COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 84407 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION SAAD SAID SIBAI : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JUNE 2, 2005 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-309978 JUDGMENT: Judgment Vacated and Remanded. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: WILLIAM D. MASON Cuyahoga County Prosecutor KRISTEN LUSNIA Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DENNIS M. COYNE 1428 Hamilton Avenue Cleveland, Ohio 44114-1106 -2- PATRICIA ANN BLACKMON, A.J.: Appellant Saad Said Sibai appeals the trial court's denial of his motion to vacate his guilty plea.1 Sibai assigns the following error for our review: "The trial court erred when it overruled appellant 's motion to vacate [his] guilty plea, when at the time of the plea the trial court failed to provide the advisement pursuant to O.R.C. 2943.031(A) that he was subject to possible deportation, exclusion from the United States or denial of naturalization pursuant to United States." Having reviewed the record and pertinent law, we vacate Sibai's guilty plea and remand for further proceedings. The apposite facts follow. On July 6, 1994, the Cuyahoga County Grand Jury indicted Sibai for one count each of carrying a concealed weapon, trafficking in food stamps, drug abuse, and possession of criminal tools. On January 26, 1995, Sibai pled guilty to trafficking in food stamps and possession of criminal tools. The remaining counts were nolled. The trial court sentenced Sibai to one year on each count, to run consecutively. Sibai's sentence was suspended, and he was placed on three years probation. On January 30, 2004, Sibai filed a motion to withdraw his guilty plea, arguing the trial court failed to advise him pursuant to R.C. 2943.031 that his plea could result in him being deported. 1 This appeal was stayed pending the Ohio Supreme Court's decision in State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894. -3- A hearing on the motion was conducted; subsequently, the trial court denied the motion. Sibai now appeals. In his sole assigned error, Sibai argues the trial court erred by denying his motion to vacate his guilty plea because it was untimely filed. We agree. R.C. 2943.031 provides that, before accepting a guilty plea to a felony, the trial judge shall address the defendant personally and provide the following advisement and determine that the defendant understands it: "If you are not a citizen of the United States you are hereby advised that conviction of the offense to which you are pleading *** may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." In the instant case, the record indicates the trial court failed to advise Sibai that his plea could affect his ability to stay in the United States. Nonetheless, the court denied Sibai's motion to withdraw his plea after concluding that Sibai's waiting nine years to file his motion to withdraw constituted an unreasonable amount of time. In so ruling, the trial court relied on this court's opinion in State v. Francis,2 in which we held the defendant's motion to withdraw was properly denied because the 2 Cuyahoga App. No. 82324, 2003-Ohio-4406. -4- defendant filed the motion over nine-years after entering his plea. This decision was recently overruled by the Ohio Supreme Court.3 In overruling this court's decision, the Ohio Supreme Court held the timeliness of a motion to withdraw a plea pursuant to R.C. 2943.031(D) was just one of many factors a trial court was to take into account when considering whether to grant a motion to withdraw a guilty plea.4 The Court explained as follows: "Depending on the particular facts, untimeliness will sometimes be an important factor in reaching a decision on a motion to withdraw. On the other hand, in some cases even a considerable delay in filing the motion to withdraw will not be a factor supporting a denial of the motion, such as when the immigration-related consequences of the plea and resulting conviction did not become evident for some time after the plea was entered. This is not a situation that requires a bright-line rule. As one of many factors underlying the trial court's exercise of discretion in considering the motion to withdraw, timeliness of the motion will be of different importance in each case, depending on the specific facts."5 The Court also held that the abuse-of-discretion standard of review applies in reviewing the trial court's decision on a motion to withdraw.6 Because the trial court inFrancis failed to conduct a hearing on the matter, the Court concluded it could not determine 3 State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894. 4 State v. Francis, supra at 497. 5 Id. at 498. 