[Cite as Brigadier Constr. Servs., L.L.C. v. JLP Glass Prods., Inc., 2013-Ohio-825.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 98672 

BRIGADIER CONSTRUCTION SERVICES, L.L.C.

PLAINTIFF-APPELLEE 

vs. 

JLP GLASS PRODUCTS, INC., ET AL.

DEFENDANTS-APPELLANTS 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-734769 

 BEFORE: Blackmon, J., Jones, P.J., and Keough, J. 

 RELEASED AND JOURNALIZED: March 7, 2013
ATTORNEYS FOR APPELLANTS

Harlan D. Karp 

850 Euclid Avenue, Suite 1330 

Cleveland, Ohio 44114 

Eugene I. Selker 

Mazanec, Raskin & Ryder Co. 

100 Franklin’s Row 

34305 Solon Road, Suite 100 

Solon, Ohio 44139 

ATTORNEYS FOR APPELLEE

Debra J. Horn 

Rachel L. Steinlage 

Alan B. Dailide 

Meyers, Roman, Friedberg & Lewis 

28601 Chagrin Boulevard, Suite 500 

Cleveland, Ohio 44122 
PATRICIA ANN BLACKMON, J.: 

{¶1} Appellants JLP Glass Products, Inc. and James E. Ponyicky, Sr. 

(collectively “JLP Glass”) appeal the trial court’s decision granting partial summary 

judgment to Brigadier Construction Services, L.L.C. (“Brigadier”), and assign the 

following errors for our review: 

I. The trial court erred in failing to reconsider the grant of partial 

summary judgment where the settlement agreement (an instrument in 

writing) showed that Appellee 1) acknowledged receipt of the missing 

materials; 2) the 10 day time limitations period for return of materials 

had passed; and 3) noted the corporate status of JLP Glass Products 

Inc. Appellee attempted to satisfy its burden of production with an 

affidavit that contradicted the written terms of the settlement 

agreement and hence summary judgment should have been 

reconsidered and granted in favor of Appellants. In the alternative, if 

the above provisions of the Settlement Agreement were not dispositive, 

the conflicting affidavits of the parties showed genuine issues of 

material fact as to the return of materials and personal liability of 

Ponyicky and summary judgment was improper. 

II. The trial court erred in finding that a notice of partial dismissal of 

Count III with prejudice under Civil Rule 41(A)(1)(a) distinguished 

Pattison v. Grainger, Inc., 120 Ohio St.3d 142, 2008-Ohio-5276. 

Rather, a partial Civil Rule 41(A)(1) with or without prejudice remains 

a nullity when it fails to dismiss all claims against a party. Unilateral 

dismissals under Rule 41(A)(1)(a) are restricted by precedent and 

dismissal of partial claims and parties to individual counts must be by 

other rules requiring a court order or stipulation. Under precedent of 

this district, Garber v. STS Concrete Co. L.L.C., 2011-Ohio-934, there 

was no final judgment on May 18, 2011 or July 5, 2012 in this case and 

as such because Rule 41(A)(1)(a) may not be used to sever portions of 

claims against a certain defendant. 

III. The trial court abused its discretion in not granting a protective 

order from execution where there was no final judgment and 

reconsideration of partial summary judgment should have been 

granted. 
{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s 

decision. The apposite facts follow. 

{¶3} In November 2009, Brigadier subcontracted with JLP Glass to have the 

company furnish labor, materials, equipment, and supervision for the installation of 

panels and walls as part of the Louis Stokes Cleveland VA Medical Center construction 

project. On or about February 19, 2010, the parties terminated their relationship and 

entered into a formal settlement agreement (“Agreement”). Pursuant to the agreement, 

JLP Glass agreed to release all materials to Brigadier that was acquired for installation 

and stored in its warehouse under the subcontract agreement. 

{¶4} On August 20, 2010, Brigadier filed a three-count complaint against JLP 

Glass, Ponyicky, who owned JLP Glass, and James Long, a JLP Glass employee, alleging 

breach of the Agreement (Counts I and II) and conversion (Count III) against all three 

parties. On January 28, 2011, Brigadier moved for summary judgment. The motion was 

unopposed; on April 26, 2011, the trial court granted the summary judgment motion as to 

Counts I and II, but denied the motion as to Count III. 

{¶5} Subsequent to the trial court’s partial denial of its motion for summary 

judgment, Brigadier moved to amend its complaint to amend Counts I and II to name just 

JLP Glass and Ponyicky and to dismiss Count III. The trial court denied the motion. 

Brigadier then moved to dismiss Count III with prejudice pursuant to Civ.R. 41(A)(1)(a). 

On May 18, 2011, the trial court granted the motion to dismiss Count III with prejudice. 
{¶6} Thereafter, in May 2011, Brigadier began executing on the judgment 

against JLP Glass and in June through July 2011, garnished the bank accounts of JLP 

Glass, as well as Ponyicky’s. On October 19, 2011, JLP Glass filed a motion for relief 

from judgment. Brigadier opposed the motion and on October 19, 2011, the trial court 

denied the motion without a hearing. 

