Taylor v. Goodyear Tire & Rubber Co. ( 2018 )

[Cite as Taylor v. Goodyear Tire & Rubber Co., 2018-Ohio-2179.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
MARGIE TAYLOR C.A. No. 28620
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
GOODYEAR TIRE & RUBBER CO., et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. AC-2015-10-5075
DECISION AND JOURNAL ENTRY
Dated: June 6, 2018
HENSAL, Judge.
{¶1} Margie Taylor, executor of the estate of Russell Young, appeals from the
judgment of the Summit County Court of Common Pleas. For the reasons that follow, we affirm
in part, and reverse in part.
I.
{¶2} This appeal involves an asbestos case that originated in the Cuyahoga County
Court of Common Pleas. In that case, Ms. Taylor brought several claims against Goodyear Tire
& Rubber Co. (“Goodyear”), including claims for premises liability, negligent undertaking, and
intentional tort. Ms. Taylor’s claims were based upon Mr. Young’s (her late father) exposure to
asbestos while working on aircraft brake linings during his employment with Goodyear
Aerospace Corporation (“Aerospace”).
{¶3} Relevantly, Goodyear filed motions for partial summary judgment on Ms.
Taylor’s claims for premises liability, negligent undertaking, and intentional tort. The trial court
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granted Goodyear’s motions in an entry on the File & Serve docket, which is a separate
electronic docket used for asbestos cases. The trial court then journalized those entries with the
Clerk of Courts, and included language indicating that “[t]here is no just reason for delay
pursuant to Ohio Rule of Civil Procedure 54(B).” Ms. Taylor subsequently moved the trial court
to vacate or modify the “no just reason for delay” language. The trial court granted Ms. Taylor’s
motion in an entry on the File & Serve docket. That entry, however, was never journalized with
the Clerk of Courts. The trial court subsequently dismissed the case pursuant to Rule 41(A).
{¶4} Due to the dismissal of certain defendants in the Cuyahoga County case, Ms.
Taylor re-filed her action in the Summit County Court of Common Pleas. In her re-filed action,
Ms. Taylor brought claims for negligence, premises liability, negligent undertaking, and
employer intentional tort against Goodyear. She also brought an additional claim for products
liability against Goodyear. Goodyear moved for summary judgment on Ms. Taylor’s claims for
premises liability, negligent undertaking, and employer intentional tort on the basis of res
judicata. Goodyear also moved for summary judgment on Ms. Taylor’s claim for products
liability. The trial court granted both motions. Ms. Taylor now appeals, raising two assignments
of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR
GOODYEAR TIRE AND RUBBER COMPANY ON RES JUDICATA
GROUNDS.
{¶5} In her first assignment of error, Ms. Taylor argues that the trial court erred by
granting summary judgment in favor of Goodyear on the basis of res judicata. We review a trial
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court’s award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,
105 (1996). Under Civil Rule 56(C), summary judgment is proper if:
(1) No genuine issue as to any material fact remains to be litigated; (2) the
moving party is entitled to judgment as a matter of law; and (3) it appears from
the evidence that reasonable minds can come to but one conclusion, and viewing
such evidence most strongly in favor of the party against whom the motion for
summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
{¶6} The moving party bears the initial burden of informing the trial court of the basis
for the motion and pointing to the parts of the record that show the absence of a genuine issue of
material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996). “To accomplish this, the
movant must be able to point to evidentiary materials of the type listed in Civ.R. 56(C)[.]” Id. at
292. If the moving party meets this burden, then the nonmoving party bears the burden to offer
specific facts demonstrating a genuine issue for trial. Id. at 293. “The non-moving party may
not rest upon the mere allegations and denials in the pleadings but instead must point to or
submit some evidentiary material that demonstrates a genuine dispute over a material fact.”
Garvey v. Vermilion, 9th Dist. Lorain No. 10CA009873, 2012-Ohio-1258, ¶ 12.
{¶7} In its motion for summary judgment, Goodyear argued that the Cuyahoga County
Court of Common Pleas granted summary judgment on Ms. Taylor’s claims for premises
liability, negligent undertaking, and employer intentional tort in three separate journalized
entries, all of which contained Rule 54(B) language. Goodyear argued that Ms. Taylor could
have appealed those final orders, and that res judicata precluded her from raising those claims in
the Summit County Court of Common Pleas.
