IN THE SUPREME COURT OF OHIO

Transcription

1 ^. IN THE SUPREME COURT OF OHIO James Daniel Hughes, et al., : On Appeal from the Franklin Appellees, County Court of Appeal, : Tenth Appellate District V. Court of Appeals Gilbane Building Company, et al., Appeals Case No. 14AP Appellants. EMERGENCY MOTION OF APPELLANTS GILBANE BUILDING COMPANY AND BAKER CONCRETF, CONSTRUCTION, INC. FOR IMMEDIATE STAY IN ADVANCE OF FILING A MEMORANDUM IN SUPPORT OF JURISDICTION Michael J. Valentine, Esq. ( ) Melvin J. Davis Esq. ( ) Zachary B. Pyers, Esq. ( ) Reminger Co., L.P.A. 65 East State Street, 4th Floor (614) ; FAX (614) mvalentine@eminger.com Counsel for Appellant Gilbane Building Company Christopher J. Weber, Esq. ( ) Kegler Brown 65 East State Street, Suite 1800 (614) ; FAX (614) cweber@keglerbrown.com Counsel for Appellant Baker Concrete Construction, Inc. Thomas P. Mannion ( ) Mannion & Gray, Co., LPA 1375 East 9th Street, Suite 1600 Cleveland, Ohio (216) ; FAX (216) Co-counsel for Appellant Baker Concrete Construction, Inc. Stephen S. Crandall, Esq. ( ) Of Counsel Marc G. Pera, Esq. ( ) CPW Law, LLC 15 '/a North Franklin Street Chagrin Falls, Ohio (216) ; FAX (440) steve@cpw-law.com marc@cpw-law.com Counsel for Appellees Paul W. Flowers, Esq. (# ) Paul W. Flowers Co., L.P.A. Terminal Tower, 35tt, Floor 50 Public Square Cleveland, Ohio (216) ; FAX (216) pwf@pwfco.com Co-counselfor Appellees Daniel G. Taylor, Esq. ( ) 140 East Town Street, Suite (614) ; FAX (614) dani el_taylor@staffdefens taylor@staffdefense.com Counsel for Monesi Truckang & Equipment Repc ^t^..^,;,,.-,::.,,.<^,., Inc. and Isaac Hinton... ^. '' '.; r-; ^:^ ''' :., ; :..,,,.., ;,, s "'.s;' ".,., f

2 IN THE SUPREME COURT OF OHIO James Daniel Hughes, et al., On Appeal from the Franklin Appellees,. County Court of Appeal, Tenth Appellate District v. Gilbane Building Company, et al., Court of Appeals Appeals Case No. 14AP Appellants. EMERGENCY MOTION OF APPELLANTS GILBANE BUILDING COMPANY AND BAKER CONCRETE CONSTRUCTION, INC. FOR IMMEDIATE STAY IN ADVANCE OF FILING A MEMORANDUM IN SUPPORT OF JURISDICTION Now come the Appellants Gilbane Building Company and Baker Concrete Construction, Inc. by and through the undersigned counsel, and request an immediate stay from judgment of the Franklin County Court of Appeals, Tenth Appellate District, entered in Court of Appeal case No. 14AP on September 5, A copy of the Franklin County Court of Appeals, Tenth Appellate District's opinion and judgment entry being appealed is attached to the Motion to Stay as Exhibit "A." This Motion for Stay of the court of appeals' judgment is filed contemporaneously with the notice of appeal. A Memorandum in support is attaclied and incorporated. Respectfully submitted, ^ ^^^^1- '1/ Michael J. Valentine, Esq. ( ) Melvin J. Davis Esq. ( ) Zachary B. Pyers, Esq. ( ) Reminger Co., L.P.A. 65 East State Street, 4th Floor (614) ; FAX (614) mvalentine@reminger.com Counselfor DefendantlAppellant Gilbane Building Company Christopher J. Weber, Esq. ( ) Kegler Brown 65 East State Street, Suite 1800 (614) ; FAX (614) cweber@keglerbrown.com Attorney for DefendantlAppellant Baker Concrete Construction, Inc. 2