6 Id. at 495. -5- whether the trial court abused its discretion in denying the motion and remanded the matter for a hearing. In the instant case, a hearing was conducted. The evidence indicated that Sibai entered his plea in 1995 and did not seek to withdraw it until 2004, over nine years later. However, Sibai was not notified that he was to be deported until approximately twelve- to-eighteen months prior to filing his motion to withdraw his plea. After Sibai was married in 1997, he reported to the immigration office in order to change his status from "political asylum" to "married." At that time, he told the immigration officer about his felony. Following the advice of the immigration officer, Sibai filed a "waiver of his felony," in which he indicated he was the sole supporter of his family. The waiver was never ruled on. However, every year, his work permit was renewed. In 2002, he was notified that all non-citizens were required to register with the Immigration Department, which Sibai did. Thereafter he was arrested and told he was to be deported. He was released on his own recognizance pending his hearing. In 2003, he appeared for his hearing before the Immigration Department. At that time, he asked the judge the status of the waiver he filed in 1997. Counsel for the Immigration Department told him it was still pending. The judge advised Sibai to seek other "alternatives" and continued the hearing. Thereafter, Sibai's attorney filed the motion to withdraw Sibai's guilty plea with the court of common pleas. -6- Therefore, the record indicates that Sibai was not prejudiced by the trial court's failure to properly advise him until he received his deportation order. He further did not realize his waiver of his felony would not be granted until he appeared for his deportation hearing. Before this, there was no reason for Sibai to seek to withdraw his plea because his work permit was being renewed annually, and the waiver of his felony was pending with the Immigration Department. Under these circumstances, "where the immigration-related consequences of the plea and resulting conviction did not become evident for some time after the plea was entered,"we do not conclude that the mere fact over nine years has elapsed from the date of his plea to constitute grounds for denying his motion to vacate. It appears the trial court's sole basis for denying Sibai 's motion to withdraw his plea was the fact the motion was untimely. The trial court stated if Sibai had sought to withdraw the plea prior to the expiration of his probation, the court would have "immediately" granted the motion.7 Therefore, because no other grounds for denying Sibai 's motion were presented, we vacate Sibai's plea and remand for further proceedings. Accordingly, Sibai's assigned error is sustained. Judgment vacated and cause remanded for further proceedings. 7 Tr. at 17. -7- It is ordered that appellant recover of appellee his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. MICHAEL J. CORRIGAN, J., and KENNETH A. ROCCO, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court 's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 84782, 84792 AND 85080 SANDRA CARROLL, ET AL. : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION SAFECO INSURANCE COMPANY, ET AL.: : Defendants-Appellees : : DATE OF ANNOUNCEMENT JUNE 2, 2005 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-429480 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiffs-Appellants: HOWARD A. SCHULMAN Schulman Schulman & Meros 1370 Ontario Street 1700 Standard Building Cleveland, Ohio 44113-1727 For Defendants-Appellees: DARLENE E. WHITE TIMOTHY J. FITZGERALD Gallagher, Sharp, Fulton & Norman 7th Floor Bulkley Building 1501 Euclid Avenue Cleveland, Ohio 44115 -2- PATRICIA ANN BLACKMON, A.J. Appellants Thomas and Sandra Carroll, appeal from the trial court's refusal to grant pre-judgment interest on a $450,000 settlement between them and Thomas Carroll 's employer's insurer, American States Insurance Company,(hereinafter referred to as "American States"), and the trial court's decision to grant American States' summary judgment on any additional coverage in light of the Ohio Supreme Court's decision in Westfield Ins. Co. v. Galatis.1 The Carrolls assign the following errors for our review: "I. The trial court erred when it refused to grant pre- judgment interest." "II. The trial court erred when it considered and granted American States' motion for summary judgment." American States cross-appeals and assigns the following errors for our review: "I. The trial court's partial summary judgment granting plaintiffs' motion and denying defendant American States' motion, which was based solely upon Scott- Pontzer v. Liberty Mut. Fire Ins. Co. And Ezawa v. Yasuda Fire & Marine Ins. Co. Of Am., was legally erroneous as plaintiffs were not insureds entitled to underinsured motorist coverage pursuant to the commercial automobile policy issued to Thomas Carroll's corporate employer by American States. [R. 21 and 24, Summ. Judg. Entry and Opinion]" "II. The trial court erred as a matter of law when it denied defendant American States' motion for reconsideration of the interlocutory partial summary judgment which had declared that plaintiffs 1 100 Ohio St.3d 216, 2003-Ohio-5849. -3- were entitled to underinsured motorist coverage pursuant to the