{¶8} In anticipation of Ms. Taylor’s counter-arguments, Goodyear acknowledged that
Ms. Taylor subsequently filed a motion to vacate the Rule 54(B) language on those orders, and
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that the Cuyahoga County Court of Common Pleas granted her motion in an entry on the File &
Serve docket. Goodyear argued that, because the entry granting Ms. Taylor’s motion was never
journalized, it did not take effect. To that end, Goodyear argued that a trial court speaks only
through its journalized entries, and that a judgment on the File & Serve docket is not officially
rendered until it is journalized with the Clerk of Courts. In support of its position, Goodyear
relied upon the Eighth District’s decision in Shesler v. CONRAIL, which held that an entry on an
asbestos docket is not equivalent to a journalized entry, and that a trial court speaks only through
its journalized entries. 8th Dist. Cuyahoga No. 83656, 2004-Ohio-3110, ¶ 20. In doing so, the
Eighth District noted that “[a] docket is not the same as a journal.” Id. at ¶ 17, quoting State ex
rel. White v. Junkin, 80 Ohio St.3d 335, 337 (1997). Goodyear also argued that the proper
procedure for challenging the finality of those judgments was through an appeal, which Ms.
Taylor did not pursue.
{¶9} In response, Ms. Taylor argued that the Cuyahoga County Court of Common
Pleas’ entry granting her motion to vacate the Rule 54(B) language was an effective order
regardless of it not being journalized. She also argued that all summary-judgment rulings
became moot when the trial court administratively dismissed the case under Rule 41(A). She
further argued that, in addition to the lack of finality with respect to the summary-judgment
orders, res judicata did not apply because new evidence supporting those claims arose between
the dismissal of the Cuyahoga County case and the filing of the Summit County case. Ms.
Taylor did not provide any legal authority in support of these positions, nor did she address the
Eighth District’s precedent in Shesler.
{¶10} In granting summary judgment in favor of Goodyear, the trial court determined
that, since the Cuyahoga County Court of Common Pleas included Rule 54(B) language in its
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summary-judgment orders, Ms. Taylor was required to appeal those orders, which she failed to
do. As a result, the trial court held that Goodyear was entitled to summary judgment on the basis
of res judicata.
{¶11} On appeal, Ms. Taylor argues that the trial court erred by determining that the
Cuyahoga County Court of Common Pleas added Rule 54(B) language to the summary-judgment
orders. She argues that Goodyear’s counsel, not the trial court, prepared those orders and,
therefore, the trial court itself did not add any Rule 54(B) language. She also argues that
Goodyear did not consult her when composing the proposed orders, which violated local rules,
and that Goodyear’s counsel appears to have had ex-parte communications with the trial court.
She further argues that she did not receive notice of the summary-judgment orders (journalized
with the Clerk of Courts on October 1, 2009 and October 2, 2009) until she received notification
from the File & Serve docket on October 28, 2009. Ms. Taylor, however, did not raise these
arguments in her brief in opposition to Goodyear’s motion for summary judgment at the trial
court, and cannot do so for the first time on appeal. Jones v. Summit Cty. Jobs & Family Servs.,
9th Dist. Summit No. 27708, 2016-Ohio-4940, ¶ 3.
{¶12} As previously noted, the record reflects that the trial court journalized its
summary-judgment orders containing Rule 54(B) language on October 1, 2009 and October 2,
2009. Per Appellate Rule 4(A), she had 30 days to appeal those orders, which she did not do.
Instead, she moved to vacate the Rule 54(B) language from those orders on October 29, 2009. A
motion to vacate, however, does not toll the time requirements for filing an appeal. Berlin v.
Varney, 9th Dist. Summit No. 15459, 1992 Ohio App. LEXIS 4157, *3 (Aug. 12, 1992). While
the trial court did grant Ms. Taylor’s motion to vacate via an entry on the File & Serve docket
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during the 30-day period (i.e., on November 2, 2009),1 the Eighth District’s precedent dictates
that an entry on an asbestos docket is not equivalent to a journalized entry, and that a trial court
speaks only through its journalized entries. Shesler, 8th Dist. Cuyahoga No. 28356, 2004-Ohio-
3110, at ¶ 20; see also Junkin, 80 Ohio St.3d at 337 (“A docket is not the same as a journal.”).
