Summers v. Lancia Nursing Home

[Cite as Summers v. Lancia Nursing Home, 2017-Ohio-9218.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
KAREN J. SUMMERS, AS )
ADMINISTRATRIX OF THE ESTATE )
OF ARLA JOHNSON, AND )
PERSONAL REPRESENTATIVE, ) CASE NO. 17 BE 0011
)
PLAINTIFF-APPELLANT, )
)
VS. ) OPINION
)
LANCIA NURSING HOMES, INC., )
D/B/A BELMONT MANOR NURSING )
HOME et al., )
)
DEFENDANTS-APPELLEES. )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Belmont County, Ohio.
Case No. 12-CV-0072
JUDGMENT: Affirmed.
JUDGES:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: December 20, 2017
[Cite as Summers v. Lancia Nursing Home, 2017-Ohio-9218.]
APPEARANCES:
For Plaintiff-Appellant: Atty. Geoffrey C. Brown
Atty. Scott S. Blass
Atty. Tyler Smith
Atty. James B. Stoneking
Bordas & Bordas PLLC
1358 National Road
Wheeling, West Virginia 26003
For Defendants-Appellees: Atty. James K. Reuss
Atty. Karen M. Cadieux
Carpenter Lipps & Leland LLP
280 Plaza, Suite 1300
280 N. High Street
Columbus, Ohio 43215
Atty. Martin T. Galvin
Atty. Thomas A. Prislipsky
Reminger Co., L.P.A.
101 West Prospect Avenue,
Suite 1400
Cleveland, Ohio 44115-1093
[Cite as Summers v. Lancia Nursing Home, 2017-Ohio-9218.]
ROBB, P.J.
{¶1} Plaintiff-Appellant Karen J. Summers, Administratrix of the Estate of
Arla Johnson appeals the decision of Belmont County Common Pleas Court denying
her Civ.R. 60(B) motion to vacate the trial court’s ruling on her Civ.R. 59 new trial
motion.
{¶2} This appeal is the third appeal from the underlying case. The first
appeal was from a discovery order, which this court determined was not a final
appealable order. Summers v. Lancia Nursing Homes, Inc., 7th Dist. No. 12 BE 0039
(August 30, 2013) J.E. (Summers I). The second appeal addressed the trial court’s
denial of the Civ.R. 60(B) motion. Summers v. Lancia Nursing Homes, Inc., 7 Dist.
No. 15 BE 0063, 2016-Ohio-7935 (Summers II). In Summers II, we held the trial
court abused its discretion when it failed to hold an evidentiary hearing to determine
whether Civ.R. 60(B)(1) and the second prong of the GTE test was met. Thus, the
matter was remanded for an evidentiary hearing. Following the evidentiary hearing,
the trial court denied the Civ.R. 60(B)(1). The issue now before us is whether the trial
court violated the law of the case doctrine and the mandate rule.
{¶3} For the reasons expressed below, the trial court did not violate either
rule. The trial court’s decision is affirmed.
Statement of the Case
{¶4} In early 2012, Appellant filed a medical malpractice and wrongful death
complaint against Defendants–Appellees Lancia Nursing Homes Inc. d/b/a Belmont
Manor Inc. (Appellee Belmont Manor), Dr. Carmel C. Shaw–Nieves, and Dr. Divakar
Sydney Bangera. Decedent Arla Johnson was a resident of Appellee Belmont Manor
and Appellees Drs. Shaw–Nieves and Bangera were her doctors.
{¶5} The case proceeded through discovery. A discovery order was
appealed to our court and we determined the order was not a final appealable order.
Summers I, August 30, 2013 J.E.
{¶6} Trial occurred in April 2015 and the jury returned a defense verdict.
4/28/15 J.E. Following the verdict, Appellant filed a timely Civ.R. 59 motion for a new
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trial. Appellant did not file a notice of appeal from the judgment entry memorializing
the jury verdict because pursuant to App.R. 4(B)(2), the filing of the motion for new
trial extended the time to file a notice of appeal. The time for filing a notice of appeal
from the jury verdict and the ruling on the new trial motion began to run when the trial
court entered the judgment on the motion for new trial. App.R. 4(B)(2).
{¶7} Appellees each filed their own motion in opposition to the Civ.R. 59
motion. 7/6/15 Appellee Dr. Bangera's Motion in Opposition; 7/7/15 Appellee Dr.
