Wemer v. Walker ( 2013 )

[Cite as Wemer v. Walker, 2013-Ohio-2005.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JAMES R. WEMER, ET AL., : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiffs-Appellants : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 12CA17
JOHN WALKER AKA JOHNNIE :
WALKER :
:
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Knox County Court of
Common Pleas, Case No. 11PI03-0146
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: May 5, 2013
APPEARANCES:
For Appellants: For Appellee:
Robert E. Cesner, Jr. Bruce A. Curry
456 Haymore Avenue North Curry, Roby & Mulvey Co., LLC
Worthington, Ohio 43085-2445 8000 Ravine’s Edge Court, Ste. 103
Columbus, Ohio 43235
Baldwin, J.
{¶1} Plaintiffs-appellants James R. Wemer and Clara Wemer appeal from the
July 24, 2012 Judgment Entry of the Knox County Court of Common Pleas granting
the Motion for Summary Judgment filed by appellee John Walker aka Johnnie Walker.
STATEMENT OF THE FACTS AND CASE
{¶2} On or about May 31, 2010, appellant James Wemer was injured when he
was bit by one of two ponies owned by appellee John Walker. Subsequently, on
March 11, 2011, appellant and his wife, Clara Wemer, filed a personal injury complaint
against appellee in the Knox County Court of Common Pleas. Appellee filed an
answer to their complaint on March 31, 2011. Appellee, in his answer, raised the
affirmative defenses of comparative negligence, assumption of the risk, and failure to
join all necessary and/or indispensible parties and an affirmative defense that he did
not know or should not have known of any vicious propensities of the subject ponies.
{¶3} Appellee, with leave of court, filed a Motion for Summary Judgment on
March 20, 2012, arguing that he was immune from liability under Ohio’s Equine
Activity Liability Act, which is codified at R.C. 2305.321. Appellants filed a
memorandum in opposition to appellee’s motion. Pursuant to a Judgment Entry filed
on July 24, 2012, the trial court granted appellee’s motion.
{¶4} Appellants now raise the following assignments of error on appeal:
{¶5} “I. THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION
FOR SUMMARY JUDGMENT. APPELLANTS ARE ENTITLED TO A TRIAL UPON
THE MERITS, BECAUSE THE EVIDENCE PRESENTS A JURY QUESTION ON THE
ISSUE OF WHETHER THE ACTS OR OMISSIONS OF THE APPELLEE
CONSTITUTE A FORFEITURE OF IMMUNITY UNDER O.R.C. 2305.321(B)(2)(b)
AND (d).”
{¶6} “II. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF-
APPELLANT’S (SIC) MOTION FOR SUMMARY JUDGMENT UPON THE BASIS
THAT THIS DECISION DENIED THEM A SUBSTANTIVE RIGHT TO A REMEDY, AS
GUARANTEED IN SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.”
I, II
{¶7} Appellants, in their two assignments of error, argue that the trial court
erred in granting appellee’s Motion for Summary Judgment. Appellants, in their first
assignment of error, argue that the evidence presents a jury question as to whether or
not appellee’s acts or omissions constituted a forfeiture of immunity under R.C.
2305.321(B). In their second assignment of error, they contend that the trial court’s
decision denied them a right to a remedy.
{¶8} As noted by the court in Supportive Solutions Training Academy L.L.C. v.
Electronic Classroom of Tomorrow, 8th Dist. Nos. 95022, 95287, 2012-Ohio-1185,
“Under Civ.R. 8(C), a defendant is required to affirmatively set forth matters that will
effectively preclude a finding of liability on the part of the defendant. Failure to raise
such defenses in a responsive pleading or motion will constitute a waiver of those
defenses. Statutory immunity is an affirmative defense, and if it is not raised in a timely
fashion, it is waived. State ex rel. Koren v. Grogan, 68 Ohio St.3d 590, 594, 629 N.E.2d
446 (1994), Civ.R. 8(C); Civ.R. 12(H). Further, even if immunity is asserted as an
affirmative defense in a defendant's answer, it still must be asserted in the motion for
summary judgment. Leibson v. Ohio Dept. of Mental Retardation & Developmental
Disabilities, 84 Ohio App.3d 751, 761, 618 N.E.2d 232 (8th Dist.1992). However, a
summary judgment motion is not the proper format in which to raise an affirmative
defense for the first time in a case. Mossa v. W. Credit Union, Inc., 84 Ohio App.3d 177,
181, 616 N.E.2d 571 (10th Dist.1992). Affirmative defenses cannot be asserted for the
first time in a motion for summary judgment. Carmen v. Link (1997), 119 Ohio App.3d
244, 695 N.E.2d 28.” Id at paragraph 24. See also Brown v. Lincoln Hts., 195 Ohio
App.3d 149, 2011-Ohio- 3551, 958 N.E.2d 1280 (1st Dist). In Brown, the appellant
argued that the trial court had erred in granting the appellee’s motion for summary
judgment on the issue of recreational-user immunity under R.C. 1533.181. The
appellant asserted that the appellee waived the affirmative defense of recreational-
user immunity by failing to raise the defense in its answer. The First District Court of
Appeals agreed and reversed the trial court’s grant of summary judgment on the basis
of recreational-user immunity. See also Eulrich v. Weaver Bros., Inc., 165 Ohio
App.3d 313, 2005-Ohio-5891, 846 N.E.2d 542 (3rd Dist.).
{¶9} In the case sub judice, appellee did not raise the affirmative defense of
immunity under R.C. 2305.321 in his answer. He, therefore, could not raise such
defense for the first time in his Motion for Summary Judgment. We find, therefore, that
the trial court erred in granting appellee’s Motion for Summary Judgment.
{¶10} Appellants’ first assignment of error is, therefore, sustained. Appellants’
second assignment of error is moot.
{¶11} Accordingly, the judgment of the Knox County Court of Common Pleas is
reversed and this matter is remanded for further proceedings.
By: Baldwin, J.
Wise, P.J. and
Delaney, J. concur.
HON. CRAIG R. BALDWIN
HON. JOHN W. WISE
HON. PATRICIA A. DELANEY
CRB/dr
IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
:
JAMES R. WEMER, ET. AL., :
:
Plaintiffs-Appellants : JUDGMENT ENTRY
:
:
-vs- :
: Case No. 12CA17
JOHN WALKER AKA JOHNNIE :
WALKER :
:
Defendant - Appellee :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Knox County Court of Common Pleas is reversed and this matter is remanded for
further proceedings. Costs assessed to appellee.
HON. CRAIG R. BALDWIN
HON. JOHN W. WISE
HON. PATRICIA A. DELANEY