Despite Ms. Taylor’s attempts on appeal to distinguish this case from the facts in Shesler, we
find her arguments unpersuasive, and determine that the trial court’s entry on the File & Serve
docket granting her motion to vacate had no effect on Ms. Taylor’s obligation to timely appeal
the trial court’s final, journalized orders. We, therefore, cannot say that the trial court erred in
granting summary judgment on the basis of res judicata. Accordingly, Ms. Taylor’s first
assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR
GOODYEAR TIRE AND RUBBER COMPANY ON PLAINTIFF’S
PRODUCTS LIABILITY CLAIM.
{¶13} In her second assignment of error, Ms. Taylor argues that the trial court erred by
granting Goodyear’s motion for summary judgment on her claim for products liability. We
apply the same standard of review set forth in the preceding assignment of error.
{¶14} We will begin by addressing certain facts. There is no dispute that Mr. Young
worked for Aerospace in Plant B, which housed the manufacturing of asbestos containing brake
linings during the relevant time period. Plant B consisted of two divisions: the Vinyl Division
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As previously noted, the trial court journalized its summary-judgment orders on
October 1, 2009 and October 2, 2009. Thirty days from those orders fell on a Saturday and
Sunday, respectively. Ms. Taylor, therefore, had until the following Monday, November 2,
2009, to file her appeal. See App.R. 14(A).
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and the Wheel & Brake Division. Per Ms. Taylor’s complaint, Mr. Young worked in both
divisions, and was “exposed to raw asbestos and asbestos containing products.” While there is
no dispute that the asbestos containing brake linings were manufactured in Plant B, the parties
dispute whether the manufacturing process, which began in the Vinyl Division, continued once
the brake linings were transferred to the Wheel & Brake Division for additional work. Further,
the parties dispute whether Goodyear or Aerospace manufactured the brake linings, and whether
Goodyear had control over the Wheel & Brake Division. With those facts in mind, we proceed
with an analysis of Goodyear’s motion for summary judgment on Ms. Taylor’s claim for
products liability.
{¶15} In its motion, Goodyear claimed that Aerospace manufactured the asbestos
containing brake linings. Regarding the manufacturing process, Goodyear cited the affidavit of
John Reese, a former Aerospace employee, who averred that,
[p]rior to 1973, brake linings were formed by Goodyear Aerospace employees in
Plant B * * *, then brought to the Wheel & Brake Division, which was also in
Plant B, where Goodyear Aerospace employees would complete the brake linings
by drilling holes and shaping those linings until they were ready to be
incorporated as components of the brake assembly.
He also averred that, in 1973, Aerospace moved the function of forming the brake linings from
Plant B to a new facility in Berea, Kentucky. He concluded that,
[r]egardless of whether the brake linings were formed in Plant B * * * or in the
Berea facility, the brake linings did not leave the control of their manufacturer,
Goodyear Aerospace, until they were shipped to the purchaser of the brake
assembly.
(Emphasis added.)
{¶16} Goodyear acknowledged that Ms. Taylor claimed that Goodyear, not Aerospace,
manufactured the brake linings. It argued, however, that whether Goodyear or Aerospace
manufactured the brake linings was irrelevant for purposes of determining whether Ms. Taylor’s
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products-liability claim failed as a matter of law. In this regard, Goodyear argued that the Ohio
Products Liability Act requires a plaintiff to show that the product in question was defective as
defined in Revised Code Sections 2307.74 through 2307.77. Goodyear argued that the plain
language of those statutory sections provides that the product must have been defective when it
left the control of the manufacturer and, thus, not while the product remained in the
manufacturing process.
{¶17} In support of its argument, Goodyear relied upon the Third District’s decision in
Moeller v. Auglaize Erie Machine Co., 3d Dist. Auglaize No. 2-08-10, 2009-Ohio-301. There, a
lawnmower manufacturer sent a lawnmower to a subcontractor to perform touch-up paint work
so that the lawnmower could then “be brought to a dealer to be sold.” Id. at ¶ 6. While there,
one of the subcontractor’s employees sustained injuries when the lawnmower fell on top of his
legs and abdomen. Id. at ¶ 5. The employee brought a number of claims against the lawnmower
manufacturer, including a claim for products liability, and the manufacturer moved for summary
judgment. Id. at ¶ 2, 9. In granting summary judgment in favor of the manufacturer, the trial
court determined that the lawnmower was still in the “manufacturing process” while the
subcontractor performed work on it. Id. at ¶ 11.
{¶18} On appeal, the Third District affirmed the trial court’s decision, holding that,
although the manufacturer did not have possession of the lawnmower while the subcontractor
performed work on it, the lawnmower remained in the manufacturer’s control. Id. at ¶ 20, 31.
