Court of Appeals of Ohio, Seventh District, Belmont
KAREN J. SUMMERS, AS ADMINISTRATRIX OF THE ESTATE OF ARLA JOHNSON, AND PERSONAL REPRESENTATIVE, PLAINTIFF-APPELLANT,
LANCIA NURSING HOMES, INC., D/B/A BELMONT MANOR NURSING HOME et al., DEFENDANTS-APPELLEES.
Civil Appeal from the Court of Common Pleas of Belmont
County, Ohio. Case No. 12-CV-0072
Plaintiff-Appellant: Atty. Geoffrey C. Brown Atty. Scott S.
Blass Atty. Tyler Smith Atty. James B. Stoneking Bordas &
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.
Carol Ann Robb Hon. Gene Donofrio Hon. Cheryl L. Waite
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
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.
For the reasons expressed below, the trial court did not
violate either rule. The trial court's decision is
of the Case
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
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
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).
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.
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.
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.
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.
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.
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.
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 ...