, Ohio 44114
Eugene I. Selker
Mazanec, Raskin & Ryder Co.
100 Franklin’s Row
34305 Solon Road, Suite 100
Solon, Ohio 44139
ATTORNEYS FOR APPELLEE
Debra J. Horn
Rachel L. Steinlage
Alan B. Dailide
Meyers, Roman, Friedberg & Lewis
28601 Chagrin Boulevard, Suite 500
Cleveland, Ohio 44122

PATRICIA ANN BLACKMON, J.:
{¶1}    Appellants  JLP  Glass  Products,  Inc.  and  James  E.  Ponyicky,  Sr.
(collectively                                                                     “JLP  Glass”)  appeal  the  trial  court’s  decision  granting  partial  summary
judgment  to  Brigadier  Construction  Services,  L.L.C.                          (“Brigadier”),  and  assign  the
following errors for our review:
I. The trial court erred in failing to reconsider the grant of partial
summary judgment where the settlement agreement (an instrument in
writing) showed that Appellee 1) acknowledged receipt of the missing
materials; 2) the 10 day time limitations period for return of materials
had passed; and 3) noted the corporate status of JLP Glass Products
Inc.   Appellee attempted to satisfy its burden of production with an
affidavit  that  contradicted  the  written  terms  of  the  settlement
agreement   and   hence   summary   judgment   should   have   been
reconsidered and granted in favor of Appellants.   In the alternative, if
the above provisions of the Settlement Agreement were not dispositive,
the  conflicting  affidavits  of  the  parties  showed  genuine  issues  of
material fact as to the return of materials and personal liability of
Ponyicky and summary judgment was improper.
II. The trial court erred in finding that a notice of partial dismissal of
Count III with prejudice under Civil Rule  41(A)(1)(a) distinguished
Pattison  v.  Grainger,  Inc.,                                                    120  Ohio  St.3d                                                                   142,   2008-Ohio-5276.
Rather, a partial Civil Rule 41(A)(1) with or without prejudice remains
a nullity when it fails to dismiss all claims against a party.   Unilateral
dismissals  under  Rule  41(A)(1)(a)  are  restricted  by  precedent  and
dismissal of partial claims and parties to individual counts must be by
other rules requiring a court order or stipulation.   Under precedent of
this   district, Garber v. STS Concrete Co. L.L.C., 2011-Ohio-934, there
was no final judgment on May 18, 2011 or July 5, 2012 in this case and
as such because Rule 41(A)(1)(a) may not be used to sever portions of
claims against a certain defendant.
III. The trial court abused its discretion in not granting a protective
order  from  execution  where  there  was  no  final  judgment  and
reconsideration  of  partial  summary  judgment  should  have  been
granted.

{¶2}    Having reviewed the record and pertinent law, we affirm the trial court’s
decision.   The apposite facts follow.
{¶3}    In November  2009, Brigadier subcontracted with JLP Glass to have the
company furnish  labor,  materials,  equipment,  and  supervision  for  the  installation  of
panels and walls as part of the Louis Stokes Cleveland VA Medical Center construction
project.   On or about February 19,                                                             2010, the parties terminated their relationship and
entered into a formal settlement agreement (“Agreement”).   Pursuant to the agreement,
JLP Glass agreed to release all materials to Brigadier that was acquired for installation
and stored in its warehouse under the subcontract agreement.
{¶4}    On August 20, 2010, Brigadier filed a three-count complaint against JLP
Glass, Ponyicky, who owned JLP Glass, and James Long, a JLP Glass employee, alleging
breach of the Agreement (Counts I and II) and conversion (Count III) against all three
parties.   On January 28, 2011, Brigadier moved for summary judgment.   The motion was
unopposed; on April 26, 2011, the trial court granted the summary judgment motion as to
Counts I and II, but denied the motion as to Count III.
{¶5}    Subsequent to the trial court’s partial denial of its motion for summary
judgment, Brigadier moved to amend its complaint to amend Counts I and II to name just
JLP Glass and Ponyicky and to dismiss Count III. The trial court denied the motion.
Brigadier then moved to dismiss Count III with prejudice pursuant to Civ.R. 41(A)(1)(a).
On May 18, 2011, the trial court granted the motion to dismiss Count III with prejudice.