Shaw–Nieves' Motion in Opposition; Appellee Lancia Nursing Homes, Inc., 7/9/15
Appellee Belmont Manor's Motion in Opposition. Appellant filed a combined reply to
the motions in opposition. 7/14/15 Reply. Neither Appellant's Civ.R. 59 motion, nor
her response in opposition to the motion asked for a hearing on the new trial motion.
6/23/15 Motion; 7/14/15 Reply.
{¶8} The trial court decided the new trial request on the briefs and denied
Appellant’s motion. 7/21/15 J.E. The judgment indicated the clerk of courts was to
serve copies on all parties or their attorneys. The docket indicated the clerk served
copies by regular mail on July 21, 2015 to James Reuss, Kevin Coleman, Thomas
Prislipsky, and Scott Blass, the attorneys for Appellees and Appellant.
{¶9} On August 27, 2015, Appellant filed a motion to vacate based on Civ.R.
60(B), Civ.R 58, and the court's inherent authority to vacate judgments. Appellant
argued counsel did not receive the denial of the motion for a new trial and discovery
of the July 21, 2015 judgment did not occur until August 24, 2015 when Attorney
Geoffrey Brown audited his open files. Attached to the motion were affidavits from
Attorney Geoffrey Brown and Attorney Scott Blass, attorneys working for Bordas &
Bordas, PLLC, the law firm representing Appellant. In his affidavit, Attorney Brown
explained he asked Attorneys Stoneking, Smith, and Blass if it would be advisable to
request a hearing on the motion for new trial. Attorney Stoneking checked the online
docket and discovered the July 21, 2015 order denying the motion for new trial and
the clerk's notation that Attorney Blass was served by regular mail. As a result,
Attorney Brown talked to Attorney Blass, interviewed his own administrative staff,
examined the firm's computer files, and examined the firm's hard copy file to
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determine if the order was received. Based on his investigation, he determined the
firm did not receive the order. Attorney Blass also avowed he did not receive a copy
of the order through mail and was unaware of its existence until August 24, 2015.
{¶10} Appellee Belmont Manor filed a motion in opposition to the motion to
vacate. 9/2/15 Appellee Belmont Manor Motion. Appellees Dr. Bangera and Dr.
Shaw–Nieves filed separate motions to join in Appellee Belmont Manor's motion in
opposition to relief from judgment. 9/3/15 Appellee Dr. Bangera Joinder Motion;
9/10/15 Appellee Dr. Shaw–Nieves Joinder Motion. The trial court denied the motion
to vacate without holding an evidentiary hearing. 9/2/15 J.E.
{¶11} Appellant appealed the order arguing the trial court erred in denying
Civ.R. 60(B) relief. Summers II, 2016-Ohio-7935. In Summers II, we noted Appellant
acknowledged the motion to vacate was not filed for the purpose of asking the trial
court to reconsider its ruling, but was filed to enable Appellant to perfect his appeal.
The motion to vacate was filed because Appellant’s attorneys claimed they did not
receive the July 21, 2015 order denying the motion for a new trial. Discovery of the
order did not occur until after the 30 day appeal time had expired. Id. at ¶ 16.
{¶12} This court held given the circumstances, Civ.R. 60(B) was the proper
means to attack the July 21, 2015 judgment. Id. at ¶ 18-28. We then discussed the
GTE test and explained the first and third prongs of the test were easily met. Id. at ¶
29-40. As to the second prong, Appellant asserted counsels’ actions constituted
excusable neglect. Id. at ¶ 36. We stated given the affidavits from the attorneys, the
trial court should have held an evidentiary hearing to determine whether the
attorney’s excuse for failing to know about the final judgment was excusable neglect.
Id. at ¶ 40. Thus, we ultimately determined there was merit with the appeal; the trial
court should have sua sponte held an evidentiary hearing since the issue before it
was fact specific. Id. at ¶ 40. Accordingly, we remanded the matter to the trial court
for an evidentiary hearing. Id. at ¶ 40-41.
{¶13} An evidentiary hearing was held on January 18, 2017. Attorneys Scott
Blass and Geoffrey Brown testified. 1/18/17 Tr. Following the hearing, each party
filed a post-hearing brief in support of their position. 1/31/17 Appellee Belmont
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Manor Brief; 2/1/17 Appellant Brief; 2/1/17 Appellee Dr. Shaw-Nieves Brief; 2/1/17
Appellee Dr. Bangera Brief.
