[Cite as Littleton v. Holmes Siding Contr., 2013-Ohio-5602.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Judy K. Littleton et al., :
Plaintiffs-Appellees, :
v. :
No. 13AP-138
Holmes Siding Contractor, Ltd. et al., : (C.C. No. 2012-03972-PR)
Defendants-Appellees, : (REGULAR CALENDAR)
Gilliano Motor Transport, Inc. et al., :
Defendants/Third-Party :
Plaintiffs-Appellants,
:
Ohio Department of Transportation,
:
Third-Party
Defendant-Appellee. :
D E C I S I O N
Rendered on December 19, 2013
Stark & Knoll Co., LPA, Harry A. Tipping and Christopher A.
Tipping, for defendants/third-party plaintiffs-appellants.
Michael DeWine, Attorney General, Peter E. DeMarco and
Craig S. Rapp, for third-party defendant-appellee.
APPEAL from the Court of Claims of Ohio
DORRIAN, J.
{¶ 1} Defendants/third-party plaintiffs-appellants, Gilliano Motor Transport, Inc.
("Gilliano"), and Theodore Glancy, Jr. ("Glancy") (collectively, "appellants"), appeal from
a judgment of the Court of Claims of Ohio granting a motion to dismiss filed by third-
party defendant-appellee, Ohio Department of Transportation ("appellee"). Because we
No. 13AP-138 2
conclude that the Court of Claims properly granted the motion to dismiss and remanded
the case to the Holmes County Court of Common Pleas, we affirm.
{¶ 2} The litigation leading to this appeal began when Judy and Gary Littleton
("the Littletons") filed suit in the Holmes County Court of Common Pleas. In their
complaint, the Littletons asserted that Judy Littleton suffered injuries as a result of an
automobile accident involving Glancy. The Littletons claimed that Glancy was operating
within the scope of his employment with Gilliano at the time of the accident. The
complaint named Gilliano and Glancy as defendants, along with Holmes Siding
Contractor, Inc. ("Holmes Siding"), Daniel D. Mast ("Mast"), and two "John Doe" parties.
{¶ 3} Gilliano and Glancy filed a motion for leave to file a third-party complaint
against appellee, claiming that appellee negligently failed to place proper signage in the
area where the accident occurred and that appellee was liable for contribution and
indemnification. The Littletons filed a memorandum in opposition to the motion for leave
to file a third-party complaint, arguing that the court lacked jurisdiction over appellee and
that appellants were required to file a separate action in the Court of Claims of Ohio. The
Holmes County Court of Common Pleas denied the motion for leave "for good cause
shown," but without elaborating further on its reasoning.
{¶ 4} Appellants then filed a third-party complaint for contribution and
indemnity and petition for removal in the Court of Claims of Ohio. The case was assigned
to Judge Joseph T. Clark. The third-party complaint named appellee, the Littletons,
Holmes Siding, Mast, and the two John Doe parties as defendants. Appellee filed a motion
to dismiss the third-party complaint for lack of subject-matter jurisdiction, arguing that,
because appellee was not made a third-party defendant in the Holmes County case, the
Court of Claims lacked jurisdiction under the statutory provision defining the court's
jurisdiction. Judge Clark denied the motion to dismiss, concluding that the petition for
removal was technically flawed, but that removal of the case was within the spirit of the
removal statute. The case was later transferred to Judge Patrick McGrath. Following the
transfer, Judge McGrath sua sponte revisited the court's prior decision on the motion to
dismiss and entered a new judgment granting the motion to dismiss and remanding the
case to the Holmes County Court of Common Pleas.
No. 13AP-138 3
{¶ 5} Appellants appeal from the dismissal order, assigning a single error for this
court's review:
The trial court committed reversible error by sua sponte
revisiting Judge Clark's July 27, 2012 order denying ODOT's
motion to dismiss, and concluding that removal was not
justified because ODOT was never made a third-party
defendant in the Holmes County Court of Common Pleas, and
dismissing and remanding the case to the court of common
pleas.
