Six v. Gahanna Trailer Servs. , 2017 Ohio 7131 ( 2017 )

[Cite as Six v. Gahanna Trailer Servs., 2017-Ohio-7131.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Douglas A. Six, :
Plaintiff-Appellant, :
No. 16AP-91
v. : (C.P.C. No. 13CV-4511)
Gahanna Trailer Services, et al., : (REGULAR CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on August 8, 2017
On brief: Douglas A. Six, pro se.
On brief: Kemp, Schaeffer & Rowe Co., LPA, and Michael N.
Schaffer, for appellees, Steve Geiger and Geiger Excavating.
On brief: Anthony Law, LLC, Michael J. Anthony, and
Vincent Zuccaro, for appellee, Asphalt Services of Ohio, Inc.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Plaintiff-appellant, Douglas A. Six, appeals from a judgment of the Franklin
County Court of Common Pleas which granted the motion to strike and the motion for
summary judgment of defendant-appellee, Asphalt Services of Ohio, Inc. ("Asphalt
Services") and granted the summary judgment motion of defendants-appellees, Steve
Geiger and Geiger Excavating. For the following reasons, we affirm the judgment of the
trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Six rented a storage space for his camper from William Clary and Gahanna
Trailer Services. He used his camper during a vacation and returned it to Gahanna Trailer
Services on or about August 1, 2012. On or about September 22, 2012, Six visited his
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camper and discovered that the vehicle sustained damage to the rear end and sides. On
April 23, 2013, Six filed an action against Clary, Gahanna Trailer Services, Geiger, and
Geiger Excavating. Six's first, second, third, and fourth claims are against Gahanna Trailer
Services and Clary alleging breach of contract, negligence, a violation of the Consumer Sales
Practices Act, R.C. 1345.01, et. seq., and fraud. Six's fifth claim is against Geiger and Geiger
Excavating alleging negligence. Six asserts that Clary explained that Geiger Excavating had
completed work on the premises spreading rock and loose stone paving materials in August
and September 2012. Six argues that a dump truck caused the damage. In September 2013,
Tom Raper RV gave Six an estimate to repair the damage for $8,000.
{¶ 3} Six filed an amended complaint adding Asphalt Services and alleging
negligence against it.
{¶ 4} On January 21, 2015, Geiger and Geiger Excavating filed a motion for
summary judgment. Accompanying the motion was the affidavit of Steve Geiger, who
testified that he personally spread millings at the Gahanna Trailer Services trailer park on
two occasions using a skid loader and he did not cause damage to Six's camper. (Jan. 21,
2015 Ex. A, Geiger Aff., Def.'s Mot. for Summ. Jgmt.)
{¶ 5} On January 26, 2015, Gahanna Trailer Services and Clary filed an answer to
the amended complaint and cross-claimed against Geiger, Geiger Excavating, and Asphalt
Services for negligence.
{¶ 6} On June 3, 2015, Asphalt Services filed a motion for summary judgment,
supported by the affidavit of its office manager who testified that in October 2012, Asphalt
Services was hired to repave the roads and parking lot of Heritage Apartments. As part of
that project, Asphalt Services ground the old asphalt roadways and parking lots and
delivered the asphalt millings to Gahanna Trailer Services, approximately one mile away.
Attached to the affidavit were the payroll records for that job for work completed between
October 8 and 27, 2012. (Apr. 1, 2015 Minhinnick Aff., attached to Memo Contra.) The
evidence shows that Asphalt Services was not on the Gahanna Trailer Services' property
until after Six discovered the damage to his camper.
{¶ 7} On June 16, 2015, Six filed a motion to stay Asphalt Services' motion for
summary judgment arguing that he had not been able to depose the employees that
delivered the rock and stone to Gahanna Trailer Services. Six attached an affidavit from his
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counsel setting forth facts in the case. The affidavit was electronically signed and the
notary's signature was also electronically signed.
{¶ 8} On September 4, 2015, Six filed a memorandum contra the summary
judgment motions of Geiger, Geiger Excavating, and Asphalt Services. Attached to the
memorandum contra was Six's affidavit. However, Six's affidavit was electronically signed
as was the notary's signature. The affidavit contained the following notation, "[t]he
originally signed and Notarized Affidavit is in the possession of Attorney Eichenberger and
will be produced upon request." (Sept. 4, 2015 Six Aff., attached to Memo Contra Mot. For
Summ. Jgmt.)