{¶14} On February 13, 2017, the trial court denied Civ.R. 60(B) relief. In
rendering its ruling, the court stated:
The Plaintiff’s case was remanded to this Court for an Evidentiary
Hearing in regard to their 60(B) Motion. The Plaintiff’s testimony
essentially consisted of Attorneys Blass & Brown reiterating their
affidavits previously filed with this Court setting forth that they didn’t
receive a copy of this Court’s July 21, 2015 Order. They further
testified that neither checked the online docket. Four attorneys from the
Bordas & Bordas Law Firm participated in this case. Only one filed a
notice of appearance. Attorney Smith failed to file a notice of
appearance, even though his office is located in another city
(Pittsburgh), thus, removing his office from those receiving notice from
the clerk. This Court does not know what the testimony of Attorney
Smith and Attorney Stoneking would have revealed in that neither took
the stand to testify. Whether they checked the online docket or not and
whether they then failed to act was not presented to this Court.
Additionally, the testimony revealed that during the month in question,
the Bordas Law Firm had an office across the street from the Belmont
County Courthouse and therefore could have easily checked the Clerk’s
docket. Inexplicably, the person or persons responsible for receiving the
mail at the Bordas Law Firm were not called as witnesses at the
Evidentiary Hearing.
The most troubling testimony involved the procedure the Bordas Law
Firm had in place to provide for protection against missing Appellate
deadlines. They had no procedure. There was no tickler system, no
automatic 30 day calendar check, nothing. In fact, pursuant to
testimony at the Evidentiary Hearing, the only reason the four attorneys
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on the case checked the docket at all was because there was a
discussion about whether they should ask for a hearing on their Motion
for New Trial. They then stumbled upon this Court’s order which had
been filed on July 21, 2015 placing them past the Appellate Rule 4(A)
30 day deadline.
Pursuant to Griesmer “the vicissitudes of mail service mandate regular
inspection of the electronic docket.” None of the four attorneys nor any
of their staff did so, or if in fact someone did, no one took action
thereafter. Civil Rule 58 does not require receipt of notice, but rather
“The failure of any party to receive such notice shall not affect . . . the
running of the time for appeal.” At the time of the Court’s July 21, 2015
ruling, no one at the law firm of Bordas & Bordas was tracking the
Appellate Rule deadlines in any cases in any manner whatsoever.
There was no tickler system, no automatic calendar follow up to protect
against missed deadlines. It is telling that since this case, there are at
least some individual efforts being made to protect against the missing
of Appellate Court deadlines. It was the “carelessness, inattention, or
willful disregard of the process of the Court” as set forth in Vanest that
resulted in the missed deadline in the case at bar.
This matter was remanded to this Court for Evidentiary Hearing and the
weighing of evidence. The same took place on January 18, 2017. The
Plaintiff chose what evidence to present and what not to present. This
Court finds said evidence to be unconvincing. When taking “into
consideration all the surrounding facts and circumstances,” to grant
Plaintiff’s 60(B) motion would “serve as an emasculation of the pleading
rules and time limits” as set forth by the Supreme Court in Griffey supra.
This Court is not willing to set such a precedent for violation of pleading
rules and time limits. Wherefore, after due consideration of the exhibit
presented at the hearing herein, the credibility of the witness and the
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post hearing briefs, this Court hereby denies Plaintiff’s Motion for Relief
From Judgment Order.
2/13/17 J.E.
{¶15} Appellant timely appealed raising one assignment of error.
Assignment of Error
“The trial court erred in denying the plaintiff’s motion for relief from judgment
under Civ.R. 60(B).”
{¶16} Appellant’s argument is based on the law of the case doctrine and the
mandate rule. Appellant contends the trial court allowed the evidentiary hearing to
exceed the scope of our “limited remand” and relied on the information that was
beyond the scope to render its ruling.
{¶17} The law of the case doctrine “provides that the decision of a reviewing
court in a case remains the law of that case on the legal questions involved for all
subsequent proceedings in the case at both the trial and reviewing levels.” Nolan v.
Nolan, 11 Ohio St.3d 1, 3, 462 N.E .2d 410 (1984). This rule applies to issues
previously resolved within the same case. Reid v. Cleveland Police Dept., __ Ohio
St.3d __, 2017-Ohio-7527, __ N.E.3d __, ¶ 11.
{¶18} The appellate mandate rule pertains to “the relationship between
appellate and inferior courts, [and] is a jurisdictional bar on the inferior court's
authority to reconsider issues that were expressly or impliedly decided in a previous
appeal.” Fritzgerald v. City of Cleveland Civ. Serv. Commission, 8th Dist. No.
