Preview
ELECTRONICALLY FILED
COURT OF COMMON PLEAS
Tuesday, June 16, 2015 1:38:30 PM
CASE_D SCR
CASE_ TYPE
DOCKET_ CODE
CV
CASE NUMBER: 2014 CV 06882 Docket ID: 28450826
2014 CV 06882
GREGORY A BRUSH
FORMSGEN YES
WORDDOC YES
CLERK OF COURTS MONTGOMERY COUNTY OHIO
IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
CIVIL DIVISION
ALVARENE N OWENS, CASE NO.: 2014 CV 06882
Court
Plaintiff(s), JUDGE DENNIS J. ADKINS
Pleas
-vs-
RUBICON MILL ASSOCIATION et al,
DECISION, ORDER, AND ENTRY
Common
Defendant(s). OVERRULING PLAINTIFF'S MOTION
General Division
TO INTERVENE
This matter is before the Court on a Motion to Intervene, filed by Alvarene N. Owens (“Plaintiff”) on
County
April 21, 2015. On April 24, 2015, The Enterprise Roofing and Sheet Metal Co. of Dayton, Ohio
(“Defendant Enterprise”), filed Defendant, The Enterprise Roofing and Sheet Metal Co. of Dayton, Ohio’s,
Memorandum in Opposition to the Alvarene N. Owens Revocable Living Trust’s Motion to Intervene
Montgomery
(“Opposition”). On May 7, 2015, Plaintiff filed a Reply to Defendant Enterprise Roofing and Sheet Metal
Co. Memorandum in Opposition Alvarene N. Ownens [sic] Revocable Living Trust Motion to Intervene
(“Reply”). On the same day, Rubicon Mill Association, Planning Alternatives, Meg Doherty, Pat Doherty,
Paul R. Weaver, Mary R. Creager, George Skuns, Charles Stephen Hayes, and Jane Heaven (collectively,
“Rubicon Defendants”) filed Defendants’ Memorandum in Opposition to the Alvarene N. Ownes Revocable
Living Trust’s Motion to Intervene (“Second Opposition”). This matter is now properly before the Court.
In Plaintiff’s Motion to Intervene, she argues that the Alvarene N. Owens Revocable Living Trust
(the “Trust”) is a necessary party to the present case. Motion to Intervene at 1. Consequently, Plaintiff
requests that the Court allow the Trust to intervene as a “party of interest and relate the Complaint filed in the
instant action to the Trust as if it was an original Plaintiff.” Id.
Conversely, in the Opposition and Second Opposition, Defendant Enterprise and Rubicon
Defendants assert that the Trust was removed as a party to this case when Plaintiff omitted it as a party in her
Second Amended Complaint Instanter, filed on February 28, 2013. Opposition at 2. Moreover, Defendant
Enterprise and Rubicon Defendants maintain that Plaintiff’s Motion to Intervene violates the time limitations
set forth in R.C. 2305.09 and would result in unfair prejudice and delay. Id. Therefore, Defendant
Enterprise and Rubicon Defendants request that the Court overrule Plaintiff’s Motion to Intervene.
Finally, in her Reply, Plaintiff contends that the Defendants fail to demonstrate that they would be
prejudiced, or that the proceedings would be delayed, by the intervention of the Trust. Reply at 1.
Additionally, Plaintiff argues that the statute of limitations has not passed for her as an individual and,
because she is the trustee, the Trust is already included in this matter. Id. at 2.
Upon review, the Court notes that “the substitution of an amended petition or complaint for an earlier
one constitutes an abandonment of the earlier pleading and a reliance upon the amended one.” Ross v. Jones,
12th Dist. Case No. CA87-10-135, 1988 Ohio App. LEXIS 2728, 10. Moreover, pursuant to R.C.
2305.19(A), if a plaintiff fails otherwise than upon the merits, he may commence a new action within one
year or within the period of the original applicable statute of limitations, whichever occurs later.
Additionally, in exercising its discretion over whether to grant a motion to intervene, courts “shall consider
whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.”
Fairview General Hosp. v. Fletcher, 69 Ohio App. 3d 827, 830 (10th Dist. 1990).
In the present case, the Court first finds that Plaintiff abandoned her original Complaint, as well as
the inclusion of the Trust in this case, when she filed her Second Amended Complaint and failed to include
the Trust as a party. The Court further notes that Plaintiff voluntarily dismissed her case on December 13,
2013. Notably, Plaintiff did not file her Motion to Intervene until April 21, 2015, well after the one year
limitation.
With respect to the original statute of limitations for her claims based upon fraud and
misrepresentation, the Court notes that these claims have a four year statute of limitations, and Plaintiff
claims that these actions accrued on May 21, 2010. Consequently, the Court finds that the statute of
limitations for these claims expired on May 21, 2014. Next, although Plaintiff’s claims for breach of
contract have a fifteen year statute of limitations, the Court notes that allowing the Trust to intervene at this
2
juncture in the proceedings would cause unnecessary prejudice and delay. Specifically, the original parties,
Defendant Enterprise and Rubicon Defendants, would presumably have to amend their dispositive motions
and discovery requests. Moreover, because of the need for additional information arising out of the Trust’s
intervention, the Court would be required to amend its schedule to accommodate the needs of the parties and,
most likely, set a new trial date.
Based upon these facts, the Court finds that Plaintiff failed to timely file her Motion to Intervene, and
she has not provided any additional evidence or arguments to establish that the Trust’s inclusion in this
action is necessary. Further, allowing the Trust to intervene at this time would result in unfair prejudice to
the original parties and cause an undue delay of the proceedings. Therefore, the Court OVERRULES
Plaintiff’s Motion to Intervene in its entirety.
SO ORDERED:
JUDGE DENNIS J. ADKINS
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:
ALVARENE N OWENS
(972) 629-9539
Attorney for Plaintiff, Alvarene N Owens
T ANDREW VOLLMAR
(937) 222-2424
Attorney for Defendant, Rubicon Mill Association
T ANDREW VOLLMAR
(937) 222-2424
Attorney for Defendant, Meg Doherty
T ANDREW VOLLMAR
(937) 222-2424
Attorney for Defendant, Pat Doherty
T ANDREW VOLLMAR
(937) 222-2424
Attorney for Defendant, Paul R. Weaver
T ANDREW VOLLMAR
(937) 222-2424
Attorney for Defendant, Mary R. Craeger
T ANDREW VOLLMAR
(937) 222-2424
Attorney for Defendant, George Skuns
3
T ANDREW VOLLMAR
(937) 222-2424
Attorney for Defendant, Charles Stephen Hayes
T ANDREW VOLLMAR
(937) 222-2424
Attorney for Defendant, Planning Alternatives LLC
T ANDREW VOLLMAR
(937) 222-2424
Attorney for Defendant, Jane Heavin
EDWARD J DOWD
(937) 222-2333
Attorney for Defendant, Enterprise Roofing And Sheet Metal Co Of Dyton Oh
KEVIN A LANTZ
(937) 222-2333
Attorney for Defendant, Enterprise Roofing And Sheet Metal Co Of Dyton Oh
JOSHUA R SCHIERLOH
(937) 222-2333
Attorney for Defendant, Enterprise Roofing And Sheet Metal Co Of Dyton Oh
BRUCE A CURRY
(614) 430-8885
Attorney for Defendant, Sonas Technology Inc.
Copies of this document were sent to all parties listed below by ordinary mail:
UNKNOWN DOE I
UNKNOWN ADDRESS
DAYTON, OH 45422
Defendant
UNKNOWN DOE 2
UNKNOWN ADDRESS
DAYTON, OH 45422
Defendant
UNKNOWN DOE III
UNKNOWN ADDRESS
DAYTON, OH 45422
Defendant
CORPORATE DOE I
UNKNOWN ADDRESS
DAYTON, OH 45422
Defendant
CORPORATE DOE II
UNKNOWN ADDRESS
DAYTON, OH 45422
Defendant
Bob Schmidt, Bailiff(937) 496-7951 schmidtr@montcourt.org
4
General Divison
Montgomery County Common Pleas Court
41 N. Perry Street, Dayton, Ohio 45422
Type: Decision
Case Number: 2014 CV 06882
Case Title: ALVARENE N OWENS vs RUBICON MILL ASSOCIATION
So Ordered
Electronically signed by dadkins on 2015-06-16 13:39:01
page 5 of 5
Preview
ELECTRONICALLY FILED COURT OF COMMON PLEAS Tuesday, June 16, 2015 1:38:30 PM CASE_D SCR CASE_ TYPE DOCKET_ CODE CV CASE NUMBER: 2014 CV 06882 Docket ID: 28450826 2014 CV 06882 GREGORY A BRUSH FORMSGEN YES WORDDOC YES CLERK OF COURTS MONTGOMERY COUNTY OHIO IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO CIVIL DIVISION ALVARENE N OWENS, CASE NO.: 2014 CV 06882 Court Plaintiff(s), JUDGE DENNIS J. ADKINS Pleas -vs- RUBICON MILL ASSOCIATION et al, DECISION, ORDER, AND ENTRY Common Defendant(s). OVERRULING PLAINTIFF'S MOTION General Division TO INTERVENE This matter is before the Court on a Motion to Intervene, filed by Alvarene N. Owens (“Plaintiff”) on County April 21, 2015. On April 24, 2015, The Enterprise Roofing and Sheet Metal Co. of Dayton, Ohio (“Defendant Enterprise”), filed Defendant, The Enterprise Roofing and Sheet Metal Co. of Dayton, Ohio’s, Memorandum in Opposition to the Alvarene N. Owens Revocable Living Trust’s Motion to Intervene Montgomery (“Opposition”). On May 7, 2015, Plaintiff filed a Reply to Defendant Enterprise Roofing and Sheet Metal Co. Memorandum in Opposition Alvarene N. Ownens [sic] Revocable Living Trust Motion to Intervene (“Reply”). On the same day, Rubicon Mill Association, Planning Alternatives, Meg Doherty, Pat Doherty, Paul R. Weaver, Mary R. Creager, George Skuns, Charles Stephen Hayes, and Jane Heaven (collectively, “Rubicon Defendants”) filed Defendants’ Memorandum in Opposition to the Alvarene N. Ownes Revocable Living Trust’s Motion to Intervene (“Second Opposition”). This matter is now properly before the Court. In Plaintiff’s Motion to Intervene, she argues that the Alvarene N. Owens Revocable Living Trust (the “Trust”) is a necessary party to the present case. Motion to Intervene at 1. Consequently, Plaintiff requests that the Court allow the Trust to intervene as a “party of interest and relate the Complaint filed in the instant action to the Trust as if it was an original Plaintiff.” Id. Conversely, in the Opposition and Second Opposition, Defendant Enterprise and Rubicon Defendants assert that the Trust was removed as a party to this case when Plaintiff omitted it as a party in her Second Amended Complaint Instanter, filed on February 28, 2013. Opposition at 2. Moreover, Defendant Enterprise and Rubicon Defendants maintain that Plaintiff’s Motion to Intervene violates the time limitations set forth in R.C. 2305.09 and would result in unfair prejudice and delay. Id. Therefore, Defendant Enterprise and Rubicon Defendants request that the Court overrule Plaintiff’s Motion to Intervene. Finally, in her Reply, Plaintiff contends that the Defendants fail to demonstrate that they would be prejudiced, or that the proceedings would be delayed, by the intervention of the Trust. Reply at 1. Additionally, Plaintiff argues that the statute of limitations has not passed for her as an individual and, because she is the trustee, the Trust is already included in this matter. Id. at 2. Upon review, the Court notes that “the substitution of an amended petition or complaint for an earlier one constitutes an abandonment of the earlier pleading and a reliance upon the amended one.” Ross v. Jones, 12th Dist. Case No. CA87-10-135, 1988 Ohio App. LEXIS 2728, 10. Moreover, pursuant to R.C. 2305.19(A), if a plaintiff fails otherwise than upon the merits, he may commence a new action within one year or within the