{¶ 9} On November 5, 2015, the trial court filed an entry that begins, "[o]n
November 4, 2015, a pretrial conference was held on the record. In attendance were
Attorneys Eichenberger, Schaeffer, Zuccaro, and Koenug. During the pretrial, counsel
discussed Plaintiff's affidavit that was submitted in support of Plaintiff's September 4, 2015
Memorandum Contra to Defendants' Motions for Summary Judgment. Plaintiff shall file
the 'blue-ink' original signed affidavit with the Court no later than November 12, 2015."
(Nov. 5, 2015 Journal Entry.)
{¶ 10} On December 7, 2015, Six filed a motion for leave to file the originally signed
affidavit in support of memorandum contra to appellees' motions for summary judgment.
Six's counsel stated in the memorandum in support for leave that he was out of town two
times since November 5, 2015 and did not return to his office in order to see and review the
trial court order. Thus, he sought leave to file a scanned copy of Six's original affidavit.
{¶ 11} On January 12, 2016, the trial court entered into the record its denial of Six's
motion for leave to file the affidavit, granted Asphalt Services' motion to strike and granted
the summary judgment motions of Geiger, Geiger Excavating, and Asphalt Services. Six
filed a timely notice of appeal. On February 5, 2016, Six dismissed the action against Clary
and Gahanna Trailer Services.1
1We determined that the trial court's order is a final, appealable order. " 'A trial court's decision granting
summary judgment * * * for one of several defendants in a civil action becomes a final appealable order when
the plaintiff voluntarily dismisses the remaining parties to the suit pursuant to Civ.R. 41(A)(1).' " Perritt v.
Nationwide Mut. Ins. Co., 10th Dist. No. 03AP-1008, 2004-Ohio-4706, ¶ 11, quoting Denham v. New
Carlisle, 86 Ohio St. 3d 594 (1999), syllabus. The only remaining claim after the voluntary dismissal was
Gahanna Trailer Services and Clary's cross-claims that were rendered moot when Six voluntarily dismissed
the action against them. The cross-claim was dependent on a finding of liability against Gahanna Trailer
Services and Clary, but the dismissal precludes a finding of liability against them. See Tibbe v. Ranbaxy, Inc.,
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II. ASSIGNMENTS OF ERROR
{¶ 12} Six filed a timely notice of appeal and raised the following assignments of
error:
[1.] THE TRIAL COURT ERRED AS A MATTER OF LAW AND
ABUSED ITS DISCRETION BY FAILING TO ADMIT INTO
EVIDENCE THE ELECTRONICALLY SIGNED AFFIDAVIT
OF PLAINTIFF/APPELLANT SIX IN SUPPORT OF HIS
MEMORANDUM CONTRA TO THE DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT.
[2.] THE TRIAL COURT ERRED AS A MATTER OF LAW
AND ABUSED ITS DISCRETION IN FAILING TO GRANT
THE PLAINTIFF'S MOTION FOR LEAVE TO FILE THE
ORIGINALLY SCANNED AFFIDAVIT OF THE PLAINTIFF
INSTANTER.
[3.] THE TRIAL COURT ERRED AS A MATTER OF LAW
AND ABUSED ITS DISCRETION IN SUSTAINING THE
MOTION FOR SUMMARY JUDGMEY [sic] OF THE
DEFENDANTS BY RULING THAT THE INFERENCE OF
THE NEGLIGENCE OF THE DEFENDANTS BASED UPON
UNCONTROVERTED FACT DID NOT CREATE A
QUESTION OF FACT FOR THE JURY IN THE CASE. THE
TRIAL JUDGE FAILED TO CONSTRUE THE EVIDENCE TO
THE FAVOR OF THE NON MOVING PARTY IN THE CASE,
PLAINTIFF/APPELLANT SIX, PURSUANT TO CIVIL RULE
56.
III. DISCUSSION
A. Standard of Review
{¶ 13} Ohio Rule of Civil Procedure 56(C) provides in part that:
Summary judgment shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
1st Dist. No. C-16o472, 2017-Ohio-1149, ¶ 21, citing Wise v. Gursky, 66 Ohio St. 2d 241, 243 (1981); Wisitainer
v. Elcen Power Strut Co., 67 Ohio St. 3d 352, 355 (1993).
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{¶ 14} The Supreme Court of Ohio has explained:
Summary judgment will be granted only when there remains
no genuine issue of material fact and, when construing the
evidence most strongly in favor of the nonmoving party,
reasonable minds can only conclude that the moving party is
entitled to judgment as a matter of law. Civ.R. 56(C); Temple
v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327, 4 Ohio Op.
