Martin v. Wandling , 2016 Ohio 3032 ( 2016 )

[Cite as Martin v. Wandling, 2016-Ohio-3032.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
GALLIA COUNTY
BRYANT C. MARTIN, A Minor, :
By and Through Alana N. Fraley, his : Case No. 15CA4
Mother and Next Friend, :
:
Plaintiff-Appellee, :
: DECISION AND JUDGMENT
vs. : ENTRY
:
STEVEN E. WANDLING, Jr., et al., :
:
Defendants-Appellants. : Released: 05/11/16
APPEARANCES:
James P. Nolan, II and Ilya L. Polyakov, Smith, Rolfes & Skavdahl Co., L.P.A.,
Columbus, Ohio, for Appellant Nationwide Agribusiness Insurance Company.
Jeffery L. Finley, Eachus & Finley, Gallipolis, Ohio, for Appellee.
Mary L. Pisciotta, Nationwide Trial Division, Columbus, Ohio, for Defendant
Steve E. Wandling.
John F. McLaughlin, Rendigs, Fry, Kiely & Dennis, LLP, Cincinnati, Ohio, for
Defendant Homesite Insurance Company of the Midwest.
Tyler Martin, Thurman, Ohio, Pro Se Defendant.
Steven K. Nord, Offut, Nord & Burchett, PLLC, Huntington, West Virginia, for
Defendants Nationwide Insurance Company of America and Nationwide Mutual
Fire Insurance Company.
Steven L. Story, Story Law Office, Pomeroy, Ohio, for Defendant Timothy
Condee. 1
1
Although we have listed the attorneys and defendants in the underlying trial court proceedings, only Plaintiff-
Appellee Bryant C. Martin, A Minor, by and through Alana N. Fraley, his Mother and Next Friend, and Defendant-
Appellant Nationwide Agribusiness Insurance Company are participating in this appeal.
Gallia App. No. 15CA4 2
McFarland, J.
{¶1} Appellant Nationwide Agribusiness Insurance Company filed a notice
of appeal from the trial court’s journal entry dated June 9, 2015. Appellant raises
four assignments of error which all relate to the trial court’s grant of summary
judgment to Plaintiff-Appellee Bryant C. Martin, A Minor, by and through Alana
N. Fraley, his Mother and Next Friend, and the trial court’s denial of summary
judgment to Appellant. For the reasons which follow, we affirm the judgment of
the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} This declaratory judgment action arises from a serious accident which
occurred on June 18, 2011 in Gallipolis, Ohio. On that date, Bryant C. Martin, just
16 months of age, was severely injured as a result of being struck by a vehicle
operated by Steven Wandling. At the time of the accident, Bryant’s parents were
divorced. Bryant was visiting with his father, Tyler Martin, at his paternal
grandmother’s residence, Arlene Martin.
{¶3} Tyler Martin and Steven Wandling, longtime friends, were outside
Arlene Martin’s residence looking at repair work to be done. When the two
finished, Tyler Martin went inside the house and Steven Wandling got into his
pickup truck to leave. Both apparently thought Bryant and his older brother
Brayden were out of harm’s way. However, when Steven Wandling started his
Gallia App. No. 15CA4 3
truck and began backing up, he felt something and stopped. Steven’s truck had
injured Bryant, who was subsequently taken to Holzer Medical Center. Bryant
was determined to be in critical condition and transferred to Cabell Huntington
Hospital in West Virginia.
{¶4} At the time of the 2014 depositions, Bryant, by all accounts,
functioned as a normal 4-year-old child. However, he had suffered grievous and
debilitating injuries. Bryant was hospitalized between June 18, 2011 and
September 1, 2011. He sustained a fractured left femur, lacerated liver, lacerated
spleen, and collapsed lungs. While hospitalized, Bryant contracted Methicillin-
resistant Staphylococcus aureus (MRSA). Bryant had several surgeries to repair
his liver, spleen, and left leg. Due to his lung issues, he was placed on a respirator.
Bryant was in an induced coma for 43 days. He spent time at both Cabell
Huntington Hospital in Huntington, West Virginia, and Children’s Hospital in
Columbus, Ohio. Bryant had a lengthy rehabilitation period and suffered seizures
as a result of his injuries. As one would expect, Bryant’s medical expenses were
astronomical.
{¶5} All parties agree that at the time of the accident Steven Wandling was
an underinsured driver. On March 12, 2014, Alana Martin NKA Alana Fraley
filed suit on behalf of Bryant. The suit named Steven Wandling for alleged
negligence, and Tyler Martin for alleged negligent supervision. The suit also
Gallia App. No. 15CA4 4
sought declaratory relief with respect to underinsured motorist coverage available
for Bryant as follows:
1) A homeowner’s policy issued to Arlene Martin by Homesite
Insurance Company of the Midwest;
2) A motor vehicle policy issued to Tyler Martin by Nationwide
Mutual Insurance Company of America;
3) A motor vehicle policy issued to Alana Fraley by Nationwide
Mutual Fire Insurance Company; and
4) A business auto policy issued to Timothy Scott Condee by
Nationwide Agribusiness Insurance Company.
{¶6} Hereinafter, we will focus only on the pleadings relevant to this appeal
and filed subsequently by Appellee and Appellant Nationwide Agribusiness
Insurance Company. Appellant filed a timely answer, and also filed cross-claims
against Steven Wandling and Homesite for contribution. Discovery amongst the
parties ensued.
{¶7} On June 27, 2014, the trial court conducted an initial pre-trial hearing
and issued a case scheduling order as agreed upon by all parties. Also by
agreement, October 1, 2014 was the deadline for the parties to file summary
judgment motions as to the issue of coverage available to Bryant. Appellant filed a
motion, which the trial court granted, to bifurcate coverage issues from liability
and damage issues.
Gallia App. No. 15CA4 5
{¶8} On September 30, 2014, Appellee filed a motion for summary
judgment as to the coverage issues under the three Nationwide policies. On
October 1, 2014, Appellant filed its motion for summary judgment. The legal
issue framed in the motions, as a result of the facts obtained during discovery, was
whether or not on the date Bryant was injured he was a “family member” as
defined by the policy issued to Timothy Scott Condee by Appellant. On October
20, 2014, Appellee filed a response to Appellant’s motion for summary judgment.
Also on October 20, 2014, Appellee filed motions to strike alleged inadmissible
evidence submitted in Appellant’s motion for summary judgment. On October 21,
2014, Appellant filed a memorandum contra to Appellee’s motion for summary
judgment. Also on this date, Appellee filed motions to strike Appellant’s
supplement to their motions for summary judgment and motions to strike
inadmissible evidence in the memorandum contra.
{¶9} On October 29, 2014, Appellant filed a reply memorandum in support
of his motion for summary judgment. On October 31, 2014, Appellee filed a
motion to strike inadmissible evidence in Appellant’s reply memorandum. The
trial court scheduled an oral hearing on all pending motions. During the hearing on
March 17, 2015, the parties were given the opportunity to make arguments and the
matter was deemed submitted to the court for decision on the various pending
motions.
