Opinion
Case No. 99-T-0157.
Decided: August 4, 2000.
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas Case No. 99 CV 868.
CAROLYN WILLIAMS PYTLIK, pro se, 1024 Sodom-Hutchings Road, Vienna, OH 44473, (Plaintiff-Appellant).
ATTY. THOMAS J. WILSON, 100 Federal Plaza East, Suite 926, Youngstown, OH 44503, (For Defendant-Appellee).
JUDGES, HON. JUDITH A. CHRISTLEY, P.J., HON. WILLIAM M., O'NEILL, J., HON. JOSEPH DONOFRIO, J., Ret., Seventh Appellate District, sitting by assignment.
OPINION
Appellant, Carolyn Williams Pytlik, appeals a decision of the Trumbull County Court of Common Pleas filed October 12, 1999, granting the motion for summary judgment of appellee, William Biviano. The following facts are relevant to a determination of the appeal.
Appellant was dissatisfied with the legal representation provided by appellee, an attorney, in her domestic relations case in 1993, resulting in her filing a civil complaint against him in Trumbull County on June 20, 1994. Appellant alleged that appellee's representation fell below the acceptable standards of the legal community. Appellant, however, voluntarily dismissed the complaint pursuant to Civ.R. 41(A) on December 14, 1994. She refiled her complaint on December 7, 1995, pursuant to the saving statute. The trial court granted summary judgment in favor of appellee on January 13, 1997, determining that appellee was entitled to judgment as a matter of law because appellant's complaint was barred by the statute of limitations. This decision was affirmed by this court on appeal. Pytlik v. Biviano (Aug. 7, 1998), Trumbull App. Nos. 97-T-0022 and 97-T-0063, unreported.
On March 26, 1997, appellant refiled her complaint against appellee while the previous case was pending before us on appeal. Subsequently, on January 15, 1999, appellant refiled her complaint against appellee but, this time, she filed it in Ottawa County instead of Trumbull County. However, at appellee's request, the case was transferred back to Trumbull County in accordance with Civ.R. 3(C) due to improper venue. On August 4, 1999, visiting Judge Warren Bettis was assigned by the Supreme Court of Ohio to preside over this case. The matter was scheduled for a hearing on October 18, 1999.
On October 7, 1999, appellee filed a motion for summary judgment claiming that appellant's latest complaint was barred by the doctrines of res judicata and law of the case. On October 12, 1999, before appellant responded to the motion, the trial court granted appellee summary judgment without explanation. On October 13, 1999, appellant filed a "Motion for Enlargement of Time, Motion to Set Pretrial Conference, Motion for Continuance, Motion to Withdraw." No action was taken by the trial court on this filing.
Appellant timely filed a notice of appeal and has now set forth the following assignments of error:
"1. The trial court erred and abused its discretion, to the prejudice of the appellant, by dismissing the case on summary judgment before allowing the plaintiff the time according to the rules of the court to respond to the motion for summary judgment.
"2. The trial court erred and abused its discretion, to the prejudice of the appellant by not addressing the motion for enlargement of time, motion to set pretrial conference, and motion for continuance.
"3. The trial court erred, to the prejudice of the appellant, by dismissing the case with prejudice and for reason other than the merits of the case."
In the first assignment of error, appellant contends that the trial court erred by granting appellee's motion for summary judgment without first allowing appellant adequate time to respond to the motion. Pursuant to Civ.R. 56(C), a party seeking summary judgment must serve his motion at least fourteen days prior to the time fixed for the hearing. The opposing party then has up until the day prior to the hearing to file a response and opposing affidavits.
In the present case, it is clear that the trial court violated Civ.R. 56(C) by not allowing appellant adequate time to respond to appellee's motion. However, we must conclude that the error is harmless. Appellant has failed to set forth any basis that could possibly defeat the motion for summary judgment. The sole question before the trial court was a question of law, not of fact. Appellant has filed the exact same complaint on three prior occasions. Twice, she voluntarily dismissed the complaint. However, on the other occasion, final judgment was entered against her and we affirmed that decision on appeal. Thus, as a matter of law, there is nothing new left to decide.
