U.S. Specialty Ins. Co. v. Hoffman , 2020 Ohio 4114 ( 2020 )

[Cite as U.S. Specialty Ins. Co. v. Hoffman, 2020-Ohio-4114.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
U.S. Specialty Insurance Company et al., :
Plaintiffs-Appellants, :
v. : Nos. 19AP-189
and 19AP-855
Eric J. Hoffman, : (C.P.C. No. 17CV-592)
Defendant-Appellee, :
Third-Party Plaintiff, (REGULAR CALENDAR)
:
v.
:
Martin Pope et al.,
:
Third-Party Defendants.
:
D E C I S I O N
Rendered on August 18, 2020
On brief: Percy Squire, Co., LLC, and Percy Squire, for
appellants. Argued: Percy Squire.
On brief: Lane Alton, Rick E. Marsh, and Eric S. Bravo, for
appellee. Argued: Eric S. Bravo.
APPEALS from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} U.S. Specialty Insurance Company, Chuck Brown, II, and Chuck Brown II
Bail Bonds (collectively "U.S. Specialty"), plaintiffs-appellants, appeal from two judgments
of the Franklin County Court of Common Pleas. In one judgment, the court granted the
motion for summary judgment filed by Eric J. Hoffman, defendant-appellee. In the other
judgment, the trial court denied U.S. Specialty's motion to vacate the trial court's granting
Nos. 19AP-189 and 19AP-855 2
of summary judgment to Hoffman. Hoffman has also filed a motion to dismiss purported
appellants Surety Corporation of America ("Surety"), Chuck Brown, II, and Chuck Brown
II Bail Bonds.
{¶ 2} On June 25, 2013, the Hancock County Grand Jury indicted Michael
Hawrylak on several felony drug offenses. On July 3, 2013, Hawrylak was arraigned and
the court set bond at $45,000 cash or surety.
{¶ 3} On July 5, 2013, U.S. Specialty posted a surety bond. U.S. Specialty was the
bond's surety, Surety was listed as U.S. Specialty's agent, and Martin Pope was U.S.
Specialty's attorney-in-fact. Hawrylak was released. Eventually, a trial date was ordered for
January 27, 2014.
{¶ 4} On January 17, 2014, a bench warrant was issued for Hawrylak's violation of
bond. Hawrylak did not appear for the January 27, 2014 hearing. On the same date, the
trial court forfeited Hawrylak's bond even though U.S. Specialty claims the forfeiture was
based on a probation violation and the bond did not guarantee that Hawrylak would report
for probation. The trial court issued a notice of declaration of forfeiture to U.S. Specialty on
July 29, 2014 despite that R.C. 2937.36 requires notice of a bail forfeiture be provided to
the surety within 15 days and a forfeiture hearing to be conducted within 45 to 60 days after
notice.
{¶ 5} Surety, through its counsel Hoffman, filed a motion to set aside the forfeiture
and on September 18, 2014, the trial court granted the motion.
{¶ 6} On January 26, 2015, the state filed a motion for bond forfeiture based on
Hawrylak's failure to appear in court on January 27, 2014. The trial court granted the
motion and found the bond was forfeited on April 8, 2015. On June 11, 2015, the trial court
ordered the bond forfeited.
{¶ 7} Surety and Chuck Brown II Bail Bonds, represented by Hoffman, appealed
the June 11, 2015 bond forfeiture to the Third District Court of Appeals. Hoffman filed a
brief on behalf of Chuck Brown II Bail Bonds but failed to file a brief on behalf of Surety. In
State v. Hawrylak, 3d Dist. No. 5-15-24, 2016-Ohio-250 ("Hawrylak I"), the court of
appeals upheld the trial court's bond forfeiture but dismissed Surety's appeal for failing to
file an appellate brief.
{¶ 8} On April 4, 2016, the trial court ordered U.S. Specialty, Martin Pope Bail
Bonds, and Surety to pay $45,000 to the clerk of courts.
Nos. 19AP-189 and 19AP-855 3
{¶ 9} On January 18, 2017, U.S. Specialty, Chuck Brown, II, and Chuck Brown II
Bail Bonds filed the current professional malpractice action in the Franklin County Court
of Common Pleas against Hoffman for failing to brief Surety's assignments of error in
Hawrylak I.