Gallia App. No. 15CA4 6
{¶10} On March 25, 2015, Appellant filed a motion to supplement its
motion for summary judgment. On March 31, 2015, the trial court denied
Appellant’s motion. On April 1, 2014, the trial court granted Appellee’s motions
to strike inadmissible evidence contained in Appellant’s motion for summary
judgment, memorandum contra, and reply. The trial court also granted Appellee’s
motion to strike Appellant’s supplement to its summary judgment motion.
{¶11} On April 9, 2015, Appellant filed a motion for leave to file a sur-
reply in opposition to Appellee’s summary judgment motion and a motion for
leave to file a counterclaim instanter. On April 20, 2015, Appellee filed a motion
to add a necessary party for just adjudication. On April 21, 2015, the trial court
granted Appellee’s motion, which then allowed Timothy Scott Condee to be added
as a party defendant. On April 22, 2015, Appellee filed her second Amended
Complaint.2 On the same date, the trial court denied Appellant’s motion for leave
to file a sur-reply.
{¶12} On April 22, 2015, the trial court granted Appellee’s motion for
summary judgment as to coverage issue and denied Appellant’s motion for
summary judgment. On May 1, 2014, the trial court denied Appellant’s motion for
leave to file its counterclaim. Appellant timely filed an answer to the second
amended complaint. On May 15, 2015, Appellant also filed a motion for
2
Plaintiff had previously been given leave to file a first amended complaint in order to correct the proper
Nationwide entity which insured Alana Fraley.
Gallia App. No. 15CA4 7
reconsideration of the trial court’s rulings. On May 26, Appellee filed a response
to the motion for reconsideration. On June 9, 2015, the trial court overruled the
motion for reconsideration.
{¶13} Also on June 9, 2015, the trial court amended its April 22, 2015
journal entry to include Civil Rule 54(B) language. This timely appeal followed.
Additional facts will be set forth below, where relevant.
ASSIGNMENTS OF ERROR
“I. WHETHER THE TRIAL COURT ERRED IN STRIKING
NATIONWIDE AGRIBUSINESS’ EVIDENCE DISPUTING THE
RESIDENCY OF ALANA MARTIN AND GRANTING
PLAINTIFF-APPELLEE’S MOTION FOR SUMMARY
JUDGMENT.
II. WHETHER APPELLANT’S COUNTER-CLAIM SHOULD
HAVE BEEN ADMITTED ONTO THE RECORD OR IN THE
ALTERNATIVE COULD SUMMARY JUDGMENT HAVE BEEN
GRANTED ON PLAINTIFF-APPELLEE’S SECOND AMENDED
COMPLAINT ABSENT ANSWER FROM NEWLY LISTED
NECESSARY PARTIES.
III. WHETHER THE TRIAL COURT WAS INCAPABLE OF
GRANTING PLAINTIFF-APPELLEE’S MOTION FOR
SUMMARY JUDGMENT ABSENT A COMPLETE COPY OF THE
NATIONWIDE AGRIBUSINESS POLICY WITHIN THE
RECORD.
IV. WHETHER THE TRIAL COURT ERRED BY GRANTING
SUMMARY JUDGMENT TO PLAINTIFF-APPELLEE PREMISED
WHOLLY UPON SELF-SERVING TESTIMONY.”
{¶14} For ease of analysis, we have considered Appellant’s four
Gallia App. No. 15CA4 8
assignments of error out of order. We begin with discussion of the third assigned
error.
Assignment of Error III
“III. WHETHER THE TRIAL COURT WAS INCAPABLE OF
GRANTING PLAINTIFF-APPELLEE’S MOTION FOR
SUMMARY JUDGMENT ABSENT A COMPLETE COPY OF THE
NATIONWIDE AGRIBUSINESS POLICY WITHIN THE
RECORD.”
Standard of Review
{¶15} Summary judgment is appropriate if the party moving for summary
judgment establishes that (1) there is no genuine issue of material fact, (2)
reasonable minds can come to but one conclusion, which is adverse to the party
against whom the motion is made, and (3) the moving party is entitled to judgment
as a matter of law. Civ.R. 56; New Destiny Treatment Ctr., Inc. v. Wheeler, 129
Ohio St.3d 39, 2011-Ohio-2266, 950 N.E.2d 157, ¶ 24; Chase Home Finance, LLC
v. Dunlap, 4th Dist. Ross No. 13CA3409, 2014-Ohio-3484, 2014 WL 3940314,
¶ 26.
{¶16} The moving party has the initial burden of informing the trial court
of the basis for the motion by pointing to summary judgment evidence and
identifying parts of the record that demonstrate the absence of a genuine issue of
material fact on the pertinent claims. Whitt v. Wolfinger, 4th Dist. Ross No.
14CA3455, 2015-Ohio-2726, at ¶ 11; Dresher v. Burt, 75 Ohio St.3d 280, 293, 662
Gallia App. No. 15CA4 9
N.E.2d 264 (1996); Chase Home Finance at ¶ 27. Once the moving party meets
this initial burden, the nonmoving party has the reciprocal burden under Civ.R.
56(E) to set forth specific facts showing that there is a genuine issue remaining for
trial. Dresher at 293, 662 N.E.2d 264.
{¶17} “[I]n reviewing a summary judgment, the lower court and the
appellate court utilize the same standard, i.e., we review the judgment
independently and without deference to the trial court's determination.” Arnold v.
Ratliff, 4th Dist. Ross No. 98CA2408, 1998 WL 767096, (Oct. 26, 1998), *1. See,
Midwest Specialties, Inc. v. Firestone Co., 42 Ohio App.3d 6, 8, 536 N.E.2d 411(1988).
Legal Analysis
{¶18} Appellant contends, in ruling on motions for summary judgment, that
the trial court was obligated to review the entire Nationwide Agribusiness policy.
Appellant argues Appellee did not provide a complete copy of the policy in the
original and amended complaints, as required by Civ.R. 10(D).3 Appellant also
argues that the affidavit of Timothy Condee, attached to Appellee’s motion for
summary judgment, incorrectly states that the policy attached therein is a true,
accurate, and entire copy of the policy. Appellant concludes therefore that
3
This is correct. In the Complaint, Plaintiff states: “Plaintiff has not attached a copy of said policy of insurance
whereas the original of said policy is in the custody of Defendant Nationwide Agribusiness Insurance Company.”
Plaintiff attached only the declarations page. The same is true of the amended complaint. However, the second
amended complaint attaches a copy of the policy and the policy declarations, the same that is attached to the
affidavit of Timothy Condee supporting Plaintiff-Appellee’s motion for summary judgment.
Gallia App. No. 15CA4 10
Appellee is not entitled to summary judgment because a complete copy of the
relevant policy was not in the record before the trial court.
