COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68710 BOB SCHMIDT HOMES, INC., : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION : THE CINCINNATI INSURANCE CO., : : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 18, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-245446 JUDGMENT: JUDGMENT VACATED AND CASE REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: JOHN J. WARGO GEORGE W. LUTJEN MARK FUSCO Davis and Young Co., L.P.A. Wargo & Wargo 1800 Midland Building 30 Park Drive 101 Prospect Ave., W. P.O. Box 332 Cleveland, Ohio 44115 Berea, Ohio 44017 - 2 - O'DONNELL, J.: Bob Schmidt Homes, Inc. appeals from the trial court's judgment entered prior to empaneling the jury in favor of the Cincinnati Insurance Company on all counts in the complaint thereby denying Schmidt's claims for indemnification arising out of a judgment against Schmidt for negligent construction of a home. The facts which prompted the filing of this case began in 1978 when Mr. and Mrs. James Orlowski purchased a home, located at 11723 Park Pointe Place, Strongsville, Ohio, from the Lonardo family and subsequently experienced structural problems with the home and in March, 1988 sued Bob Schmidt Homes, Inc. for negligent construction of a home. The Cincinnati Insurance Company, Schmidt's carrier, defended pursuant to the terms its contract, but subject to a reservations of rights letter. That case was eventually dismissed and Cincinnati assumed the defense but sent no new reservation of rights letter to Schmidt. The refiled case proceeded to trial and resulted in the jury returning a verdict against Schmidt in the sum of One Hundred Sixty-Five Thousand Dollars ($165,000.00). Schmidt thereafter settled the case for One Hundred Fifty-five Thousand Dollars ($155,000.00) and subsequently filed this jury action seeking indemnification from its carrier and also alleging a bad faith claim. The court scheduled the matter for trial on November 15, - 3 - 1993, January 27, 1994, March 21, 1994, and October 6, 1994, and on September 23, 1994, Cincinnati filed a pleading styled Trial Brief, or in the Alternative, Motion for Summary Judgment, or Directed Verdict, but did not obtain leave of court to do so. The court ordered that pleading to be considered as a trial brief and thereafter referred the case to a visiting judge for trial. On February 13, 1995, prior to voir dire, opening statements or presentation of evidence, but after the court read stipulations into the record, a visiting judge sua sponte entered judgment for Cincinnati in the case. Schmidt now appeals and presents four errors for our review, three of which allege an abuse of discretion in that the trial court disallowed the presentation of evidence. We therefore will consider them together. I. THE TRIAL COURT ABUSED ITS DISCRETION BY SUA SPONTE DISMISSING PLAINTIFF'S COMPLAINT WITHOUT ALLOWING THE PLAINTIFF TO PRESENT EVIDENCE. II. THE TRIAL COURT ABUSED ITS DISCRETION BY DISMISSING PLAINTIFF'S COMPLAINT ON THE BASIS OF THE STIPULATIONS WITHOUT PERMITTING PLAINTIFF TO PRESENT ADDITIONAL EVIDENCE TO SUPPORT ITS CLAIM. IV. THE TRIAL COURT ABUSED ITS DISCRETION BY DISMISSING THE PORTION OF PLAINTIFF'S COMPLAINT WHICH SOUGHT DAMAGES FOR THE BAD FAITH CONDUCT OF THE CINCINNATI INSURANCE COMPANY. Schmidt claims that the trial court abused its discretion by - 4 - entering judgment for Cincinnati based on the stipulations read into the record without being permitted to present any evidence in the case, especially on the claim of bad faith. Cincinnati, on the other hand, contends that the trial court did not abuse its discretion in entering judgment because it claims that courts have an inherent right to grant summary judgment sua sponte and accordingly should be able to remove such issues from the jury pursuant to Civil Rule 56 or pursuant to Civil Rule 50. In support of its position, Cincinnati cites Houk v. Ross, (1973), 34 Ohio St.2d 77 and Gibbons v. Price, (1986), 33 Ohio App.3d 4. The issue before our Court then is whether the trial court abused its discretion in rendering judgment prior to the commencement of the jury trial in this case without giving Schmidt an opportunity to present evidence. We begin our analysis of this issue by examining what constitutes an abuse of discretion by the trial court. The Ohio Supreme Court defined the term abuse of discretion as "more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable." State