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Summers v. Lancia Nursing Homes, Inc.

Court of Appeals of Ohio, Seventh District, Belmont

December 20, 2017


Civil Appeal from the Court of Common Pleas of Belmont County, Ohio. Case No. 12-CV-0072

          For Plaintiff-Appellant: Atty. Geoffrey C. Brown Atty. Scott S. Blass Atty. Tyler Smith Atty. James B. Stoneking Bordas & Bordas PLLC

          For Defendants-Appellees: Atty. James K. Reuss Atty. Karen M. Cadieux Carpenter Lipps & Leland LLP, Atty. Martin T. Galvin Atty. Thomas A. Prislipsky Reminger Co., L.P.A.

          Hon. Carol Ann Robb Hon. Gene Donofrio Hon. Cheryl L. Waite


          ROBB, P.J.

         {¶1} Plaintiff-Appellant Karen J. Summers, Administratrix of the Estate of Arla Johnson appeals the decision of Belmont County Common Pleas Court denying her Civ.R. 60(B) motion to vacate the trial court's ruling on her Civ.R. 59 new trial motion.

         {¶2} This appeal is the third appeal from the underlying case. The first appeal was from a discovery order, which this court determined was not a final appealable order. Summers v. Lancia Nursing Homes, Inc., 7th Dist. No. 12 BE 0039 (August 30, 2013) J.E. (Summers I). The second appeal addressed the trial court's denial of the Civ.R. 60(B) motion. Summers v. Lancia Nursing Homes, Inc., 7 Dist. No. 15 BE 0063, 2016-Ohio-7935 (Summers II). In Summers II, we held the trial court abused its discretion when it failed to hold an evidentiary hearing to determine whether Civ.R. 60(B)(1) and the second prong of the GTE test was met. Thus, the matter was remanded for an evidentiary hearing. Following the evidentiary hearing, the trial court denied the Civ.R. 60(B)(1). The issue now before us is whether the trial court violated the law of the case doctrine and the mandate rule.

         {¶3} For the reasons expressed below, the trial court did not violate either rule. The trial court's decision is affirmed.

         Statement of the Case

         {¶4} In early 2012, Appellant filed a medical malpractice and wrongful death complaint against Defendants-Appellees Lancia Nursing Homes Inc. d/b/a Belmont Manor Inc. (Appellee Belmont Manor), Dr. Carmel C. Shaw-Nieves, and Dr. Divakar Sydney Bangera. Decedent Arla Johnson was a resident of Appellee Belmont Manor and Appellees Drs. Shaw-Nieves and Bangera were her doctors.

         {¶5} The case proceeded through discovery. A discovery order was appealed to our court and we determined the order was not a final appealable order. Summers I, August 30, 2013 J.E.

         {¶6} Trial occurred in April 2015 and the jury returned a defense verdict. 4/28/15 J.E. Following the verdict, Appellant filed a timely Civ.R. 59 motion for a new trial. Appellant did not file a notice of appeal from the judgment entry memorializing the jury verdict because pursuant to App.R. 4(B)(2), the filing of the motion for new trial extended the time to file a notice of appeal. The time for filing a notice of appeal from the jury verdict and the ruling on the new trial motion began to run when the trial court entered the judgment on the motion for new trial. App.R. 4(B)(2).

         {¶7} Appellees each filed their own motion in opposition to the Civ.R. 59 motion. 7/6/15 Appellee Dr. Bangera's Motion in Opposition; 7/7/15 Appellee Dr. Shaw-Nieves' Motion in Opposition; Appellee Lancia Nursing Homes, Inc., 7/9/15 Appellee Belmont Manor's Motion in Opposition. Appellant filed a combined reply to the motions in opposition. 7/14/15 Reply. Neither Appellant's Civ.R. 59 motion, nor her response in opposition to the motion asked for a hearing on the new trial motion. 6/23/15 Motion; 7/14/15 Reply.

         {¶8} The trial court decided the new trial request on the briefs and denied Appellant's motion. 7/21/15 J.E. The judgment indicated the clerk of courts was to serve copies on all parties or their attorneys. The docket indicated the clerk served copies by regular mail on July 21, 2015 to James Reuss, Kevin Coleman, Thomas Prislipsky, and Scott Blass, the attorneys for Appellees and Appellant.

         {¶9} On August 27, 2015, Appellant filed a motion to vacate based on Civ.R. 60(B), Civ.R 58, and the court's inherent authority to vacate judgments. Appellant argued counsel did not receive the denial of the motion for a new trial and discovery of the July 21, 2015 judgment did not occur until August 24, 2015 when Attorney Geoffrey Brown audited his open files. Attached to the motion were affidavits from Attorney Geoffrey Brown and Attorney Scott Blass, attorneys working for Bordas & Bordas, PLLC, the law firm representing Appellant. In his affidavit, Attorney Brown explained he asked Attorneys Stoneking, Smith, and Blass if it would be advisable to request a hearing on the motion for new trial. Attorney Stoneking checked the online docket and discovered the July 21, 2015 order denying the motion for new trial and the clerk's notation that Attorney Blass was served by regular mail. As a result, Attorney Brown talked to Attorney Blass, interviewed his own administrative staff, examined the firm's computer files, and examined the firm's hard copy file to determine if the order was received. Based on his investigation, he determined the firm did not receive the order. Attorney Blass also avowed he did not receive a copy of the order through mail and was unaware of its existence until August 24, 2015.

         {¶10} Appellee Belmont Manor filed a motion in opposition to the motion to vacate. 9/2/15 Appellee Belmont Manor Motion. Appellees Dr. Bangera and Dr. Shaw-Nieves filed separate motions to join in Appellee Belmont Manor's motion in opposition to relief from judgment. 9/3/15 Appellee Dr. Bangera Joinder Motion; 9/10/15 Appellee Dr. Shaw-Nieves Joinder Motion. The trial court denied the motion to vacate without holding an evidentiary hearing. 9/2/15 J.E.

         {¶11} Appellant appealed the order arguing the trial court erred in denying Civ.R. 60(B) relief. Summers II, 2016-Ohio-7935. In Summers II, we noted Appellant acknowledged the motion to vacate was not filed for the purpose of asking the trial court to reconsider its ruling, but was filed to enable Appellant to perfect his appeal. The motion to vacate was filed because Appellant's attorneys claimed they did not receive the July 21, 2015 order denying the motion for a new trial. Discovery of the order did not occur until after the 30 day appeal time had expired. Id. at ¶ 16.

         {¶12} This court held given the circumstances, Civ.R. 60(B) was the proper means to attack the July 21, 2015 judgment. Id. at ¶ 18-28. We then discussed the GTE test and explained the first and third prongs of the test were easily met. Id. at ¶ 29-40. As to the second prong, Appellant asserted counsels' actions constituted excusable neglect. Id. at ¶ 36. We stated given the affidavits from the attorneys, the trial court should have held an evidentiary hearing to determine whether the attorney's excuse for failing to know about the final judgment was excusable neglect. Id. at ¶ 40. Thus, we ultimately determined there was merit with the appeal; the trial court should have sua sponte held an evidentiary hearing since the issue before it was fact specific. Id. at ¶ 40. Accordingly, we remanded the matter to the trial court for an evidentiary hearing. Id. at ¶ 40-41.

         {¶13} An evidentiary hearing was held on January 18, 2017. Attorneys Scott Blass and Geoffrey Brown testified. 1/18/17 Tr. Following the hearing, each party filed a post-hearing brief in support of their position. 1/31/17 Appellee Belmont Manor Brief; 2/1/17 Appellant ...

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