{¶19} Appellee responds to Appellant’s contention by pointing out
Appellant failed to make timely objection to the alleged failure to have a complete
copy of the policy in the record. While Appellant states in its brief that it raised
the issue of the policies in the October 21, 2014 and November 5, 2014
memorandum contra, our review indicates that the issue was not raised until
Appellant’s motion to file sur-reply filed April 9, 2015. And, Appellee points out
that when the parties engaged in oral argument on March 17, 2015, Appellant
never raised the issue of the alleged failure. At the conclusion of arguments that
day, the matter was deemed submitted.
{¶20} In Arnold, supra, the appellant asked this court to determine what law
should apply to govern the contractual relationship between other parties in the
case, Nationwide Insurance Company and an insured driver, Fannin. The case
turned on the application of R.C. 3937.18, the statute which governs
uninsured/underinsured motorist coverage and which had undergone substantive
changes at the time. To resolve the matter, the language of the original policy
along with its issuance and renewal dates were necessary facts. In reversing the
trial court’s grant of summary judgment to Nationwide, we stated:
“Nationwide's policy with Fannin is not part of the record. Therefore,
we cannot determine whether the renewal of the policy created a new
Gallia App. No. 15CA4 11
contract. Furthermore, there is nothing in the record indicating the
original effective date of the policy. So, even if the language of the
policy established a two-year contract as the appellant argues, we
have no way to determine when this two-year period began or ended.
Thus, factual issues remain as to the policy's original effective date
and whether the language of the policy created a two-year policy or a
renewable shorter term contract for a total period of two years. See
also, Chavis v. Tanner (Apr. 20, 2000), Ross App. No. 99CA2526,
unreported (remand for production of originally issued policy to
determine breadth of coverage at the time of the accident); Davis v.
State Farm Fire and Cas. Co. 10th Dist. Franklin No. 00AP-1458,
2001-Ohio-8884.”
{¶21} Appellant directs us to Hillyer v. State Farm Ins. Co., 11th Dist. Lake
No. 97-L-031, 1998 WL 1093918, (Dec. 18, 1998), where State Farm argued that
the relevant policy was never properly before the trial court because appellants
never attached a 1994 policy to its complaint pursuant to Civ.R. 10(D), and
subsequently failed to attach the policy as appropriate Civ.R. 56(C) evidence in a
summary judgment exercise. However, State Farm admitted in its answer that: (1)
the 1994 policy existed; (2) that policy had UM/UIM coverage with limits of
$100,000 per person and $300,00 per accident; and (3) that Martin Hillyer never
rejected UM/UIM coverage under the 1994 policy. The Eleventh District
Appellate Court agreed with appellants, concluding as follows:
“It is axiomatic that in order to be entitled to summary judgment, a
party must be entitled to judgment as a matter of law. Mootispaw v.
Eckstein, 76 Ohio St.3d 383, 385 (1996). A court cannot adequately
interpret an insurance policy without actually reading and analyzing
the policy in its entirety. Therefore, neither party was entitled to
summary judgment with respect to UM/UIM coverage under the 1994
policy because the trial court did not have a complete copy of the
Gallia App. No. 15CA4 12
1994 policy. Accordingly, the trial court erred in granting summary
judgment on this issue, and State Farm's assignment of error on cross-
appeal is well-taken to this extent.”
{¶22} In Threatt v. White, 10th Dist. Franklin No. 96APE03-302, 1996 WL
684141, State Farm argued that the plaintiff did not timely object to State Farm's
failure to attach a copy of the policy to its motion for summary judgment. State
Farm also pointed out that generally, appellate courts will not consider errors
which the complaining party failed to call to the attention of the trial court at a time
the trial court could have corrected or avoided the error. LeFort v. Century 21-
Maitland Realty Co., 32 Ohio St.3d 121, 123, 512 N.E.2 640, (1987). The
appellate court noted, however, that Civ.R. 56(C) places an affirmative duty upon
trial courts to deny summary judgment unless the evidence or stipulations
submitted in support of a motion for summary judgment permit reasonable minds
to reach one conclusion, that conclusion being adverse to the non-movant. See,
Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107, 662 N.E.2d 264. In Threatt,
the appellate court held that State Farm's failure to attach the relevant insurance
policy could not be waived, as it left no evidence in the record to support the trial
court's grant of summary judgment. (The only documentary evidence attached to
State Farm’s motion was a copy of a police report.)
{¶23} In Nagode v. Cent. Reserv. Life of N. Amer. Ins. Co., 8th Dist.
Cuyahoga No. 52943, 1987 WL 19259 (Oct. 29, 1987), the appellate court found
Gallia App. No. 15CA4 13
it was unable to address the merits of the appellant’s argument because the master
insurance policy was not part of the record on appeal. The appellate court noted
although an excerpt from the policy was attached to the appellant’s answer, the
disputed provisions of the policy were not in evidence.
{¶24} In State Farm Mut. Auto. Ins. Co. v. Cheeks, 5th Dist. Stark No.
2013CA00135, 2014-Ohio-410, the appellant argued the trial court erred in
granting summary judgment to appellee because a certified copy of the insurance
policy including subrogation provisions was not attached to appellee's motion for
summary judgment. However, the appellate court noted in appellant’s response to
appellee's motion for summary judgment that appellant failed to dispute specific
facts as to subrogation claims set forth in affidavits attached to the motion for
summary judgment. Id. at ¶ 17. The appellate court found the trial court did not err
in granting appellee summary judgment even though appellee failed to attach a
copy of the insurance policy to its motion for summary judgment.
{¶25} In the case sub judice, Appellee filed her motion for summary
judgment on September 30, 2014. In support of the motion, Appellee attached the
affidavit of Timothy Condee. Attached to Timothy Condee’s affidavit is a
Nationwide Agribusiness business auto policy with policy declarations and various
endorsements. Condee’s affidavit avers that the policy number is FPKN BAN
6623491477, and that it provides coverage for a 2008 Ford F-250 pickup truck for
Gallia App. No. 15CA4 14
the time period of March 22, 2011 through August 2, 2011. Condee’s affidavit
also avers it is a complete copy of the policy.4
{¶26} Appellant filed its motion for summary judgment on October 1, 2014.
Attached as “Exhibit A” is a certified copy of the Nationwide Agribusiness
Farmowners policy. This policy purports to cover a dwelling and household
personal property, with various farm endorsements. It provides relevant coverage
dates of August 2, 2010 through August 2, 2011.
{¶27} Appellant has framed the core issue on appeal as “The determination
of coverage for Bryant Martin was dependent upon whether Bryant Martin meets
the definition of ‘family member’ as that term is defined in the Nationwide
Agribusiness policy.” We further note Appellant’s brief recites in its statement of
facts at pages 8 and 9, the Nationwide Agribusiness Policy Provisions as follows:
A. Coverage
1. We will pay all sums the “insured” is legally entitled to
recover as compensatory damages from the owner or operator of:
a. An “underinsured motor vehicle” as defined in Paragraph F.4.
because of “bodily injury”:
1) Sustained by the “insured”; and
2) Caused by an “accident”.