{¶ 6} The Court of Claims initially denied appellee's motion to dismiss before sua
sponte reconsidering that decision and ultimately granting the motion to dismiss and
remanding the case to the Holmes County Court of Common Pleas. The initial order
denying appellee's motion to dismiss was an interlocutory order and was subject to
revision prior to final judgment. See Gahanna v. Cameron, 10th Dist. No. 02AP-255,
2002-Ohio-6959, ¶ 38 ("[I]t is well-established that the common pleas court's denial of a
motion to dismiss generally constitutes an interlocutory order that is not immediately
appealable. * * * Interlocutory orders are subject to change or revision by the trial court
any time prior to the issuance of a final judgment.") (internal citations omitted). See also
Alternatives Unlimited-Special, Inc. v. Ohio Dept. of Edn., 10th Dist. No. 12AP-647, 2013-
Ohio-3890, ¶ 27 ("A court may reconsider and revise an interlocutory decision at any time
before the entry of final judgment, either sua sponte or upon motion."). Therefore, the
Court of Claims did not err by sua sponte revisiting its earlier order denying the motion to
dismiss. With respect to the court's ruling in the second order, we review de novo the
decision to dismiss for lack of subject-matter jurisdiction and remand to the Holmes
County Court of Common Pleas. Lucki v. Ohio Dept. of Rehab. & Corr., 197 Ohio App.3d
108, 2011-Ohio-5404, ¶ 7 (10th Dist.).
{¶ 7} In the initial order denying appellee's motion to dismiss, Judge Clark
acknowledged that appellee had not been made a third-party defendant in the Holmes
County case. He concluded, however, that this was merely a technical flaw in the removal
petition and that removal of the case to the Court of Claims would lead to an expeditious
resolution of all claims and defenses and was within the spirit of the removal statute. In
the second order, which granted the motion to dismiss and ordered the case to be
remanded, Judge McGrath held that the court was required to remand the case because it
No. 13AP-138 4
fell outside the jurisdiction of the Court of Claims. Appellants assert that the trial court
erred in dismissing the case, arguing that dismissal and remand were permitted, but not
mandatory, under the portion of R.C. 2743.03(E)(2) providing that "[t]he court may
remand a civil action to the court in which it originated upon a finding that the removal
petition does not justify removal."
{¶ 8} The Court of Claims is a court of limited jurisdiction and may exercise only
that jurisdiction specifically conferred upon it by the General Assembly. Steward v. State,
8 Ohio App.3d 297, 299 (10th Dist.1983). By statute, the Court of Claims "has exclusive,
original jurisdiction of all civil actions against the state permitted by the waiver of
immunity contained in section 2743.02 of the Revised Code, exclusive jurisdiction of the
causes of action of all parties in civil actions that are removed to the court of claims, and
jurisdiction to hear appeals from the decisions of the court of claims commissioners." R.C.
2743.03(A)(1). In this case, appellants sought to invoke the court's jurisdiction through
removal of the case they originally filed in the Holmes County Court of Common Pleas.
The statute defining the jurisdiction of the Court of Claims provides, in relevant part, that
a party who "makes the state a third-party defendant in an action commenced in any
court, other than the court of claims, shall file a petition for removal in the court of
claims." R.C. 2743.03(E)(1). The statute further states that "[t]he court of claims shall
adjudicate all civil actions removed," but also provides that "[t]he court may remand a
civil action to the court in which it originated upon a finding that the removal petition
does not justify removal, or upon a finding that the state is no longer a party." (Emphasis
added.) R.C. 2743.03(E)(2).
{¶ 9} Appellants sought leave to file a third-party complaint against appellee, but
that motion was denied. Accordingly, appellants did not make the state a third-party
defendant and, therefore, they were not entitled to file a petition for removal under R.C.
2743.03(E)(1). Because the Holmes County Court of Common Pleas denied appellants'
motion for leave to file the third-party complaint, at the time of the petition for removal,
this was a case exclusively between private individuals and entities. "The Court of Claims
is not the proper forum for an action against private individuals." Pratt v. Unknown, 10th
Dist. No. 93AP-355 (Aug. 5, 1993), fn. 1. The case was outside the court's jurisdiction, as
No. 13AP-138 5
defined under R.C. 2743.03(A)(1), and, therefore, the court did not err in concluding it
was necessary to remand the case to the common pleas court.