3 ^^^--^--- ^ Thomas P. Mannion ( ) Mannion & Gray, Co., LPA 1375 East 9th Street, Suite 1600 Cleveland, Ohio (216) ; FAX (216) Co-counsel for Defendant/Appellant Baker Concrete Construction, Inc. 79f2 ` ^

4 MEMORANDUM IN SUPPORT OF MOTION FOR IMMEDIATE STAY IN ADVANCE OF FILING A MEMORANDUM IN SUPPORT OF JURISDICTION 1. INTRODUCTION/BACKRGROUND This matter comes before this Court from a judgment of the Franklin County Court of Appeals, Tenth Appellate District, entered in Court of Appeal case No. 14AP688 on September 5, An immediate stay is necessary because the trial court intends to proceed with trial scheduled for September 8, 2014, which will irreparably harm Defendants/Appellants and deny their right to appeal the Tenth District's Entry. The appellate process in this case has been substantially accelerated. On August 12, 2014, nine months after Defendants/Appellants filed Motions for Bifurcation, Plaintiffs/Appellees requested for the first time that they be permitted to introduce evidence of punitive conduct during the compensatory damages phase to bar DefendantstAppellants' contributory negligence defense. On August 29, 2014, the trial court issued a Decision and Entry ("Decision") that allows Plaintiffs/Appellees to introduce evidence of alleged punitive conduct during the compensatory damages phase of a negligence action. The trial court's Decision is a denial of Defendants/Appellants' Motions for mandatory bifurcation under R.C (B). Plaintiffs/Appellees conceded that an order denying bifurcation is immediately reviewable as a final appealable order under R.C (B)(6), Flynn v. Fairview Village Retirement Cmm., 132 Ohio St.3d 199, 2012-Ohio-2582 and Hanners v. Ho Wah Genting Wire & Cable, 10th Dist. No. 09AP-361, 2009-Ohio-6481, Thus, Defendants/Appellants timely appealed to the Tenth District on September 2, 2014, one business day after the trial court issued is Decision. Plaintiffs/Appellees filed an Emergency Motion to Dismiss with the Tenth District on September 3, Pursuant to the Tenth District's request, Defendants/Appellant's filed a Memorandum in Opposition to Appellees' 4

5 Emergency Motion to Dismiss on September 4, On September 5, 2014, the Tenth Appellate District issued a one paragraph Journal Entry dismissing Defendants/Appellants' appeal for a lack of a final appealable order for purposes of R.C As a result of the extremely expedited appellate process, the Defendants/Appellants file this Motion requesting an immediate stay from the court of appeals judgment, and a corresponding extension of time under S.Ct. Prac. R. 7.01(A)(3)(b) to file their Brief in Support of Jurisdiction. III. LAW & ARGUMENT. Motions for Stay are govemed by S.Ct. Prac. R. 7.03(A)(3)(a), which require that: (1) the Motion be filed with a Notice of Appeal; and, (2) a copy of the court of appeals' opinion and judgment entry being appealed is attached to the Motion. As noted above, both of these requirements are satisfied. Further, pursuant to S.Ct. Prac. R. 7.03(A)(3)(b), the Appellants will have 45 days from the date of the judgment entry being appealed from to file their Memorandum in Support of Jurisdiction with this Court. Moreover, this Court has consistently held that once an appeal is perfected, the trial court is divested of jurisdiction over matters that inconsistent with the reviewing court's jurisdiction to reverse, modify, or affirm he judgnient. State ex rel, Electronic Classroom of Tomorrow v. Cuyahoga Cty. Court of Common Pleas, 129 Ohio St.3d 30, 2011-Ohio- 626, 13. Plaintiffs/Appellees will suffer no prejudice if this Court grants the requested Stay, because Defendants/Appellants would normally be entitled to file a Notice of Appeal, with Memorandum in Support of Jurisdiction, within 45 days of the entry being appealed from. S.Ct. Prac. R. 7.01(A)(1)(a). Defendants/Appellants are not responsible for the timing of this appeal. Rather, 5