104492, 2017-Ohio-7086, ¶ 24, citing Phillips v. Houk, 587 Fed.App. 868, 871 (6th
Cir.2014). The Eighth Appellate District further explained:
An appellate mandate works in two ways: it vests the lower court on
remand with jurisdiction and it gives the lower court on remand the
authority to render judgment consistent with the appellate court's
judgment. Under the “mandate rule,” a lower court must “carry the
mandate of the upper court into execution and not consider the
questions which the mandate laid to rest.” Sprague v. Ticonic Natl.
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Bank (1939), 307 U.S. 161, 168, 59 S.Ct. 777; see, also, State ex rel.
Cordray v. Marshall, 123 Ohio St.3d 229, 2009–Ohio–4986, 915 N.E.2d
633, at ¶ 32 * * *. The lower court may, however, rule on issues left
open by the mandate. Id. But when the mandate leaves nothing left to
decide, the lower court is bound to execute it. Id.State v. Carlisle, 8th Dist. No. 93266, 2010–Ohio–3407, ¶ 16.
{¶19} Appellant contends the trial court violated both of these rules when it
permitted testimony about the online docket.
{¶20} In Summers II, we remanded the case for an evidentiary hearing.
Summers II, 2016-Ohio-7935, ¶ 40. We determined the first and third prongs of the
GTE test were clearly met; however, as to the second prong, an evidentiary hearing
was required. Id. After citing our previous case reviews of when appellate courts have
found excusable neglect, we stated:
The facts of this case could be deemed comparable to those situations.
In filing the motion for Civ.R. 60(B), Appellant provided affidavits from
two attorneys indicating the procedure followed after mail is received at
the law firm, and both attorneys avowed they did not receive the notice
in the mail. The actions of the attorneys, if believed, do not show a
complete disregard for the judicial system. Consequently, Civ.R.
60(B)(1) could be applicable if the affidavits from the attorneys is
believed.
Id. at ¶ 39.
{¶21} We then specifically stated, “the trial court should have held an
evidentiary hearing to determine whether Civ.R. 60(B)(1) was met, i.e. was the
attorneys’ excuse for failing to file a timely notice of appeal believable.” Id. at ¶ 40.
Thus, the remand was limited to the issue of excusable neglect. Our decision and
direction did not include a limitation that evidence concerning the online docket could
not be considered. Accordingly, the trial court did not violate the law of the case or
the mandate rule by hearing evidence about the online docket.
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{¶22} Admittedly, the Eighth District’s statement, “the vicissitudes of mail
service mandate regular inspection of the electronic docket”, made in Griesmer v.
Allstate, 8th Dist. No. 91194, 2009-Ohio-725, ¶ 21 was raised to this court in the
briefs in Summers II. Thus, the issue was before this court. In our Summers II
opinion, we did not determine whether there is a duty to regularly check the electronic
docket nor did we determine what regular inspection means. Accordingly, there is no
absolute duty to check the online docket.
{¶23} Case law in our district supports this conclusion. The reason we are
reluctant to impose such duty is technology is not consistently available across our
district. For example, one county in our district does not have an online docket,
another county’s online docket became available only recently, and a third county’s
online docket is available but not accessible to this court due to firewalls. Imposing a
duty to regularly check the docket in our district would require different degrees of
duty depending on the county. Our district is not alone; other multicounty districts
have counties with different levels of online accessibility. Furthermore, if there is a
duty to check an online docket regularly, then the rule would apply to pro se litigants.
See State ex rel. Leon v. Cuyahoga Cty. Court of Common Pleas, 123 Ohio St.3d
124, 2009-Ohio-4688, 914 N.E.2d 402, ¶ 1; Fuller v. Mengel, 100 Ohio St.3d 352,
2003-Ohio-6448, 800 N.E.2d 25, ¶ 10; Sabouri v. Ohio Dept. of Job & Family Servs.,
145 Ohio App.3d 651, 654, 763 N.E.2d 1238 (2001) (“[P]ro se litigants * * * are held
to the same standard as litigants who are represented by counsel.”). Although the
accessibility to internet is vast there are still residents of Ohio who do not have
access to internet.
{¶24} Our decision in Summers II did not determine there is a duty to
regularly check the online docket in this district. However, that does not mean use or
knowledge of the online docket cannot be considered in determining excusable
neglect. There may be situations where an online docket checking system could
provide evidence of excusable or inexcusable neglect. For instance, if an attorney
knew of the online docket in county A and B, and has a system of regularly checking
the online docket in county B, but not checking the online docket in county A, then
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there may be evidence that the attorney’s conduct in failing to check the online
docket in county A was not excusable neglect. Furthermore, considering the
language used in remanding the matter for an evidentiary hearing, this court did not
eliminate the allowance of evidence of the online docket.
{¶25} Therefore, this court concludes the trial court did not violate the law of
the case nor the mandate rule.
{¶26} We shall now address Appellant’s argument the trial court abused its
discretion in denying the motion to vacate. In holding there was no excusable
neglect, the court indicated two of the four attorneys working on the case did not
testify. Therefore, whether or not they checked the online docket and whether they
failed to act was not presented to the court. Also, the person responsible for
receiving the mail at the law firm was not called as a witness. The court also stated
the testimony indicated the firm had no procedure to protect against missing an
appellate deadline. There was no tickler system nor 30 day check. The court stated
the only reason the attorneys checked the docket was to discuss if they should ask
for a hearing on the motion for new trial. The court then cited the Griesmer case for
the duty to check the online docket. The court stated it found the evidence to be
“unconvincing” and when taking into consideration all surrounding facts and
circumstances, this was not excusable neglect. 2/13/17 J.E.
{¶27} The transcript of the hearing does indicate only two of the four attorneys
working on the case testified at the hearing; Attorney Tyler Smith and Attorney Jay
Stoneking did not testify. Attorneys Smith and Stoneking tried the case to the jury,
and worked on and filed the motion for new trial. Attorney Smith’s primary office was
in Pittsburgh, Pennsylvania, and there was no testimony offered from him on whether
he received notice or checked the online docket.
{¶28} The person who received the mail also did not testify. Appellant states
that person is retired. However, retirement would not prevent the person from
testifying.
{¶29} Attorney Blass testified the prompting to check the online docket was to
see if a hearing was set for the new trial motion. Tr. 10, 15. Attorney Brown testified
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he internally audits his cases at least every two months, but usually it is every couple
weeks. Tr. 51. In doing that audit, Attorney Brown checked this case and sent out
an email to the other attorneys on the case asking what needed to be done next. Tr.
52. According to Attorney Brown that prompted Attorney Blass to suggest the online
docket be checked to see if anything was set. Tr. 52. That led to the discovery of the
July 21, 2015 judgment on August 24, 2015. Tr. 52.
{¶30} Upon discovering the order, an investigation ensued as to why this was
the first time they had heard of the order. Attorney Brown first checked to see if the
clerk had Attorney Blass’ name and the correct address, which it did. Tr. 53.
Attorney Brown testified about the firm’s procedure upon receiving mail. One
employee collects the mail, separates it by addressee, and then gives it to the staff of
the attorney. Tr. 8. Attorney Blass stated his mail went to his paralegal who scans
the mail, saves the electronic copy to the electronic file, and gives the hard copy to
him. Tr. 8. The hard copy is date stamped. Tr. 8. Attorney Blass then takes
whatever action is needed depending on the content of the correspondence. Tr. 8-9.
After that, the hard copy is put in his out box. Tr. 9-10.
{¶31} Attorney Blass and Attorney Brown both reviewed the computer file to
make sure the order had not come in and been overlooked; the computer file did not
show receipt of the order. Tr. 11, 55. Attorney Brown looked through the hard file to
see if the order was in there. Tr. 11, 54-55, 56. It was not. Tr. 12, 55, 56.
Furthermore, no staff recalled seeing the order. Tr. 12, 56. Attorney Brown also
stated he communicated directly to Attorney Stoneking to see if he was aware of the
order and he also emailed Attorney Smith to see if he was aware of the order. Tr. 54.
Both responded they were not. Tr. 54. Both Attorney Blass and Attorney Brown
presumed Attorney Smith did not check the online docket at any time between June
23, 2015 (the date the new trial motion was filed) and August 24, 2015 (the date the
July 21, 2015 order was discovered) because given the inquiry he would have told
them he did. Tr. 27, 79. Attorney Brown also presumed Attorney Smith’s paralegal
did not check the online docket. Tr. 80.
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{¶32} When asked if he or his staff put a reminder on the firm’s case
management online docket or calendar to check for a trial court order following the
filing of the new trial motion, Attorney Blass explained:
As a firm, I’m not aware of any procedural mechanism by which we’ve
adopted some type of protocol that we can be on the lookout for orders
we don’t receive. I mean, no. I can tell you that, you know, the protocol
is you once you’re advised – once you’re informed of a deadline, you
make sure it’s docketed. I know personally, like Geoff, I make it a habit
to review virtually every one of my files every 30 days, because I am
responsible for a couple of associates and monitoring their cases. I’ll
make it through virtually all my cases to make sure, to see if there’s
anything that needs to be done.
Now, like Geoff I think in this case, I would have done the same thing
and said, “This hasn’t been set for hearing, we haven’t heard anything.
Let’s see if we can get it moving.” And at that point, the online docket
was checked.
***
No. I’m unaware of any system that would – that when we file a motion,
would say okay, we want to do X within 30 days. I mean, when we get
an order that says, you know, that’s when we enter our actual deadline.
I guess the one system that’s in place, at least for Geoff and I, and I
think others, is just the constant monitoring of all of our files to see what
activities are going on in them, to see if – what we can do to help move
the case along. In plaintiff’s practice, you want to keep your cases
moving. But other than that, you know, then that’s really not a
computer system; that’s just I’m at work on Saturday for eight hours,
and I’m going through every one of my files to make sure everything is
up to date.
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***
Wasn’t a formal protocol in place for someone to actively every two
weeks, every three weeks, every 30 days, check the dockets, I mean,
of any particular case. Other that, I think I said, reviewing our files and
seeing, okay, nothing has happened in this; let’s look into it. Let’s figure
out what we can do to move it along. But not like some alert would
come up on your computer saying – although I have those now; I can
have my staff run something out. If my associate hasn’t addressed a
case for 30 days, it will let me know nothing has been done in the file
for 30 days, and I’ll take a look at it. But other than that, no.
Tr. 26-27, 33-34, 34-35.
{¶33} The attorneys stated their actions were reasonable in this case. Tr. 43,
59. Attorney Brown stated it was excusable neglect:
Yes, and I know what you’re asking, and yes. In context of that, yes. I
think that could we have checked the online docket sooner than we did.
And I’ll say “we”. I’ll say I. Could I have checked the online docket
sooner than I did? I could have. There was nothing that would have
prevented me from doing that. I didn’t.
However, the sequencing of events here and the timing is something
that I don’t think is subject to a hard and fast rule when it comes to
electronic dockets. When it comes to those things, I think I’ve
developed a practice where there is a lot of factors. It’s what’s going on
with that particular case at the time. A lot of it has to do with my
comfort level and familiarity with that particular clerk’s office. So, for
example, I practice very infrequently in jurisdictions like Cuyahoga
County. Certainly more than Cuyahoga County, but Franklin County is
another jurisdiction which has electronic dockets. And in those
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situations, maybe when you’re getting a comfort level at the off—offset
of a ca – case, it’s a flexible approach.
So is it an attempt by me or our firm to disregard the importance of this?
No, it is not.
So yes, I think in that sense, as this is a – it’s a mistake. It’s a—if you
want to talk about the terms of the rule that you’re discussing.
Excusable neglect, inadvertent mistake, yes, it is.
Tr. 59-60.
{¶34} Considering the above, there was a procedure for handling mail, but not
necessarily one for checking to see when a final order was issued by a court.
Attorney Brown did an internal audit, which is what caught the July 21, 2015 order. In
this case, the visiting trial judge was very prompt in ruling on the motion for new trial;
the order was issued approximately one week after briefing closed. Tr. 44. The July
21, 2015 order was discovered on August 24, 2015. The Civ.R. 60(B) motion was
filed three days later.
{¶35} Given the above, the trial court did not abuse its discretion. Although
checking the online docket is not mandatory in our district, it is clear Appellant’s
attorneys knew of the online docket and in other counties checked that docket to
keep apprised of cases. Furthermore, a new trial ruling is clearly a final order and it
does extend the time for filing an appeal. This is not a situation where a party is
blindsided by a final order it was not expecting. A tickler system could have easily
been used to check and see if the order was issued. Parties are expected to keep
themselves informed on the progress of their case. Moreover, the trial court
indicated it did not believe the Attorneys. Appellant did not have Attorney Smith,
Attorney Stoneking, and the mail employee testify. The Court found fault in their
exclusion and stated, “The Plaintiffs choose what evidence to present and what not to
present. This Court finds said evidence to be unconvincing.” 2/13/17 J.E. The trial
court’s reasoning is not unreasonable.
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{¶36} In conclusion, the law of the case doctrine and the mandate rule were
not violated, and the trial court did not abuse its discretion in denying the motion to
vacate. The trial court’s decision is affirmed.
Donofrio, P.J., concurs.
Waite, J., concurs.