Franks v. Lopez , 121 Ohio App. 3d 523 ( 1997 )

This is an appeal from a February 1, 1996 judgment of the Sandusky County Court of Common Pleas in which the court granted summary judgment to appellees, the Sandusky County Board of Commissioners and the Sandusky County Engineer, and entered an order dismissing the case. The procedural history of this appeal is complex, and includes a previous appeal to this court, Franksv. Sandusky Twp. Bd. of Trustees (Mar. 31, 1992), Sandusky App. No. S- 91-18, unreported, 1992 WL 66561, and to the Supreme Court of Ohio, Franks v. Lopez (1994), 69 Ohio St. 3d 345,632 N.E.2d 502. The judgment from which this current appeal is brought was entered by the trial court following a remand of the case to the trial court by the Supreme Court of Ohio.

We have previously given a detailed account of the facts in this case, Franks v. Sandusky Twp. Bd. of Trustees (Mar. 31, 1992), Sandusky App. No. S-91-18, unreported, 1992 WL 66561 and will limit our discussion of the facts to a brief summary for the purposes of this appeal. This case originally arose from two separate wrongful death claims that were consolidated for trial. The wrongful death claims were filed by appellants, Lisa Franks and M. Carol Bryant, acting in their administrative capacities for the estates of two passengers who drowned when the car in which they were riding hurtled down a bank and landed upside down in a river after being driven off the road at a curve in a road where no guardrail was in place.

Both plaintiffs subsequently filed amended complaints that named several defendants, including the commissioners and the engineer; the Sandusky Township Board of Trustees; Rhonda L. Lopez, the driver of the car that landed in the river; and Adrian Zavala, the boyfriend of one of the deceased passengers, who was allegedly driving his car in a chase after the driver's car that led to the accident.¹ The claims against the commissioners, the engineer and the trustee were based upon allegations that they failed to design or maintain a safe roadway. The claims against the driver and the boyfriend were based upon allegations that they drove recklessly.

The driver of the car filed cross-claims against the trustees, the commissioners, the engineer and the boyfriend. She sought indemnification and compensation for injuries she sustained in the accident. The trustees, the commissioners, and the engineer filed answers to the cross-claims of the driver and filed separate cross-claims of their own. The trustees, commissioners, and engineer named the driver and the boyfriend as defendants in their cross-claims and sought indemnification. The driver filed answers to the cross-claims, but the boyfriend did not answer appellants' complaints or any of the cross-claims.

The commissioners and engineer filed a motion for summary judgment against appellants' amended complaints and against the driver's cross-claims. The trustees also filed a motion for summary judgment against appellants' amended complaints and against the driver's cross-claims. Appellants filed a motion for partial summary judgment against the commissioners, the engineer, and the trustees for liability.

The trial court considered all of the motions and memorandums in opposition to the motions and issued a judgment entry on March 12, 1991, in which it granted the summary judgments sought by the commissioners, the engineer, and the trustees against appellants. The trial court denied appellants' motion for partial summary judgment. Finally, the trial court granted the commissioners, the engineer, and the trustees summary judgment against the driver on her cross-claims.

This court affirmed in part and reversed in part the March 12, 1991 ruling of the trial court. Franks v. Sandusky Twp. Bd. ofTrustees (Mar. 31, 1992), Sandusky App. No. S-91-18, unreported, 1992 WL 66561. This court found that the engineer was entitled to summary judgment on appellants' claims, but that questions of fact remained regarding whether the trustees were liable for nuisance because of the maintenance of signage at the intersection where the accident occurred (i.e., the sign was not reflectorized and was smaller than regulations required). This court also ruled that the commissioners were not entitled to summary judgment as a matter of law on the issue of whether the county should have installed a guardrail at the curve where the accident occurred (because questions of fact remained regarding whether the wash bank was steep enough to require the guardrail installation). Finally, this court found that the summary judgments granted to the commissioners and to the trustees regarding the driver's cross-claims were in error because the trial court did not address the issue of whether the cross-claims were barred by a statute of limitations and the issue was not moot.

The Supreme Court of Ohio affirmed the decision of this court.Franks v. Lopez (1994), 69 Ohio St. 3d 345, 351, 632 N.E.2d 502,506. At the conclusion of its opinion, the Supreme Court stated:

"To summarize, we conclude questions of fact remain as to (1) whether the township breached its duty to keep its roads `free from nuisance' for its alleged failure to maintain the reflectorized sign and its alleged failure to comply with the manual, and (2) whether the county had a duty to install a guardrail pursuant to R.C. 5591.36. We further find, as a matter of law, that the alleged defective design and construction and the failure to erect proper signage do not constitute a nuisance within the meaning of R.C. 2744.02(B)(3). Therefore, the county and township are immune from suit for these claims. Finally, we note the negligence claims against Lopez and Zavala, as well as the statute of limitations defense asserted against Lopez, are still intact and remain to be resolved by the trial court."