3d 466, 364 N.E.2d 267. The burden of showing that no
genuine issue of material fact exists falls upon the party who
files for summary judgment. Dresher v. Burt (1996), 75 Ohio
St.3d 280, 294, 1996-Ohio-107, 662 N.E.2d 264.
Byrd v. Smith, 110 Ohio St. 3d 24, 2006-Ohio-3455, ¶ 10.
{¶ 15} In determining whether to grant a motion for summary judgment, the trial
court must give the nonmoving party "the benefit of all favorable inferences when evidence
is reviewed for the existence of genuine issues of material facts." Byrd at ¶ 25. We review
a trial court's decision on summary judgment de novo, and we apply the same standards as
the trial court. Westfield Ins. Co. v. Hunter, 128 Ohio St. 3d 540, 2011-Ohio-1818, ¶ 12;
Bonacorsi v. Wheeling & Lake Erie Ry., 95 Ohio St. 3d 314, 2002-Ohio-2220, ¶ 24.
{¶ 16} According to the Supreme Court, a "party seeking summary judgment, on the
ground that the nonmoving party cannot prove its case, bears the initial burden of
informing the trial court of the basis for the motion, and identifying those portions of the
record which demonstrate the absence of a genuine issue of material fact on the essential
element(s) of the nonmoving party's claims." Dresher v. Burt, 75 Ohio St. 3d 280, 293
(1996). Civ.R. 56(E) provides that the nonmoving party to a properly supported motion for
summary judgment, may not rest on the mere allegations or denials contained in the
pleadings, but must demonstrate a genuine issue of fact for trial. If the nonmoving party
does not so respond, if appropriate, the trial court shall grant the summary judgment
motion.
B. Analysis of Assignments of Error
{¶ 17} Six's assignments of error are related and we address them simultaneously.
In his first assignment of error, Six contends that the trial court erred and abused its
discretion by failing to admit into evidence the electronically signed affidavit of Six in
support of his memorandum contra the appellees' motions for summary judgment. In his
second assignment of error, Six contends that the trial court erred and abused its discretion
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in failing to grant Six's motion for leave to file the originally scanned affidavit. In his third
assignment of error, Six contends that the trial court erred in granting Geiger's, Geiger
Excavating's, and Asphalt Services' motions for summary judgment.
{¶ 18} With regard to whether the trial court erred by striking an affidavit on
summary judgment, we have previously held that:
The decision to admit or exclude evidence, including affidavit
testimony, is subject to review under an abuse of discretion
standard, and absent a clear showing that the court abused its
discretion in a manner that materially prejudices a party, we
will not disturb the trial court's ruling. * * * An abuse of
discretion connotes more than an error of law or judgment, it
implies that the court's attitude is unreasonable, arbitrary or
unconscionable.
(Internal citations omitted.) Carter v. U-Haul Internatl., 10th Dist. No. 09AP-310, 2009-
Ohio-5358, ¶ 9.
{¶ 19} In this case, the trial court found that Six failed to follow its order to file a
"blue-ink" original signed affidavit. Twenty-five days after the court's deadline, Six sought
leave to file a scanned copy of the affidavit with the court, not the original "blue-ink" copy
that the trial court ordered that he file. This is in spite of the fact that Six's counsel was
present at the pre-trial conference when the trial court discussed with the parties in what
form the affidavit needed to be submitted and thereafter ordered it. Counsel failed to
comply with the trial court's order and file the "blue-ink" original. In fact, the signed
affidavit was not filed until February 2, 2016, after the trial court ordered Six's counsel to
show cause as to why he should not be found in contempt. (Jan. 12, 2016 Decision.)
{¶ 20} We note that Civ. R. 56(C) requires:
Summary judgment shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. No
evidence or stipulation may be considered except as stated in
this rule.
(Emphasis added.) Six, through his attorney, failed to timely file his affidavit in a form that
could be considered by the court.
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{¶ 21} We have previously addressed the specificity of the type of evidence required
by Civ. R. 56(C) and held:
Civ.R. 56(C) sets forth an exhaustive list of evidence that a court
may consider when ruling on a motion for summary judgment.
Under Civ.R. 56(C), a court may consider 'pleadings,
depositions, answers to interrogatories, written admissions,
affidavits, transcripts of evidence, and written stipulations of
fact, if any, timely filed in the action[.]' Civ.R. 56(C) expressly
cautions that 'no evidence or stipulation may be considered
except as stated in this rule.' [A] letter does not fall within the
categories of evidence listed in Civ.R. 56(C).