{¶6}    Thereafter,  in  May                                                                     2011,  Brigadier  began  executing  on  the  judgment
against JLP Glass and in June through July 2011, garnished the bank accounts of JLP
Glass, as well as Ponyicky’s.   On October 19, 2011, JLP Glass filed a motion for relief
from judgment.   Brigadier opposed the motion and on October 19, 2011, the trial court
denied the motion without a hearing.
{¶7}    Concurrent with its motion for relief from judgment, JLP Glass sought   a
protective   order   from   a Civ.R.                                                             69   debtor’s   examination.   On November 4, 2011,
the trial court denied the motion.     JLP Glass timely appealed the trial court’s decision.
{¶8}    However, in Brigadier Constr. Servs. LLC v. JLP Glass Prods., 8th Dist.
No. 97624, 2012-Ohio-2314, we dismissed the appeal for lack of a final appealable order.
There, we found that despite Brigadier’s dismissal of Count III with prejudice, the
claims against  Long  for  breach  of  contract,  contained  in  Counts  I  and  II,  remained
pending, because the trial court had denied Brigadier’s motion to amend the complaint.
{¶9}   Following the dismissal, Brigadier filed a Civil Rule 41(a)(1)(a) notice of
dismissal of Counts I and II against defendant Long.    After the partial dismissal of
Counts I and II, JLP Glass timely appealed.
Final Judgment
{¶10}   We begin with the second assigned error, wherein JLP Glass argues the
underlying case did not become final and appealable despite Brigadier’s dismissal of all
claims against defendant Long.

{¶11}    Pursuant  to  Civ.R.                                                                     41(A)(1)(a),  a  plaintiff   “may  dismiss  all  claims
asserted by that plaintiff against a defendant by * * * filing a notice of dismissal at any
time before the commencement of trial.” (Emphasis added.)   The rule “does not allow for
the dismissal of a portion of the claims against a certain defendant.” Pattison v. W.W.
Grainger Inc.,  120 Ohio St.3d  142,  2008-Ohio-5276,  897 N.E.2d  126,  ¶  18; see also
Dohme v. Eurand Am., Inc., 121 Ohio St.3d 277, 2009-Ohio-506, 903 N.E.2d 1174. ¶ 3.
{¶12}   In the instant case, we originally dismissed the appeal for lack of a final
appealable order because there were pending claims against defendant Long in Counts   I
and II, despite Brigadier having dismissed Count III with prejudice.    Following our
dismissal  of  the  first  appeal,  Brigadier  dismissed  with  prejudice  all  claims  against
defendant Long as contained in Counts I and II.   Hence, we have jurisdiction over the
matter.   Accordingly, we overrule the second assigned error.
Summary Judgment
{¶13}   In the first assigned error, JLP Glass argues the trial court erred in failing
to reconsider its decision granting partial summary judgment in favor of Brigadier on
Counts I and II of the complaint.
{¶14} We review an appeal from summary judgment under a de novo standard of
review.    Baiko v. Mays,  140 Ohio App.3d  1,  746 N.E.2d  618  (8th Dist.2000), citing
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio
Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th

Dist.1997).    Accordingly,  we  afford  no  deference  to  the  trial  court’s  decision  and
independently review the record to determine whether summary judgment is appropriate.
{¶15} Under Civ.R. 56, summary judgment is appropriate when, (1) no genuine
issue as to any material fact exists, (2) the party moving for summary judgment is entitled
to judgment as a matter of law, and (3) when viewing the evidence most strongly in favor
of the nonmoving party, reasonable minds can reach only one conclusion that is adverse
to the nonmoving party.
{¶16} The moving party carries an initial burden of setting forth specific facts that
demonstrate his or her entitlement to summary judgment.    Dresher v. Burt,  75 Ohio
St.3d 280, 292-293, 662 N.E.2d 264 (1996).      If the movant fails to meet this burden,
summary judgment is not appropriate; if the movant does meet this burden, summary
judgment will be appropriate only if the nonmovant fails to establish the existence of a
genuine issue of material fact.    Id. at 293.
{¶17}     Preliminarily,  and  as  previously  noted,  JLP  Glass  did  not  oppose
Brigadier’s motion for summary judgment.     In addition, JLP Glass did not file a direct
appeal  of  the  trial  court’s  decision  granting  partial  summary  judgment  in  favor  of
Brigadier on Counts I and II.
{¶18} Instead, approximately five months later, after Brigadier began executing on
the judgment and garnishing bank accounts, JLP Glass filed a motion for relief from
judgment under Civ.R. 60(B).   The trial court denied the motion without a hearing.     As

previously stated, JLP Glass appealed and we dismissed for lack of a final appealable
order.
{¶19}   Thereafter, post-dismissal motion practice resulted in a perfected appeal.
JLP Glass again appeals, among other things, the trial court’s denial of its motion for
relief from judgment.
{¶20}   A motion for relief from judgment under 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. TPI Asset Mgt., LLC v. Benjamin, 10th Dist. No.
11AP-334, 2011-Ohio-6389, citing   Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d
1122  (1987).     The term “abuse of discretion” connotes more than an error of law or
judgment; it implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore,  5 Ohio St.3d  217,  450 N.E.2d  1140  (1983), citing State v.
Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980). When applying an abuse-of-discretion
standard, an appellate court may not substitute its judgment for that of the trial court.
Deutsche Bank Natl. Trust Co. v. Oyortey, 10th Dist. No. 11AP-878, 2012-Ohio- 1616,
citing   Berk v. Matthews, 53 Ohio St.3d 161, 559 N.E.2d 1301 (1990).
{¶21}   In order to prevail on a Civ.R. 60(B) motion for relief from judgment, the
moving party bears the burden to demonstrate that (1) the party has a meritorious defense
or claim to present if relief is granted; (2) the party is entitled to relief under one of the
grounds stated in Civ.R.  60(B)(1) through  (5); and  (3) the motion is made within a