{¶ 10} In the Hancock County case, the state filed a motion to find Surety in
contempt of the April 4, 2016 order because none of the parties had made the bond payment
as ordered. In opposition, U.S. Specialty claimed it was not required to pay the bond
because the initial February 3, 2014 bond forfeiture did not comply with the R.C.
2937.36(C) notice provision; thus, the state was prohibited from filing a second attempt to
revoke the bond. On August 7, 2018, the trial court issued a decision in which it found
nothing precluded the state from filing a second bond forfeiture. U.S. Specialty appealed to
the Third District Court of Appeals asserting the April 4, 2016 order was void ab initio due
to failure to timely issue statutory notice; thus, the trial court could not issue a subsequent
bond forfeiture. In State v. Hawrylak, 3d Dist. No. 5-18-17 (Feb. 4, 2019) (memorandum
decision) ("Hawrylak II"), the court of appeals found there was no authority to support the
position that the trial court was deprived of jurisdiction to issue the second declaration of
bond forfeiture after it vacated the first declaration of forfeiture. The Supreme Court of Ohio
rejected the appeal in State v. Hawrylak, 156 Ohio St. 3d 1454, 2019-Ohio-2780,
reconsideration denied, 157 Ohio St. 3d 1408, 2019-Ohio-3731.
{¶ 11} On February 11, 2019, in the Franklin County professional malpractice case,
Hoffman filed a motion for summary judgment arguing that because U.S. Specialty's failed
argument in Hawrylak II was the same argument U.S. Specialty claims Hoffman should
have made in Hawrylak I, U.S. Specialty cannot show Hoffman's failure to make the same
failed argument in Hawrylak I was the proximate cause of any harm to U.S. Specialty.
Although U.S. Specialty requested from opposing counsel a 14-day extension to file its
memorandum contra to Hoffman's summary judgment motion, and opposing counsel
agreed, U.S. Specialty neglected to file for such extension with the trial court.
{¶ 12} On March 1, 2019, the trial court granted Hoffman's motion for summary
judgment finding the decision in Hawrylak II makes clear the argument U.S. Specialty
claims Hoffman should have made in Hawrylak I would have been rejected in Hawrylak I
if made; thus, there was no proximate cause in the current professional malpractice claim.
Nos. 19AP-189 and 19AP-855 4
{¶ 13} On March 5, 2019, U.S. Specialty filed a motion to vacate the trial court's
granting of summary judgment, pursuant to Civ.R. 60(B)(1), along with its memorandum
contra the motion for summary judgment and a cross-motion for summary judgment. U.S.
Specialty argued Hoffman's counsel had consented to an extension to file a memorandum
contra Hoffman's motion for summary judgment, but due to counsel's preoccupation with
jury trials scheduled for February 25 and 26, 2019, he inadvertently failed to file a motion
for extension with the trial court. On November 26, 2019, the trial court denied the motion
to vacate. U.S. Specialty appeals, asserting the following two assignments of error:
[I.] The trial court erred when it denied Appellants' motion to
vacate for the reason R.C. 2937.36 bars bond forfeiture if the
surety is not given Notice within fifteen days following a
defendant's failure to appear.
[II.] The trial court erred when it granted summary judgment
to Appellee, for the reason the opinion of the Third District
Court of Appeals concerning R.C. [2937.36] was not only
erroneous, it did not absolve Appellee of the duty to file a brief.
{¶ 14} Before addressing U.S. Specialty's assignments of error, we must first address
Hoffman's motion to dismiss purported appellants Surety, Chuck Brown, II, and Chuck
Brown II Bail Bonds. U.S. Specialty has not filed any response to the motion. App.R. 3(D)
provides, in pertinent part, that "[t]he notice of appeal shall specify the party or parties
taking the appeal." Here, the case title in the notices of appeal indicate "U.S. SPECIALTY
INSURANCE CO., et al.," and the bodies of the notices of appeal include U.S. Specialty and
Surety. The March 6, 2017 amended complaint filed in the trial court names U.S. Specialty,
Chuck Brown, II, and Chuck Brown II Bail Bonds as plaintiffs.
{¶ 15} When a notice of appeal fulfills its basic purpose of informing the court and
opposing parties of a party's intent to appeal a judgment, justice is best served by an attitude
of judicial tolerance toward any minor or technical error made in good faith. Natl. Mut. Ins.
