Vanest v. Pillsbury Co.

Page 525

124 Ohio App.3d 525

706 N.E.2d 825

VANEST, Appellant, v. PILLSBURY COMPANY et al., Appellees. ^*

No. 97 CA 800.

Court of Appeals of Ohio Fourth District, Jackson County.

Decided Dec. 19, 1997.

Russell A. Kelm and Joanne F. Weber, Columbus, for appellant.

Duke W. Thomas and Keith W. Hult, Columbus, for appellees.

PETER B. ABELE, Judge.

This is an appeal from a Jackson County Common Pleas Court judgment denying Thomas O. Vanest, plaintiff below and appellant herein, relief from summary judgment entered in favor of the Pillsbury Company and Glen L. Crawford, defendants below and appellees herein.

Appellant assigns the following errors:

FIRST ASSIGNMENT OF ERROR:

"The trial court erred in granting defendants' motion for summary judgment without consideration of plaintiff's opposition thereto."

SECOND ASSIGNMENT OF ERROR:

"The trial court erred in denying appellant's motion for relief under rule 60(B)."

THIRD ASSIGNMENT OF ERROR:

"The trial court erred in denying plaintiff certain discovery in this age discrimination case."

Our review of the record discloses the following facts pertinent to this appeal. Appellant began working for the Pillsbury Company ("Pillsbury") in 1968. In 1992, after appellant had occupied various positions with Pillsbury, ranging from a quality control technician to plant manager, Glen L. Crawford, the Vice President of Pizza Production, offered appellant the position of director of manufacturing at the Wellston, Ohio facility. Apparently, both appellant and Crawford expected that within a year or two appellant would be promoted to plant manager of the Wellston facility. Appellant, however, did not receive the promotion, and in October 1993, Crawford announced his decision to terminate appellant. Appellant was officially terminated in January 1994.

On February 17, 1994, appellant filed a complaint alleging that appellees terminated his employment at Pillsbury's Wellston, Ohio plant on the basis of age and that appellees engaged in a pattern or practice of age discrimination.

On January 2, 1997, appellees filed a motion for summary judgment asserting that appellant could not establish a prima facie case of age discrimination. When appellant's counsel received appellees' motion for summary judgment, they searched the Jackson County local rules of court to determine the response date for appellant's opposition memorandum. Appellant's attorneys were unable to locate a local rule governing the due date for a memorandum in opposition to a motion for summary judgment.

On January 8, 1997, appellees and appellant engaged in a mediation conference with retired Judge Donald Cox. Appellant's counsel asked retired Judge Cox if he knew the due date for a memorandum in opposition to summary judgment. Appellant asserts that retired Judge Cox informed appellant's counsel that a memorandum in opposition was due within twenty-eight days after the motion was filed. Appellant's counsel, therefore, noted January 28, 1997 as the due date for his opposition memorandum.

On January 9, 1997, the trial court scheduled appellees' motion for summary judgment for a non-oral hearing on January 23, 1997. The trial court sent appellant and appellees written notice ¹ of the non-oral hearing date and informed the parties of the January 23, 1997 deadline for filing evidence and arguments concerning appellees' motion for summary judgment. Appellant's attorneys admit that they received the notice. On Friday, January 10, 1997, when appellant's attorneys received the notice, they were preparing for a trial that began on Monday, January 13, 1997 in Toledo and, apparently, did not carefully read the notice. ²

On January 22, 1997, appellees filed a supplemental memorandum in support of their motion for summary judgment. As of January 23, 1997, appellant had not responded to appellees' motion.

On January 23, 1997, the parties were scheduled to attend a pretrial conference. Appellant's attorneys, however, soon became aware that they would be unable to attend due to a conflict with the trial in Toledo. Appellant moved for a continuance of the pretrial or, alternatively, requested that the pretrial be conducted by telephone. The trial court apparently did not grant appellant's request for a continuance.

As appellant's attorneys found it impossible to be "in two places at one time," counsel requested the judge presiding over the trial in federal court, Judge Carr, to telephone the Jackson County judge, Judge Holzapfel. On January 22, 1997, Judge Carr informed Judge Holzapfel that appellant's attorneys were involved in a trial in Toledo and would be unable to attend the pretrial conference on January 23, 1997. Judge Carr further stated that appellant's attorneys could be held in contempt if either left to attend the pretrial. Accordingly, Judge Holzapfel deferred to Judge Carr's request and continued the pretrial.