period of the original applicable statute of limitations, whichever occurs later. Additionally, in exercising its discretion over whether to grant a motion to intervene, courts “shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” Fairview General Hosp. v. Fletcher, 69 Ohio App. 3d 827, 830 (10th Dist. 1990). In the present case, the Court first finds that Plaintiff abandoned her original Complaint, as well as the inclusion of the Trust in this case, when she filed her Second Amended Complaint and failed to include the Trust as a party. The Court further notes that Plaintiff voluntarily dismissed her case on December 13, 2013. Notably, Plaintiff did not file her Motion to Intervene until April 21, 2015, well after the one year limitation. With respect to the original statute of limitations for her claims based upon fraud and misrepresentation, the Court notes that these claims have a four year statute of limitations, and Plaintiff claims that these actions accrued on May 21, 2010. Consequently, the Court finds that the statute of limitations for these claims expired on May 21, 2014. Next, although Plaintiff’s claims for breach of contract have a fifteen year statute of limitations, the Court notes that allowing the Trust to intervene at this 2 juncture in the proceedings would cause unnecessary prejudice and delay. Specifically, the original parties, Defendant Enterprise and Rubicon Defendants, would presumably have to amend their dispositive motions and discovery requests. Moreover, because of the need for additional information arising out of the Trust’s intervention, the Court would be required to amend its schedule to accommodate the needs of the parties and, most likely, set a new trial date. Based upon these facts, the Court finds that Plaintiff failed to timely file her Motion to Intervene, and she has not provided any additional evidence or arguments to establish that the Trust’s inclusion in this action is necessary. Further, allowing the Trust to intervene at this time would result in unfair prejudice to the original parties and cause an undue delay of the proceedings. Therefore, the Court OVERRULES Plaintiff’s Motion to Intervene in its entirety. SO ORDERED: JUDGE DENNIS J. ADKINS 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: ALVARENE N OWENS (972) 629-9539 Attorney for Plaintiff, Alvarene N Owens T ANDREW VOLLMAR (937) 222-2424 Attorney for Defendant, Rubicon Mill Association T ANDREW VOLLMAR (937) 222-2424 Attorney for Defendant, Meg Doherty T ANDREW VOLLMAR (937) 222-2424 Attorney for Defendant, Pat Doherty T ANDREW VOLLMAR (937) 222-2424 Attorney for Defendant, Paul R. Weaver T ANDREW VOLLMAR (937) 222-2424 Attorney for Defendant, Mary R. Craeger T ANDREW VOLLMAR (937) 222-2424 Attorney for Defendant, George Skuns 3 T ANDREW VOLLMAR (937) 222-2424 Attorney for Defendant, Charles Stephen Hayes T ANDREW VOLLMAR (937) 222-2424 Attorney for Defendant, Planning Alternatives LLC T ANDREW VOLLMAR (937) 222-2424 Attorney for Defendant, Jane Heavin EDWARD J DOWD (937) 222-2333 Attorney for Defendant, Enterprise Roofing And Sheet Metal Co Of Dyton Oh KEVIN A LANTZ (937) 222-2333 Attorney for Defendant, Enterprise Roofing And Sheet Metal Co Of Dyton Oh JOSHUA R SCHIERLOH (937) 222-2333 Attorney for Defendant, Enterprise Roofing And Sheet Metal Co Of Dyton Oh BRUCE A CURRY (614) 430-8885 Attorney for Defendant, Sonas Technology Inc. Copies of this document were sent to all parties listed below by ordinary mail: UNKNOWN DOE I UNKNOWN ADDRESS DAYTON, OH 45422 Defendant UNKNOWN DOE 2 UNKNOWN ADDRESS DAYTON, OH 45422 Defendant UNKNOWN DOE III UNKNOWN ADDRESS DAYTON, OH 45422 Defendant CORPORATE DOE I UNKNOWN ADDRESS DAYTON, OH 45422 Defendant CORPORATE DOE II UNKNOWN ADDRESS DAYTON, OH 45422 Defendant Bob Schmidt, Bailiff(937) 496-7951 schmidtr@montcourt.org 4 General Divison Montgomery County Common Pleas Court 41 N. Perry Street, Dayton, Ohio 45422 Type: Decision Case Number: 2014 CV 06882 Case Title: ALVARENE N OWENS vs RUBICON MILL ASSOCIATION So Ordered Electronically signed by dadkins on 2015-06-16 13:39:01 page 5 of 5