S. Ohio Coal Co. v. Kidney

• Decision Date: 11 January 1995
• Docket Number: No. 93,93
• Citation: 100 Ohio App.3d 661,654 N.E.2d 1017
• Parties: SOUTHERN OHIO COAL COMPANY, Appellant, v. KIDNEY et al., Appellees. * CA 522.
• Court: Ohio Court of Appeals

Page 661

100 Ohio App.3d 661

654 N.E.2d 1017

SOUTHERN OHIO COAL COMPANY, Appellant, v. KIDNEY et al., Appellees. ^*

No. 93 CA 522.

Court of Appeals of Ohio Fourth District, Meigs County.

Decided Jan. 11, 1995.

David M. Cohen, Lancaster, Porter, Wright, Morris & Arthur and David A. Laing, Columbus, for appellant.

James M. Harrison and James M. Guthrie, Asst. Attys. Gen., Columbus, for appellee Paul Kidney.

Thomas M. Myers, Shadyside, for appellee United Mine Workers of America.

GREY, Judge.

This is an appeal from the Common Pleas Court of Meigs County. The Southern Ohio Coal Company ("SOCC") sued Paul Kidney, Chief of the Division of Mines, requesting injunctive relief from the requirement that certain areas of gaseous mines be inspected every three days. The United Mine Workers of America ("UMWA") was not a party to this action. Prior to trial, Kidney and SOCC reached an agreement and the court issued a consent judgment that allowed inspections every seven days. After the judgment was journalized, the UMWA filed a motion to intervene and told Kidney it was opposed to the agreement. Kidney, who had thought the union was satisfied with the agreement, filed a motion requesting Civ.R. 60(B) relief from judgment. Both motions were granted by the trial court, and SOCC appeals. We affirm.

SOCC operates coal mines, and the UMWA represents the miners who work there. Kidney is the chief administrative officer in charge of the Division of Mines for the state of Ohio. SOCC's No. 2 and No. 31 mines are classed as gaseous mines under R.C. 4153.02. Certain parts of these mines that are not being mined can be used and are safe as long as they are ventilated and the gases are removed. R.C. 4153.24(B) requires that intake and return airways of gaseous mines be inspected every three days.

On November 8, 1983, SOCC approached the Division of Mines and requested a variance to permit examination of the intake and return airways every seven days, rather than every three days as required under R.C. 4153.24(B). It based its request on Section 863(f), Title 30, U.S.Code which allows for a seven-day inspection period. On November 23, 1983, the variance was granted by Charles Williams, then Chief of the Division of Mines.

In 1989, Rothwell, a deputy mine inspector, found that certain areas of the No. 2 mine, known as seals and bleeders, were not being inspected every three days, as required. Rothwell noted that SOCC had not requested a variance for seals and bleeders and that the variance did not extend to seals and bleeders.

On June 1, 1989, SOCC then requested a variance for seals and bleeders in accordance with the seven-day inspection period as previously granted. On June 17, 1989, Warren Ellis, then Chief of the Division of Mines, refused the request and terminated the prior variance for No. 2 mine. In August 1989, Rothwell twice issued notices of violation on the grounds that SOCC was not following the required three-day inspection routine. On October 11, 1989, the variance for No. 31 mine was terminated.

Kidney, an appellee in this case, succeeded Ellis as chief of the division of mines, and was contacted by the UMWA, which expressed its concern about the dangers of a seven-day inspection period and its satisfaction with the three-day inspection schedule. On March 4, 1992, SOCC met with Kidney to discuss the inspection schedule. Kidney, based on the union's concern, reaffirmed the mandatory three-day inspection. On September 25, 1992, SOCC filed a complaint requesting declaratory and injunctive relief, arguing that the three-day requirement was unduly burdensome.

The union did not intervene in the action because it believed, based upon its prior discussions with Kidney, that the state would refuse to reinstate the seven-day inspection period. Kidney, who heard nothing more from the union regarding the matter, believed the union's position had changed and that it was satisfied with the seven-day inspection period. Based on this belief, Kidney and SOCC reached an agreement. On January 22, 1993, the court, based on agreement of the parties, issued a consent judgment.

