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Boulder Creek Associates, Ltd. v. Fechko Excavating, Inc.

Court of Appeals of Ohio, Eleventh District

August 5, 2013

BOULDER CREEK ASSOCIATES, LTD., Plaintiff-Appellant,
v.
FECHKO EXCAVATING, INC., Defendant-Appellee.

Civil Appeals from the Portage County Court of Common Pleas, Case No. 2012 CV 00448.

James M. Henshaw, and Nicholas Swyrydenko, (For Plaintiff-Appellant).

Michael L Fortney and Joseph R. Spoonster, Fortney & Klingshirn, (For Defendant-Appellee).

OPINION

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Boulder Creek Associates, Ltd., appeals from the judgment of the Portage County Court of Common Pleas, dismissing their complaint, with prejudice, for failing to comply with its previous judgment ordering appellant to provide a more definite statement by attaching a copy of the agreement upon which the cause was based, pursuant to Civ.R. 10(D). For the reasons below, we reverse the trial court's judgment and remand the matter for further proceedings.

{¶2} On April 18, 2012, appellant filed a complaint alleging breach of contract against appellee, Fechko Escavating, Inc., aka Fechko Excavating, Inc. The complaint asserted that, pursuant to the contract, appellee was required to complete certain construction within a specified time; appellant claimed appellee failed to meet the deadline, which resulted in it incurring additional expenses. Appellants did not attach a copy of the agreement to the complaint.

{¶3} In lieu of filing an answer, appellee subsequently moved for a more definite statement pursuant to Civ.R. 12(D). In its motion, appellee asserted the complaint recited numerous provisions of the agreement as the basis for the alleged breach. Appellant, however, failed to attach a copy of the agreement as required by Civ.R. 10(D). According to appellee, it could not properly file an answer without appellant's compliance with the rule. The trial court granted appellee's motion and ordered it to file an amended complaint, attaching a copy of the agreement, within 21 days of the order.

{¶4} Appellant failed to file its amended pleading within the timeframe set forth by the court. On July 25, 2012, however, appellant filed a motion to file its amended complaint instanter. The trial court granted the motion and appellant's amended complaint was filed with a copy of the agreement attached to the pleading.

{¶5} On August 10, 2012, appellee filed a motion to strike appellant's amended complaint and dismiss the action. Appellee alleged that the copy of the agreement upon which its cause of action was based was incomplete. In particular, appellee asserted the attached agreement was missing a page and did not include two exhibits (detailing certain plans and specifications of the underlying construction) that were incorporated into the original agreement. Thus, appellee urged the trial court to dismiss appellant's complaint for failing to comply with the order for a more definite statement.

{¶6} Three days later, on August 13, 2012, the trial court entered judgment dismissing appellant's complaint with prejudice. The court found that the attached copy of the agreement omitted attachments and material sections of the agreement without explanation. Thus, the court determined the amended complaint failed to comply Civ.R. 10(D) as well as the court's previous order.

{¶7} Unaware of the trial court's entry, due to an apparent failure of service per Civ.R. 58(B), counsel for appellant, on August 16, 2012, filed a memorandum in opposition to appellee's motion to strike and dismiss its complaint. Appellant asserted it was unaware of the missing page in the agreement and attached a copy of the same to its memorandum. It did not, however, attach the two exhibits to which the agreement incorporated by reference.

{¶8} On October 9, 2012, appellant filed a Civ.R. 60(B) motion for relief from the August 13, 2012 judgment. As a preliminary basis for filing the motion, counsel for appellant, via affidavit, stated he only became aware of the judgment of dismissal on October 5, 2012. Further, appellant asserted the trial court violated Portage County Local Rule 8.02 when it entered judgment a mere three days after appellee filed its motion to dismiss. According to the rule, "[a]ny memorandum in opposition to [a] motion shall be filed and served upon the movant within fourteen (14) days from the date the motion is served." Appellant filed its memorandum six days after the motion was filed and the pleading was therefore timely. In appellant's view, the court's judgment was erroneously entered as it did not give appellant the full allotted time to file its memorandum under the local rule. As a result, appellant asserted it was entitled to relief from judgment because, had the court considered its memorandum, it would have determined appellant was in compliance with the court's previous order for a more definite statement.

{¶9} Appellee filed a memorandum in opposition to appellant's Civ.R. 60(B) motion asserting appellant was not entitled to relief because, even though it supplemented the missing page, it failed to include the exhibits incorporated by reference into the agreement. Thus, appellee concluded, appellant still failed to comply with the trial court's order to provide a more definite statement.

{¶10} A hearing was held on the motion, during which counsel for appellant asserted the trial court's premature entry and failure to consider its memorandum in opposition to appellee's motion to dismiss was sufficient to justify relief. Counsel noted that the exhibits were not included with the other aspects of the agreement because they were both unwieldy in size and voluminous in nature. The court observed that appellant should have ...


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