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Larry Rafferty v. Cne Poured Walls

September 15, 2011

LARRY RAFFERTY, PLAINTIFF-APPELLANT,
v.
CNE POURED WALLS, INC., DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Harsha, P.J.

Cite as Rafferty v. CNE Poured Walls, Inc.,

DECISION AND JUDGMENT ENTRY

{¶1} Larry Rafferty filed suit against CNE Poured Walls, Inc. alleging the company improperly poured the concrete walls for the foundation of his new home. A jury awarded him both compensatory and punitive damages and found that he was entitled to attorney fees. Before the trial court determined the amount of attorney fees, Rafferty filed a motion to add James Eggers, part owner of CNE, as a party-defendant. After the trial court denied the motion and set the amount of attorney fees, Rafferty filed this appeal.

{¶2} Rafferty contends that the trial court erred when it denied his motion to add Eggers as a party. In making its decision the court incorrectly noted that: 1) it would have to set aside the verdict against CNE if it granted the motion, and 2) the motion was "well beyond the time permitted by the Civil Rules to add a party." Accordingly, we reverse and remand so that the court can redetermine the merits of the motion by focusing upon the traditional factors for determining whether to add parties, i.e. fundamental fairness, timeliness, prejudice to existing defendants, and good faith.

I. Facts

{¶3} In July 2008, Rafferty filed a complaint against CNE alleging that he entered into a contract to have CNE pour concrete walls for the foundation of his new home. According to Rafferty, CNE agreed to complete the work by June 1, 2008, but did not begin until June 3. Rafferty also claimed that CNE agreed to pour the walls parallel to Limerick Road, but it poured the walls at an angle and made various other errors. Rafferty alleged claims for breach of contract, negligent construction, fraud in the inducement, and violations of the Ohio Consumer Sales Practices Act (CSPA).

{¶4} In March 2010, a jury found in Rafferty's favor, awarded him compensatory damages and punitive damages, and concluded that he was entitled to attorney fees. In May 2010, before the trial court determined the amount of attorney fees, Rafferty filed a motion under Civ.R. 20 and Civ.R. 21 to add Eggers as a defendant. Rafferty informed the court that he wanted to assert claims against Eggers for "personal liability for the fraud and violations of the CSPA in which he engaged" based on Eggers' trial testimony. According to Rafferty, CNE and Eggers were both liable to him for the full amount of damages the jury awarded. Rafferty noted that his motion was filed within the applicable statute of limitations for claims against Eggers.

{¶5} The trial court denied the motion, finding:

Plaintiff now wants to make James Eggers personally liable for the verdict returned solely against Defendant CNE Poured Walls, Inc.

In order to find or hold James Eggers liable for any of the damages found by the jury in favor of Plaintiff, Mr. Eggers would have to be given the opportunity to fully defend the action. This would require an entirely new trial with Mr. Eggers given the opportunity to present all defenses available to him.

It would appear to the Court that for Plaintiff to prevail on its motion the verdict previously awarded would need to be set aside and a new trial ordered. Plaintiff was aware of the relationship of James Eggers to the Defendant prior to the jury trial. James Eggers was present and testified. In addition, Mr. Eggers attempted to appear on behalf of the Defendant. Plaintiff objected to this on the basis that Defendant was a corporation and James Eggers was not licensed to practice law. The Court sustained this objection and did not permit James Eggers to participate in the trial.

This matter, having proceed[ed] to jury trial, verdict and judgment, would appear to this Court well beyond the time permitted by the Civil Rules to add a party.

{ΒΆ6} After the court determined the amount of attorney fees CNE owed ...


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