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Sippola v. Kennedy9/21/2000
Defendant-appellant Dennis D. Kennedy ( Kennedy ) appeals from the trial court's denial of his motion to add new-party defendants Niche Systems & Support Inc. ( Niche ), Robert Sutter, Jr. ( Sutter ), and Neurological Clinical Medical Group ( NCMG ), via a counterclaim. For the reasons adduced below, we affirm.
A review of the record on appeal indicates that plaintiff-appellee Glenn Sippola ( Sippola ) filed the action sub judice on December 29, 1998, alleging breach of contract stemming from the defendant's design of a computer software program and unjust enrichment for the amount paid under the contract. On February 8, 1999, defendant, acting pro se, filed an answer and counter-complaint against Mr. Sippola for breach of contract and fraud. On February 16, 1999, defendant, pro se, filed a motion to add additional parties to the previously filed answer and counterclaim. See motion to add additional parties.
On March 9, 1999, represented by counsel for appellant, the defendant filed an answer and counterclaim against plaintiff and new party defendants seeking compensation in addition to the stated contract price for additional work performed for plaintiffs, which additional work benefitted the proposed new party defendants. See Civ.R. 13(H). Service of the answer and counterclaim was attempted pursuant to Civ.R. 4, et seq. The answer did not assert the affirmative defense of lack of joinder pursuant to Civ.R. 12(B)(7). On March 12, 1999, defendant withdrew his previously filed pro se pleading(s) and motion to add new parties.
On April 21, 1999, plaintiff-Sippola filed his answer to defendant's March 9, 1999, counterclaim. Also on that date, Sippola filed a separate motion to dismiss the counterclaim against the putative new party defendants. The basis of this motion is stated therein as follows:
Defendant Dennis Kennedy * has filed a document entitled Answer and Counterclaim against Plaintiff and New Party Defendants (the Kennedy Pleading ). In addition to responding to the allegations of Plaintiff's complaint *, and in addition to filing a counterclaim against Plaintiff *, the Defendant has filed a so-called counterclaim against so-called new party defendants. However, prior to the filing of the Kennedy Pleading, these so-called new party defendants were never parties to this action. In short, without moving to add Niche, Sutter and NCMG as parties to this action in the proper procedural manner, the Defendant has filed a counterclaim against them.
In light of the foregoing procedural irregularities, the Defendant has failed to assert a proper legal claim against Niche, Sutter and NCMG. Accordingly, all portions of the Kennedy Pleading purporting to asserting claims against Niche, Sutter, NCMG must be dismissed by this Court.
On April 30, 1999, defendant filed a motion to add new party defendants Niche, Sutter and NCMG, alleging without elaboration or explanation that these parties were needed in order to have a just adjudication of his claim pursuant to Civ.R. 19. That same date, Niche, Sutter and NCMG filed a brief opposing adding them as new party defendants.
Without opinion or elaboration, and using a half-sheet status form order on June 23, 1999, the trial court (1) granted the motion to dismiss the counterclaim against the new party defendants and (2) denied the motion to add new parties.
Defendant filed his notice of appeal on July 23, 1999, from the order of June 23, 1999. This notice of appeal was dismissed for lack of a final appealable order pursuant to R.C. 2505.02. See Sippola v. Kennedy (Sept. 2, 1999) Cuyahoga App. No. 76727, unreported.
The case proceeded to a ju
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