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Capella v. Historic Developers, LLC

Court of Appeals of Ohio, Twelfth District, Butler

February 12, 2018

DONNA CAPELLA, Plaintiff-Appellant,
v.
HISTORIC DEVELOPERS, LLC, et al., Defendants-Appellees.

         CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2017-01-0080

          Robbins, Kelly, Patterson & Tucker, Jarrod M. Mohler and Sean P. Mahaffey, for plaintiff-appellant

          John K. Benintendi, for defendant-appellee, Historic Developers, LLC

          Markesbery & Richardson Co., LPA, Jason A. Snyder and Glenn A. Markesbery, for defendant-appellee, Coon Caulking & Sealants, Inc. dba Coon Restoration & Sealants

          Reminger Co., L.P.A., Timothy B. Spille and Adair M. Smith, for defendant-appellee, Hamilton Special Improvement District

          Patsfall, Yeager & Pflum, Susan M. Salyer and Stephen M. Yeager, for defendant-appellee, Cox Maintenance Service, LLC

          OPINION

          S. POWELL, J.

         {¶ 1} Plaintiff-appellant, Donna Capella, appeals from the decision of the Butler County Court of Common Pleas granting summary judgment to defendants-appellees, Historic Developers, LLC ("Historic Developers"), Coon Caulking & Sealants Inc. dba Coon Restoration & Sealants ("Coon Restoration"), Hamilton Special Improvement District ("Hamilton SID"), and Cox Maintenance Service, LLC ("Cox Maintenance"), on claims alleging negligence per se and common law negligence for injuries she suffered after she slipped and fell on water and ice while walking on a public sidewalk located outside her apartment building. For the reasons outlined below, we affirm.

         The Parties

         {¶ 2} This case includes several parties and their respective involvement with an apartment building located at 228 High Street, Hamilton, Butler County, Ohio.

         {¶ 3} On December 14, 2013, Capella slipped and fell on water and ice while she and her six-year-old grandson were walking on a public sidewalk towards one of the apartment building's first-floor entrances. The apartment building at issue is part of a manufactured home community known as the Mercantile Lofts. Prior to her fall, it is undisputed that Capella had recently signed a lease to rent an apartment unit in the Mercantile Lofts apartment building.

         {¶ 4} At all times relevant, the Mercantile Lofts apartment building was owned, operated, and managed by Historic Developers. Historic Developers, therefore, was Capella's landlord. Coon Restoration is a general contractor that oversaw extensive renovations to the Mercantile Lofts apartment building. The parties do not dispute that the renovations to the Mercantile Lofts apartment building were completed in 2011, two years prior to Capella's fall.

         {¶ 5} In addition to these two parties, we note that Hamilton SID is a nonprofit corporation authorized by R.C. Chapter 1710 of the Ohio Revised Code to develop and implement public improvements and services within the downtown Hamilton area. To that end, Hamilton SID hired Cox Maintenance to remove snow and ice from the public sidewalks located in downtown Hamilton as is oftentimes necessary during the cold winter months in Ohio. According to an affidavit submitted by Cox Maintenance, which Capella does not dispute, Cox Maintenance spent "many manhours on the morning of December 14, 2013 applying a large amount of salt and clearing roadways and sidewalks [in Hamilton], " including the public sidewalk surrounding the Mercantile Lofts apartment building.

         {¶ 6} Where appropriate, Historic Developers, Coon Restoration, Hamilton SID, and Cox Maintenance are referred to collectively as "appellees."

         Facts and Procedural History

         {¶ 7} On September 24, 2014, Capella filed a complaint against Historic Developers alleging claims of negligence per se and common law negligence. As noted above, the allegations arose after Capella slipped and fell on water and ice while she and her six-year-old grandson were walking on a public sidewalk towards one of the Mercantile Loft apartment building's first-floor entrances. Again, at the time of her fall, it is undisputed that Capella had recently signed a lease to rent one of the Mercantile Lofts' apartment units. As part of her complaint, Capella claimed her fall was caused by a faulty or defective downspout attached to the Mercantile Lofts apartment building that created an unnatural accumulation of ice and snow on the public sidewalk where she fell, thereby subjecting Historic Developers to liability for her resulting injuries.

         {¶ 8} Several months later, on May 4, 2015 and again on August 12, 2015, Capella amended her complaint to include claims against Coon Restoration, Hamilton SID, and Cox Maintenance. After appellees filed their respective answers to Capella's two amended complaints, and once Capella was deposed and her expert witnesses disclosed, appellees moved for summary judgment. Appellees' motions for summary judgment were filed on March 1, March 10, and March 21, 2016, respectively. In response, Capella moved the trial court for an extension of time in accordance with Civ.R. 56(F) to conduct additional discovery and respond to appellees' motions for summary judgment.

         {¶ 9} On April 27, 2016, while appellees' motions for summary judgment were still pending, the trial court granted Capella's Civ.R. 56(F) motion. However, instead of conducting further discovery and filing her necessary response in opposition, Capella voluntarily dismissed her complaint without prejudice in accordance with Civ.R. 41(A)(1)(a). Pursuant to that rule, "a plaintiff, without order of court, may dismiss all claims asserted by that plaintiff against a defendant by * * * filing a notice of dismissal at any time before the commencement of trial * * *"

         {¶ 10} Approximately nine months later, on January 12, 2017, Capella refiled her complaint alleging the same negligence per se and common law negligence claims against appellees. It is undisputed that Capella's refiled complaint named three attorneys of record, one of whom Capella referred to as her lead counsel and point of contact on all matters relating to her case. After filing their respective answers to Capella's refiled complaint, Historic Developers and Cox Maintenance moved for summary judgment. These two motions, which were filed on February 15 and February 22, 2017, were submitted to the trial court approximately one month after Capella had refiled her complaint.