***
B. Who Is An Insured
4
We observe in our de novo review of the record that Appellant’s proposed counter-claim alleged in pertinent part
at Paragraph 2: “Defendant issued a Farm Package to Timothy S. Condee, which included but was not limited to a
Business Auto Policy, for the Policy period of 3/22/11 to 8/2/11 numbered as No. FPKN BAN 6623491477
(“Policy”). [The Farm Package has not been attached due to its volume and Defendant has also sought leave of this
Court as part of Defendant’s Sur-Reply, wherein a Complete Certified Farm Package with Policy can be provided by
Defendant].
Gallia App. No. 15CA4 15
If the named insured is:
1. An individual, then the following are “insureds”:
a. The named Insured and any “family members”.
***
C. Exclusions
This insurance does not apply to: * * *
7. A person suffering “bodily injury” who is not an
“insured” under this policy.
***
F. Additional Definitions
As used in this endorsement:
1. “Family member” means a person related to an individual Named
Insured by blood, marriage or adoption who is a resident of such
Named Insured’s household, including a ward or foster child.
{¶28} The above-cited policy language is also recited in Appellee’s brief
and statement of facts at pages 10 and 11.5 However, nowhere in the policy
attached as Exhibit A to Appellant’s motion for summary judgment is contained
the above-cited underinsured motorist language cited by Appellant’s motion for
summary judgment at pages 5 and 6.
{¶29} In Worthington v. Speedway, 4th Dist. Scioto No. 04CA2938, 2004-
Ohio-5077, an appeal in a breach of contract action, this court noted that the
appellee had not filed a deposition and further, that the appellant had not objected
to the appellee’s utilization of facts contained in the unfiled deposition. In
Worthington at footnote 1, we stated:
5
In addition, Appellee’s brief provides the relevant language from the Nationwide Agribusiness policy attached to
Condee’s affidavit for Auto Medical Payments Coverage.
Gallia App. No. 15CA4 16
“Civ.R. 56(C) directs the court to consider only ‘the pleading[s],
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence in the pending case, and written stipulations of
fact, if any, timely filed in the action.’ When the opposing party fails
to object to the admissibility of the evidence under Civ.R. 56, the
court may, but need not, consider such evidence when it determines
whether summary judgment is appropriate. Bowmer v. Dettelbach
(1996), 109 Ohio App.3d 680, 684, 672 N.E.2d 1081; Rinehart v. W.
Local School Dist. Bd. of Edn. (1993), 87 Ohio App.3d 214, 219, 621
N.E.2d 1365; Boydston v. Norfolk S. Corp. (1991), 73 Ohio App.3d
727, 731, 598 N.E.2d 171, fn. 2; Ohio City Orthopedics, Inc. v.
Medical Billing And Receivables, Inc., Cuyahoga App. No. 81930,
2003-Ohio-1881 (when opposing party did not object to moving
party's attaching of non-filed deposition transcripts, appellate court
would consider such evidence); Freshour v. Radcliff (July 20, 1993),
Ross App. No. 1941.
***
Because appellant did not object to appellee's reference to his unfiled
deposition, we will consider the evidence.” See also Nationwide Mut.
Fire Ins. Co. v. Wittekind, 134 Ohio App.3d 285, 289, 730 N.E.2d 105(4th Dist. 1999).
{¶30} Based upon our de novo review of the record, we find the trial court
did not err on the basis that a complete copy of the relevant insurance policy was
not contained in the record. Appellant failed to timely object to the policy
provided in Timothy Condee’s affidavit. Yet, this case is unlike the facts in
Threatt, where the failure to attach a complete policy could not be waived because
there would not be evidence in the record to support judgment.
{¶31} Here, Appellant failed to object to any alleged error with regard to the
policy attached to Condee’s affidavit until April 9, 2015, over six months after
Gallia App. No. 15CA4 17
Appellee filed her motion for summary judgment and Appellant filed its own
motion for summary judgment and memorandum opposing Appellee’s motion.
Moreover, the complained of error would be more of a technical nature than a
substantive problem in that Appellant and Appellee apparently agree as to the
exact same policy language governing the underinsured motorist coverage.6 While
Appellant urges that we are obligated to review the entire policy, Appellant does
not also suggest any other provisions of the policy which would be necessary to
resolution of the issues contained herein. Here, the failure to object can be waived
because there is evidence in the record to support the trial court’s ruling.
{¶32} This case is unlike Arnold, supra, where in order to resolve the legal
question, issuance and renewal dates were necessary facts not contained in the
record. Nor is this case similar to Nagode, supra, where disputed provisions of the
relevant insurance policy were also not in evidence. If there is additional policy
language which Appellant believes is necessary to consideration of this matter,
Appellant fails to direct us to it. Given Appellant’s failure to object to the policy in
a timely manner and the fact that the policy language itself does not seem to be in
dispute, we do not see any error on the part of the trial court by deciding this
matter without a “complete” copy of the policy in the record.
6
It is difficult to see this as a legitimate dispute when Appellant cites the policy attached to Condee’s affidavit at
footnote 33 of its brief for the pertinent underinsured policy language. Furthermore, as referenced in footnote 4
herein, later Appellant apparently had the correct or complete business auto policy and language, policy number,
policy period attached to its proposed counter-claim.
Gallia App. No. 15CA4 18
{¶33} For the foregoing reasons, we find no merit to Appellant’s third
assignment of error. As such, it is hereby overruled. We turn next to discussion of
Appellant’s second assignment of error.
Assignment of Error II
“II. WHETHER APPELLANT’S COUNTER-CLAIM SHOULD
HAVE BEEN ADMITTED ONTO THE RECORD OR IN THE
ALTERNATIVE COULD SUMMARY JUDGMENT HAVE BEEN
GRANTED ON PLAINTIFF-APPELLEE’S SECOND AMENDED
COMPLAINT ABSENT ANSWER FROM NEWLY LISTED
PARTIES.”
Standard of Review
{¶34} The provisions of Civ.R. 15(A) state in pertinent part that parties may
amend their pleading by leave of court and that such leave “shall be freely given
when justice so requires.” This Court, and others, has long noted that the ultimate
decision to grant leave to amend a pleading is vested in the sound discretion of the
trial court and its decision on such matters will not be reversed absent a showing of
an abuse of that discretion. Keller v. Russell, 4th Dist. Scioto No. 99CA2659, 2000
WL 772609, *3. See Easterling v. Am. Olean Tile Co., Inc., 75 Ohio App.3d 846,
850, 600 N.E.2d 1088, 1091 (4th Dist. 1991). An abuse of discretion is more than
an error of law or judgment; it implies that the court's attitude is unreasonable,
arbitrary or unconscionable. Keller, supra. See Landis v. Grange Mut. Ins. Co., 82
Ohio St.3d 339, 342,1998-Ohio-387, 695 N.E.2d 1140, 1142; Malone v. Courtyard
by Marriott L.P., 74 Ohio St.3d 440, 448, 1996-Ohio-311, 659 N.E.2d 1242, 1249;
Gallia App. No. 15CA4 19
State ex rel. Solomon v. Police & Firemen's Disability & Pension Fund Bd. of
Trustees, 72 Ohio St.3d 62, 64, 1995-Ohio-172, 647 N.E.2d 486, 488. This is a
difficult standard to meet. Keller, supra, at *3.