v. Adams, (1980), 62 Ohio St. 2d 151, at 157. With this definition in mind we must examine the action of the trial judge. The trial court entered judgment for Cincinnati without stating the procedural basis upon which such judgment was entered. The rules of Civil Procedure provide at least two bases - 5 - for summarily entering judgment: summary judgment and directed verdict. Civil Rule 56 concerns summary judgment and states in relevant parts: (C) Motion and proceedings thereon. The motion shall be served at least fourteen days before the time fixed for hearing. The adverse party prior to the day of hearing may serve and file opposing affidavits * * * Civ. R. 56 In this instance the court specifically directed that Cincinnati's pleading be treated as a trial brief and not as a summary judgment or directed verdict. Nothing contained in the transcript reflects that Cincinnati orally moved for summary judgment prior to entry of judgment by the visiting judge. The trial court in this instance furthermore never gave Schmidt the opportunity to rebut summary judgment because the entry of the trial judge did not conform with the notice requirement of Civil Rule 56. Our review of the record in this case further demonstrates that the trial court did not act in conformity with Civil Rule 56. In support of this view the court in the transcript of the court proceedings at T.9 stated as follows: "This case should have been resolved on a motion for summary judgment." An entry of summary judgment in this instance would constitute an abuse of discretion. Civil Rule 50 concerns a directed verdict and provides in part: - 6 - (A) Motion for directed verdict. (1) When made. A motion for a directed verdict may be made on the opening statement of the opponent, at the close of the opponent's evidence or at the close of all the evidence.* * * Civ. R. 50 In this instance, appellant, Schmidt requested trial by jury. The transcript of proceedings reflects that voir dire had not been conducted, no opening statements had been made, and Schmidt had not closed its presentation of evidence. Thus a motion for directed verdict would not be a timely consideration for the trial court in the within action and an entry of judgment on that basis would also constitute an abuse of discretion. Regardless of the trial judge's view, the court's obligation is to conform with the notice provision of Civil Rule 56 or to consider the matter in a timely fashion pursuant to Civil Rule 50. This is true because no other procedures allow for entry of judgment in a summary fashion. We have further considered the view presented by Cincinnati in that the court has inherent authority to enter judgment based upon the cases of Gibbons v. Price, supra and Houk v. Ross, supra. In Gibbons, however, the court there considered a motion for directed verdict at the close of the plaintiff's case. These are not the facts in our case. In Houk, the Supreme Court considered the reversal by an appellate court of an entry of summary judgment and the subsequent entry of summary judgment against the non-movant. The court considered whether the reversal by the appellate court - 7 - constituted an abuse of process and denial of trial by jury. These facts too are different from those we are confronted with in this case and thus we distinguish this case as well. We conclude that the trial court's conduct in entering judgment fails to conform to the requirements of the Civil Rules of Procedure and constitutes an abuse of discretion. These assignments of error are therefore well taken and we are obligated to vacate the judgment of the trial court. III. Schmidt's third assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION BY ADMITTING EVIDENCE JURY INSTRUCTIONS FROM CUYAHOGA COURT OF COMMON PLEAS CASE NO. 145772. Pursuant to App. R. 12, this assignment of error is rendered moot by the conclusions reached in the foregoing assignments of error and therefore we are not required to decide or rule upon it. In accordance with the foregoing analysis, the judgment of the trial court is vacated and the matter is remanded to the trial court for further proceedings. Judgment vacated. - 8 - Judgment of the trial court is vacated and this cause is remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) costs herein. 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. JAMES D. SWEENEY, P.J., and PATTON, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .