Preview
ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Thursday, February 6, 2020 10:27:47 AM
CASE_D SCR
CASE_ TYPE
CASE NUMBER: 2019 CV 05395 Docket ID: 34298025
2019 CV 05395
CV
MIKE FOLEY
DOCKET_ CODE
FORMSGEN YES
WORDDOC YES
CLERK OF COURTS MONTGOMERY COUNTY OHIO
IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CIVIL DIVISION
PHOENIX REHABBING CONSTRUCTION LLC, CASE NO.: 2019 CV 05395
Court
Plaintiff(s), JUDGE MARY WISEMAN
Pleas
-vs-
USREEB DAYTON LLC et al,
DECISION, ORDER, AND ENTRY
Common
Defendant(s). DENYING DEFENDANT’S MOTION TO
General Division
CONSOLIDATE
This matter is before the Court on the Motion to Consolidate filed by Defendant USReeb Dayton, LLC
County
(hereinafter “USReeb”) on January 14, 2020. See Docket. On January 27, 2020, Plaintiff Phoenix Rehabbing
Construction LLC (hereinafter “Phoenix”) filed its Plaintiff’s Memorandum in Opposition to Motion to
Reply to Plaintiff’s Memorandum Opposing Motion to
Montgomery
Consolidate. Id. Subsequently, USReeb filed its
Consolidate on January 28, 2020. Id.
This matter is now properly before the Court. For the reasons that follow, the Court hereby denies
USReeb’s Motion to Consolidate.
FACTS AND PROCEDURAL HISTORY
The instant action arises from Phoenix’s Complaint for Breach of Contract, Unjust Enrichment, and
Foreclosure of Mechanic’s Lien (hereinafter “Complaint”) filed on November 14, 2019. See Docket. Therein,
Phoenix asserts that USReeb is the owner of real property located at 1221 Oakwood Avenue and that Phoenix
and USReeb entered into a contract whereby Phoenix would provide labor and materials to improve the
property. Compl. at ¶¶ 2, 5-6. Phoenix avers that between April 12, 2019 and August 21, 2019, it performed
work pursuant to the contract, but that USReeb has failed to pay it for the work performed, and there is due
and owing the sum of $3,500.00. Id. at ¶¶ 7-8. Phoenix asserts claims of breach of contract, unjust enrichment,
and foreclosure of mechanic’s lien against USReeb. Id. at ¶¶ 23-36. USReeb obtained an extension of time and
subsequently filed its Answer and Counterclaim of Defendant USReeb on January 14, 2020, which includes
counterclaims for breach of contract, trespass, and slander of title. See generally Ans. & Countercl.
In its Motion to Consolidate, Phoenix requests the Court consolidate this action with case numbers
2019 CV 5398 and 2019 CV 5400. Mot. Consolidate at 1. In support of consolidation, Phoenix argues that
“[al]though each lien foreclosure case concerns a separate property, one of the main inquiries the court will
have to make in each case is whether there is any net debt owed to Phoenix in the first place. * * * If the cases
proceed separately, then Phoenix and USREEB would have to try the same counterclaim three times, to three
separate juries. Judicial economy and the need to avoid inconsistent outcomes thus requires consolidation.” Id.
In its Plaintiff’s Memorandum in Opposition to Motion to Consolidate, Phoenix initially asserts that at
the time of filings it complaints, it contacted the Clerk of Courts and was informed that it would need to file
the cases separately because each one involves a different piece of real property. Pl.’s Mem. Opp’n Mot.
Consolidate at 1. Phoenix argues that the three cases “involve three separate properties and three separate
contracts. Each contract has itsown scope of work. Each case will have itsown set of facts. * * * [T]he
outcomes in the cases could be different from each other. Hearing all three different sets of facts and arguments
could be confusing and more complicated to track than if each proceeds as its own case.” Id. at 2, citing Civ.R.
42(A)(1). Lastly, Phoenix argues that the cases do not involve the same parties, as each case includes different
defendants who may have an interest in each individual property. Id. Phoenix thus requests the Court deny
USReeb’s Motion to Consolidate. Id. at 3.
In its Reply to Plaintiff’s Memorandum Opposing Motion to Consolidate, USReeb maintains that
consolidation would result in the cases being tried together at the same time, even though Phoenix may have
been required to filethese actions separately. Reply at 1. USReeb further argues that consolidation would
prevent inconsistent verdicts and asserts that “[i]f the cases proceed separately, and Phoenix wins one but
USREEB prevails on its counterclaim in the other two, with damage awards that outstrip the debt in the case
Phoenix wins, Phoenix would then have the right to force a foreclosure sale of a USREEB property when
USREEB does not even owe Phoenix a net debt.” Id. at 1-2. USReeb further argues that although there are
individual defendants not involved in all three cases, these “marginal” defendants would not be impacted by
consolidation. Id. at 2.
2
LAW AND ANALYSIS
The consolidation of cases is governed by Civ.R. 42(A), which states that actions involving a common
question of law or fact may be consolidated. See Civ.R. 42(A); see also Mont. Co. C.P.R. 1.19(A)(6). There
are several factors that a trial court may consider in deciding whether to consolidate actions, including: (1)
whether there exists a commonality of issues; (2) whether the parties to both actions are substantially the same;
and (3) whether consolidation would promote convenience and judicial economy. Parkstone Capital Partners
v. City of Solon, 8th Dist. Cuyahoga No. 99241, 2013-Ohio-3149, ¶ 14. It is within the trial court’s discretion
to determine whether consolidation is appropriate, and such a decision will only be reversed where the trial
court is found to have abused its discretion. Jamestown Village Condominium Owners Assn. v. Market Media
Research, 96 Ohio App.3d 678, 687-688, 645 N.E.2d 1265 (8th Dist. 1994). Additionally, the Court may order
a separate trial of one or more separate issues, claims, cross-claims, counterclaims, or third-party claims for
the purposes of “convenience, to avoid prejudice, or to expedite or economize.” See Civ.R. 42(B).
Upon a review of the arguments, the Court finds that the three cases do not share sufficient
commonality to justify consolidation. Although Phoenix and USReeb have asserted the same claims in all three
actions, each case involves a different property: 1221 Oakwood Avenue is the subject property in case number
2019 CV 5395, 1519 South Smithville Road is the subject property in case number 2019 CV 5398, and 1653
Hearthstone Drive is the subject property in case number 2019 CV 5400. Moreover, each case involves separate
contracts signed at different times, and work was performed at the various properties on different dates. For
example, the contract that is the subject of case number 2019 CV 5395 was signed on or about May 16, 2019
and work was performed by Phoenix at the subject property from April 12, 2019 to August 21, 2019. See
generally Complaint. Conversely, in case number 2019 CV 5398, the contract was signed on or about May 7,
2019, and work was performed by Phoenix at the subject property from August 8, 2019 to August 21, 2019.
See generally Complaint. Thus, while it is true that all three cases involve similar claims, there are three
separate and distinct contracts involving three separate properties. Additionally, the cases do not involve the
same parties, as each case includes only those individual defendants who may have an interest in the specific
property that is the subject of a particular lawsuit. Moreover, as a jury would be required to consider each
contract separately, it cannot be said that consolidation would promote judicial economy. Therefore, the Court
finds that consolidation would be inappropriate. See, e.g., Machisa Design Servs. v. Bd. Edn. City Sch. Dist. of
3
Columbus, Franklin C.P. No. 14CVA-10-11302, 2015 Ohio Misc. LEXIS 13950, *1-4 (“The fact that the two
cases raise breach of contract claims and share a single common party cannot trump the significant
dissimilarities.”); Bradford v. B & P Wrecking Co., 171 Ohio App.3d 616, 2007-Ohio-1732, 872 N.E.2d 331,
¶¶ 5-6 (6th Dist.) (wherein the trial court consolidated actions involving claims by different parties that related
to the same property). Accordingly, the Court hereby denies USReeb’s Motion to Consolidate.
CONCLUSION
For the foregoing reasons, the Court hereby denies USReeb’s Motion to Consolidate.
SO ORDERED:
JUDGE MARY WISEMAN
This document is electronically filed by using the Clerk of Courts e-Filing system. The system will post a record of the
filing to the e-Filing account "Notifications" tab of the following case participants:
DONALD B RINEER
(937) 223-6003
Attorney for Plaintiff, Phoenix Rehabbing Construction LLC
RONALD J KOZAR
(937) 222-6764
Attorney for Defendant, Usreeb Dayton LLC
MICHELE PHIPPS
(937) 496-7676
Attorney for Defendant, Montgomery County Treasurer
JAMES H. CANNON
(614) 489-7250
Attorney for Defendant, Lhnp-Strat Delaware Owner Trust
TANDI DANKLEF, Bailiff (937) 225-4384 Tandi.Danklef@montcourt.oh.gov
4
General Divison
Montgomery County Common Pleas Court
41 N. Perry Street, Dayton, Ohio 45422
Case Number: Case Title:
2019 CV 05395 PHOENIX REHABBING CONSTRUCTION LLC vs USREEB
DAYTON LLC
Type: Decision
So Ordered,
Electronically signed by mwiseman on 02/06/2020 10:28:07 AM Page 5 of 5
Preview
ELECTRONICALLY FILED COURT OF COMMON PLEAS Thursday, February 6, 2020 10:27:47 AM CASE_D SCR CASE_ TYPE CASE NUMBER: 2019 CV 05395 Docket ID: 34298025 2019 CV 05395 CV MIKE FOLEY DOCKET_ CODE FORMSGEN YES WORDDOC YES CLERK OF COURTS MONTGOMERY COUNTY OHIO IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO CIVIL DIVISION PHOENIX REHABBING CONSTRUCTION LLC, CASE NO.: 2019 CV 05395 Court Plaintiff(s), JUDGE MARY WISEMAN Pleas -vs- USREEB DAYTON LLC et al, DECISION, ORDER, AND ENTRY Common Defendant(s). DENYING DEFENDANT’S MOTION TO General Division CONSOLIDATE This matter is before the Court on the Motion to Consolidate filed by Defendant USReeb Dayton, LLC County (hereinafter “USReeb”) on January 14, 2020. See Docket. On January 27, 2020, Plaintiff Phoenix Rehabbing Construction LLC (hereinafter “Phoenix”) filed its Plaintiff’s Memorandum in Opposition to Motion to Reply to Plaintiff’s Memorandum Opposing Motion to Montgomery Consolidate. Id. Subsequently, USReeb filed its Consolidate on January 28, 2020. Id. This matter is now properly before the Court. For the reasons that follow, the Court hereby denies USReeb’s Motion to Consolidate. FACTS AND PROCEDURAL HISTORY The instant action arises from Phoenix’s Complaint for Breach of Contract, Unjust Enrichment, and Foreclosure of Mechanic’s Lien (hereinafter “Complaint”) filed on November 14, 2019. See Docket. Therein, Phoenix asserts that USReeb is the owner of real property located at 1221 Oakwood Avenue and that Phoenix and USReeb entered into a contract whereby Phoenix would provide labor and materials to improve the property. Compl. at ¶¶ 2, 5-6. Phoenix avers that between April 12, 2019 and August 21, 2019, it performed work pursuant to the contract, but that USReeb has failed to pay it for the work performed, and there is due and owing the sum of $3,500.00. Id. at ¶¶ 7-8. Phoenix asserts claims of breach of contract, unjust enrichment, and foreclosure of mechanic’s lien against USReeb. Id. at ¶¶ 23-36. USReeb obtained an extension of time and subsequently filed its Answer and Counterclaim of Defendant USReeb on January 14, 2020, which includes counterclaims for breach of contract, trespass, and slander of title. See generally Ans. & Countercl. In its Motion to Consolidate, Phoenix requests the Court consolidate this action with case numbers 2019 CV 5398 and 2019 CV 5400. Mot. Consolidate at 1. In support of consolidation, Phoenix argues that “[al]though each lien foreclosure case concerns a separate property, one of the main inquiries the court will have to make in each case is whether there is any net debt owed to Phoenix in the first place. * * * If the cases proceed separately, then Phoenix and USREEB would have to try the same counterclaim three times, to three separate juries. Judicial economy and the need to avoid inconsistent outcomes thus requires consolidation.” Id. In its Plaintiff’s Memorandum in Opposition to Motion to Consolidate, Phoenix initially asserts that at the time of filings it complaints, it contacted the Clerk of Courts and was informed that it would need to file the cases separately because each one involves a different piece of real property. Pl.’s Mem. Opp’n Mot. Consolidate at 1. Phoenix argues that the three cases “involve three separate properties and three separate contracts. Each contract has itsown scope of work. Each case will have itsown set of facts. * * * [T]he outcomes in the cases could be different from each other. Hearing all three different sets of facts and arguments could be confusing and more complicated to track than if each proceeds as its own case.” Id. at 2, citing Civ.R. 42(A)(1). Lastly, Phoenix argues that the cases do not involve the same parties, as each case includes different defendants who may have an interest in each individual property. Id. Phoenix thus requests the Court deny USReeb’s Motion to Consolidate. Id. at 3. In its Reply to Plaintiff’s Memorandum Opposing Motion to Consolidate, USReeb maintains that consolidation would result in the cases being tried together at the same time, even though Phoenix may have been required to filethese actions separately. Reply at 1. USReeb further argues that consolidation would prevent inconsistent verdicts and asserts that “[i]f the cases proceed separately, and Phoenix wins one but USREEB prevails on its counterclaim in the other two, with damage awards that outstrip the debt in the case Phoenix wins, Phoenix would then have the right to force a foreclosure sale of a USREEB property when USREEB does not even owe Phoenix a net debt.” Id. at 1-2. USReeb further argues that although there are individual defendants not involved in all three cases, these “marginal” defendants would not be impacted by consolidation. Id. at 2. 2 LAW AND ANALYSIS The consolidation of cases is governed by Civ.R. 42(A), which states that actions involving a common question of law or fact may be consolidated. See Civ.R. 42(A); see also Mont. Co. C.P.R. 1.19(A)(6). There are several factors that a trial court may consider in deciding whether to consolidate actions, including: (1) whether there exists a commonality of issues; (2) whether the parties to both actions are substantially the same; and (3) whether consolidation would promote convenience and judicial economy. Parkstone Capital Partners v. City of Solon, 8th Dist. Cuyahoga No. 99241, 2013-Ohio-3149, ¶ 14. It is within the trial court’s discretion to determine whether consolidation is appropriate, and such a decision will only be reversed where the trial court is found to have abused its discretion. Jamestown Village Condominium Owners Assn. v. Market Media Research, 96 Ohio App.3d 678, 687-688, 645 N.E.2d 1265 (8th Dist. 1994). Additionally, the Court may order a separate trial of one or more separate issues, claims, cross-claims, counterclaims, or third-party claims for the purposes of “convenience, to avoid prejudice, or to expedite or economize.” See Civ.R. 42(B). Upon a review of the arguments, the Court finds that the three cases do not share sufficient commonality to justify consolidation. Although Phoenix and USReeb have asserted the same claims in all three actions, each case involves a different property: 1221 Oakwood Avenue is the subject property in case number 2019 CV 5395, 1519 South Smithville Road is the subject property in case number 2019 CV 5398, and 1653 Hearthstone Drive is the subject property in case number 2019 CV 5400. Moreover, each case involves separate contracts signed at different times, and work was performed at the various properties on different dates. For example, the contract that is the subject of case number 2019 CV 5395 was signed on or about May 16, 2019 and work was performed by Phoenix at the subject property from April 12, 2019 to August 21, 2019. See generally Complaint. Conversely, in case number 2019 CV 5398, the contract was signed on or about May 7, 2019, and work was performed by Phoenix at the subject property from August 8, 2019 to August 21, 2019. See generally Complaint. Thus, while it is true that all three cases involve similar claims, there are three separate and distinct contracts involving three separate properties. Additionally, the cases do not involve the same parties, as each case includes only those individual defendants who may have an interest in the specific property that is the subject of a particular lawsuit. Moreover, as a jury would be required to consider each contract separately, it cannot be said that consolidation would promote judicial economy. Therefore, the Court finds that consolidation would be inappropriate. See, e.g., Machisa Design Servs. v. Bd. Edn. City Sch. Dist. of 3 Columbus, Franklin C.P. No. 14CVA-10-11302, 2015 Ohio Misc. LEXIS 13950, *1-4 (“The fact that the two cases raise breach of contract claims and share a single common party cannot trump the significant dissimilarities.”); Bradford v. B & P Wrecking Co., 171 Ohio App.3d 616, 2007-Ohio-1732, 872 N.E.2d 331, ¶¶ 5-6 (6th Dist.) (wherein the trial court consolidated actions involving claims by different parties that related to the same property). Accordingly, the Court hereby denies USReeb’s Motion to Consolidate. CONCLUSION For the foregoing reasons, the Court hereby denies USReeb’s Motion to Consolidate. SO ORDERED: JUDGE MARY WISEMAN This document is electronically filed by using the Clerk of Courts e-Filing system. The system will post a record of the filing to the e-Filing account "Notifications" tab of the following case participants: DONALD B RINEER (937) 223-6003 Attorney for Plaintiff, Phoenix Rehabbing Construction LLC RONALD J KOZAR (937) 222-6764 Attorney for Defendant, Usreeb Dayton LLC MICHELE PHIPPS (937) 496-7676 Attorney for Defendant, Montgomery County Treasurer JAMES H. CANNON (614) 489-7250 Attorney for Defendant, Lhnp-Strat Delaware Owner Trust TANDI DANKLEF, Bailiff (937) 225-4384 Tandi.Danklef@montcourt.oh.gov 4 General Divison Montgomery County Common Pleas Court 41 N. Perry Street, Dayton, Ohio 45422 Case Number: Case Title: 2019 CV 05395 PHOENIX REHABBING CONSTRUCTION LLC vs USREEB DAYTON LLC Type: Decision So Ordered, Electronically signed by mwiseman on 02/06/2020 10:28:07 AM Page 5 of 5