The Supreme Court of Ohio applied the doctrine of res judicata in holding:
"A valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action." Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, syllabus.
As applied to the case sub judice, the final judgment upon its merits rendered by the trial court on January 13, 1997, in an earlier case that was identical to the present one is a bar to this case and any future case that might be filed that is based upon the same set of facts. Thus, the trial court properly decided, as a matter of law, that res judicata barred the present cause.
In Wise v. Ohio Dept. of Rehab. Corr. (1992), 84 Ohio App.3d 11, the Tenth District Court of Appeals held that even though the appellee in that case was not given proper time to respond to a motion for summary judgment, the error was harmless because the only question presented was one of law, and that question was properly decided by the trial court. The same analysis applies to this case. Appellant has not suggested, nor can we conceive of, any way that res judicata would not apply to bar appellant's present claim. It has already been decided that appellant's malpractice action was outside of the statute of limitations. Nothing can change that. Any further claim based upon appellee's representation of appellant must necessarily be barred by the statute of limitations.
Accordingly, appellant's first assignment of error is without merit.
In the second assignment of error, appellant asserts that the trial court erred by not addressing her "Motion for Enlargement of Time, Motion to Set Pretrial Conference, Motion for Continuance, Motion to Withdraw." We disagree.
It is clear that appellant's motions were filed a day after summary judgment had been granted in favor of appellee. Thus, the trial court was without jurisdiction to consider appellant's motions and it would have been improper to rule on any of them. Appellant had the option of filing a Civ.R. 60(B) motion, but failed to take advantage of that opportunity in a timely manner. Thus, the trial court properly ignored appellant's untimely motions.
Appellant's second assignment of error is without merit.
In the third assignment of error, appellant submits that the trial court erred by dismissing the case with prejudice in a summary proceeding. Specifically, appellant contends that the present case is not the same as the one previously decided by the trial court. We disagree.
Essentially, the alleged differences pointed out by appellant concern damages that supposedly resulted from appellee's malpractice. However, the allegations regarding the malpractice itself have not changed. The alleged acts occurred in early 1993, when appellee was representing appellant as her attorney. The trial court has already determined that appellant's complaint was filed too late. That fact has not changed. As previously mentioned, if appellant's earlier claim was untimely filed, then her later claim must necessarily have been untimely filed. Appellant's allegations of different damages does not change that fact. Hence, the trial court properly granted appellee's motion for summary judgment.
Appellant's third assignment of error is without merit.
The judgment of the trial court is hereby affirmed.
_______________________________________ WILLIAM M. O'NEILL, JUDGE
CHRISTLEY, P.J., dissents with Dissenting Opinion, DONOFRIO, J., Ret., Seventh Appellate District, sitting by assignment, concurs.
I respectfully dissent from the opinion and judgment of the majority for the following reasons.
The majority has determined that although there was error, it was harmless error. I do not think it is appropriate to make such an assumption in a summary judgment exercise.
The majority asserts that not only has appellant failed to set forth any basis that could possibly defeat the motion for summary judgment, but that there is no such basis to be asserted. They go on to maintain that the sole question before the trial court was a question of law and not of fact. However, invariably, issues of law are dependent on the underlying facts. While it may be that there was nothing new left to offer, I do not know that for sure, and with all due respect, neither does the majority.
That is more or less the point made by the Supreme Court of Ohio when it specified that there be a minimum fourteen day response time in a summary judgment exercise. In Petrey v. Simon (1983), 4 Ohio St.3d 154, 156-157, the court observed:
"* * * Civ.R. 56(C) provides, in part: `The motion shall be served at least fourteen days before the time fixed for hearing.' Commentators on the comparable provision in Fed.R.Civ.P. 56 have noted the importance of this requirement: `* * * In theory, the additional time ought to produce a well-prepared and complete presentation on the motion to facilitate its disposition by the court. In addition, since opposition to a summary judgment motion often is a difficult task, usually involving preparation of both legal and factual arguments as well as affidavits, and since the results of failure are drastic, it is felt that the additional time is needed to assure that the summary judgment process is fair.' 10A Wright, Miller Kane, Federal Practice and Procedure (1983), 6-7, Section 2719. The fairness of this additional time is no less important when the motion for summary judgment is a converted motion to dismiss for failure to state a claim." (Emphasis added.)