The case was then remanded to the trial court for further proceedings.

On remand, the commissioners and the engineer filed a motion for summary judgment. In support of the motion, they argued that the method employed by appellants' expert witness to measure the angle of the wash bank of the river at the site of the accident was scientifically unreliable, rendering his testimony inadmissible. They further argued that the only remaining evidence, testimony from their expert witness regarding the angle of the wash bank, showed that the wash bank was not steep enough to require the installation of a guardrail by law.

The trustees filed a motion for summary judgment on the driver's cross-claims. The trustees argued in support of their motion that they had a complete defense to the cross-claims because the statute of limitations on the claims expired before they were filed by the driver. The driver filed a motion in opposition, arguing that the statute of limitations had not run.

Appellants filed a notice of dismissal of their claims against the driver. However, the cross-claims between the driver, the commissioners, the engineer, and the trustees all remained viable.

On January 31, 1996, the trial court filed the judgment entry from which the wrongful death complainants and the driver now appeal. The opening statement of the trial court in the judgment entry was "This cause is before the Court on Amended Motion for Summary Judgment filed by Defendants Sandusky Country [sic] Commissioners and Sandusky County Engineer. In consideration thereof, the Court finds that such motion is well taken and that it should be granted." The discussion that follows the opening statement relates solely to the issue of whether or not the testimony of appellants' expert is scientifically reliable, and whether or not a question of fact remains regarding whether the wash bank of the river was steep enough to require the installation of a guardrail by the county at the curve of the road where the accident took place. The trial court concluded that the testimony of appellants' expert was inadmissible and that the remaining evidence presented by the commissioners and the engineer show that the wash bank was not steep enough to require the installation of a guardrail as a matter of law.

The trial court then stated: "Therefore, the Court grants Defendants' motion for summary judgment. Case dismissed[.] Costs to Plaintiff [sic]."

The assignments of error presented by appellants for consideration follow.

"Assignment of Error No. 1

"The trial court misapplied Ohio R. Evid. 702 to exclude the expert testimony of John Pflum regarding the slope of the washbank because the measurement tool used by Pflum, an inclinometer, is a reliable means of measuring the slope of a wash bank. Rather than provide proof that the inclinometer is unreliable, the different measurements determined by Sandusky County's use of a topographical survey merely raise an issue of fact for the jury.

"Assignment of Error No. 2

"The trial court did not apply the proper law in determining what slope of the wash bank was necessary to create a question of fact for the jury to a [sic] to whether the wash bank is sufficiently close to perpendicular to impose liability on Sandusky County.

"Assignment of Error No. 3

"It is a question of fact for the jury to decide whether the wash bank in question is so steep as to require that Sandusky County install a guardrail. It is not a question for the court.

"Assignment of Error No. 4

"The trial court erroneously dismissed the plaintiffs' claims against the defendant, Sandusky Township.

"Assignment of Error No. 5

"The trial court erroneously dismissed the plaintiffs' claims against Adrian Zavala.

"Assignment of Error No. 6

"The trial court erroneously dismissed the cross-claims of Rhonda Lopez against Sandusky Township and Sandusky County.

"Assignment of Error No. 7

"The trial court erroneously determined that expert testimony was necessary to establish the slope of the wash bank.

"Assignment of Error No. 8

"The trial court committed prejudicial error and abused its discretion when it dismissed plaintiffs' case against the defendant, Sandusky County, solely upon the basis of alleged impropriety of one (1) of plaintiffs' expert witnesses, when plaintiff has other witnesses, expert and lay, who can testify concerning the `extreme steepness' of the Sandusky River Bank.

"Assignment of Error No. 9

"The court erroneously dismissed the plaintiff [sic] claims against Sandusky County. If it determined that the plaintiff's[sic] expert John Pflum used an incorrect methodology, it should have provided the plaintiff an opportunity to reexamine the wash bank utilizing a different methodology."

The assignments of error presented by the driver for consideration follow.

"First Assignment of Error:

"The Trial Court Erred in Granting Summary Judgment for the Sandusky County Commissioners on Rhonda Lopez's Cross-Claims.

"Second Assignment of Error:

"The Trial Court Erred in Dismissing Rhonda Lopez's Cross-Claims against the Sandusky Township Trustees."

