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Hawken School v. Norstrom

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 14, 2018


          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-869921


          ATTORNEYS FOR APPELLEE Robert B. Weltman Jack W. Hinneberg

          BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Celebrezze, J.



         {¶1} Defendant-appellant, Nancy Norstrom, appeals the common pleas court's judgment granting summary judgment in favor of plaintiff-appellee, Hawken School. Norstrom raises the following assignments of error for review:

1. The trial court erred in not granting defendant's motion for summary judgment based on res judicata.
2. The trial court erred in entering summary judgment against defendant.

         {¶2} After careful review of the record and relevant case law, we reverse the trial court's judgment and remand for proceedings consistent with this opinion.

         I. Procedural and Factual History

         {¶3} Hawken is a private school located in Cuyahoga County, Ohio. Prior to the 2004-2005 school year, Norstrom enrolled two minor children at Hawken and agreed to pay tuition and fees pursuant to the terms of Enrollment Agreements executed on May 24, 2004.

         {¶4} On November 28, 2005, Hawken filed a complaint against Norstrom in Cuyahoga C.P. No. CV-05-578225. The complaint set forth causes of action for breach of contract, alleging that Norstrom failed to pay tuition fees owed to Hawken pursuant to the parties' Enrollment Agreement. Hawken sought payment of the due and owing balance in the amount of $31, 967.37, with interest, as of November 23, 2005. On March 15, 2006, default judgment was granted in favor of Hawken and against Norstrom.

         {¶5} On May 31, 2016, Norstrom filed a motion to set aside the default judgment pursuant to Civ.R. 3(A) for failure to achieve service within one year of filing. The motion argued that counsel for Hawken never obtained valid service on Norstrom despite being notified on March 27, 2006, that service by ordinary mail had failed for "failure of a deliverable address."

         {¶6} On August 1, 2016, the trial court granted Norstrom's motion to set aside the judgment for lack of proper service, stating, in pertinent part:

Since this court's [default] judgment on March 15, 2006 was rendered without personal jurisdiction, the judgment is a nullity. As such, Hawken failed to commence its complaint within one year from filing as required by Civ.R. 3(A). Defendant's motion to dismiss is well taken.

         {¶7} In addition, the trial court found that it was required to dismiss the case with prejudice because Hawken failed to commence the breach of contract action within the eight-year statute of limitations period set forth under R.C. 2305.06.

         {¶8} Hawken did not appeal from the trial court's August 1, 2016 judgment. Instead, Hawken filed a motion for reconsideration on August 4, 2016, arguing that the trial court erred in dismissing the case with prejudice because the applicable statute of limitations period in this case is 15 years, and not eight years as the trial court suggested. Hawken noted that the statute of limitations under R.C. 2305.06 for an action on a written contract was changed from 15 years to 8 years on September 28, 2012. Because Hawken's breach of contract claim accrued before the statutory amendment took effect, Hawken requested the trial court reconsider its judgment and dismiss the case without prejudice so that Hawken could refile the case within the applicable 15-year statute of limitations period.

         {¶9} On August 17, 2016, the trial court granted Hawken's motion for reconsideration and dismissed the case without prejudice. Norstrom did not appeal the trial court's order granting reconsideration.

          {¶10} On October 4, 2016, Hawken refiled its breach of contract action against Norstrom in C.P. No. CV-16-869921. The complaint reiterated the allegations previously raised by Hawken in 2005, and sought unpaid tuition and fees in the amount of $72, 355.14, with interest, as of October 3, 2016.

         {¶11} Once this case was initiated, Norstrom filed a pre-answer motion for summary judgment pursuant to Civ.R. 56(B). Norstrom argued that the current action was barred by the doctrine of res judicata because "the original dismissal with prejudice on August 1, 2016, is still effective because there is no provision in the Civil Rules for a motion for reconsideration of a final appealable judgment."

         {¶12} On April 17, 2017, the trial court denied Norstrom's motion to dismiss, stating:

This court's 8/17/2016 entry in CV-05-578225 was made pursuant to Civ.R. 60(A) in order to correct an improper numerical calculation. As such, defendant's motion * * * filed 1/31/2017 is denied. If it were to hold otherwise, this court would be giving ...

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