McClary v. M/I Schottenstein Homes, Inc., 2004 Ohio 7047 (OH 12/23/2004)
| Decision Date | 23 December 2004 |
| Docket Number | Case No. 03AP-777. |
| Citation | 2004 Ohio 7047 |
| Parties | Lisa McClary, individually and as Administrator of the Estate of Alan L. McClary, Deceased, Plaintiff-Appellant, v. M/I Schottenstein Homes, Inc. et al., Defendants-Appellees. |
| Court | Ohio Supreme Court |
APPEAL From the Franklin County Court of Common Pleas, C.P.C. No. 01CVC07-7312.
Lamkin, Van Eman, Trimble, Beals & Dougherty, Thomas W. Trimble and Keri N. Yaeger, for appellant.
Keener, Doucher, Curley & Patterson, David T. Patterson and Steven G. Carlino, for appellee M/I Schottenstein Homes, Inc.
William & Petro, Co., L.L.C., John P. Petro and Susan R. Petro, for appellees Contract Lumber, Inc. and Contract Framing, Inc.
{¶1} Plaintiff-appellant, Lisa McClary, appeals from a judgment of the Franklin County Court of Common Pleas that granted summary judgment in favor of defendantsappellees, M/I Schottenstein Homes, Inc. ("M/I"), Contract Lumber, Inc. ("Contract Lumber"), and Contract Framing, Inc. ("Contract Framing"). For the following reasons, we affirm.
{¶2} M/I was the owner, developer, and builder of Woodside Meadows, a residential development in Gahanna, Ohio. For this project, M/I contracted with Contract Framing to provide construction services at the Woodside Meadows site. Contract Framing subcontracted with J. M. Construction1 to perform the framing of a structure at Woodside Meadows.
{¶3} In July 1999, Alan L. McClary ("decedent"), an employee of J. M. Construction and a cousin of the owner, was framing the structure at Woodside Meadows when he fell two stories through an open stairwell to the concrete floor of the basement. Decedent later died as a result of injuries that he sustained.
{¶4} On July 27, 2001, plaintiff, individually and as administrator of the estate of decedent and as guardian and next friend of decedent's minor children, sued M/I, Contract Lumber, Contract Lumber South, Inc. ("Contract Lumber South")2 and James McClary, owner of J. M. Construction. In this complaint, plaintiff asserted six causes of action: (1) employer tort in which plaintiff alleged, among other things, that J. M. Construction failed to protect decedent from an allegedly dangerous condition; (2) common law negligence in which plaintiff alleged, among other things, that M/I, Contract Lumber, and Contract Lumber South negligently failed to provide a cover for the open stairwell and, alternatively, that M/I, Contract Lumber and Contract Lumber South's failure to warn of the alleged hazard constituted wanton and willful acts; (3) violations of regulations wherein plaintiff alleged, among other things, that M/I, Contract Lumber, and Contract Lumber South violated Sections 1926.501 and 1926.502, Title 29, C.F.R. and former Ohio Adm.Code 4121:1-3-04 by failing to cover the open stairwell and, alternatively, that these alleged violations constituted wanton and willful acts; (4) violations of R.C. 4101.11 and 4101.12 by defendants, thereby creating an unsafe place for employees and frequenters; (5) loss of consortium by plaintiff and decedent's minor children; and (6) wrongful death of decedent due to defendants' alleged tortious acts.
{¶5} With court approval, M/I filed a cross-claim against all co-defendants. In this cross-claim, M/I asserted two causes of action: indemnification from Contract Lumber and contribution from all co-defendants. According to M/I, Contract Lumber violated safety obligations as contained in its contract with M/I and, therefore, M/I was entitled to complete and full indemnification. Additionally, M/I contended that, assuming plaintiff proved the validity of her claims, her damages resulted, in whole or in part, from the negligence of M/I's co-defendants, thereby entitling M/I to contribution from all its codefendants.
{¶6} On September 3, 2002, M/I moved for summary judgment, wherein it argued that: (1) it owed no duty to decedent who was an employee of an independent contractor; (2) assuming arguendo that M/I owed a duty to decedent, M/I was not responsible for compliance with Occupational Safety and Health Administration ("OSHA") regulations; and (3) assuming arguendo that M/I owed a duty to decedent, M/I was not negligent because decedent's medical condition, i.e., diabetes, caused the incident that resulted in his death.
{¶7} Three days later, Contract Lumber and Contract Framing jointly moved for summary judgment, wherein these parties argued, among other things, that: (1) they did not violate a common law duty of care toward decedent; (2) they did not violate any applicable OSHA regulations and, even if they had, such violations did not constitute negligence or willful and wanton conduct; and (3) they did not violate any applicable OSHA regulations and, even if they had, such violations did not constitute negligence.