We will begin by considering appellants' fourth, fifth and sixth assignments of error and the driver's second assignment of error together, as all relate to the same question. The question common to the above-named assignments of error is: did the trial court err when it dismissed the entire case, including appellants' claims against the township and the boyfriend and cross-claims between the driver, the township, the commissioners, and the engineer when it considered only issues that related to whether or not the commissioners and the engineer owed a duty to install a guardrail at the curve of the road?

The Supreme Court of Ohio considered a case where a trial court granted summary judgment to a nonmoving party and stated:

"Civ. R. 56(C) provides that summary judgment shall be rendered only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. InlandRefuse Transfer Co. v. Browning-Ferris Industries of Ohio, Inc. (1984), 15 Ohio St. 3d 321 [15 OBR 448, 474 N.E.2d 271]. Where, as here, the facts are not contested, there is no issue of fact and a settlement of the legal questions will be determinative of the dispute. Cf. id. While Civ. R. 56 does not ordinarily authorize courts to enter summary judgment in favor of a non-moving party,Marshall v. Aaron (1984), 15 Ohio St. 3d 48 [15 OBR 145,472 N.E.2d 335], syllabus, an entry of summary judgment against the moving party does not prejudice his due process rights where all relevant evidence is before the court, no genuine issue as to any material fact exists, and the non-moving party is entitled to judgment as a matter of law. Houk v. Ross (1973), 34 Ohio St. 2d 77 [63 O.O.2d 119, 296 N.E.2d 266], paragraph one of the syllabus." State ex rel. Cuyahoga Cty. Hosp. v. Bur. of Workers'Comp. (1986), 27 Ohio St. 3d 25, 28, 27 OBR 442, 444,500 N.E.2d 1370, 1373.

As our discussion of the issues and procedure in this case shows, the situation in this case does not meet the factors outlined by the Supreme Court of Ohio that justify the granting of summary judgment to a nonmoving party. For instance, a ruling that the commissioners and the engineer owed no duty to install a guardrail does not, as a matter of fact or of law, resolve the issue of whether the township is liable for failing to maintain a reflectorized sign of the proper size to warn motorists of the curve in the road. Neither does the ruling regarding the lack of a duty to install a guardrail resolve the factual and legal issues attendant to the claim against the boyfriend, who is accused of causing the accident through reckless driving. Accordingly, the trial court erred when it dismissed the entire case after considering and ruling upon the issues relating solely to the amended motion for summary judgment filed by the commissioners and the engineer. To the extent that they challenge the dismissal of all of the remaining viable claims against the township and the boyfriend, appellants' fourth and fifth assignments of error are well taken. To the extent that they challenge the dismissal of any remaining cross-claims between the township and the driver, appellants sixth and the drivers second assignments of error are well taken.

Our rulings on appellants' fourth, fifth and sixth assignments of error and on the driver's second assignment of error create a procedural posture in this case that prevents us from addressing the issues raised in the remaining assignments of error without some indication from the trial court that it intended to allow a separate appeal of the ruling on the claims the various parties brought against the commissioners and the engineer. Ohio courts have long recognized that a trial court may employ a nunc protunc order to indicate that there is no just reason for delay of an appeal of a decision that disposes of all of the claims relating to one of several parties in a case. See, e.g., Korodiv. Minot (1987), 40 Ohio App. 3d 1, 3, 531 N.E.2d 318, 320-321;Hughes v. Miner (1984), 15 Ohio App. 3d 141, 143, 15 OBR 233,234-235, 473 N.E.2d 53, 55-56. Accordingly, we remand this case to the trial court for twenty days from the date of this decision to permit the trial court to include Civ. R. 54(B) language bynunc pro tunc entry if the trial court did originally intend to permit this court to consider its ruling on the claims that relate solely to the commissioners and the engineer. If a nunc pro tunc entry is filed by the trial court within the allotted time, the clerk of the Sandusky County Court of Common Pleas shall notify this court that the judgment was entered and this case will be reinstated to this court's docket. This court will then consider the assignments of error presented by appellants and the driver that relate to the trial court's ruling on the amended motion for summary judgment that was filed by the commissioners and the engineer. However, if no nunc pro tuncentry is entered within the allotted time, the appeal on the remaining issues will be dismissed sua sponte and this court will not address the remaining assignments of error, as any discussion of the issues raised in the assignments would be advisory and premature.

Cause remanded.

¹ Other parties were also named as defendants in the amended complaint, but we do not discuss them in our decision because they were subsequently dismissed from the case and are not parties to this appeal.

HANDWORK, GLASSER and SHERCK, JJ., concur.