Co. v. Papenhagen, 30 Ohio St. 3d 14, 16 (1987). Thus, failure to specifically name one or
more of multiple party appellants in a notice of appeal is not a fatal defect as to unspecified
parties who are fairly described in the notice by the use of a plural term such as "et al."
Transamerica Ins. Co. v. Nolan, 72 Ohio St. 3d 320, 322-23 (1995). Furthermore, pursuant
to App.R. 3(A), "the only jurisdictional requirement for a valid appeal is the timely filing of
a notice of appeal. When presented with other defects in the notice of appeal, a court of
Nos. 19AP-189 and 19AP-855 5
appeals is vested with discretion to determine whether sanctions, including dismissal, are
warranted, and its decision will not be overturned absent an abuse of discretion." Id. at
syllabus.
{¶ 16} In the present case, Surety cannot be a party to the appeal as it was not a
named plaintiff in the original complaint or in the March 6, 2017 amended complaint, and
there is nothing indicating it was ever added as a plaintiff-party subsequently. With regard
to Chuck Brown, II, and Chuck Brown II Bail Bonds, the use of the term "et al." in the case
caption of the notice of appeal denotes plural parties. However, neither Chuck Brown, II,
nor Chuck Brown II Bail Bonds are included in the bodies of the notices of appeal.
Notwithstanding, based upon the "et al." language in the case caption, coupled with the fact
that Chuck Brown, II, and Chuck Brown II Bail Bonds were named plaintiffs in the
amended complaint, named as appellants in appellants' appellate brief, and included as
plaintiffs in various motions and entries throughout the trial court proceedings, we find
that Chuck Brown, II, and Chuck Brown II Bail Bonds are appellants in the present action.
See Transamerica Ins. Co. at 322-23 (noting that interpreting the term "et al." in the notice
of appeal to include an unnamed appellant did not prejudice appellees, as all parties were
aware of the interests of the unnamed appellant who had been a party in the trial court).
Therefore, we find Surety is not a party to the present appeal, but Chuck Brown, II, and
Chuck Brown II Bail Bonds are appellants. Hoffman's motion to dismiss certain parties is
granted in part and denied in part.
{¶ 17} With regard to U.S. Specialty's assignments of error, because U.S. Specialty
addresses its second assignment of error first, we will do the same. U.S. Specialty argues in
its second assignment of error the trial court erred when it granted summary judgment to
Hoffman. Summary judgment is appropriate when the moving party demonstrates that:
(1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment
as a matter of law, and (3) reasonable minds can come to but one conclusion when viewing
the evidence most strongly in favor of the non-moving party, and that conclusion is adverse
to the non-moving party. Hudson v. Petrosurance, Inc., 127 Ohio St. 3d 54, 2010-Ohio-
4505, ¶ 29; Sinnott v. Aqua-Chem, Inc., 116 Ohio St. 3d 158, 2007-Ohio-5584, ¶ 29.
Appellate review of a trial court's ruling on a motion for summary judgment is de novo.
Hudson at ¶ 29. This means that an appellate court conducts an independent review,
without deference to the trial court's determination. Zurz v. 770 W. Broad AGA, L.L.C., 192
Nos. 19AP-189 and 19AP-855 6
Ohio App. 3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.); White v. Westfall, 183 Ohio App. 3d 807,
2009-Ohio-4490, ¶ 6 (10th Dist.).
{¶ 18} When seeking summary judgment on the ground that the non-moving party
cannot prove its case, the moving party bears the initial burden of informing the trial court
of the basis for the motion and identifying those portions of the record that demonstrate
the absence of a genuine issue of material fact on an essential element of the non-moving
party's claims. Dresher v. Burt, 75 Ohio St. 3d 280, 293 (1996). The moving party does not
discharge this initial burden under Civ.R. 56 by simply making a conclusory allegation that
the non-moving party has no evidence to prove its case. Id. Rather, the moving party must
affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that the
non-moving party has no evidence to support its claims. Id. If the moving party meets its
burden, then the non-moving party has a reciprocal burden to set forth specific facts
showing that there is a genuine issue for trial. Civ.R. 56(E); Dresher at 293. If the non-
moving party does not so respond, summary judgment, if appropriate, shall be entered
against the non-moving party. Id.