{¶7} Concurrent with its motion for relief from judgment, JLP Glass sought a 

protective order from a Civ.R. 69 debtor’s examination. On November 4, 2011, 

the trial court denied the motion. JLP Glass timely appealed the trial court’s decision. 

{¶8} However, in Brigadier Constr. Servs. LLC v. JLP Glass Prods., 8th Dist. 

No. 97624, 2012-Ohio-2314, we dismissed the appeal for lack of a final appealable order. 

 There, we found that despite Brigadier’s dismissal of Count III with prejudice, the 

claims against Long for breach of contract, contained in Counts I and II, remained 

pending, because the trial court had denied Brigadier’s motion to amend the complaint. 

{¶9} Following the dismissal, Brigadier filed a Civil Rule 41(a)(1)(a) notice of 

dismissal of Counts I and II against defendant Long. After the partial dismissal of 

Counts I and II, JLP Glass timely appealed. 

Final Judgment

{¶10} We begin with the second assigned error, wherein JLP Glass argues the 

underlying case did not become final and appealable despite Brigadier’s dismissal of all 

claims against defendant Long. 
{¶11} Pursuant to Civ.R. 41(A)(1)(a), a plaintiff “may dismiss all claims 

asserted by that plaintiff against a defendant by * * * filing a notice of dismissal at any 

time before the commencement of trial.” (Emphasis added.) The rule “does not allow for 

the dismissal of a portion of the claims against a certain defendant.” Pattison v. W.W. 

Grainger Inc., 120 Ohio St.3d 142, 2008-Ohio-5276, 897 N.E.2d 126, ¶ 18; see also 

Dohme v. Eurand Am., Inc., 121 Ohio St.3d 277, 2009-Ohio-506, 903 N.E.2d 1174. ¶ 3. 

{¶12} In the instant case, we originally dismissed the appeal for lack of a final 

appealable order because there were pending claims against defendant Long in Counts I 

and II, despite Brigadier having dismissed Count III with prejudice. Following our 

dismissal of the first appeal, Brigadier dismissed with prejudice all claims against 

defendant Long as contained in Counts I and II. Hence, we have jurisdiction over the 

matter. Accordingly, we overrule the second assigned error. 

Summary Judgment

{¶13} In the first assigned error, JLP Glass argues the trial court erred in failing 

to reconsider its decision granting partial summary judgment in favor of Brigadier on 

Counts I and II of the complaint. 

{¶14} We review an appeal from summary judgment under a de novo standard of 

review. Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist.2000), citing 

Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio 

Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th 
Dist.1997). Accordingly, we afford no deference to the trial court’s decision and 

independently review the record to determine whether summary judgment is appropriate. 

{¶15} Under Civ.R. 56, summary judgment is appropriate when, (1) no genuine 

issue as to any material fact exists, (2) the party moving for summary judgment is entitled 

to judgment as a matter of law, and (3) when viewing the evidence most strongly in favor 

of the nonmoving party, reasonable minds can reach only one conclusion that is adverse 

to the nonmoving party. 

{¶16} The moving party carries an initial burden of setting forth specific facts that 

demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio 

St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the movant fails to meet this burden, 

summary judgment is not appropriate; if the movant does meet this burden, summary 

judgment will be appropriate only if the nonmovant fails to establish the existence of a 

genuine issue of material fact. Id. at 293. 

{¶17} Preliminarily, and as previously noted, JLP Glass did not oppose 

Brigadier’s motion for summary judgment. In addition, JLP Glass did not file a direct 

appeal of the trial court’s decision granting partial summary judgment in favor of 

Brigadier on Counts I and II. 

{¶18} Instead, approximately five months later, after Brigadier began executing on 

the judgment and garnishing bank accounts, JLP Glass filed a motion for relief from 

judgment under Civ.R. 60(B). The trial court denied the motion without a hearing. As 
previously stated, JLP Glass appealed and we dismissed for lack of a final appealable 

order. 

{¶19} Thereafter, post-dismissal motion practice resulted in a perfected appeal. 

JLP Glass again appeals, among other things, the trial court’s denial of its motion for 

relief from judgment. 

{¶20} A motion for relief from judgment under Civ.R. 60(B) is addressed to the 

sound discretion of the trial court, and that court’s ruling will not be disturbed on appeal 

absent a showing of abuse of discretion. TPI Asset Mgt., LLC v. Benjamin, 10th Dist. No. 

11AP-334, 2011-Ohio-6389, citing Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 

1122 (1987). The term “abuse of discretion” connotes more than an error of law or 

judgment; it implies that the court’s attitude is unreasonable, arbitrary, or unconscionable. 

Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983), citing State v. 

Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980). When applying an abuse-of-discretion 

standard, an appellate court may not substitute its judgment for that of the trial court. 

Deutsche Bank Natl. Trust Co. v. Oyortey, 10th Dist. No. 11AP-878, 2012-Ohio- 1616, 

citing Berk v. Matthews, 53 Ohio St.3d 161, 559 N.E.2d 1301 (1990). 

{¶21} In order to prevail on a Civ.R. 60(B) motion for relief from judgment, the 

moving party bears the burden to demonstrate that (1) the party has a meritorious defense 

or claim to present if relief is granted; (2) the party is entitled to relief under one of the 

grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a 
reasonable time. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 

351 N.E.2d 113 (1976). Failure to prove any of the three is fatal to his motion. 

{¶22} In the instant case, the thrust of JLP Glass’s motion for relief from 

judgment is that the trial court should not have granted partial summary judgment on 

Counts I and II of Brigadier’s complaint. However, we have repeatedly held that 

utilizing Civ.R. 60(B) to attack the grant of summary judgment, after having failed to 

oppose said motion or file a direct appeal, is not proper tactic. See Garrett v. Gortz, 8th 

Dist. No. 90625, 2008-Ohio-4369; Blatt v. Meridia Health Sys., 8th Dist. No. 89074, 

2008-Ohio-1818; and Wilson v. Wilson, 8th Dist. No. 86817, 2006-Ohio-4261. 

{¶23} To rule in JLP Glass’s favor after it failed to oppose summary judgment 

would undermine the purposes of both Civ.R. 56 and 60(B). Harris v. Formica Corp., 

8th Dist. No. 89536, 2008-Ohio-688, citing Yoder v. Edwin Shaw Dev. Found., 9th Dist. 

No. CA 17417, 1996 Ohio App. LEXIS 1548 (April 17, 1996). See also Pittsburgh 

Press Co. v. Cabinetpak Kitchens of Columbus, Inc., 16 Ohio App.3d 167, 168, 475 

N.E.2d 133 (10th Dist.1984). Consequently, we find no abuse of discretion in the trial 

court’s denial of JLP Glass’s Civ.R. 60(B) motion for relief from judgment. 

{¶24} Moreover, our review of JLP Glass’s motion for relief from judgment 

indicates that the very averments contained therein, is exactly what should have been 

addressed in a motion in opposition to summary judgment, had they filed one. 

Specifically, JLP Glass alleged that Brigadier engaged in a fraud on the Court, because 

they had already received the materials and was seeking to obtain a double recovery. 
Attached to the motion, was an affidavit from Ponyicky averring that they had turned over 

all the materials to Brigadier, whose agent signed a statement to that effect, and that the 

ten-day inspection period pursuant to the settlement agreement expired before Brigadier 

claimed not to have received the materials. 

{¶25} Because the averments in Ponyicky’s affidavits would have conflicted with 

Brigadier’s claim of non-receipt of the materials, summary judgment would not have been 

proper. Unfortunately, JLP Glass failed to file a motion in opposition and thus cannot be 

afforded a second chance to oppose summary judgment. Therefore the trial court did not 

abuse its discretion in denying JLP Glass’s motion for relief from judgment. 

Accordingly, we overrule the first assigned error. 

Protective Order

{¶26} In the third assigned error, JLP Glass argues the trial court erred in denying 

the motion, filed pursuant to Civ.R. 26(C), for a protective order to stay execution of the 

trial court’s judgment. 

{¶27} Civ.R. 26(C) governs protective orders and provides, in pertinent part, that: 

Upon motion by any party or by the person from whom discovery is 

sought, and for good cause shown, the court in which the action is 

pending may make any order that justice requires to protect a party or 

person from annoyance, embarrassment, oppression, or undue 

burden or expense * * *. 

{¶28} A trial court’s ruling concerning protective orders sought pursuant to 

Civ.R. 26(C), is reviewed under an abuse of discretion. Li v. Olympic Steel, Inc., 8th 

Dist. No. 97286, 2012-Ohio-603. 
{¶29} In the instant case, we find no abuse of discretion in the trial court’s 

decision regarding JLP Glass’s request for a protective order to stay execution of the 

garnishment of their bank accounts. As discussed earlier, JLP Glass never opposed 

Brigadier’s motion and never filed a direct appeal of the partial grant of summary 

judgment. 

{¶30} Further, JLP Glass waited five months to file a motion for relief from 

judgment, alleging what they should have alleged in a motion in opposition to Brigadier’s 

motion for summary judgment. Under the circumstances, we find no abuse of discretion 

in the trial court’s decision. Accordingly, we overrule the third assigned error. 

{¶31} Judgment affirmed. 

It is ordered that appellee recover from appellants costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

PATRICIA ANN BLACKMON, JUDGE 

LARRY A. JONES, SR., P.J., and 

KATHLEEN ANN KEOUGH, J., CONCUR