Goodyear concluded that, because Ms. Taylor claimed that Mr. Young was exposed to asbestos
during the manufacturing process, her products-liability claim – like in Moeller – failed as a
matter of law.
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{¶19} In response, Ms. Taylor argued that Mr. Young was exposed to asbestos while
working in the Wheel & Brake Division. She argued that Goodyear, not Aerospace,
manufactured the asbestos containing brake linings in its Vinyl Division and that, by the time
they were transferred to the Wheel & Brake Division for assembly, they were finished products
that had left the control of the manufacturer (i.e., Goodyear). In support of her position, Ms.
Taylor cited deposition testimony from former Aerospace employees who averred that Goodyear
manufactured the brake linings in the Vinyl Division.
{¶20} Ms. Taylor also argued that Moeller is not dispositive. Specifically, she argued
that Moeller focused on whether the manufacturer maintained control of the product, not whether
the manufacturing process was complete. She argued that, in its motion for summary judgment
related to premises liability, Goodyear denied having control over the Wheel & Brake Division.
{¶21} In granting summary judgment in favor of Goodyear, the trial court determined
that the record contained no evidence to support the conclusion that the brake linings ever left the
control of Goodyear at any time during Mr. Young’s alleged exposure. In reaching this
conclusion, the trial court adopted the reasoning in Blakely v. Goodyear Tire & Rubber Co.,
another Summit County Court of Common Pleas case that addressed the same issue and, in
relying on Moeller, granted summary judgment in favor of Goodyear. Summit C.P. No. AC
2014-07-3155 (Dec. 8, 2015). In Blakely, the trial court “presume[d] Goodyear [wa]s the
manufacturer[,]” and further “presume[d] Goodyear controlled both the Vinyl Division and the
Wheel & Brake Division inside Plant B.” In relying upon Moeller, the Blakely court held that,
“[w]hen a product is still being manufactured it cannot be deemed to have left the hands of, or
left the control of, the manufacturer.”
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{¶22} Despite Goodyear’s arguments, we cannot say that Moeller stands for the
proposition that a product that is still in the manufacturing process is, as a matter of law, under
the control of the manufacturer. While the trial court in Moeller relied upon the product still
being in the manufacturing process, the Third District’s holding focused on the manufacturer’s
control under the particular circumstances presented (including the fact that the subcontractor
performed the touch-up paint work at the manufacturer’s direction). Moeller at ¶ 20. This is
consistent with what the relevant statutes require. See R.C. 2307.74 through 2307.77 (requiring
a product to be defective at the time it leaves the control of the manufacturer).
{¶23} Even assuming without deciding that a product that is still in the manufacturing
process is, as a matter of law, in the control of the manufacturer for purposes of products
liability, we are troubled by the trial court’s analysis in this case. Specifically, we are troubled
by the fact that the parties disputed below – and continue to dispute on appeal – whether
Goodyear manufactured the brake linings, and whether Goodyear controlled the Wheel & Brake
Division. Yet the trial court, without any explanation or analysis, determined that Goodyear
manufactured the brake linings, and that Goodyear controlled the Wheel & Brake Division. It
then relied upon those facts to determine that “[t]here is no evidence in the record to support the
conclusion that the brake linings ever left the control of Goodyear at any time during Mr.
Young’s alleged exposure.” A trial court, however, cannot weigh the evidence and determine
issues of fact when ruling on a motion for summary judgment. Horner v. City of Elyria, 9th Dist.
Lorain No. 13CA010420, 2015-Ohio-47, ¶ 10.
{¶24} Given the arguments and facts presented below, as well as the trial court’s
analysis of same, we hold that the trial court erred by granting summary judgment in favor of
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Goodyear on Ms. Taylor’s claim for products liability. Accordingly, Ms. Taylor’s second
assignment of error is sustained.
III.
{¶25} Ms. Taylor’s first assignment of error is overruled. Ms. Taylor’s second
assignment of error is sustained. The judgment of the Summit County Court of Common Pleas
is affirmed in part, and reversed in part.
Judgment affirmed in part,
and reversed in part.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
JENNIFER HENSAL
FOR THE COURT
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SCHAFER, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
JESSICA M. BACON, Attorney at Law, for Appellant.
RICHARD D. SCHUSTER and DAMIEN C. KITTE, Attorneys at Law, for Appellee.