[Cite as Shingler v. Lafayette Point Nursing & Rehab. Ctr., 2014-Ohio-5026.]


                                       COURT OF APPEALS
                                   COSHOCTON COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                             JUDGES:
CINDY SHINGLER                                       :       Hon. W. Scott Gwin, P.J.
                                                     :       Hon. Sheila G. Farmer, J.
                         Plaintiff-Appellee          :       Hon. John W. Wise, J.
                                                     :
-vs-                                                 :
                                                     :       Case No. 2014CA0006
LAFAYETTE POINT NURSING AND                          :
REHABILITATION CENTER,                               :
ET AL                                                :       OPINION

                  Defendants-Appellants




CHARACTER OF PROCEEDING:                                 Civil appeal from the Coshocton County
                                                         Court of Common Pleas, Case No. 2013CI
                                                         0283


JUDGMENT:                                                Reversed and Remanded



DATE OF JUDGMENT ENTRY:                                  November 10, 2014

APPEARANCES:

For Plaintiff-Appellee                                   For Defendants-Appellants

PAUL FLOWERS                                             ERIC HERSHBERGER
Terminal Tower, 35th Floor                               7650 Rivers Edge Drive, Ste. 100
50 Public Square                                         Columbus, OH 43235
Cleveland, OH 44113

KIMBERLY YOUNG
6105 Parkland Boulevard
Mayfield Heights, OH 44124
[Cite as Shingler v. Lafayette Point Nursing & Rehab. Ctr., 2014-Ohio-5026.]


Gwin, P.J.

        {¶1}     Appellants appeals the February 24, 2014 judgment entry of the

Coshocton County Court of Common Pleas granting appellee’s motion to vacate the

November 7, 2014 order of dismissal, accepting as filed appellee’s amended complaint,

and returning the case to the active docket.

                                          Facts & Procedural History

        {¶2}     On April 22, 2013, appellee Cindy Shingler filed a complaint in the

Cuyahoga County Common Pleas Court against appellant Lafayette Point Nursing and

Rehabilitation Center, appellant Provider Services Holdings, LLC (“Provider Services”),

and Michael Provenza (“Provenza”) for wrongful termination. On July 8, 2013, the trial

court judge in Cuyahoga County granted appellants’ motion to transfer venue to the

Coshocton County Court of Common Pleas. Appellants’ motion to dismiss Provider

Services and Provenza pursuant to Civil Rule 12(B)(6) remained pending at the time the

case was transferred to Coshocton County. On September 13, 2013, the trial court

denied appellants’ motion to dismiss as to Provider Services. The trial court granted

appellee until November 1, 2013 to amend the complaint to add factual allegations

against Provenza or the case would be dismissed as to Provenza.                       The trial court

further gave appellee until November 1, 2013 to file an amended complaint containing a

copy of the agreement referenced in the complaint.

        {¶3}     Appellee dismissed Provenza from the action on September 23, 2013. On

November 7, 2013, appellants filed a motion to dismiss for failure to amend. On the

same day as appellants’ motion was filed, the trial court dismissed the case with

prejudice for failure to file the amended complaint.                     Appellee filed a motion for
Coshocton County, Case No. 2014CA0006                                                     3


reconsideration and leave to file an amended complaint instanter on November 14,

2013. Appellants filed a memorandum in opposition on November 22, 2013. Appellee

filed an appeal of the November 7, 2013 judgment entry on December 9, 2013.

       {¶4}   The trial court issued a judgment entry on December 9, 2013, granting

appellee’s motion for reconsideration and leave to file an amended complaint. The trial

court vacated the November 7, 2013 judgment entry and accepted appellee’s complaint

as filed. Subsequently, appellee dismissed her appeal.

       {¶5}   On February 14, 2014, appellee filed a motion to vacate the judgment

entry of November 7, 2013 pursuant to Civil Rule 60(B). Attached to the motion was the

affidavit of appellee’s attorney stating that she inadvertently overlooked the final portion

of the November 7th entry requiring the agreement be submitted with an amended

pleading.