Legal Analysis
{¶35} Ohio law endorses a liberal policy of allowing amendments when the
allowance is not sought in bad faith and it would not cause undue delay or
prejudice to the opposing party. Keller v. Russell, supra. See Barrette v. Lopez, 132
Ohio App.3d 406, 725 N.E.2d 314 (7th Dist. 1999); Body, Vickers & Daniels v.
Custom Machine, Inc., 77 Ohio App.3d 587, 591, 602 N.E.2d 1237, 1239-1240
(8th Dist. 1991). The Ohio Supreme Court has consistently cautioned that cases
should be decided on their merits whenever possible. Keller, supra. State ex rel.
Montgomery v. R & D Chem. Co., 72 Ohio St.3d 202, 204, 648 N.E.2d 821, 822
(1995); Perotti v. Ferguson, 7 Ohio St.3d 1, 3, 454 N.E.2d 951, 952 (1983);
Peterson v. Teodosio, 34 Ohio St.2d 161, 175, 297 N.E.2d 113, 122 (1973). Here,
we must determine whether the trial court abused its discretion when it allowed
Appellee to amend the complaint a second time while denying Appellant’s motion
to amend its answer to assert the counter-claims.
1. Appellant’s motion to amend.
{¶36} On April 9, 2015, Appellant requested leave to amend its answer to
add a counter-claim. Appellant argues the amendment was necessary to add
Gallia App. No. 15CA4 20
allegations of material misrepresentation, concealment, and fraud, evidence of
which was allegedly discovered by Appellant during discovery proceedings and
motion practice. Appellant urges permitting it to file a counter-claim would not
cause undue delay of the proceedings or prejudice to the other parties. Appellant
contends the trial court obviously abused its discretion by denying Appellant’s
motion to amend while granting Appellee’s April 20, 2015 motion to amend the
first amended complaint to add a necessary party. Appellant argues these rulings
demonstrate the trial court’s lack of objectivity and thus, an abuse of discretion.
{¶37} Appellee responds by arguing that any evidence of misrepresentation,
fraud, and/or concealment supporting a counter-claim would have been gained
during the depositions taken in July and September 2014. Appellee also argues she
would have been prejudiced by Appellant’s allegations asserted well past the
discovery deadline of August 15, 2014, with no time for Appellee to depose
additional witnesses or otherwise investigate the allegations. We agree with
Appellee and find no abuse of discretion with regard to the trial court’s rulings.
{¶38} The record reveals the initial complaint was filed on March 12, 2014.
Appellant filed its answer and cross-claims on April 16, 2014. On June 3, 2014,
Appellee filed interrogatories and a request for production upon Appellant. The
Gallia App. No. 15CA4 21
depositions of Alana Fraley, Tyler Martin, and Steven Wandling took place on July
30, 2014.7
{¶39} On September 11, 2014, Appellant still had not forwarded a certified
copy of the Nationwide Agribusiness policy which provided coverage to Timothy
Condee. On September 19, 2014, Appellee filed a motion for an order compelling
discovery against Appellant. The trial court set the matter for hearing on October
10, 2014.
{¶40} On October 2, 2014, Appellee filed a motion for leave to amend the
complaint to add “Nationwide Mutual Fire Insurance Company” as a party
defendant as it had been ascertained that the above was the entity which actually
provided automobile insurance coverage to Alana Fraley instead of Nationwide
Insurance Company of America.8 Appellee asked that the amendment relate back
to the date of the original complaint filing. On October 3, 2014, Appellee’s motion
was granted and on October 7, 2014, the amended complaint was filed. On
October 10, 2014, Appellee withdrew the motion for an order compelling
discovery. In late September and October 2014, the parties filed their motions for
summary judgment and responses to other parties.
{¶41} On April 9, 2015, Appellant filed the motion for leave to file a
counter-claim instanter. Appellant argued the motion was supported by
7
The depositions of Mr. and Mrs. Condee took place on September 11, 2014.
8
It would appear Appellee’s counsel learned the actual name of the insurance entity when a copy of the policy was
finally received from defense counsel.
Gallia App. No. 15CA4 22
information learned since the filing of the original complaint and first amended
complaint. Appellant asserted the depositions of Connie Condee, Alana Fraley,
and Timothy Condee taken in July and September 2014 contained testimony
regarding Alana’s and her son’s residency which was contrary to information
Connie Condee and Alana Fraley provided in recorded statements after the
accident in the summer of 2011. Appellant had further investigated the conflicting
information, obtained various documents and urged that the information obtained
subsequent to the filing of the amended complaint supported the filing of a
counter-claim for material misrepresentations, fraud, and concealment.
{¶42} On April 17, 2015, Appellee filed a response to Appellant’s motion
for leave. On May 1, 2015, the trial court denied Appellant’s motion for leave to
file a counter-claim. In overruling Appellant’s motion, the trial court noted various
factors influencing the decision, including, as follows:
1) On June 27, 2014, deadlines had been scheduled by agreement of
the parties;
2) Various motions for summary judgment and responses and replies
had been filed in September and October 2014;
3) An oral hearing had been conducted on March 17, 2015 in which
the parties argued the merits of the various motions and motions to
strike;
4) The trial court had overruled Appellant’s motion for summary
judgment;
Gallia App. No. 15CA4 23
5) Appellant’s proposed counter-claim requested relief essentially
based upon the same or similar arguments contesting Appellee’s
residency and made in Appellant’s motion for summary judgment;
6) The motion filing deadline was April 3, 2015 and Appellant’s
motion for leave was filed after the deadline;
7) Appellant’s motion for leave was filed over 5 months after the
motions for summary judgment were filed;
8) Appellant’s motion for leave was filed almost a month after the
March 17, 2015 oral hearing on pending motions, where the issue was
never raised;
9) Appellant’s motion for leave to file a counter-claim was filed after
Appellant received other adverse rulings;
10) The recorded statements were obtained in the summer of 2011 and
depositions of the same individuals were conducted in July and
September 2014;
11) Final pre-trial of the matter was scheduled for May 15, 2014 and
jury trial was scheduled for June 15, 2015.
{¶43} The trial court concluded that Appellant’s motion for leave to file a
counter-claim was filed over 7 months after the parties’ and witnesses’ deposition
where awareness of any potential counter-claim arose and was thus untimely. The
trial court further concluded permitting Appellant to file a counter-claim would
cause undue prejudice to the opposing party. Based upon our review of the record,
and without reiterating the reasons the trial court set forth distinctly, we agree with
the trial court. Nothing in the trial court’s reasoning, as set forth above, suggests
the trial court erred and abused its discretion.