commercial automobile policy issued to plaintiff Thomas Carroll's corporate employer by defendant American States in light of the Supreme Court of Ohio's decision in Westfield Ins. Co. v. Galatis. [R. 53, J.E. Recon.]" Having reviewed the record and pertinent law, we affirm the trial court's decision denying the Carroll's request for prejudgment interest and granting American States ' motion for summary judgment on the remaining claim in light of Westfield Ins. Co. v. Galatis. We also affirm the trial court's decision denying American States' motion to reconsider, which attacked the trial court's partial summary judgment in favor of the Carrolls that resulted in the settlement between the parties for $450,000 to the Carrolls under their Scott-Pontzer2 claim. The facts are not complicated. Jeffrey Kohler injured Thomas and Sandra Carroll when his vehicle collided with their motorcycle, leaving both Thomas and Sandra severely injured; Thomas was rendered a quadriplegic. After exhausting all the available insurance coverage, Thomas Carroll filed a suit against his employer's insurance company, American States. The amount of American States'underinsured motorist coverage totaled one million dollars. In 2001, the Carrolls filed a motion for partial summary judgment declaring that $970,000 was available to them; the trial 2 Scott-Pontzer v. Liberty Mut. Fire Ins. Co., 85 Ohio St.3d 660, 1999-Ohio-292. -4- court granted them partial summary judgment declaring they were entitled to coverage in the amount of $450,000 with the understanding that the remaining coverage claim would be tried to the court. At the time of the Carrolls 'partial summary judgment, Scott-Pontzer was the law of the case. Consequently, on April 18, 2002, the parties entered into a partial settlement agreement. There is no dispute that the parties entered into a settlement agreement and that the agreement stated in pertinent part the following: "This agreement and release encompasses any claims which were made or could have been made in the case of Sandra Carroll, et al. v. Safeco Insurance Co., et al. Cuyahoga County Court of Common Pleas Case No. 429480. The plaintiffs have agreed to accept the $450,000.00, without prejudice to their rights to claim that they are entitled to more than $450,000.00 under the Insurer's insurance policy as referenced above." The Carrolls signed the release and negotiated the settlement check. Thereafter, on June 20, 2002, American States moved for summary judgment on the remaining coverage claim. Before trial and before a ruling on summary judgment, the Ohio Supreme Court issued Westfield Ins. Co. v. Galatis, which effectively reversed Scott- Pontzer. On March 19, 2004, the trial court ordered the parties to submit supplementary briefs. In the interim, American States asked the trial court to reconsider the partial summary judgment that led to the settlement between the parties. -5- On May 6, 2004, the trial court granted American States ' motion for summary judgment on the remaining claims in light of Westfield Ins. Co. v. Galatis, but denied its motion for reconsideration. Thereafter, the Carrolls appealed the trial court's decision granting summary judgment in favor of American States on the remaining claims. American States also cross- appealed the trial court's denial of its motion for reconsideration of the trial court's partial summary judgment to the Carrolls. We first address the Carrolls' prejudgment interest claim on the $450,000 settlement. They argue that, under Landis v. Grange Mut. Ins. Co.,3 they are entitled to prejudgment interest. They made the claim for prejudgment interest in August 2002. The trial court denied the prejudgment interest on July 12, 2004. It does not appear that the trial court's denial was related to Westfield Ins. Co. v. Galatis; however, we believe that Westfield Ins. Co. v. Galatis impacts the prejudgment interest claim in this present state. In Bowman v. Progressive Cas. Ins. Co. ,4 the court made it clear that the historical reason for prejudgment interest lies in encouraging settlements of legitimate claims. As of 2003, the Carrolls' claim was not legitimate because of the Westfield Ins. 3 (1998) 82 Ohio St.3d 339. 4 (1999), 136 Ohio App.3d 259. -6- Co. v. Galatis decision. Therefore, prejudgment interest should be denied. We now address the Carrolls' argument that their additional claims should have survived Westfield Ins. Co. v. Galatis. We disagree. In Westfield Ins. Co. v. Galatis, the Supreme Court held as follows: "Absent specific language to the contrary, a policy of insurance that names a corporation as an insured for uninsured or underinsured motorist coverage covers a loss sustained by an employee of the corporation only if the loss occurs within the course and scope of employment."5 Overruling Ezawa v. Yasuda Fire & Marine Ins. Co. Of Am.,6 the Galatis decision further declared: "Where a policy of insurance designates a corporation as a named insured, the designation of "family members" of the named insured as other insureds does not extend insurance coverage to a family member of an employee of the corporation unless that employee is also a named insured."7 It is undisputed that at the time of the accident giving rise to this case, Thomas Carroll was employed by Architectural Interior Restorations, but he was not acting within the course and scope of that employment. Thomas and his wife were riding Thomas'personal motorcycle, which was struck by a vehicle driven 5 Westfield Ins. Co. v. Galatis, supra at paragraph two of the syllabus. 