Buck v. Milano ( 2014 )

[Cite as Buck v. Milano, 2014-Ohio-5640.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
JEFFREY BUCK C.A. No. 26463
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
STEVE MILANO, et al. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellees CASE No. 2010 11 7647
DECISION AND JOURNAL ENTRY
Dated: December 23, 2014
CARR, Judge.
{¶ 1} Jeffrey Buck has appealed the trial court’s May 2, 2012 decision, which granted
summary judgment in favor of defendants on his defamation complaint. For the reasons set forth
below, we reverse the trial court’s decision and remand for further proceedings.
I.
{¶ 2} On November 15, 2010, Jeffrey Buck filed a complaint for defamation against
two Village of Reminderville councilmen, Steve Milano and Edward Walter, alleging that they
“falsely and maliciously accused [him] of committing criminal acts and other disreputable acts
and spread those false allegations [to the public], resulting in both job-related and reputational
damages * * *.” One year earlier, Buck had filed a related lawsuit against the Village of
Reminderville and a police sergeant, Michael Varga, also alleging defamation. Both lawsuits
arose out of an email written by Varga about Buck’s performance as Police Chief for the Village
of Reminderville.
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{¶ 3} On April 25, 2012, Buck moved the trial court to consolidate the two cases,
arguing that consolidation was necessary because the cases involved the same set of facts and
discovery in the two cases had been consolidated. The trial court implicitly denied that motion
when it issued its final judgment granting defendants’ motion for summary judgment. Buck
appealed and presented one assignment of error for review.
II.
Assignment of Error
THE TRIAL COURT ERRED BY GRANTING THE DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT.
{¶ 4} Buck argued on appeal that the trial court erred when it granted appellees’ motion
for summary judgment. Upon review of the record and briefs in this matter, this Court asked the
parties for further briefing pursuant to State v. Tate, 140 Ohio St. 3d 442, 2014-Ohio-3667.
Specifically, we questioned whether the trial court’s failure to consolidate the two related cases
was reversible error.
{¶ 5} The parties have now responded. While both agree that consolidation is within
the trial court’s discretion, they disagree as to whether an abuse of discretion occurred.
Appellees contend that the trial court properly declined to consolidate the two cases because no
risk of inconsistent adjudications exists. They reason that the two alleged acts of defamation
occurred at different times and, therefore, are distinct from one another. Buck, in contrast,
contends that the motion should have been granted to avoid the risk of inconsistent adjudications.
According to Buck, the issues yet to be resolved in the first case are intertwined with the current
matter and should be determined as one.
{¶ 6} Under Civ.R. 42, “when actions involving a common question of law or fact are
pending before a court, that court after a hearing may order a joint hearing or trial of any or all
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the matters in issue in the actions; it may order some or all of the actions consolidated; and it
may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or
delay.” See, also, Loc.R. 16.01 of the Court of Common Pleas of Summit County, General
Division (requiring civil cases to be consolidated into the lowest case number after a
determination that consolidation is appropriate under Civ.R. 42).
{¶ 7} In determining whether claims should be heard separately or together, various
issues are considered, including judicial resources, expense to the parties, and the risk of
inconsistent adjudications. See, e.g., Parkstone Capital Partners v. Solon, 8th Dist. Cuyahoga
No. 99241, 2013-Ohio-3149, ¶ 14, citing Transcon Builders, Inc. v. Lorain, 49 Ohio App. 2d 145,
150 (9th Dist.1976). See generally 9A Fed. Prac. & Proc. Civ. 2383, Consolidation—Discretion
of Court (3d ed.); see also George, Parallel Litigation, 51 Baylor L. Rev. 769, 775-76 (1999)
(discussing duplicative litigation). See also McCoid, II, Inconsistent Judgments, 48 Wash. &
Lee L. Rev. 487 (1991) (addressing the concerns involved with inconsistent adjudications as a
result of parallel litigation.). Generally, courts favor consolidation whenever possible. See
Annotation, Propriety of Consolidation for Trial of Actions for Personal Injuries, Death, or
Property Damages Arising out of Same Accident. 68 A.L.R. 2d 1372 (1959).
{¶ 8} Here, the issues and parties in the two cases overlap considerably, so much so that
discovery had been consolidated. Given the degree to which these cases are intertwined, we
conclude that the failure to consolidate them created a significant risk of inconsistent
adjudications. Accordingly, we hold that the trial court abused its discretion when it did not
grant Buck’s April 25, 2012 motion to consolidate. This Court reverses the judgment of the trial
court granting summary judgment in favor of appellees and remand this matter to the trial court
for further proceedings consistent with this opinion.
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III.
{¶ 9} The judgment is reversed and the cause remanded to the trial court for further
proceedings consistent with this decision.
Judgment reversed and
cause remanded.
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 to Appellee.
DONNA J. CARR
FOR THE COURT
WHITMORE, P. J.
MOORE, J.
CONCUR.
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APPEARANCES:
KENNETH D. MYERS, Attorney at Law, for Appellant.
JOHN D. LATCHNEY, Attorney at Law, for Appellee.