The proper procedure for introducing evidentiary matter of a
type not listed in Civ.R. 56(C) is to incorporate the material by
reference into a properly framed affidavit. Martin v.
Central Ohio Transit Auth. (1990), 70 Ohio App. 3d 83, 89,
590 N.E.2d 411, citing Biskupich v. Westbay Manor Nursing
Home (1986), 33 Ohio App. 3d 220, 515 N.E.2d 632.
Cunningham v. Children's Hosp., 10th Dist. No. 05AP-69, 2005-Ohio-4284, ¶ 14-15.
{¶ 22} The matter sought to be considered on summary judgment in Cunningham
was a letter from an expert that was not in the form of an affidavit.
{¶ 23} Six wanted the trial court to consider a nonstandard affidavit which the court
had already specifically rejected without it being supplemented with a "blue-ink" original.
Under Civ. R. 56(C) the trial court did not abuse its discretion by (1) requiring the full and
correct form of affidavit, (2) requiring that it be timely filed, (3) refusing to consider it when
not specifically the evidentiary material required, and (4) striking it from the record. That
the trial court had to resort to the threat of contempt to obtain evidentiary quality material
with which to proceed in determining whether to grant summary judgment is a testament
to the trial court's effort to follow the requirements of Civ.R. 56 and not an abuse of
discretion.
{¶ 24} To ultimately prevail on his claim for negligence, Six was required to prove
by a preponderance of the evidence that appellees owed him a duty of care, that they
breached that duty and that the breach proximately caused his injury. Mussivand v. David,
45 Ohio St. 3d 314, 318 (1989). On summary judgment, he was required to produce
evidence such that a material issue of fact concerning at least one of these issues
necessitated a trial to determine it. Six did not do this.
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{¶ 25} Six did not rebut the summary judgment motions with any evidence to create
a material issue of fact concerning who damaged his camper or how it had been damaged.
Six alleged that Geiger and Geiger Excavating caused damage to his camper because the
camper sustained damage and Geiger and Geiger Excavating were on the storage property
completing paving work and spreading stone and gravel at the facility during the month of
September 2012. Six alleged that Asphalt Services provided materials to complete the
paving, stone, and gravel work. But Asphalt Services established that it was not on the
premises prior to the time Six discovered the damage.
{¶ 26} Six, in his deposition, testified that he had no knowledge regarding who
damaged his camper. (Dec. 2, 2014 Six Depo. at 10.) He stated, "all of the other
motorhomes and bumpers are the same height in that area - - in that storage area." Id. He
opined that they could not have caused the damage to his camper and that Geiger's "dump
truck[] is the only one that would be higher than my bumper to hit it." Id. Six's theory is
that his camper was hit by a dump truck and he suspected Geiger because McClary told Six
"somebody brought gravel in." Id. at 11.
{¶ 27} From the standpoint of the Ohio Rules of Evidence:
If the witness is not testifying as an expert, the witness'
testimony in the form of opinions or inferences is limited to
those opinions or inferences which are (1) rationally based on
the perception of the witness and (2) helpful to a clear
understanding of the witness' testimony or the determination
of a fact in issue.
Evid. R. 701.
{¶ 28} Six's statements that simply eliminate other causes, but do not in and of
themselves create a permissible, relevant inference that Geiger, Geiger Excavating, or
Asphalt Services committed negligence, do not create material issues of fact regarding
negligence and the proximate damage to Six's property. Even if his affidavit had been
considered by the court, Six could not produce for the court any evidence to create a
material issue of fact for trial.
{¶ 29} The trial court found that Six failed to point to any specific act or omission of
Geiger, Geiger Excavating, or Asphalt Services and, therefore, failed to meet his reciprocal
burden of providing specific facts demonstrating a genuine issue of material fact. The trial
court determined that Six's complete lack of evidence that "would create an issue of fact as
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to the who or what damaged Plaintiff's camper" resulted in Six failing to show a genuine
issue for trial. (Decision at 7.)
{¶ 30} We hold that the trial court did not err in granting appellees' motions for
summary judgment or in failing to admit into evidence the affidavit of Six in support of his
memorandum contra the appellees' motions for summary judgment or in failing to grant
Six's motion for leave to file the originally scanned affidavit.
{¶ 31} Six's three assignments of error are overruled.
IV. CONCLUSION
{¶ 32} For the foregoing reasons, Six's three assignments of error are overruled and
the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
DORRIAN and LUPER SCHUSTER, JJ., concur.