Lottridge v. Gahanna-Creekside Invests., L.L.C.

[Cite as Lottridge v. Gahanna-Creekside Invests., L.L.C., 2015-Ohio-4562.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Rebecca Lottridge, :
Plaintiff-Appellant, :
No. 14AP-600
v. : (C.P.C. No. 11CV-11198)
Gahanna-Creekside Investments, LLC, : (REGULAR CALENDAR)
et al.,
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on November 3, 2015
Schermer Law, LLC, and Amy K. Schermer; Worley Law,
LLC, and Caroline Z. Worley, for appellant.
Isaac Wiles Burkholder & Teetor, LLC, and Brian M. Zets, for
appellee City of Gahanna.
Isaac Wiles Burkholder & Teetor, LLC, William Benson and
Brandon Abshier, for appellee Dugan & Meyers Construction
Services; Dickie, McCamey & Chilcote, PC, Mary Barley-
McBride and Mary McWilliams Dengler, for appellee
BBC&M Engineering, Inc. (nka S&ME Inc.); Reminger Co.,
L.P.A., and Gregory D. Brunton, for appellee GEO Solutions,
Inc.; Mazza and Associates, LLC, John Mazza and CNA Staff
Counsel, Steven K. Kelley, for appellee George Igel & Co., Inc.;
John Nemeth & Associates, and David A. Herd, for appellees
Gahanna-Creekside Investments, LLC, and Stonehenge
Company; Allen, Kuhnle, Stovall & Neuman, LLP, Rick
Ashton and Steven Vanslyck, for appellee Stonehenge
Company; Weston Hurd, LLP, David T. Patterson and
Frederick T. Bills, for appellee Bird Houk.
Steptoe & Johnson, PLLC, and James C. Carpenter, for
appellee GGC Engineers, Inc.
ON APPLICATION FOR RECONSIDERATION
No. 14AP-600 2
BROGAN, J.
{¶ 1} Plaintiff-appellant Rebecca Lottridge applies for reconsideration pursuant
to App.R. 26(A), seeking modification of our prior decision on the merits in this matter
rendered on June 4, 2015. Lottridge v. Gahanna-Creekside Invests., LLC, 10th Dist. No.
14AP-600, 2015-Ohio-2168.
{¶ 2} Our prior decision affirmed a judgment of the Franklin County Court of
Common Pleas granting summary judgment in favor of defendants-appellees City of
Gahanna, Dugan & Meyers Construction Services, BBC&M Engineering, Inc. (nka S&ME
Inc.), GEO Solutions, Inc., George Igel & Co., Inc., Gahanna-Creekside Investments, LLC,
Stonehenge Company, Bird Houk, and GGC Engineers, Inc.
{¶ 3} Appellant's claims in this case arise out of damage to her commercial real
property allegedly caused by excavation related to construction of a large commercial
development (the "Creekside project") on adjacent land. The defendants, including the
City of Gahanna, held various roles in the development and construction of the Creekside
project. The trial court granted summary judgment for the defendants on the basis that
appellant had delayed filing suit until after the expiration of the applicable statutes of
limitations.
{¶ 4} The test applied to an application for reconsideration is whether the motion
calls to the attention of the court an obvious error in our prior determination or raises an
issue that was not properly considered by the court in the first instance. Matthews v.
Matthews, 5 Ohio App.3d 140 (10th Dist.1981). This rule providing an opportunity to
apply for reconsideration is not intended for instances in which a party simply disagrees
with the reasoning and conclusions of the appellate court. Drs. Kristal & Forche, D.D.S.,
Inc. v. Erkis, 10th Dist. No. 09AP-06, 2009-Ohio-6478, citing State v. Owens, 112 Ohio
App.3d 334, 336 (11th Dist.1996).
{¶ 5} Appellant seeks reconsideration on the basis that our decision contains an
internal inconsistency, and that based on the facts assumed in our opinion, the statute of
limitations had not run as to defendant-appellees Gahanna-Creekside Investments, LLC,
and the Stonehenge Company, Inc.
No. 14AP-600 3
{¶ 6} Because appellant's application does point out an obvious error in our
decision, we grant the application for reconsideration, reverse the trial court's judgment
as to the two above-named defendants, and remand the matter for further proceedings.
{¶ 7} Our decision specifically held that based upon application of the discovery
rule to toll the applicable statutes of limitation, construing the contested facts in favor of
appellant, she had "two years from August 2008 to sue the City of Gahanna and four years
to sue the other defendants." Lottridge at ¶ 24. Appellant filed her initial complaint
against Gahanna-Creekside, LLC, and the Stonehenge Company, Inc., on September 7,
2011.1 Appellant correctly points out that under our interpretation of the facts governing
her discovery of damage to her building, this complaint was filed within the applicable
statute of limitations for Gahanna-Creekside, LLC, and the Stonehenge Company, Inc.,
albeit not within the two-year limitation on actions against the city.
{¶ 8} We therefore find that appellant has pointed out an obvious error in our
decision and grant the application for reconsideration. Based on the balance of the
analysis in our decision, the trial court's the judgment in favor of Gahanna-Creekside
Investments, LLC, and the Stonehenge Company, Inc., must be reversed. Our prior
decision in the case is modified accordingly, and the matter is remanded to the trial court
for further proceedings.
Application for reconsideration granted;
Judgment affirmed in part, reversed in part;
cause remanded.
DORRIAN and LUPER SCHUSTER, JJ., concur.
BROGAN, J., retired, formerly of the Second Appellate
District, assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).
_______________________
1 The various other defendants were added by amendment at later dates beyond the four-year limit, and
are not implicated in the current discussion.