{¶ 10} Appellants also cite to the decisions in Nease v. Med. College Hosp., 64
Ohio St.3d 396 (1992), and Hitch v. Ohio Dept. of Mental Health, 114 Ohio App.3d 229
(10th Dist.1996), in support of their assertion that the Court of Claims erred by
remanding their case. We conclude that each of these decisions is distinguishable from
the present case.
{¶ 11} In Nease, the plaintiffs originally filed suit in the court of common pleas
against the Medical College of Ohio and its hospital, along with several nurses and
physicians of the hospital. Nease at 396. The case was then removed to the Court of
Claims. Following removal, the plaintiffs entered into a settlement agreement dismissing
their claims against the Medical College of Ohio and its hospital, and some of the nurses.
Id. at 397. The Court of Claims then conducted a trial to determine whether the remaining
nurse defendant was entitled to statutory immunity. Id. As the Supreme Court of Ohio
noted, removal of the case to the Court of Claims was required because the state was a
defendant and the Court of Claims had exclusive original jurisdiction over claims against
the state. Id. at 398. The Supreme Court of Ohio rejected the plaintiffs' argument that the
Court of Claims was required to remand the case after the state had been dismissed as a
party under the settlement agreement, explaining that, under R.C. 2743.03(E)(2), remand
was permissive, not mandatory. Id. at 399. The Supreme Court held that the Court of
Claims correctly retained jurisdiction over the case until the issue of the remaining nurse
defendant's immunity was resolved and then properly remanded the case to the court of
common pleas once that issue was determined. Id. at 399-400.
{¶ 12} Unlike in Nease, the Littletons' filing in the common pleas court did not
name appellee, or any other state agency, as a defendant. In this case, appellants were
unsuccessful in seeking to add appellee as a third-party defendant in the common pleas
court case. The case in Nease was within the Court of Claims' removal jurisdiction because
the state was a defendant in the original filing; by contrast, this case never fell within the
court's removal jurisdiction. Accordingly, we conclude that Nease does not require
reversal of the trial court's decision in this case.
No. 13AP-138 6
{¶ 13} Similarly, the Hitch decision is distinguishable from the present case. On
appeal in Hitch, the state agency argued that a third-party complaint against it should not
have been tried by the Court of Claims because a petition to remove the third-party
complaint was never filed. Hitch at 244. However, this court concluded that no reversible
error occurred because the state agency was aware of the removal of the case to the Court
of Claims and did not challenge the procedural propriety of the transfer. Id. By contrast,
in this case, appellee has directly opposed removal of the case to the Court of Claims.
Additionally, in Hitch, the third-party plaintiffs successfully filed their third-party
complaint in the common pleas court prior to removal to the Court of Claims; whereas, in
this case, appellants' motion to file their third-party complaint was denied.
{¶ 14} Moreover, assuming for the purposes of analysis that appellants are correct
that remand in this case was permissive, rather than mandatory, we conclude that they
have failed to demonstrate an abuse of discretion by the Court of Claims in remanding the
case. If remand was permissive, we would review the trial court's decision to remand the
case for an abuse of discretion. See, e.g., State ex rel. Montgomery v. Columbus, 10th
Dist. No. 02AP-963, 2003-Ohio-2658, ¶ 30 (holding that a trial court's decision to deny
discretionary or permissive intervention is subject to abuse-of-discretion review). An
abuse of discretion occurs where a trial court's decision is "unreasonable, arbitrary or
unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). An unreasonable
decision is one that is unsupported by sound reasoning; an arbitrary decision is one that
lacks adequate determining principle and is not governed by any fixed rules or standard.