On January 27, 1997, the trial court, finding that appellant failed to establish a prima facie case of age discrimination, issued a "Decision and Order" granting appellees' motion for summary judgment.

On January 29, 1997, appellant requested the court to enlarge the time to respond to appellees' motion for summary judgment. Appellant also filed a motion for relief from judgment, pursuant to Civ.R. 60(B)(1), from the court's "Decision and Order" granting appellees' motion for summary judgment. In his motion for relief from judgment, appellant argued that he failed to timely respond to appellees' motion due to counsel's inadvertence and excusable neglect.

On March 31, 1997, the trial court issued a judgment entry reflecting its "Decision and Order" of January 27, 1997 that had granted appellees' motion for summary judgment.

On April 8, 1997, the trial court issued a "Decision and Order" denying appellant's motion for relief. The trial court found that appellant's failure to respond to appellees' motion for summary judgment did not result from the excusable neglect or inadvertence of appellant's counsel. The trial court did not agree with appellant's counsel's assertion that their reliance on retired Judge Cox's statement concerning the due date for an opposition memorandum met the standard of excusable neglect or inadvertence. Rather, the trial court found that appellant's counsel's failure to read the notice of non-oral hearing constituted inexcusable neglect.

Furthermore, appellant's counsel suggested that because the trial court knew that appellant's attorneys were "fully occupied" with the trial in Toledo and knew that appellant's attorneys were unable to attend the pretrial conference on January 23, 1997, the trial court should have known that appellant's attorneys would not be able to respond to appellees' motion for summary judgment by January 23, 1997. Appellant's attorneys imply that the trial court, on its own motion, should have continued the non-oral hearing date. The trial court found counsel's suggestion "ludicrous."

On April 11, 1997, appellant timely filed a notice of appeal.

I & II

As appellant's first and second assignments of error raise related issues, we will address them together.

First, appellant contends that the trial court erred by granting appellees' motion for summary judgment without considering appellant's untimely filed opposition materials. Appellant argues, essentially, that if the trial court also had considered appellant's arguments and evidence, granting summary judgment in favor of appellees would have been inappropriate. Appellant asserts that the trial court, pursuant to its nunc pro tunc authority, should have enlarged his response time to appellees' motion for summary judgment and considered his opposition memorandum. ³ Second, appellant asserts that the trial court erred by overruling his motion for relief from the "Decision and Order" entered on January 27, 1997 and finalized as a judgment on March 31, 1997.

As a preliminary matter, we must sort through certain procedural issues associated with appellant's "motion for relief from judgment."

On January 27, 1997, the trial court issued a "Decision and Order" granting appellees' motion for summary judgment. On January 29, 1997, appellant filed a Civ.R. 60(B) motion seeking relief from the trial court's January 27, 1997 "Decision and Order." On March 31, 1997, the trial court issued its final judgment sustaining appellees' motion for final judgment.

By its terms, Civ.R. 60(B) applies only to final judgments or orders. See Civ.R. 60(B) ("On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment * * *.") (Emphasis added.); Jarrett v. Dayton Osteopathic Hosp., Inc. (1985), 20 Ohio St.3d 77, 78, 20 OBR 407, 407-408, 486 N.E.2d 99, 100; Keenan v. Huntington Acceptance Co. (1993), 91 Ohio App.3d 795, 811, 633 N.E.2d 1164, 1174. It follows that Civ.R. 60(B) is not the proper procedural device a party should employ when seeking relief from a non-final order. Jarrett, supra. Rather, to obtain relief from a non-final order, a party should file a motion for reconsideration with the court. Pitts, supra.

Appellant filed his "motion for relief from judgment" on January 29, 1997--approximately two months before the entry of a final judgment. ⁴ Thus, when appellant filed his "motion for relief from judgment," no judgment from which he could be relieved existed. In such a situation, courts generally hold that the prematurely filed "motion for relief" from the interlocutory order should be treated as a motion for reconsideration. See Mulford v. Columbus & S. Elec. Co. (Jan. 12, 1994), Athens App. No. 1548, unreported, 1994 WL 11426; In re Estate of Horowitz (Mar. 31, 1993), Trumbull App. No. 92-T-4710, unreported, 1993 WL 150487; Lozon v. Malloy (Nov. 24, 1992), Franklin App. No. 92AP-449, unreported, 1992 WL 356232; Wolnitzek v. Bean (May 23, 1988), Montgomery App. No. 10787, unreported, 1988 WL 55558. As we stated in Mulford, supra:

"Motions...