{¶8} Plaintiff opposed M/I's motion for summary judgment, as well as the motion for summary judgment of Contract Lumber and Contract Framing. In her memoranda in opposition, she argued that genuine issues of material fact precluded summary judgment as a matter of law, and attached an affidavit of an expert witness in support.
{¶9} Subsequently, in separate motions, M/I and Contract Lumber and Contract Framing moved to strike plaintiff's expert's affidavit because plaintiff failed to timely disclose her expert witness, thereby prejudicing defendants. Plaintiff did not oppose defendants' motions to strike.
{¶10} On June 13, 2003, the trial court issued a decision and entry wherein it: (1) granted defendants' motions to strike plaintiff's expert's affidavit; (2) granted M/I's motion for summary judgment; and (3) granted Contract Lumber and Contract Framing's motion for summary judgment.
{¶11} One week later, in a joint entry and by agreement of the parties, defendants' motions to strike were withdrawn. Thereafter, on June 30, 2003, the trial court rendered a decision and entry wherein it granted M/I's motion for summary judgment and also granted Contract Lumber and Contract Framing's motion for summary judgment. On July 14, 2003, pursuant to Civ.R. 41(A)(1), plaintiff dismissed without prejudice defendant J. M. Construction.
{¶12} Later, claiming that the trial court's entry of June 30, 2003, contained a clerical error, Contract Lumber and Contract Framing moved the trial court to correct this purported clerical error pursuant to Civ.R. 60(A). Based upon our review of the record, defendants' Civ.R. 60(A) motion remains outstanding.
{¶13} From the trial court's entry of June 30, 2003, plaintiff appeals and assigns the following two assignments of error:
I. The lower court erred in granting defendant M/I Schottenstein Homes, Inc.'s motion for summary judgment, because material questions of fact exist with regard to its liability for the death of plaintiff's decedent, Alan McClary.
II. The lower court erred in granting defendants contract lumber and contract framing's motions for summary judgment, because material questions of fact exist with regard to their liability for the death of plaintiff's decedent, Alan McClary.
{¶14} To begin, we sua sponte address whether the trial court's entry of June 30, 2003, is a final appealable order and whether this court properly has subject-matter jurisdiction of this cause.
{¶15} An appellate court may sua sponte raise the issue of subject-matter jurisdiction. State ex rel. White v. Cuyahoga Metro. Hous. Auth. (1997), 79 Ohio St.3d 543, 544. Furthermore, subject-matter jurisdiction may not be waived and neither may the parties to a case bestow subject-matter jurisdiction upon a court. Id. Absent a final appealable order, an appellate court has no jurisdiction to review the matter, General Acc Ins. Co. v. Ins. Co. of N. Am. (1989), 44 Ohio St.3d 17, 20, and, as a consequence, the matter must be dismissed. Renner's Welding and Fabrication, Inc. v. Chrysler Motor Corp. (1996), 117 Ohio App.3d 61, 64; see, also, Mogavero v. Lombardo (Sept. 25, 2001), Franklin App. No. 01AP-98.
{¶16} To determine whether a judgment is final, an appellate court must engage a two-step analysis. General Acc. Ins. Co., supra, at 21. First, an appellate court must determine whether the order is final pursuant to the requirements of R.C. 2505.02. If an appellate court determines that the order complies with R.C. 2505.02 and is final, then an appellate court must decide whether Civ.R. 54(B) language is required. Id.; see, also, Mogavero, supra.
{¶17} Since plaintiff perfected this appeal, R.C. 2505.02 has been amended three times. See Am.Sub.H.B. No. 342, effective September 1, 2004; Am.Sub.H.B. No. 292, effective September 2, 2004; and Sub.S.B. No. 187, effective September 13, 2004 (collectively "the September 2004 amendments").
{¶18} In Kilbreath v. Rudy (1968), 16 Ohio St.2d 70, the Supreme Court of Ohio held in paragraphs one and two of the syllabus:
1. Section 28, Article II of the Ohio Constitution prohibiting the passage of retroactive laws, has application to laws affecting substantive rights, and has no reference to laws of a remedial nature providing rules of practice, courses of procedure or methods of review.
2. Laws of a remedial nature providing rules of practice, courses of procedure, or methods of review are applicable to any proceedings conducted after the adoption of such laws.
See, also, French v. Dwiggins (1984), 9 Ohio St.3d 32, 33-35.
{¶19} Later, however, in Nease v. Medical College Hosp. (1992), 64 Ohio St.3d 396, the Supreme Court stated:
The method of determining retrospectivity of a statute was set out in Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489. In Van Fossen, this court stated:
...
To continue reading
Request your trial