Porter, Wright, Morris & Arthur, LLP v. Frutta Del Mondo, Ltd., 10th Dist. No. 08AP-69,
2008-Ohio-3567, ¶ 11. An unconscionable decision may be defined as one that affronts
the sense of justice, decency, or reasonableness. Id. The decision dismissing and
remanding this case to the court of common pleas was supported by sound reasoning and
based on a determining principle. The court concluded that the case was outside its
statutory jurisdiction and, as explained above, we are persuaded by the court's reasoning.
Moreover, the decision does not affront the sense of justice. Appellants are not precluded
from recovering compensation by the trial court's decision. On remand to the common
pleas court, appellants may once again seek to file a third-party complaint against
appellee and, if leave to file the complaint is granted, once again seek to remove the case
No. 13AP-138 7
to the Court of Claims. In the alternative, if appellants are ultimately held liable on the
Littletons' underlying claims, they may then seek contribution or indemnification from
appellee. Therefore, we conclude that, even if appellants were correct that dismissal and
remand in this case was permissive, they have failed to demonstrate that the trial court
abused its discretion by granting the motion to dismiss and remanding the case to the
common pleas court.
{¶ 15} Finally, appellants argue that the Court of Claims could have construed their
third-party complaint for contribution and petition for removal as an original action
against appellee. They assert that, if construed as an original action, the filing would have
vested the Court of Claims with jurisdiction over the case. The nature of appellants' filing,
however, belies this claim. In addition to appellee, the filing named the Littletons and all
of the other defendants in the Holmes County case as defendants. None of these parties
would be proper defendants in an original filing in the Court of Claims. Under R.C.
2743.02(E), "[t]he only defendant in original actions in the court of claims is the state."
See also Thomas v. Wright State Physicians, Inc., 10th Dist. No. 12AP-839, 2013-Ohio-
3338, ¶ 4 ("As the Court of Claims stated in its entry, pursuant to R.C. 2743.02(E), only
state agencies and instrumentalities can be defendants in original actions in the Court of
Claims."). Accordingly, if the Court of Claims had construed the filing as an original action
against appellee, all of the other parties would have been dismissed. See Rahman v. Ohio
Dept. of Transp., 10th Dist. No. 05AP-439, 2006-Ohio-3013, fn. 1 ("In the complaint,
appellants asserted identical claims against ODOT's contractor, Kenmore Construction
Company, Inc. ('Kenmore'). The court sua sponte dismissed Kenmore as a party pursuant
to R.C. 2743.02(E)."); DVCC, Inc. v. Med. College of Ohio, 10th Dist. No. 05AP-237,
2006-Ohio-945, ¶ 8 ("Because SFT, Inc. was not a state agency or instrumentality as
required under R.C. 2743.02(E), the Court of Claims by pre-screening entry sua sponte
dismissed SFT, Inc. as a party."); Smith v. Ohio Dept. of Rehab. & Corr., 104 Ohio App.3d
210, 212 (10th Dist.1995) ("Pursuant to R.C. 2743.02(E), the individuals named in
appellant's complaint were dismissed inasmuch as only state agencies and
instrumentalities can be defendants in original actions in the Ohio Court of Claims."). See
also Bugh v. Grafton Correctional Inst., 10th Dist. No. 06AP-454, 2006-Ohio-6641, ¶ 19
(holding that the trial court did not err by denying plaintiff's motion to add a private party
No. 13AP-138 8
as a defendant because only the state may be the original defendant in an action filed in
the Court of Claims). Under these circumstances, the trial court did not err by declining to
construe the filing as an original action against appellee.
{¶ 16} As explained above, at the time the third-party complaint and petition for
removal was filed, this case was not within the jurisdiction of the Court of Claims.
Accordingly, we conclude that the court did not err by granting appellee's motion to
dismiss and remanding the case to the Holmes County Court of Common Pleas.
{¶ 17} For the foregoing reasons, we overrule appellants' sole assignment of error
and affirm the judgment of the Court of Claims of Ohio.
Judgment affirmed.
KLATT, P.J., and GREY, J., concur.
GREY, J., retired of the Fourth Appellate District, assigned to
active duty under the authority of the Ohio Constitution,
Article IV, Section 6(C).
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