{¶ 19} In the present case, U.S. Specialty argues there existed genuine issues of
material fact as to whether Hoffman committed professional negligence when he failed to
file an appellate brief on behalf of U.S. Specialty in Hawrylak I. U.S. Specialty claims that
Hoffman's motion for summary judgment focused on the wrong issue—whether the
underlying bond was properly forfeited—instead of whether it is malpractice to fail to file
an appellate brief, notwithstanding whether the underlying issue on appeal is ultimately
decided unfavorably. Even so, U.S. Specialty contends Hoffman cannot rely on Hawrylak
II to prove his argument because it was placed on the accelerated calendar, and App.R.
11.1(E) and Loc.R. 12 of the Third District Court of Appeals prohibit the citation of
accelerated cases. Furthermore, U.S. Specialty argues there was no lawful basis to forfeit
the bond because the bond guaranteed Hawrylak's appearance at court but was revoked for
a reason not guaranteed by the surety—the failure to report to probation. Finally, U.S.
Specialty asserts Hoffman's motion for summary judgment wrongly suggests the only issue
Hoffman could have raised in an appellate brief in Hawrylak I was the statutory notice
issue, when, in fact, there existed other issues that Hoffman could have raised, such as
Hawrylak being incarcerated in Franklin County in January 2014, Hancock County being
notified that Hawrylak was released from Franklin County but failing to pick him up, and
Nos. 19AP-189 and 19AP-855 7
the second bail bond issued in Franklin County discharging U.S. Specialty's bond in
Hancock County.
{¶ 20} However, before addressing the merits of U.S. Specialty's arguments, we
must address U.S. Specialty's failure to file a memorandum contra Hoffman's motion for
summary judgment in the trial court. The failure to raise an argument in response to a
motion for summary judgment waives that argument for purposes of appellate appeal.
Lacey v. Ohio Aud. of State, 10th Dist. No. 19AP-110, 2019-Ohio-4266, ¶ 13, fn. 1, citing
Betz v. Penske Truck Leasing Co., L.P., 10th Dist. No. 11AP-982, 2012-Ohio-3472, ¶ 34
(failure to raise argument in response to motion for summary judgment waives argument
on appeal). Thus, a party's failure to file a response to a motion for summary judgment
waives any arguments for purposes of appeal. Leonard v. MBB Partnership, 10th Dist. No.
15AP-956, 2016-Ohio-3534, ¶ 15 (failure to oppose summary judgment results in waiver of
any arguments on appeal); U.S. Bank, N.A. v. Goldsmith, 10th Dist. No. 14AP-783, 2015-
Ohio-3008, ¶ 7 (because appellant failed to file a memorandum contra appellee's motion
for summary judgment and, thus, was raising her arguments for the first time on appeal,
she waived the issue for purposes of appeal). While it is true that "[a]ppellate courts review
summary judgment decisions de novo[,] * * * the parties are not given a second chance to
raise arguments that they should have raised below." Whitson v. One Stop Rental Tool &
Party, 12th Dist. No. CA2016-03-004, 2017-Ohio-418, ¶ 18. Therefore, because, in the
present case, U.S. Specialty failed to file a memorandum contra responding to Hoffman's
motion for summary judgment, it failed to raise every argument that it now attempts to
present in this appeal, and we find U.S. Specialty waived such arguments for purposes of
appeal.
{¶ 21} Notwithstanding, even if we were to address U.S. Specialty's arguments for
the first time on appeal, we would find them to be without merit. A plaintiff asserting a
claim for legal malpractice based on negligent misrepresentation must establish that:
(1) the attorney owed a duty or obligation to the plaintiff, (2) there was a breach of that duty
or obligation and the attorney failed to conform to the standard required by law, and
(3) there is a causal connection between the attorney's breach of duty and the resulting
damage or loss. Vahila v. Hall, 77 Ohio St. 3d 421 (1997), syllabus. Failure to establish any
of the three elements entitles the opposing party to summary judgment. Lundeen v. Graff,
10th Dist. No. 15AP-32, 2015-Ohio-4462, ¶ 12. Thus, to prevail on his motion for summary
Nos. 19AP-189 and 19AP-855 8
judgment, Hoffman was required to demonstrate that U.S. Specialty would be unable to
establish one or more of the elements of a legal malpractice claim. See, e.g., Mulhollen v.