While the above case involves a conversion of a Civ.R.12(B)(6) motion to a motion for summary judgment, the principle is identical to the argument I raise here.
In State ex rel. The V Cos. v. Marshall (1998), 81 Ohio St.3d 467, although it was affirmed on other grounds, the Supreme Court of Ohio reaffirmed the principle set out in Petrey.
Like Petrey, The V Cos. case dealt with the conversion of a Civ.R. 12(B)(6) motion to one for summary judgment.
"Finally, the preeminent purpose behind the conversion-notification requirement, i.e., permitting the nonmoving party sufficient opportunity to respond to a converted summary judgment motion, is satisfied by the court of appeals' judgment. Petrey, 4 Ohio St.3d at 155 * * *." The V Cos. at 472.
More recently the Second District Court of Appeals in Anania v. Daubenspeck Chiropractic (1998), 129 Ohio App.3d 516, addressed this issue in the following manner:
"Civ.R. 56 establishes the requirements for summary judgment. The Ohio Supreme Court has specifically cautioned courts to carefully adhere to the requirements of Civ.R. 56(C):
`The grant of a Civ.R. 56 motion terminates litigation without giving the opposing party the benefit of a trial on the merits. The requirements of the rule must be strictly enforced. Compliance with the terms of Civ.R. 56(C) is of fundamental importance at the trial court level, where the initial examination of the evidence occurs, and where the issues framing the litigation are shaped.' Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 360.
"* * *
"From our review of the record, we cannot find any indication that the trial court set a date for hearing or that it informed the parties of when the motion would be considered submitted for decision.
"* * *
"As we have stated before, `[b]ecause the granting of summary judgment is an adjudication on the merits, a non-moving party must be apprised of the time within which he or she must respond.' Ashworth v. Enon 1995 WL 614345 at 3." (Emphasis added.)
Again, while the procedural postures of the above three cases are not four square with the matter before us, the principles certainly are. As a matter of practicality, there cannot be any serious argument that judicial economy is an issue. It is after all, only a fourteen day period of time.
The Supreme Court of Ohio has been emphatic that the interests of justice are best served when there is precise procedural compliance in the determination of a summary exercise. The reason being that such a judgment addresses the merits of the litigation and provides an avenue for final termination. See Petrey at 156-157 ; The V Cos. at 472.
In the instant matter, the motion for summary judgment was filed on October 7, 1999, a Thursday. The court's ruling granting the motion was filed on October 12, 1999, a Tuesday. Appellee's notice of service by regular mail indicated the motion was mailed to appellant on October 7, 1999. Appellant's motion for an extension of time to respond was filed on October 13, 1999. Both the content and the filing date of appellant's motion indicate that she could not have been aware of the court's ruling at the time she filed her motion. Indeed, the earliest she could have known of the motion's existence would have been Friday, October 8, 1999, the day after it was mailed. Even that supposition places greater faith than is deserved in our postal service. Regardless, the best case scenario was that she had zero to one day's time to respond to the motion before the court's ruling was filed.
Allowing fourteen days to the non-movant does not seem to be too much to ask, even when it would appear to be impossible for the non-movant to successfully refute the motion.
It needs to be mentioned that pursuant to Civ.R. 6(E), appellant was actually entitled to seventeen days.
Hence, I dissent from the majority and I would reverse and remand the case to the trial court with the instructions that the full complement of time in which to respond under the Civil Rules should be accorded the non-moving party without exception. .
___________________________________________________ JUDITH A. CHRISTLEY, PRESIDING JUDGE