Gallia App. No. 15CA4 24
2. Appellee’s motion to amend complaint a second time.
{¶44} On April 20, 2015, Appellee filed a Civ.R. 19 motion for leave to add
a party needed for just adjudication. Appellee proposed to add Timothy Condee,
Bryant Martin’s maternal grandfather and Appellant Nationwide Agribusiness
Insurance Company’s insured client. On April 21, 2015, the trial court granted
Appellee’s motion and ordered that the amendment relate back to the original
complaint. On April 22, 2015, Appellee’s second amended complaint was filed.
Also on April 22, 2015, the trial court granted Appellee’s motion for summary
judgment and overruled Appellant’s motion for summary judgment.
{¶45} Appellant points out in its April 14, 2014 answer, it asserted the
affirmative defense of failure to join necessary parties. Appellant contends
Appellee knew of this defense at the time of the filing of the answer and delayed,
yet the trial court somehow found Appellee’s motion to amend timely and did not
find Appellant’s motion to amend to add a counter-claim timely. Appellant further
argues it has been prejudiced by the trial court’s ruling in that Appellant did not
have the opportunity to file any discovery against Mr. Condee or solicit other
evidence to impeach his limited deposition testimony.
{¶46} Appellee contends that Appellant was not prejudiced by the trial
court’s ruling. Appellee points out Mr. Condee had previously been deposed and
adding him was nothing but a formality. The amendment did not delay the case in
Gallia App. No. 15CA4 25
any manner. Mr. Condee had been deposed at the same time as the other parties.
Appellee concludes Appellant is unable to show bad faith, undue delay, or undue
prejudice.
{¶47} As alluded to above, the spirit and policy behind the Civil Rules
dictates that courts should attempt to resolve cases upon their merits and not upon
pleading deficiencies. Keller, supra, at *3. See State ex rel. Huntington Ins.
Agency, Inc. v. Duryee, 73 Ohio St.3d 530, 533, 1995-Ohio-337, 653 N.E.2d 349,
353. Our review of the record and dates of the proceedings causes us to agree that
there was no prejudice caused to Appellant by granting Appellee’s motion to add
Mr. Condee. Although his deposition was relatively short [23 pages], he was
questioned primarily about the residency issue, which has been Appellant’s key
issue throughout the proceeding.
{¶48} Furthermore, while Appellant points out it raised the issue of failure
to name all necessary parties in its initial and timely answer, we note Appellant did
not apparently raise this defense until well after the declaratory judgment/summary
judgment deadlines in the fall of 2014. Appellant first pursued this issue in its
motion to file sur-reply filed April 10, 2015. Again, this is after the motion
deadline of April 3, 2015.
{¶49} We find nothing about the fact that the trial court permitted Appellee
to amend the complaint a second time to name Timothy S. Condee as a party to
Gallia App. No. 15CA4 26
suggest an unreasonable, arbitrary, or unconscionable attitude. Mr. Condee’s
insurer had been party to the suit since its inception and had defended vigorously.
Adding Mr. Condee as defendant allowed the pleadings to conform to the evidence
and settled any future jurisdictional technicalities which had not been previously
raised anyway. As such, we find no merit to Appellant’s arguments herein.
Appellant’s second assignment of error is overruled.
{¶50} Appellant’s first assignment of error deals with both the trial court’s
grant of Appellee’s motion to strike Appellant’s evidence attached to the motion
practice pleadings and the trial court’s grant of summary judgment to the Appellee.
At this juncture, we will address only the motion to strike.
Assignment of Error I
“I. WHETHER THE TRIAL COURT ERRED IN STRIKING
NATIONWIDE AGRIBUSINESS’ EVIDENCE DISPUTING THE
RESIDENCY OF ALANA MARTIN AND GRANTING
PLAINTIFF-APPELLEE’S MOTION FOR SUMMARY
JUDGMENT.”
Standard of Review
{¶51} We have previously set forth the standard of review of Civ.R. 56,
motion for summary judgment. If a party submits evidence that does not fall
within Civ.R. 56(C)'s parameters, the opposing party may file a motion to strike
the improperly-submitted evidence. Wesley v. Walraven, 4th Dist. Washington No.
12CA18, 2013-Ohio-473, at ¶ 22. The determination of a motion to strike is within
Gallia App. No. 15CA4 27
a court's broad discretion. Id. See, State ex rel. Dawson v. Bloom-Carroll Local
School Dist., 131 Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524, ¶ 23.
Consequently, absent an abuse of discretion, an appellate court will not disturb a
trial court's ruling regarding a motion to strike. State ex rel. Mora v. Wilkinson, 105
Ohio St.3d 272, 2005-Ohio-1509, 824 N.E.2d 1000, ¶ 10. A decision constitutes
an abuse of discretion when it is unreasonable, arbitrary, or unconscionable. State
ex rel. Striker v. Cline, 130 Ohio St.3d 214, 2011-Ohio-5350, 957 N.E.2d 19, ¶ 11.
Moreover, when applying the abuse-of-discretion standard, a reviewing court may
not substitute its judgment for that of the trial court. Berk v. Matthews, 53 Ohio
St.3d 161, 169, 559 N.E.2d 1301 (1990).
Legal Analysis9
{¶52} Civ.R. 56(C) sets forth an exclusive list of evidentiary materials that a
trial court may consider when ruling upon a summary judgment motion. Walraven,
supra, at ¶ 21, citing Emerson Family Ltd. Partnership v. Emerson Tool, LLC, 9th
Dist. Summit No. 26200, 2012-Ohio-5647, ¶ 14, citing Spier v. American Univ. of
the Caribbean, 3 Ohio App.3d 28, 29, 443 N.E.2d 1021 (1st Dist. 1981). The rule
prohibits a trial court from considering any evidence or stipulation except the
“pleadings, depositions, answers to interrogatories, written admissions, affidavits,
9
Although no issue of finality and appealability of the ruling on Appellee’s motion to strike has been raised, we
pause to observe that the trial court's ruling in favor of Appellee constitutes an interlocutory ruling merged into the
final judgment on the motion for summary judgment. See, Rallya v. A. J. Rose Mg. Co., 9th Dist. Lorain No.
08CA009327 2008-Ohio-6351, ¶ 12.
Gallia App. No. 15CA4 28
transcripts of evidence in the pending case, and written stipulations of fact.” Civ.R.
56(C). Accord Davis v. Eachus, 4th Dist. Pike No. 04CA725, 2004-Ohio-5720,
¶ 36; Wall v. Firelands Radiology, Inc., 106 Ohio App.3d 313, 334, 666 N.E.2d
235 (6th Dist. 1995). Furthermore, when ruling on a summary judgment motion, a
court may consider only evidence that would be admissible at trial. Pennisten v.
Noel, 4th Dist. No. 01 CA669, 2002 WL 254021 (Feb. 2, 2000), at *2.