Angel, 10th Dist. No. 03AP-1218, 2005-Ohio-578, ¶ 21 ("Because defendants sought
summary judgment on the basis that [plaintiff] could not prove these claims at trial, it was
defendants' initial burden to present Civ.R. 56(C) evidence that affirmatively demonstrated
the absence of evidence supporting each of [plaintiff's] claims."). Hoffman could make this
showing by establishing that: (1) he did not owe a duty to U.S. Specialty, (2) if he did owe a
duty to U.S. Specialty, he did not commit the alleged breach of duty or fail to conform to
the standard required by law, or (3) there was no causal connection between the alleged
breach and the alleged damages.
{¶ 22} In the trial court's March 1, 2019 judgment, the trial court granted Hoffman's
motion for summary judgment on the basis that the decision in Hawryluk II makes clear
the argument U.S. Specialty claims Hoffman should have made in Hawryluk I would have
been rejected in Hawryluk I; thus, there was no proximate cause in the current professional
malpractice claim. Therefore, we will first address the proximate cause element. If the trial
court was correct, and there was no proximate cause, we must find the trial court properly
granted summary judgment.
{¶ 23} "A legal-malpractice plaintiff must prove a causal connection between the
defendant-attorney's duty-breaching conduct and the plaintiff's claimed loss or damage."
McCarty v. Pedraza, 2d Dist. No. 2013-CA-42, 2014-Ohio-3262, ¶ 21. A plaintiff in the type
of legal malpractice case at issue here must show that, but for her attorney's negligence, she
would have succeeded in the underlying appeal. See Young-Hatten v. Taylor, 10th Dist.
No. 08AP-511, 2009-Ohio-1185, ¶ 26 (finding that the trial court correctly instructed the
jury that appellants were required to prove, by a preponderance of the evidence, that, but
for appellee's alleged negligence, they would have prevailed in their claim).
{¶ 24} In the present case, the trial court found in its judgment the Third District
Court of Appeals in Hawrylak II already rejected U.S. Specialty's argument that the
January 2014 bond forfeiture was improper due to a failure to comply with the statutory
notice requirements and that this error barred the court from forfeiting the bond in June
2015. The court found this is the same argument U.S. Specialty asserts Hoffman should
have made in a brief in their first appeal in Hawrylak I, and Hawrylak II now makes clear
that argument would have failed in the first appeal because the court of appeals would have
Nos. 19AP-189 and 19AP-855 9
reached the same conclusion it did in Hawrylak II; i.e., that the June 2015 bond forfeiture
was proper and U.S. Specialty was required to pay the bond because it failed to secure
Hawrylak's appearance in the trial court.
{¶ 25} We agree with the trial court. The argument rejected in Hawrylak II—that
the January 2014 bond forfeiture was improper based on failure to comply with the notice
requirements in R.C. 2937.36(C), and this error prohibited the court from forfeiting the
bond in June 2015—is the same argument that U.S. Specialty claims Hoffman should have
made in its appellate brief in Hawrylak I. The appellate court in Hawrylak II found there
was no authority to support U.S. Specialty's position that the trial court was deprived of
jurisdiction to issue the June 2015 declaration of bond forfeiture because it vacated the
January 2014 declaration of forfeiture and, thus, the June 2015 bond forfeiture was proper.
Therefore, because the appellate court in Hawrylak II rejected the argument U.S. Specialty
claims Hoffman should have raised in Hawrylak I, U.S. Specialty cannot show that
Hoffman's failure to raise such argument in Hawrylak I proximately caused U.S. Specialty
any damage.
{¶ 26} With regard to U.S. Specialty's argument that Hoffman cannot rely upon
Hawrylak II because it was placed on the accelerated calendar, and App.R. 11.1(E) and
Loc.R. 12 prohibit the citation of accelerated cases, we find this argument lacks merit. In
Hawrylak II, the Third District Court of Appeals first noted:
This appeal, having been placed on the accelerated calendar, is
being considered pursuant to App.R. 11.1(E) and Loc.R. 12. This
decision is therefore rendered by summary judgment entry,
which is only controlling as between the parties to this action
and not subject to publication or citation as legal authority
under Rule 3 of the Ohio Supreme Court Rules for the
Reporting of Decisions.
{¶ 27} Hoffman counters he is entitled to cite Hawrylak II because he is not relying
upon it as binding legal authority but, instead, to show the existence and result of that
decision. We agree. The Third District Court of Appeals has allowed decisions from
accelerated calendar cases to be cited to provide background. In Bd. of Cty. Commrs. v.
