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East Ohio Gas Co. Kenmore Construction Co.3/28/2001
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Defendant Kenmore Construction Company ("Kenmore") and plaintiff East Ohio Gas Company ("East Ohio") have both appealed from a judgment entered in the Summit County Court of Common Pleas, adopting the magistrate's decision in this case. Pursuant to the magistrate's decision, the trial court awarded partial judgment of certain stipulated damages to East Ohio and Kenmore, but dismissed all remaining claims asserted by East Ohio against Kenmore and by Kenmore against third-party defendant Central Locating Services, Ltd. ("CLS"). Kenmore has also appealed from orders granting summary judgment to East Ohio on Kenmore's counterclaims and denying Kenmore's motion for default judgment against East Ohio. This Court affirms in part and reverses in part.
I.
This case originated in January of 1994, in the Small Claims Division of Akron Municipal Court with the filing of a series of claims by East Ohio alleging that Kenmore had negligently damaged East Ohio's underground utility lines in the course of excavating eight different locations. The cases were consolidated and transferred to Summit County Court of Common Pleas in February 1994, after Kenmore filed a counterclaim against East Ohio for an amount in excess of the small claims court's jurisdictional limit. The counterclaim asserted that Kenmore had suffered economic losses as a result of East Ohio's negligent failure to designate the location of its underground facilities after Kenmore had requested the information. It also alleged a claim on account for those damages. Ultimately, sixty-nine separate sites where gas lines had been disturbed during excavation between 1992 and 1995 were put at issue. According to the magistrate's decision, this number had been reduced by stipulation and various court rulings to twenty-seven sites by the end of the trial. CLS, a firm employed by East Ohio to mark the location of its underground utility lines, was brought into the fray when Kenmore filed a third-party complaint alleging that CLS failed to properly designate the location of these lines pursuant to its contract with East Ohio.
On March 11, 1998, the trial court granted summary judgment to East Ohio on Kenmore's counterclaims. In a separate order filed that same day, the trial court denied CLS' motion for summary judgment on the third-party claim. The case proceeded to trial before the magistrate on March 16, 1998, on East Ohio's claims against Kenmore and Kenmore's third-party claims against CLS.
Both East Ohio and Kenmore filed objections to the magistrate's decision that was issued June 25, 1998. A final appealable order adopting the magistrate's decision was ultimately entered on September 24, 1999, after this Court raised a question about the finality of the order from which an appeal had been taken. This is the order that is the subject of the instant appeal.
The assignments of error have been rearranged for ease of discussion. Further details will be provided as necessary.
II.
Kenmore's Assignment of Error II
The trial court erred in denying Kenmore's motion for default judgment against East Ohio Gas on Kenmore's amended counterclaim.
Kenmore argues that its motion for default judgment should have been allowed because East Ohio was improperly permitted to file a response beyond the rule date without filing a motion for leave to plead, and without showing excusable neglect. However, under the facts of this case, East Ohio's reply to the amended counterclaim was
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