         {¶ 11} On March 1, 2017, Capella again moved in accordance with Civ.R. 56(F) for an extension of time to conduct discovery and file her necessary response in opposition to the two then pending motions for summary judgment. This motion was signed by all three attorneys listed in the signature block of Capella's refiled complaint, including the attorney who Cappella referred to as her lead counsel and point of contact. In support of this motion, Capella included an affidavit from her lead attorney - an attorney who prior had been forced to withdraw from the case - wherein he expressed his desire for additional time to conduct discovery and respond to Historic Developers and Cox Maintenance's motions for summary judgment.

         {¶ 12} On March 9, 2017, while Capella's Civ.R. 56(F) motion was still pending, Coon Restoration and Hamilton SID also moved for summary judgment. The following week, on March 15, 2017, Capella filed a supplemental Civ.R. 56(F) motion requesting an extension of time to respond to the now four pending motions for summary judgment. It is undisputed that Capella's supplemental motion included two of the three named counsel previously listed in the signature block of Capella's refiled complaint, omitting Capella's now former lead attorney and point of contact.

         {¶ 13} On March 20, 2017, the trial court issued a decision granting Capella's Civ.R. 56(F) motion, providing her with an additional 52 days to conduct discovery and file her response in opposition to appellees' four motions for summary. In so holding, the trial court stated, in pertinent part, the following:

The Court finds the Affidavit of Counsel on behalf of Plaintiff's Motion for Extension does present sufficient reason for a reasonable extension of time and will permit Plaintiff to respond to all pending Motions for Summary Judgment no later than May 1, 2017. This expands Plaintiff's response time from 21 days to 73 days on the first Motion for Summary Judgment filed, which should be more than adequate for Plaintiff to obtain her expert and conduct additional discovery. The Court expects all defendants to cooperate in the discovery process so that additional requests for extensions are not necessary.

         {¶ 14} On April 10, 2017, Capella moved the trial court to reconsider its decision to grant her only an additional 52 days to conduct discovery and file her response in opposition to appellees' four motions for summary judgment. In support of this motion, Capella argued that anything less than a 120-day extension was "simply insufficient, especially considering the status, nature, and complexity of this matter." In attempting to persuade the trial court further, although not included in either her original or supplemental Civ.R. 56(F) motions, Capella informed the trial court that her lead attorney and point of contact had since withdrawn from the case, thus necessitating additional time for the other two attorneys of record to familiarize themselves with her claims.

         {¶ 15} On April 14, 2017, the trial court issued a decision denying Capella's motion for reconsideration. In so holding, the trial court stated:

It is a common occurrence when a Plaintiff voluntarily dismisses a case pursuant to Civ.R. 41(A) with summary judgment motions pending that the refilling (sic) of the case met with a similar refilling (sic) of the same motions for summary judgment. Plaintiff should have fully expected the same in this case. With more than three months still remaining before the deadline to re-file (April 27, 2017) there is no reason that Plaintiff could not/should not have used that time to prepare for the obvious -at least by retaining the expert witness she has not retained during the past three plus years - instead of re-commencing this case on January 12, 2017 if she was not ready to proceed.

         Continuing, the trial court also noted that, although now raising for the first time the issue of her lead counsel's withdrawal from the case, "Plaintiffs first motion was filed on March 1, 2017 - signed by [the other two attorneys of record] - and the stated reasons for an extension did not include [her lead counsel's] disassociation." Concluding, the trial court determined that "a 52-day extension of a 21-day deadline to respond to motions that have, essentially, been pending for a year is more than adequate."

         {¶ 16} On May 1, 2017, Capella filed her response in opposition to appellees' four motions for summary judgment. Capella's response was supported by her own affidavit, as well as the affidavits of two of her neighbors at the Mercantile Lofts apartment building. The record also included transcripts of Capella's prior deposition testimony and that of Historic Developers' leasing agent and property manager for the Mercantile Lofts apartment building. Three days later, on May 4, 2017, appellees filed a joint motion to strike certain portions of Capella's affidavit, arguing the challenged portions were inconsistent and contradictory to Capella's prior deposition testimony.

         {¶ 17} On June 27, 2017, the trial court issued a decision granting in part and denying in part appellees' joint motion to strike. Within that same decision, the trial court also granted summary judgment to appellees on Capella's negligence per se and common law negligence claims. In so holding, the trial court determined that:

there has been no evidence presented that either Capella or any of the defendants knew of, or had any information of, the specific condition of the gutters and downspouts on the Mercantile Building at the exact time that Capella fell; and there has been no evidence presented that specifically identifies the source of the flowing water and underlying ice upon which Capella slipped and fell.

         The trial court further determined that "Capella has presented no expert opinion as to any defects in the installation of the gutters/downspouts, or the subsequent failure of those drainage systems."

         {¶ 18} Capella now appeals from the trial court's decisions, raising four assignments of error for review. For ease of discussion, Capella's third and ...


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