Weis, 3d Dist. No. 12-19-01, 2019-Ohio-3720, ¶ 3, fn. 2, the court cited a prior related case
to provide background information for Weis. The court discussed its holding in the
accelerated calendar case and relied upon it to provide a factual background. Here,
Hoffman cited Hawrylak II not to show that the court was correct and should be followed
Nos. 19AP-189 and 19AP-855 10
in the present action as binding precedent, but to show the same appellate court has already
addressed the merits of the argument and rejected it; thus, it would have rejected the
argument in Hawrylak I had Hoffman filed an appellate brief.
{¶ 28} As for the other issues that U.S. Specialty contends Hoffman could have
raised in a brief in Hawrylak I, U.S. Specialty fails to detail the merits of any of these or
how it suffered any prejudice by Hoffman failing to raise them. Likewise, U.S. Specialty
cites the same issues in the memorandum contra it attempted to belatedly file instanter in
the trial court, and similarly fails to detail the arguments. U.S. Specialty also fails to cite any
authority to support these arguments. Also of note, as Hoffman points out, U.S. Specialty
did not make any of these arguments in Hawrylak II and, instead, raised only the failure
of the court to comply with the service notice requirements in R.C. 2937.36(C), which the
appellate court rejected.
{¶ 29} For the foregoing reasons, we find the trial court did not err when it granted
summary judgment in favor of Hoffman. Therefore, we overrule U.S. Specialty's second
assignment of error.
{¶ 30} U.S. Specialty argues in its first assignment of error the trial court erred when
it denied its Civ.R. 60(B) motion to vacate the granting of summary judgment to Hoffman.
"A motion for relief from judgment under Civ.R. 60(B) is addressed to the sound discretion
of the trial court, and that court's ruling will not be disturbed on appeal absent a showing
of abuse of discretion." Griffey v. Rajan, 33 Ohio St. 3d 75, 77 (1987). In order to prevail on
a motion for relief from judgment under Civ.R. 60(B), the moving party must demonstrate
that: (1) the party has a meritorious defense or claim to present if relief is granted, (2) the
party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5), and
(3) the motion is made within a reasonable time. GTE Automatic Elec., Inc. v. ARC
Industries, Inc., 47 Ohio St. 2d 146 (1976), paragraph two of the syllabus. If any of these
three requirements is not met, the motion should be overruled. Svoboda v. Brunswick, 6
Ohio St. 3d 348, 351 (1983). Regarding the second requirement, Civ.R. 60(B) states that
"[o]n motion and upon such terms as are just, the court may relieve a party or his legal
representative from a final judgment, order or proceeding for the following reasons:
(1) mistake, inadvertence, surprise or excusable neglect."
{¶ 31} However, U.S. Specialty failed to make any substantive argument under its
assignment of error in its appellate brief. Beyond the citation to black-letter case law
Nos. 19AP-189 and 19AP-855 11
relating to Civ.R. 60(B), U.S. Specialty states only generically that the trial court's decision
was an abuse of discretion because the failure to provide the 15-day notice, pursuant to R.C.
2937.36(C), divests the trial court of jurisdiction to order a forfeiture against the surety.
Such argument does not address the merits of U.S. Specialty's motion to vacate which was
based on its failure to file a motion for extension to file its memorandum contra Hoffman's
motion for summary judgment. Furthermore, U.S. Specialty does not indicate under which
specific Civ.R. 60(B) ground it pursued its motion to vacate. We could overrule U.S.
Specialty's assignment of error on these bases alone.
{¶ 32} Regardless, we have already found the trial court did not err when it granted
summary judgment, even if we were to consider U.S. Specialty's arguments included in the
memorandum contra. Thus, even if the trial court had granted the motion to vacate and
permitted U.S. Specialty's memorandum contra, summary judgment was warranted. For
these reasons, we find the trial court did not err when it denied U.S. Specialty's motion to
vacate pursuant to Civ.R. 60(B), and U.S. Specialty's first assignment of error is overruled.
{¶ 33} Accordingly, we grant in part and deny in part Hoffman's motion to dismiss
parties. We overrule U.S. Specialty's two assignments of error and affirm the judgments of
the Franklin County Court of Common Pleas.
Motion to dismiss parties
granted in part and denied in part;
judgments affirmed.
SADLER, P.J., and NELSON, J., concur.
____________________