reasonable time.   GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146,
351 N.E.2d 113 (1976). Failure to prove any of the three is fatal to his motion.
{¶22}    In  the  instant  case,  the  thrust  of  JLP  Glass’s  motion  for  relief  from
judgment is that the trial court should not have granted partial summary judgment on
Counts  I  and  II  of  Brigadier’s  complaint.    However,  we  have  repeatedly held  that
utilizing Civ.R. 60(B) to attack the grant of summary judgment, after having failed to
oppose said motion or file a direct appeal, is not proper tactic.   See Garrett v. Gortz, 8th
Dist. No. 90625, 2008-Ohio-4369;   Blatt v. Meridia Health Sys., 8th Dist. No. 89074,
2008-Ohio-1818; and Wilson v. Wilson, 8th Dist. No. 86817, 2006-Ohio-4261.
{¶23} To rule in JLP Glass’s favor after it failed to oppose summary judgment
would undermine the purposes of both Civ.R. 56 and 60(B).     Harris v. Formica Corp.,
8th Dist. No. 89536, 2008-Ohio-688, citing   Yoder v. Edwin Shaw Dev. Found., 9th Dist.
No. CA  17417,  1996 Ohio App. LEXIS  1548  (April  17,  1996).    See also Pittsburgh
Press Co. v. Cabinetpak Kitchens of Columbus, Inc., 16 Ohio App.3d 167, 168,                    475
N.E.2d 133 (10th Dist.1984).   Consequently, we find no abuse of discretion in the trial
court’s denial of JLP Glass’s Civ.R. 60(B) motion for relief from judgment.
{¶24}    Moreover, our review of JLP Glass’s motion for relief from judgment
indicates that the very averments contained therein, is exactly what should have   been
addressed  in  a  motion  in  opposition  to  summary  judgment,  had  they  filed  one.
Specifically,   JLP Glass alleged that Brigadier engaged in a fraud on the Court, because
they had already received the materials and was seeking to obtain a double recovery.

Attached to the motion, was an affidavit from Ponyicky averring that they had turned over
all the materials to Brigadier, whose agent signed a statement to that effect, and that the
ten-day inspection period pursuant to the settlement agreement expired before Brigadier
claimed not to have received the materials.
{¶25} Because the averments in Ponyicky’s affidavits would have conflicted with
Brigadier’s claim of non-receipt of the materials, summary judgment would not have been
proper.   Unfortunately, JLP Glass failed to file a motion in opposition and thus cannot be
afforded a second chance to oppose summary judgment.   Therefore the trial court did not
abuse  its  discretion  in  denying  JLP  Glass’s  motion  for  relief  from  judgment.
Accordingly, we overrule the first assigned error.
Protective Order
{¶26}   In the third assigned error, JLP Glass argues the trial court erred in denying
the motion, filed pursuant to Civ.R. 26(C), for a protective order to stay execution of the
trial court’s judgment.
{¶27} Civ.R. 26(C) governs protective orders and provides, in pertinent part, that:
Upon motion by any party or by the person from whom discovery is
sought, and for good cause shown, the court in which the action is
pending may make any order that justice requires to protect a party or
person  from  annoyance,  embarrassment,    oppression,    or    undue
burden   or   expense * * *.
{¶28}    A  trial  court’s  ruling  concerning  protective  orders  sought  pursuant  to
Civ.R. 26(C), is reviewed under an abuse of discretion.   Li v. Olympic Steel, Inc., 8th
Dist. No. 97286, 2012-Ohio-603.

{¶29}    In the instant case, we find no abuse of discretion in the trial court’s
decision regarding JLP Glass’s request for a protective order to stay execution of the
garnishment of their bank accounts.    As discussed earlier, JLP Glass never opposed
Brigadier’s  motion  and  never  filed  a  direct  appeal  of  the  partial  grant  of  summary
judgment.
{¶30}    Further, JLP Glass waited five months to file a motion for relief from
judgment, alleging what they should have alleged in a motion in opposition to Brigadier’s
motion for summary judgment.   Under the circumstances, we find no abuse of discretion
in the trial court’s decision.   Accordingly, we overrule the third assigned error.
{¶31}   Judgment affirmed.
It is ordered that appellee recover from appellants 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.
PATRICIA ANN BLACKMON, JUDGE
LARRY A. JONES, SR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR

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