In its entry the court stated:

"It is hereby determined and declared that 'old parts of the mine not in the actual course of working, but which are open and safe to travel,' as set forth in Section 4153.24(B), does not pertain to, include, or encompass the intake and return airways and/or the primary, secondary or other escapeways (as referenced in and mandated by Ohio Rev.Code Section 4153.18) of Ohio's underground coal mines, including Plaintiff's Meigs No. 2 and No. 31 Mines. Hence, these areas are not subject to the frequency of inspection (not less than once each three days) referenced in Section 4153.24(B), and Defendants' enforcement of Section 4153.24(B) shall be consistent with this Consent Judgment.

"The parties hereto further stipulate, and the Court so finds, that the bleeder evaluation points, evaluation points for abandoned areas, and the seals at Meigs No. 2 and Meigs No. 31 Mines are 'old parts of the mine not in the actual course of working, but which are open and safe to travel,' thus subject to examination under Section 4153.24(B) not less than once each three days."

On February 22, 1993, the UMWA filed a motion to intervene. The union asserted that the consent judgment had been entered without its approval or involvement and substantially impaired the safety of its members. On the same day, the union, which was not a party to the consent judgment, filed a notice of appeal with this court. That appeal was dismissed.

On March 10, 1993, the motion to intervene was granted. On April 8, 1993, SOCC filed a notice of appeal challenging the grant of the union's motion to intervene. On June 15, 1993, Kidney, based on his new understanding that the union did, in fact, oppose the seven-day inspection period, filed a Civ.R. 60(B) motion for relief from judgment. On November 17, 1993, the trial court granted the Civ.R. 60(B) motion, and again granted the union's motion to intervene.

SOCC timely filed a notice of appeal challenging the grant of the Civ.R. 60(B) motion and the grant of the union's motion to intervene.

We begin by noting our jurisdiction. The grant of a motion to intervene is a final appealable order. See Fairview Gen. Hosp. v. Fletcher (1990), 69 Ohio App.3d 827, 591 N.E.2d 1312. Likewise, the grant of a Civ.R. 60(B) motion is a final appealable order. See GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113. Since the grant or denial of both motions constitutes final appealable orders, this appeal is properly before us.

First Assignment of Error

"The trial court erred in granting defendants-appellees' motion for relief [sic ] consent judgment where there was no demonstration or even allegation of fraud by defendants-appellees."

Civ.R. 60(B) provides:

"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation.

"The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules."

A motion for relief from judgment pursuant to Civ.R. 60(B) is addressed to the sound discretion of the trial court, and that court's ruling will not be disturbed on appeal absent a showing of an abuse of discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77, 514 N.E.2d 1122, 1124; Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio St.3d 64, 66, 18 OBR 96, 98, 479 N.E.2d 879, 882. An abuse of discretion involves more than an error of judgment; it connotes an attitude on the part of the court that is unreasonable, unconscionable, or arbitrary. Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 498, 506, 589 N.E.2d 24, 30-31; Wilmington Steel Products, Inc. v. Cleveland Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122, 573 N.E.2d 622, 624. When applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 138, 566 N.E.2d 1181, 1184-1185, citing Berk v. Matthews (1990), 53 Ohio St.3d 161, 169, 559 N.E.2d 1301, 1308-1309.

In order to prevail on a motion for relief from judgment pursuant to Civ.R. 60(B), the movant must demonstrate (1) a meritorious claim or defense, (2) entitlement to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5), and (3) timeliness of the motion. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20, 520 N.E.2d 564, 566-567, citing GTE Automatic Elec., Inc., supra, 47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113, paragraph two of the syllabus. See, also, Buckeye Fed. S. & L. Assn. v. Guirlinger (1991), 62 Ohio St.3d 312, 581 N.E.2d 1352. If any of these three requirements is not met, the motion should be overruled. Rose Chevrolet, supra, at 20, 520 N.E.2d at 566-567, citing Svoboda v. Brunswick (1983), 6 Ohio St.3d 348, 6 OBR 403, 453 N.E.2d 648; Hopkins v. Quality Chevrolet, Inc. (1992...