       {¶6}   The trial court issued a judgment entry on February 24, 2014, granting

appellee’s motion to vacate. The trial court found that the motion to vacate was filed

within a reasonable time and alleged a potentially viable claim for relief. Further, that

appellee’s failure to comply with the September 13th order is attributable to excusable

neglect and no undue prejudice would be suffered by any party if the motion were

granted.    The trial court thus vacated its November 7th order, accepted appellee’s

amended complaint as filed, and returned the case to the active docket.

       {¶7}   Appellant appeals the February 24, 2014 judgment entry of the Coshocton

County Common Pleas Court and assigns the following as error:

       {¶8}   “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS

BY     GRANTING        PLAINTIFF-APPELLEE’S           FACTUALLY         AND      LEGALLY
Coshocton County, Case No. 2014CA0006                                                      4


UNSUPPORTED MOTION FOR RELIEF FROM JUDGMENT WITHOUT AFFORDING

APPELLANTS THE OPPORTUNITY TO RESPOND TO THAT MOTION WITHIN THE

TIME PERMITTED BY RULE (SEE, ENTRY OF FEBRUARY 24, 2014 GRANTING

PLAINTIFF’S MOTION TO VACATE).”

       {¶9}   In their sole assignment of error, appellants include three arguments: (1)

that the trial court erred in failing to provide them time to respond to the motion to

vacate as provided by local rule; (2) that there is neither a legal or factual basis existing

for granting the Civil Rule 60(B) motion and thus this Court should reverse the trial

court’s ruling and dismiss the case in its entirety; and (3) appellee’s arguments in

support of the Civil Rule 60(B) motion could have been raised in her first appeal.

       {¶10} We will address the first argument advanced by appellants as we find it to

be dispositive of this appeal. Appellants argue the trial court erred in granting the Civil

Rule 60(B) motion for relief from judgment without affording them the opportunity to

respond in accordance with the local rules. We agree.

       {¶11} Local Rule 10.1 of the Court of Common Pleas of Coshocton County

provides as follows:

              All motions should be accompanied with a memorandum in

              support stating the grounds and citing applicable authorities.

              The non-moving party shall serve any responsive pleading

              on or before the fourteenth day after the date of service.

              The moving party shall serve any reply on or before the

              seventh day after the date of service. On the twenty-eighth

              day after the motion is filed, the motion shall be deemed
Coshocton County, Case No. 2014CA0006                                                     5


               submitted to the Court for ruling.       Motions for summary

               judgment taken pursuant to Civil Rule 56 will be heard

               according to a schedule ordered by the Court.        This rule

               shall also not apply to motions for default judgment, which

               may be ruled upon the same date the motion for default

               judgment is filed, at the discretion of the Court.

         {¶12} Appellee filed her motion to vacate on February 14, 2014. By judgment

entry filed February 24, 2014, the trial court granted the motion. Pursuant to Local Rule

10.1 of Court of Common Pleas of Coshocton County, appellants had fourteen (14)

days to respond to appellee’s motion. We find that less than fourteen (14) days had

lapsed from the filing of the motion and therefore, per local rules, the decision of

February 24, 2014 was premature and the trial court erred in ruling on the motion

without affording appellants the opportunity to respond in accordance with the local

rules.     See U.S. Bank Nat’l Assn. v. Abbruzzeese, 5th Dist. Delaware No.

08CAE050021, 2010-Ohio-2565, Ohio Savings Bank v. Abrahum, 5th Dist. Coshocton

No. 07CA0014, 2008-Ohio-3424.

         {¶13} Accordingly, appellants’ first assignment of error is granted with regards to

the compliance with the local rules. The remaining arguments advanced by appellants

in their brief are moot.
Coshocton County, Case No. 2014CA0006                                          6


      {¶14} The February 24, 2014 judgment entry of the Coshocton County Court of

Common Pleas is reversed and we remand the matter to the trial court for further

proceedings in accordance with the law and this opinion.



By Gwin, P.J.,

Farmer, J., and

Wise, J., concur