6 Plaintiffs/Appellees waited until the month before trial to oppose bifurcation. The trial court issued its Decision less than two weeks before the trial date. Conversely, if this matter is not stayed, Defendants/Appellants will be substantially prejudiced as they will be denied their right to an appeal. Without this Court issuing a stay, the trial court stated that it intends to retain jurisdiction of this matter and immediately proceed to trial. Defendants/Appellants will also be forced to incur costs and expenses in proceeding to trial, while this case remains on appeal. Thus, a denial of the stay will immediately prejudice the Appellants. III. CONCLUSION. For the reasons, Appellants Gilbane Building Company and Baker Concrete Construction, Inc. request an iinmediate stay from judgment of the Franklin County Court of Appeals, Tenth Appellate District, entered in Court of Appeal case No. 14AP on September 5, Respectfully submitted, 2L r_) o 7 `f Michael J. Valentine, Esq. ( ) Melvin J. Davis Esq. ( ) Zachary B. Pyers, Esq. ( ) Reminger Co., L.P.A. 65 East State Street, 4th Floor (614) ; FAX (614) mvalentine@reminger.com Counsel, for DefendantlAppellant Gilbane Building Company Christopher J. Weber, Esq. ( ) Kegler Brown 65 East State Street, Suite 1800 (614) ; FAX (614) cweber@keglerbrown.com Attorney, for Defendant/A.ppellant Baker Concrete Construction, Inc. 6

7 7 124 Thomas P. Mannion ( ) Mannion & Gray, Co., LPA 1375 East 9th Street, Suite 1600 Cleveland, Ohio (216) ; FAX (216) Co-counsel for Defendant/Appellant Baker Concrete Construction, Inc. CERTIFICATE OF SERVICE I certify that a copy of this Notice of Appeal was sent by ordinary U.S. mail, and , on Septenlber 5, 2014 to: Stephen S. Crandall, Esq. ( ) Of Counsel Marc G. Pera, Esq. ( ) CPW Law, LLC 15 F/2 North Franklin Street Chagrin Falls, Ohio steve@cpw-law.com marc@cpw-law.com Counsel for Appellees Daniel G. Taylor, Esq. ( ) 140 East Town Street, Suite Counsel for Monesi Trucking & Equipment Repair, Inc. and Isaac Hinton Paul W. Flowers, Esq. (# ) Paul W. Flowers Co., L.P.A. Terminal Tower, 35tn Floor 50 Public Square Cleveland, Ohio (216) ; FAX: (216) pwf@pwfco.com Co-counsel for Appellees '^Z-^"^I Michael J. Valentine ( ) Melvin J. Davis ( ) Counselfor Defendant/Appellant Gilbane Building Co. 7

8 IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT James Daniel Hughes et al., Plaintiffs-Appellees, V. No. 74AP-688 CT Corporation Systems et al.,. (REGULAR CALENDAR) Defendants-Appellees, (Gilbane Building Company et al., Defendants-Appellants) JOURNAL ENTRY OF DISMISSAL Appellees' September 3, 2014 motion to dismiss this appeal is granted on the grounds that the trial court's August 29, 2014 decision is not a final appealable order for purposes of R.C o2. This appeal is hereby dismissed. Appellees' September 3, 2014 motion for sanctions is denied, ^.... _.-^.,.,^..^^,_,. ^ ^.. Judge Susan Brown Judge tisa L. Sadler, P.J. i^ p N ^ AI / 5. Judge Betq Luper S' huster J cc: Clerk, Court of Appeals EXHIBIT