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Li-Conrad v. Curran

Court of Appeals of Ohio, Eleventh District, Lake

May 8, 2017

JANE ELIZABETH LI-CONRAD, Plaintiff-Appellant,
v.
CHRISTOPHER P. CURRAN, et al., Defendants-Appellees.

         Civil Appeal from the Lake County Court of Common Pleas, Case No. 14 CV 001227.

         Judgment: Affirmed.

          Jane Elizabeth Li-Conrad, pro se, (For Plaintiff-Appellant).

          Joshua T. Morrow, and James V. Aveni, Ranallo & Aveni, L.L.C., (For Defendants-Appellees).

          OPINION

          THOMAS R. WRIGHT, J.

         {¶1} Appellant, Jane Elizabeth Li-Conrad, appeals the trial court's denial of her Civ.R. 60(B) motion for relief from judgment. She contends that the motion should have been granted because her allegations and evidentiary materials are sufficient to show that appellees, Christopher and Judith Curran, committed fraud in procuring an affidavit submitted in seeking and obtaining summary judgment. We affirm.

         {¶2} In March 2013, appellees sold their Lake County residence to appellant. Thereafter, appellant discovered a drywall covered crack in a basement wall. As a result, she brought a civil action against appellees, their real estate agency, and their real estate agents, asserting fraud claims, Ohio Consumer Sales Practice Act violation, and negligent misrepresentation.

         {¶3} Appellees moved for summary judgment on all claims, attaching the affidavit of James Nemastil, a home inspector whom appellant hired to inspect the residence before the deal was finalized. Nemastil averred that his report to appellant referred to possible crack problems in the basement's southeast foundation wall.

         {¶4} The trial court granted appellees' motion for summary judgment, and the separate motion of the real estate agency and agents. Appellant appealed and we affirmed in all respects in Li-Conrad v. Curran, 11th Dist. Lake No. 2015-L-085, 2016-Ohio-1496.

         {¶5} Shortly after our decision, appellant moved the trial court for relief from judgment under Civ.R. 60(B)(3) and (B)(5). She maintained that the Nemastil affidavit should not have been considered because it was procured by fraud. In furtherance, she contended that, since Nemastil acted as her agent in conducting the inspection, appellees and their counsel were precluded from ex parte communications with him during discovery.

         {¶6} Appellees responded and the trial court overruled appellant's motion. Among other reasons, the court concluded that the challenge to the Nemastil affidavit under 60(B) is precluded from review under the doctrine of res judicata.

         {¶7} Appellant asserts one assignment of error for review:

         {¶8} "The trial court erred in denying appellant's motion for relief from judgment as untimely."

         {¶9} In denying the Civ.R. 60(B) motion, the trial court gave three reasons for its decision, including that appellant's motion was not timely filed. In addition to holding that appellant could not succeed on the merits of her motion, the court also concluded that the substance of the motion was not properly before it because her challenge to the Nemastil affidavit is barred under res judicata. In contesting the trial court's 60(B) ruling, appellant has not addressed this ...


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