6 86 Ohio St.3d 557, 1999-Ohio-124. 7 Id. at paragraph three of the syllabus. -7- by the tortfeasor, Kohler. According to the law pronounced in Westfield Ins. Co. v. Galatis, Thomas Carroll was not an insured under the American States'policy and, therefore, not entitled to uninsured/underinsured motorist coverage for the injuries sustained in the accident.8 Further, Thomas Carroll was not a named insured in the American States' policy. Since Sandra Carroll 's claim is predicated upon her being a "family member" of her husband, the legal grounds for coverage no longer exist as a result of the Westfield Ins. Co. v. Galatis decision.9 The result is the Scott-Pontzer claim that both parties thought was viable at the time of the pending action was no longer viable. Had Westfield Ins. Co. v. Galatis initially been the law, the Carrolls'initial complaint would have been subject to summary judgment because they could not establish facts that would entitle them to judgment. Because the issue regarding damages in excess of $450,000 was unresolved, Westfield Ins. Co. v. Galatis applies. Under Westfield Ins. Co. v. Galatis , the Carrolls do not qualify as 8See, Boigegrain v. Bryant (Mar. 18, 2004), Cuyahoga App. No. 83103; Shterenberg v. Am. States Ins. Co., (Dec. 18, 2003), Cuyahoga App. No. 82990; Johnson v. Fed. Ins. Co., (Nov. 20, 2003), Cuyahoga App. No. 82428; Tolbert v. Genesis Ins. Co., (Nov. 20, 2003), Cuyahoga App. No. 82171. 9Stask v. McEachern (July 15, 2004), Cuyahoga App. No. 83925. -8- insureds under the applicable policy definitions. Consequently, the Carrolls are not entitled to uninsured/underinsured motorist coverage under the American States' policy as a matter of law. Accordingly, the Carrolls' assigned errors are overruled. We now address American States ' cross-appeal of the trial court's denial of their motion for reconsideration of its earlier grant of partial summary judgment in favor of the Carrolls. We decline to reverse the trial court's ruling to deny reconsideration and uphold the settlement. The February 4, 2001 order granting partial summary judgment in favor of the Carrolls declared the rights and liabilities of the parties. Thereafter, as previously noted, the parties entered into a partial settlement agreement and on April 18, 2002, filed their stipulations, which the trial court journalized on April 29, 2002. The trial court's subsequent journalization of the parties' joint stipulations resulted in a final judgment on the issue of the $450,000. Moreover, American States tendered the check for $450,000 with the release, and the Carrolls signed the release and negotiated the check. Thus, the filing of a motion for reconsideration after a final judgment was a nullity.10 Further, the Ohio Rules of Civil Procedure do not prescribe 10Pitts v. Dept. of Transportation (1981), 67 Ohio St.2d 378, paragraph one of the syllabus. -9- motions for reconsideration after a final judgment in the trial court.11 We also decline to disturb the aforementioned settlement agreement because it is uncontroverted that public policy favors settlements.12 Without such, it would be difficult for parties to attempt the amicable adjustment or compromise of disputes.13 Moreover, when parties agree to settle cases, litigation is avoided, costs of litigation are contained, and the legal system is relieved of the burden of resolving the dispute with the resulting effect of alleviating an already overcrowded docket.14 Finally, we decline to disturb the settlement agreement in the instant case, in order to prevent the floodgates of attempts at unraveling all similar agreements arrived at when Scott- Pontzer was the law. As previously stated, in applying Westfield Ins. Co. v. Galatis, the Carrolls are not entitled to uninsured/underinsured motorist coverage under the American States' policy as a matter of law. We note the troubling aspect of this case in light of 11See, Cejer v. National Paper & Packaging Co. (Mar. 28, 1991), Cuyahoga App. No. 58265. 12Humm v. City of N. Royalton (April 3, 1975), Cuyahoga App. No. 33431 13Scherer v. Piper (1875), 26 Ohio St. 476, 479. 14See Bogan v. Progressive Cas. Ins. Co. (1988), 36 Ohio St.3d 22 -10- Westfield Ins. Co. v. Galatis. However, we opt to uphold the settlement contract regardless of a post-case law impact. Judgment affirmed. -11- It is ordered that appellees recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. FRANK D. CELEBREZZE, JR., J., and DIANE KARPINSKI, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .