[Cite as Shingler v. Lafayette Point Nursing & Rehab. Ctr., 2014-Ohio-5026.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
CINDY SHINGLER : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2014CA0006
LAFAYETTE POINT NURSING AND :
REHABILITATION CENTER, :
ET AL : OPINION
Defendants-Appellants
CHARACTER OF PROCEEDING: Civil appeal from the Coshocton County
Court of Common Pleas, Case No. 2013CI
0283
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: November 10, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
PAUL FLOWERS ERIC HERSHBERGER
Terminal Tower, 35th Floor 7650 Rivers Edge Drive, Ste. 100
50 Public Square Columbus, OH 43235
Cleveland, OH 44113
KIMBERLY YOUNG
6105 Parkland Boulevard
Mayfield Heights, OH 44124
[Cite as Shingler v. Lafayette Point Nursing & Rehab. Ctr., 2014-Ohio-5026.]
Gwin, P.J.
{¶1} Appellants appeals the February 24, 2014 judgment entry of the
Coshocton County Court of Common Pleas granting appellee’s motion to vacate the
November 7, 2014 order of dismissal, accepting as filed appellee’s amended complaint,
and returning the case to the active docket.
Facts & Procedural History
{¶2} On April 22, 2013, appellee Cindy Shingler filed a complaint in the
Cuyahoga County Common Pleas Court against appellant Lafayette Point Nursing and
Rehabilitation Center, appellant Provider Services Holdings, LLC (“Provider Services”),
and Michael Provenza (“Provenza”) for wrongful termination. On July 8, 2013, the trial
court judge in Cuyahoga County granted appellants’ motion to transfer venue to the
Coshocton County Court of Common Pleas. Appellants’ motion to dismiss Provider
Services and Provenza pursuant to Civil Rule 12(B)(6) remained pending at the time the
case was transferred to Coshocton County. On September 13, 2013, the trial court
denied appellants’ motion to dismiss as to Provider Services. The trial court granted
appellee until November 1, 2013 to amend the complaint to add factual allegations
against Provenza or the case would be dismissed as to Provenza. The trial court
further gave appellee until November 1, 2013 to file an amended complaint containing a
copy of the agreement referenced in the complaint.
{¶3} Appellee dismissed Provenza from the action on September 23, 2013. On
November 7, 2013, appellants filed a motion to dismiss for failure to amend. On the
same day as appellants’ motion was filed, the trial court dismissed the case with
prejudice for failure to file the amended complaint. Appellee filed a motion for
Coshocton County, Case No. 2014CA0006 3
reconsideration and leave to file an amended complaint instanter on November 14,
2013. Appellants filed a memorandum in opposition on November 22, 2013. Appellee
filed an appeal of the November 7, 2013 judgment entry on December 9, 2013.
{¶4} The trial court issued a judgment entry on December 9, 2013, granting
appellee’s motion for reconsideration and leave to file an amended complaint. The trial
court vacated the November 7, 2013 judgment entry and accepted appellee’s complaint
as filed. Subsequently, appellee dismissed her appeal.
{¶5} On February 14, 2014, appellee filed a motion to vacate the judgment
entry of November 7, 2013 pursuant to Civil Rule 60(B). Attached to the motion was the
affidavit of appellee’s attorney stating that she inadvertently overlooked the final portion
of the November 7th entry requiring the agreement be submitted with an amended
pleading.
{¶6} The trial court issued a judgment entry on February 24, 2014, granting
appellee’s motion to vacate. The trial court found that the motion to vacate was filed
within a reasonable time and alleged a potentially viable claim for relief. Further, that
appellee’s failure to comply with the September 13th order is attributable to excusable
neglect and no undue prejudice would be suffered by any party if the motion were
granted. The trial court thus vacated its November 7th order, accepted appellee’s
amended complaint as filed, and returned the case to the active docket.
{¶7} Appellant appeals the February 24, 2014 judgment entry of the Coshocton
County Common Pleas Court and assigns the following as error:
{¶8} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS
BY GRANTING PLAINTIFF-APPELLEE’S FACTUALLY AND LEGALLY
Coshocton County, Case No. 2014CA0006 4
UNSUPPORTED MOTION FOR RELIEF FROM JUDGMENT WITHOUT AFFORDING
APPELLANTS THE OPPORTUNITY TO RESPOND TO THAT MOTION WITHIN THE
TIME PERMITTED BY RULE (SEE, ENTRY OF FEBRUARY 24, 2014 GRANTING
PLAINTIFF’S MOTION TO VACATE).”
{¶9} In their sole assignment of error, appellants include three arguments: (1)
that the trial court erred in failing to provide them time to respond to the motion to
vacate as provided by local rule; (2) that there is neither a legal or factual basis existing
for granting the Civil Rule 60(B) motion and thus this Court should reverse the trial
court’s ruling and dismiss the case in its entirety; and (3) appellee’s arguments in
support of the Civil Rule 60(B) motion could have been raised in her first appeal.
{¶10} We will address the first argument advanced by appellants as we find it to
be dispositive of this appeal. Appellants argue the trial court erred in granting the Civil
Rule 60(B) motion for relief from judgment without affording them the opportunity to
respond in accordance with the local rules. We agree.
{¶11} Local Rule 10.1 of the Court of Common Pleas of Coshocton County
provides as follows:
All motions should be accompanied with a memorandum in
support stating the grounds and citing applicable authorities.
The non-moving party shall serve any responsive pleading
on or before the fourteenth day after the date of service.
The moving party shall serve any reply on or before the
seventh day after the date of service. On the twenty-eighth
day after the motion is filed, the motion shall be deemed
Coshocton County, Case No. 2014CA0006 5
submitted to the Court for ruling. Motions for summary
judgment taken pursuant to Civil Rule 56 will be heard
according to a schedule ordered by the Court. This rule
shall also not apply to motions for default judgment, which
may be ruled upon the same date the motion for default
judgment is filed, at the discretion of the Court.
{¶12} Appellee filed her motion to vacate on February 14, 2014. By judgment
entry filed February 24, 2014, the trial court granted the motion. Pursuant to Local Rule
10.1 of Court of Common Pleas of Coshocton County, appellants had fourteen (14)
days to respond to appellee’s motion. We find that less than fourteen (14) days had
lapsed from the filing of the motion and therefore, per local rules, the decision of
February 24, 2014 was premature and the trial court erred in ruling on the motion
without affording appellants the opportunity to respond in accordance with the local
rules. See U.S. Bank Nat’l Assn. v. Abbruzzeese, 5th Dist. Delaware No.
08CAE050021, 2010-Ohio-2565, Ohio Savings Bank v. Abrahum, 5th Dist. Coshocton
No. 07CA0014, 2008-Ohio-3424.
{¶13} Accordingly, appellants’ first assignment of error is granted with regards to
the compliance with the local rules. The remaining arguments advanced by appellants
in their brief are moot.
Coshocton County, Case No. 2014CA0006 6
{¶14} The February 24, 2014 judgment entry of the Coshocton County Court of
Common Pleas is reversed and we remand the matter to the trial court for further
proceedings in accordance with the law and this opinion.
By Gwin, P.J.,
Farmer, J., and
Wise, J., concur