[Cite as Syphard v. Moore Peterson/Accordia, 2010-Ohio-6501.]

 STATE OF OHIO, MAHONING COUNTY 

 IN THE COURT OF APPEALS 

 SEVENTH DISTRICT 

JERRY L. SYPHARD, et al., ) 

 ) CASE NO. 09 MA 151 

 PLAINTIFFS-APPELLANT, ) 

 ) 

 - VS - ) OPINION 

 ) 

MOORE PETERSON/ACCORDIA, ) 

et al., ) 

 ) 

 DEFENDANTS-APPELLEE. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas 

Court, Case No. 06 CV 2037. 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiffs-Appellant: Attorney John A. McNally, III 

100 Federal Plaza East 

Suite 600 

Youngstown, OH 44503 

For Defendants-Appellee: Attorney Ellyn Mehendale, Janik, LLP 

9200 South Hills Boulevard 

Suite 300 

Cleveland, OH 44147-3251 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Dated: December 22, 2010 
[Cite as Syphard v. Moore Peterson/Accordia, 2010-Ohio-6501.]

DeGenaro, J. 

{¶1} This timely appeal comes for consideration upon the record in the trial court, 

the parties' briefs and their oral arguments before this court. Jerry J. Syphard appeals the 

August 24, 2009 decision of the Mahoning County Court of Common Pleas that granted 

summary judgment on a negligence action in favor of Appellee, Moore Peterson Accordia, 

because the action was barred by the statute of limitations. Syphard argues that because 

the trial court initially denied Accordia's motion for summary judgment it was required to 

deny the motion a second time because it was barred by the doctrine of res judicata. In a 

conditional cross-assignment of error, Accordia argues that the trial court's initial denial of 

the motion for summary judgment was erroneous. 

{¶2} The trial court's summary judgment in favor of Accordia was not barred by 

res judicata, as the first decision to deny summary judgment did not constitute a final 

order. Further, the trial court had the broad discretion to reconsider its prior ruling on the 

summary judgment motion, even in light of the fact that the civil rules do not explicitly 

provide for a party to move the court to reconsider an interlocutory order. Finally, 

because Syphard's action was barred by the statute of limitations, Accordia's first motion 

for summary judgment should have been granted. Accordingly, the judgment of the trial 

court is affirmed. 

Facts and Procedural History 

{¶3} Syphard used the services of Accordia, a retail insurance broker, to find 

insurance companies to provide coverage for Syphard's various business needs. 

Syphard alleged that an Accordia agent encouraged him to increase the limits of his 

uninsured and under-insured motorist coverage with Auto-Owners Insurance Company 

from $300,000.00 to $1 million. Syphard alleged that he agreed with the suggestion, and 

asked the agent to make that change with his automobile insurer, for the policy term 

beginning June 27, 1999. Soon afterward, on August 3, 1999, Syphard was involved in a 

motorcycle collision, in which he was severely injured. The negligent party's insurance 

carrier covered $100,000.00 for the accident, and Syphard's carrier, Auto-Owners 

Insurance Company, covered $200,000.00. Although Syphard's medical bills exceeded 

that amount, his coverage benefits were limited to $300,000.00, instead of the $1 million 

that Syphard had expected. 

{¶4} Syphard filed a Complaint against Accordia and the agent on May 26, 2006, 
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alleging that the agent, while acting within the scope of his employment with Accordia, 

breached his fiduciary duty to Syphard by negligently failing to procure certain agreedupon insurance policies, and that Syphard suffered uncompensated insurance claims as 

a result. In its answer and in its Motion for Judgment on the Pleadings, Accordia 

asserted, among other things, that Syphard's complaint was barred by the four-year 

statute of limitations for tort actions. Syphard filed an amended complaint, joining 

additional plaintiffs, and Accordia answered, again claiming that the action was barred by 

the statute of limitations.1

{¶5} Accordia argued in its first Motion for Summary Judgment that Syphard's 

claim was barred by the applicable statute of limitations, and that Syphard had failed to 

present essential elements of his claim, such as the existence of a duty and the 

applicable standard of care. Syphard opposed the motion, arguing among other things, 

that his action was timely within the fifteen-year statute of limitations for written 

agreements. In its reply brief, Accordia argued that Syphard's action was in negligence, 

not for breach of a written contract, and thus the four-year statute of limitations applied. 

The trial court summarily overruled Accordia's summary judgment motion. The original 

trial judge then recused himself from the case and another judge was assigned. 

{¶6} Accordia filed a Motion for Reconsideration of the trial court's order denying 

of summary judgment, solely arguing the issue of the statute of limitations. Syphard 

opposed the motion, arguing that the Ohio Rules of Civil Procedure do not allow for a 

motion for reconsideration. The trial court granted Accordia's Motion for Reconsideration, 

and requested that the parties brief the issue of the statute of limitations. The trial court 

granted Accordia's second Motion for Summary Judgment, holding that it had the 

discretion to reconsider its prior interlocutory order, and that Syphard's cause of action 

sounded in tort, making it time-barred by the applicable four-year statute of limitations. 

Reconsideration of Denial of Summary Judgment 

{¶7} In his sole assignment of error, Syphard asserts: 

{¶8} "The trial court erred by granting summary judgment in favor of the 

 

1

 Syphard also argued that not all the required parties were before the court as the agent had died, and a 

Suggestion of Death had been filed with no fiduciary yet appointed for the estate. The agent’s estate is not a 

party to this appeal. 
- 3 - 

defendant-appellee, Moore Peterson Accordia." 

{¶9} Syphard's argument is two-fold, first that the Rules of Civil Procedure do not 

provide for a motion for reconsideration, and second, that the trial court's initial decision 

denying Accordia's motion for summary judgment became res judicata, and that the trial 

court was thus prohibited from granting the second motion. Moreover, Syphard is asking 

for a review of the trial court's decision to reconsider its prior ruling, rather than a review 

of any of the substantive merits of the summary judgment order itself. Thus, the de novo 

standard of review normally applied to summary judgments does not apply here. Instead, 

a trial court's decision to make a particular procedural ruling is reviewed for abuse of 

discretion. Harmon v. Baldwin, 107 Ohio St.3d 232, 2005-Ohio-6264, 837 N.E.2d 1196, 

at ¶15-16. An abuse of discretion connotes that the trial court's decision was arbitrary, 

unreasonable, or unconscionable. Id. at ¶16. 

{¶10} Syphard first argues that the Ohio Rules of Civil Procedure do not provide 

for a party to move a trial court to reconsider an interlocutory order, and thus that 

Accordia's May 14, 2009 Motion for Reconsideration was a nullity, citing this Court's 

decision in Taylor v. Brocker (1996), 111 Ohio App.3d 80, 675 N.E.2d 864. 

{¶11} In Taylor, the appellee filed two cross-assignments of error, first asserting 

that the trial court "erred as a matter of law" in overruling the appellee's motion for 

summary judgment, and second asserting that the trial court "erred as a matter of law" in 

overruling appellee's motion for reconsideration of that same summary judgment motion. 

Id. at 86. This Court found that the appellee's substantive argument regarding the 

summary judgment motion was meritless, and quickly disposed of the reconsideration 

argument by noting that "the Civil Rules do not provide for motions for reconsideration in 

the trial court" and thus that "a trial court does not err by denying such a motion without 

explanation." Id., quoting Dunfee v. Midwestern Indemn. Co. (1990), 70 Ohio App.3d 

301, 305, 590 N.E.2d 1365, citing Pitts v. Ohio Dept. of Transp. (1981), 67 Ohio St.2d 

378, 21 O.O.3d 238, 423 N.E.2d 1105, paragraph one of the syllabus. 

{¶12} Syphard seems to conclude that the language "the Civil Rules do not 

provide for motions for reconsideration in the trial court" indicates that the trial court is 

prohibited from considering any motion for reconsideration. Syphard's reasoning 

conflates the discretion to deny with a requirement to deny. This Court's decision in 
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Taylor does not stand for the proposition that a trial court may not ever consider a motion 

for reconsideration. Instead, it merely points out that the trial court has the broad 

discretion to overrule the motion, and has no obligation under the Civil Rules to provide 

an explanation. 

{¶13} Additionally, Syphard's argument does not acknowledge the difference 

between a motion to reconsider a final judgment and a motion to reconsider an 

interlocutory order. In Pitts, the Ohio Supreme Court explained that judgments and final 

orders are not subject to motions for reconsideration, "either expressly or impliedly," 

because Civ.R. 60(B) dictates that a party's ability to seek relief from a final judgment is 

limited to the methods expressly provided in the rules, and a motion for reconsideration is 

only impliedly referenced in Civ.R. 54(B). Pitts at 379-380. However, Pitts explicitly noted 

that ""[i]nterlocutory orders are subject to motions for reconsideration," pursuant to the 

language of Civ.R. 54(B). Id. at 379. This court has consistently followed Pitts and held 

that a trial court has the discretion to entertain a motion for reconsideration of an 

interlocutory order. See, e.g., Tablack v. Wellman, 7th Dist. No. 04-MA-218, 2006-Ohio4688, at ¶39; Yeater v. Bob Betson Ent., 7th Dist. No. 04-BE-46, 2005-Ohio-6943, at ¶10; 

Helman v. EPL Prolong, Inc. (2000), 139 Ohio App.3d 231, 240-241, 743 N.E.2d 484 (7th 

Dist.). 

{¶14} Second, Syphard argues that the doctrine of res judicata barred the trial 

court from considering the second motion for summary judgment. The doctrine of res 

judicata applies to a court's final judgment or decree. "A valid, final judgment rendered 

upon the merits bars all subsequent actions based upon any claim arising out of the 

transaction or occurrence that was the subject matter of the previous action." Grava v. 

Parkman Twp. (1995), 73 Ohio St.3d 379, 653 N.E.2d 226, at syllabus. However, the 

denial of a motion for summary judgment generally does not constitute a final order 

pursuant to R.C. 2505.02(B), because it does not determine the action and prevent a 

judgment. Celebrezze v. Netzley (1990), 51 Ohio St.3d 89, 90, 554 N.E.2d 1292. A 

determination which is not a final judgment "is subject to revision at any time" before the 

entry of a final judgment. Civ.R. 54(B); Creaturo v. Duko, 7th Dist. No. 04 CO 1, 2005-

Ohio-1342, at ¶28. The denial of a motion for summary judgment is therefore an 

interlocutory order, which the trial court has the broad discretion to reconsider any time 
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prior to the entering of final judgment. Celebrezze at 90. Thus, the doctrine of res judicata 

does not apply here, which Syphard conceded at oral argument. 

{¶15} Given the foregoing, neither the Civil Rules nor the doctrine of res judicata 

prohibited the trial court from entertaining Accordia's Motion for Reconsideration. 

Accordingly, Syphard's assignment of error is meritless. 

Statute of Limitations 

{¶16} Pursuant to App.R. 3(C)(2), Accordia asserts a conditional crossassignment of error to argue an alternative basis to affirm the trial court's decision as 

follows: 

{¶17} "The trial court erred in initially denying defendant's summary judgment." 

{¶18} Summary judgment is proper when (1) there remains no genuine issue of 

material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) 

reasonable minds can come to but one conclusion, and with the evidence construed in 

favor of the party against whom the motion is made, that conclusion is adverse to that 

party. Civ.R. 56(C). An appellate court reviews a trial court's decision to grant summary 

judgment de novo. Doe v. Shaffer (2000), 90 Ohio St.3d 388, 390, 738 N.E.2d 1243. 

{¶19} Where the statute of limitations has expired prior to the filing of the 

complaint, the plaintiff's action is time-barred, and must fail as a matter of law. R.C. 

2305.03. The issue of whether the statute of limitations has run on a particular action 

depends upon which statute applies. Federal Financial Co. v. Andes, (Mar. 29, 1999), 

7th Dist. No. 96-BA-40, at *4. Further, "[t]he ground of the action and the nature of the 

demand determine which statute of limitations is applicable." Peterson v. Teodosio

(1973), 34 Ohio St.2d 161, 173, 63 O.O.2d 262, 297 N.E.2d 113. If the basis of the 

complaint sounds in contract, the action would be governed by the fifteen-year statute of 

limitations for a written contract, or six years for a contract not in writing. R.C. 2305.06; 

R.C. 2305.07. If the basis of the complaint sounds in tort, the action will generally be 

governed by the four-year statute of limitations, pursuant to R.C. 2305.09. 

{¶20} In Syphard's First Amended Complaint he asserted three claims. First, that 

Accordia's agent agreed to procure an insurance policy with a certain amount of coverage 

for Syphard, that the agent failed to procure such coverage through misfeasance or 
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malfeasance, and that the insurance company provided less coverage than expected as 

a result. Second, that the agent negligently failed to procure the requested insurance, 

and breached a duty owed to Syphard. Finally, that the agent acted within the scope of 

his employment with Accordia when he breached his duty to Syphard. 

{¶21} Syphard does not make any claims that Accordia or the agent had breached 

a written contract that existed between them and Syphard. Instead, Syphard has solely 

pleaded the basic elements of a negligence claim: duty, breach, causation and damages. 

Texler v. D.O. Summers Cleaners & Shirt Laundry Co. (1998), 81 Ohio St.3d 677, 680, 

693 N.E.2d 271. Thus, Syphard's complaint sounds in tort. 

{¶22} Because Syphard's complaint sounded in tort, it is governed by the fouryear statute of limitations provided by R.C. 2305.09. The injury that gave rise to this 

action occurred on August 3, 1999, and Syphard filed the complaint on May 26, 2006, 

almost seven years later. Because there is no question of fact that the action was 

commenced more than four years after the injury, and because Syphard's complaint, on 

its face, is limited to a claim of negligence, Syphard's complaint was time-barred, and 

should fail as a matter of law. Accordingly, Accordia was entitled to judgment as a matter 

of law, and the trial court should have granted Accordia's original motion for summary 

judgment for this reason alone. 

{¶23} For the foregoing reasons, Syphard's sole assignment of error is meritless, 

and Accordia's conditional cross-assignment of error is meritorious, and the judgment of 

the trial court is affirmed. 

Donofrio, J., concurs. 

Waite, J., concurs.