{¶53} In the case sub judice, Appellant consistently disputed the residency
of Alana Fraley and her son Bryant. Appellee filed motions to strike evidence
attached to the various pleadings of Defendant Nationwide Insurance Company of
America and Defendant Nationwide Agribusiness Insurance Company.10
Appellant’s attachments to the pleadings and depositions supported Appellant’s
arguments against residency. Appellant’s brief states: “[The trial court] granted
all of Appellee’s Motions to Strike, in effect removing nearly every piece of
evidence presented by Nationwide Agribusiness to the Court.” Appellant further
states: “Specifically the trial court ruled Nationwide Agribusiness could not
supplement its summary judgment motion under Civ.R. 56(E) * * *.” We note in
its Appendix, Appellant attached only the trial court’s ruling as to Defendant
Nationwide Insurance Company of America, not Defendant Nationwide
10
Nationwide Insurance Company of America, not a party in this appeal, filed identical responses to Appellee’s
motions to strike. Defendants Nationwide Insurance Company and Nationwide Agribusiness Insurance Company
filed some pleadings jointly.
Gallia App. No. 15CA4 29
Agribusiness Insurance Company.11 However, because the trial court’s reasoning
for granting Appellee’s motion to strike, contained in both journal entries, is
essentially the same, we will proceed to address Appellant’s arguments regarding
the trial court’s ruling.
{¶54} Appellant contends the following evidence was erroneously stricken
from the court’s consideration:
1) The Affidavit of Jennifer Sims, a Nationwide Agribusiness
employee (attaching the recorded statement of Connie Condee dated
July 25, 2011);
2) The Affidavit of Edward Burger, a Nationwide Insurance
Company of America employee (attaching the recorded statements of
Connie Condee dated July 15, 2011 and August 3, 2011);12
3) Hospital records of Bryant Martin; and,
4) Miscellaneous records from Alana Fraley’s employer, the Gallia
County Sheriff’s Department, and Ms. Fraley’s utility bills.
{¶55} We first analyze the trial court’s April 1, 2015 entry as it pertains to
the motion to strike Appellant’s supplement. The affidavit of Jennifer Sims was
attached to the supplement. Sims’ affidavit purported to authenticate the recorded
11
In support of its arguments, Appellant references the journal entry granting the motion to strike as “Exhibit Q” of
the Appendix. This journal entry rules that “Plaintiff’s Motion to Strike Defendant Nationwide Insurance Company
of America’s Supplement to Motion for Summary Judgment” is well taken and that said supplement is ordered
stricken. (Emphasis added.) This is filing No. 108 on the court’s docket. However, the proper filing supporting
Appellant’s arguments herein appears to be No. 110 on the court’s docket. This “Journal Entry” states in the first
paragraph it shows consideration of, among other pleadings, “Plaintiff’s Motion to Strike Defendant Nationwide
Agribusiness Insurance Company’s Supplement to Motion for Summary Judgment.” (Emphasis again added.)
Where Appellant’s brief references the entry designated “Exhibit Q,” for its arguments, Appellant is technically
incorrect.
12
The affidavit of Edward Burger was not attached to Appellant’s Nationwide Agribusiness Insurance Company’s
motion for summary judgment. It was attached to Defendant Nationwide Insurance Company’s Supplement to
Motion for Summary Judgment which the trial court also ordered stricken as untimely.
Gallia App. No. 15CA4 30
statement of Connie Condee dated July 25, 2011. (This statement was also
attached as Exhibit 2 to Connie Condee’s deposition).
{¶56} The trial court’s ruling set forth its reasoning in detail. The trial court
noted the supplement was filed without leave of court, twenty-one days after the
filing deadline. The trial court further noted the motion deadline was agreed upon
by all parties in June 2014. The trial court found that leave of court was required
to supplement a motion for summary judgment after the filing deadline and to
allow the supplement would cause other parties to disregard agreed upon timelines.
We agree. We find the trial court did not abuse its discretion in striking an
affidavit which was filed outside of the established deadline.
{¶57} We next analyze the trial court’s April 1, 2015 entry as it pertains to
the “Motion to Strike Inadmissible Evidence Contained in Defendant Nationwide
Agribusiness insurance Company’s Motion for Summary Judgment.” In the
motion, Appellee had moved to strike the following exhibits attached to
Appellant’s motion for summary judgment and depositions filed within the case:
1) Exhibit B - the change of address form from the United States
Postal Service website;
2) Exhibit 4 - Nationwide Children’s Hospital medical records of
Bryant Martin;
4) Exhibit 5 - Nationwide Children’s Hospital consent form;
5) Exhibit 6 - the recorded statement of Connie Condee dated July 15,
2011 and taken by Kristi Eilerman; and
Gallia App. No. 15CA4 31
6) Exhibit 7 - the recorded statement of Connie Condee dated August
3, 2011 and taken by Donna Elliot.
{¶58} The trial court noted Exhibits 4, 5, 6, and 7 were all attached to the
deposition of Connie Condee. The trial court found these exhibits did not qualify
as evidence which the court had discretion to consider under Civ.R. 56(C) and (E).
We agree.
{¶59} Civ.R. 56(C) provides an exclusive list of materials that a trial court
may consider when deciding a motion for summary judgment. In applying this
rule, Ohio courts have consistently held that “if an exhibit or item of evidence does
not fall within one of the cited categories of permissible materials, it can only be
viewed when it has been incorporated by reference into an affidavit which satisfies
Civ.R. 56(E).” Gold v. Smith-Kaplan, 8th Dist. Cuyahoga No. 100015, 2014-Ohio-
1424, ¶ 14, quoting McGhan v. Vettel, 11th Dist. Ashtabula No. 2008-A-0036,
2008-Ohio-6063, ¶ 23, citing Skidmore & Assocs. Co., L.P.A. v. Southerland, 89
Ohio App.3d 177, 623 N.E.2d 1259 (9th Dist. 1993).
{¶60} Civ.R. 56(E) sets forth the criteria for affidavits as follows:
“Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated in the affidavit. Sworn or certified copies
of all papers or parts of papers referred to in an affidavit shall be
attached to or served with the affidavit.” Gold, supra, at 15.
Gallia App. No. 15CA4 32
{¶61} “Documents submitted in defense against a motion for summary
judgment must be properly ‘sworn, certified or authenticated by affidavit’ or they
may not be considered in determining whether there is a triable issue of fact.”
Gold, supra, at 16 quoting Burkhart v. H.J. Heintz Co., 6th Dist. Wood No. WD-
12-008, 2013-Ohio-723, ¶ 12, quoting Green v. B.F. Goodrich Co., 85 Ohio
App.3d 223, 228, 619 N.E.2d 497 (9th Dist. 1993); see also Douglass v. Salem
Comm. Hosp., 153 Ohio App.3d 350, 2003-Ohio-4006, 794 N.E.2d 107, ¶ 25 (7th
Dist.). Although the rule appears harsh, Ohio courts consistently apply this rule
and recognize that “documents that have not been sworn, certified, or authenticated
by way of affidavit ‘have no evidentiary value.’ ” Mitchell v. Internatl. Flavors &
Fragrances, Inc., 179 Ohio App.3d 365, 2008-Ohio-3697, 902 N.E.2d 37, ¶ 17 (1st
Dist.), quoting Lance Acceptance Corp. v. Claudio, 9th Dist. Lorain No.
