Buck v. Milano

2014 Ohio 5640

• Court: Ohio Court of Appeals
• Decided: December 23, 2014
• Docket: 26463
• Status: Published

Opinion

[Cite as Buck v. Milano, 2014-Ohio-5640.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

JEFFREY BUCK C.A. No. 26463

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE STEVE MILANO, et al. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellees CASE No. 2010 11 7647

DECISION AND JOURNAL ENTRY

Dated: December 23, 2014

CARR, Judge.

{¶ 1} Jeffrey Buck has appealed the trial court’s May 2, 2012 decision, which granted

summary judgment in favor of defendants on his defamation complaint. For the reasons set forth

below, we reverse the trial court’s decision and remand for further proceedings.

I.

{¶ 2} On November 15, 2010, Jeffrey Buck filed a complaint for defamation against

two Village of Reminderville councilmen, Steve Milano and Edward Walter, alleging that they

“falsely and maliciously accused [him] of committing criminal acts and other disreputable acts

and spread those false allegations [to the public], resulting in both job-related and reputational

damages * * *.” One year earlier, Buck had filed a related lawsuit against the Village of

Reminderville and a police sergeant, Michael Varga, also alleging defamation. Both lawsuits

arose out of an email written by Varga about Buck’s performance as Police Chief for the Village

of Reminderville. 2

{¶ 3} On April 25, 2012, Buck moved the trial court to consolidate the two cases,

arguing that consolidation was necessary because the cases involved the same set of facts and

discovery in the two cases had been consolidated. The trial court implicitly denied that motion

when it issued its final judgment granting defendants’ motion for summary judgment. Buck

appealed and presented one assignment of error for review.

II.

Assignment of Error

THE TRIAL COURT ERRED BY GRANTING THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT.

{¶ 4} Buck argued on appeal that the trial court erred when it granted appellees’ motion

for summary judgment. Upon review of the record and briefs in this matter, this Court asked the

parties for further briefing pursuant to State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667.

Specifically, we questioned whether the trial court’s failure to consolidate the two related cases

was reversible error.

{¶ 5} The parties have now responded. While both agree that consolidation is within

the trial court’s discretion, they disagree as to whether an abuse of discretion occurred.

Appellees contend that the trial court properly declined to consolidate the two cases because no

risk of inconsistent adjudications exists. They reason that the two alleged acts of defamation

occurred at different times and, therefore, are distinct from one another. Buck, in contrast,

contends that the motion should have been granted to avoid the risk of inconsistent adjudications.

According to Buck, the issues yet to be resolved in the first case are intertwined with the current

matter and should be determined as one.

{¶ 6} Under Civ.R. 42, “when actions involving a common question of law or fact are

pending before a court, that court after a hearing may order a joint hearing or trial of any or all 3

the matters in issue in the actions; it may order some or all of the actions consolidated; and it

may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or

delay.” See, also, Loc.R. 16.01 of the Court of Common Pleas of Summit County, General

Division (requiring civil cases to be consolidated into the lowest case number after a

determination that consolidation is appropriate under Civ.R. 42).

{¶ 7} In determining whether claims should be heard separately or together, various

issues are considered, including judicial resources, expense to the parties, and the risk of

inconsistent adjudications. See, e.g., Parkstone Capital Partners v. Solon, 8th Dist. Cuyahoga

No. 99241, 2013-Ohio-3149, ¶ 14, citing Transcon Builders, Inc. v. Lorain, 49 Ohio App.2d 145,

150 (9th Dist.1976). See generally 9A Fed. Prac. & Proc. Civ. 2383, Consolidation—Discretion

of Court (3d ed.); see also George, Parallel Litigation, 51 Baylor L. Rev. 769, 775-76 (1999)

(discussing duplicative litigation). See also McCoid, II, Inconsistent Judgments, 48 Wash. &

Lee L. Rev. 487 (1991) (addressing the concerns involved with inconsistent adjudications as a

result of parallel litigation.). Generally, courts favor consolidation whenever possible. See

Annotation, Propriety of Consolidation for Trial of Actions for Personal Injuries, Death, or

Property Damages Arising out of Same Accident. 68 A.L.R.2d 1372 (1959).

{¶ 8} Here, the issues and parties in the two cases overlap considerably, so much so that

discovery had been consolidated. Given the degree to which these cases are intertwined, we

conclude that the failure to consolidate them created a significant risk of inconsistent

adjudications. Accordingly, we hold that the trial court abused its discretion when it did not

grant Buck’s April 25, 2012 motion to consolidate. This Court reverses the judgment of the trial

court granting summary judgment in favor of appellees and remand this matter to the trial court

for further proceedings consistent with this opinion. 4

III.

{¶ 9} The judgment is reversed and the cause remanded to the trial court for further

proceedings consistent with this decision.

Judgment reversed and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

DONNA J. CARR FOR THE COURT

WHITMORE, P. J. MOORE, J. CONCUR. 5

APPEARANCES:

KENNETH D. MYERS, Attorney at Law, for Appellant.

JOHN D. LATCHNEY, Attorney at Law, for Appellee.