02CA008201, 2003-Ohio-3503, ¶ 15. In other words, if the documents are not
authorized under Civ.R. 56(C), they cannot be considered by the trial court. See
Skidmore at 179.13
{¶62} We begin with Exhibits 6 and 7, the recorded statements of Connie
Condee, attached to her deposition. Exhibit 6 was made to Kristi Eilerman on July
15, 2011; and Exhibit 7 was made to Donna Elliott on August 3, 2011. In Babal v.
13
One exception to this rule exists - if the opposing party fails to raise an objection to the admission of the
documents, the court may in its sound discretion elect to consider the documents. Lytle v. Columbus, 70 Ohio
App.3d 99, 104, 590 N.E.2d 421 (10th Dist. 1990).
Gallia App. No. 15CA4 33
Babal, 8th Dist. Cuyahoga App. No. 63044, 1992 WL 136500, (June 11, 1992), the
appellate court described the requirements under Civ.R. 56(C) for considering an
oral statement that has been transcribed. These requirements include an affidavit
from the party conducting the audio interview that identifies the time and place of
the recording and indicates that the attached transcription of the audio recording is
accurate. The affiant should also state that the audio recording was made with the
knowledge and consent of the party being recorded. Id. at *4-5. Obviously, the
statements attached as exhibits to Condee’s deposition and then referenced in
Appellant’s motion for summary judgment do not meet the standard described
under Civ.R. 56(C) for the court’s consideration of an oral statement which has
been transcribed.
{¶63} In Gilbert ex rel. Cincinnati, 174 Ohio App.3d 89, 2007-Ohio-6332,
880 N.E. 2d 971, (1st Dist.), relators filed a petition for writ of mandamus to
compel respondents to commence an appropriation proceeding. The petition was
supported, amongst other materials, by a document entitled “MSD Fact Sheet” that
was attached to a witness’s deposition as an exhibit. However, when asked, the
witness could not attest to the accuracy of the document because he did not create
it. The appellate court noted the document could not be relied upon because its
accuracy could not be confirmed. Id. at 34. Similarly, in the case sub judice, Mrs.
Gallia App. No. 15CA4 34
Condee was specifically questioned regarding her recollection of the three
recorded statements. She clearly denied recollection of giving each statement.
{¶64} In the case sub judice, the recorded statements did not meet the
Civ.R. 56(C) standard by being submitted in Appellant’s motion for summary
judgment by proper attachment to an affidavit. Given the fact that the deponent,
Connie Condee, did not recall making the statements, the trial court could not
consider them simply because they were exhibits attached to her deposition. Based
on the above, we find the trial court did not abuse its discretion by striking
Appellant’s evidence in Exhibits 6 and 7 .
{¶65} We turn next to Exhibits 4 and 5 attached to Appellant’s motion for
summary judgment. Both of these exhibits are from Nationwide Children’s
Hospital where Bryant Martin was treated for his injuries. Exhibit 4 appears to
document Bryant’s current medical history. Exhibit 5 appears to be a consent for
treatment.
{¶66} In order for any document presented to be admissible evidence for
summary judgment purposes, it must be accompanied by a personal certification
that such document is, in fact, genuine. Koop v. Speedway, 12th Dist. Warren No.
CA2008-09-110, 2009-Ohio-1734, ¶ 8. Bowmer v. Dettelbach, 109 Ohio App.3d
680, 684, 672 N.E.2d 1081 (6th Dist. 1996), citing Biskupich v. Westbay Manor
Nursing Home, 33 Ohio App.3d 220, 222-223, 515 N.E.2d 632 (8th Dist. 1986).
Gallia App. No. 15CA4 35
Documents submitted in opposition to a motion for summary judgment that are
neither sworn or certified, nor authenticated by affidavit, have no evidentiary value
and may not be considered by the trial court in ruling on a motion for summary
judgment. See Schriever v. Burkhart (Jan. 21, 1992), Butler App. No. CA91-01-
019, at 5 (“the failure to authenticate a document submitted on summary judgment
renders the document void of evidentiary value”); see, also, Douglass v. Salem
Community Hosp., 153 Ohio App.3d 350, 794 N.E.2d 107, 2003-Ohio-4006, (7th
Dist.), ¶ 25.
{¶67} Medical records that are not sworn, certified, or put into evidence by
way of affidavit do not qualify as allowable evidence under Civ.R. 56(C) and
should not be considered by the trial court. Gabriel v. Ohio State University
Medical Center, 10th Dist. Franklin No. 14AP-870, 2015-Ohio-2661, ¶ 24. Ogolo
v. Greater Cleveland Regional Transit Auth., 8th Dist. Cuyahoga No. 99675, 2013-
Ohio-4921, ¶ 19, citing Citizens Ins. Co. v. Burkes, 56 Ohio App.2d 88, 95-96, 381
N.E.2d 963 (8th Dist. 1978), citing Olverson v. Butler, 45 Ohio App.2d 9, 340
N.E.2d 436 (10th Dist. 1975). A trial court errs when it considers such records in
ruling on a motion for summary judgment. Widdig v. Watkins, 4th Dist. Cuyahoga
No. 13-CA-3531, 2013-Ohio-3858.
{¶68} Appellant points out the medical records were provided in discovery
by Appellee. Appellant also argues that Alana Fraley provided the relevant history
Gallia App. No. 15CA4 36
contained in the documents and identified her signature on the consent form.
While both Connie Condee and Alana Fraley testified regarding the medical
records, neither is the proper party to certify that the documents are genuine.
These documents should have been submitted into evidence by way of an affidavit
from an employee of Nationwide Children’s Hospital certifying that the records
were kept in the regular course of the hospital’s business. Again, we find no abuse
of discretion by the trial court’s ruling striking these records.14
{¶69} Finally, we turn to analysis of the trial court’s April 1, 2015 ruling on
“Plaintiff’s Motion to Strike Inadmissible Evidence in Defendant Nationwide
Agribusiness Insurance Company’s Reply Memorandum in Support of Its Motion
for Summary Judgment.” Plaintiff-Appellee moved to strike Exhibits D and E
attached to the reply memorandum. Exhibit D consisted of documents from Gallia
County Sheriff’s Department. Again, we find the trial court did not abuse its
discretion.
{¶70} “Police reports are generally inadmissible hearsay.” Walraven,
supra, at ¶ 33; State v. Hall, 8th Dist. Cuyahoga No. 96680, 2012-Ohio-266, ¶ 12,
citing State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, and
State v. Ward, 15 Ohio St.3d 355, 358, 474 N.E.2d 300 (1984). “A police report is
not admissible under the business-records exception in Evid.R. 803(6), if it recites
14
Appellee also moved to strike Exhibit B, a change of address form, of which the Appellant requested the court
take judicial notice. However, on appeal, Appellant does not make argument with regard to this document.
Gallia App. No. 15CA4 37
hearsay statements received by the officer from others.” State v. Daniel, 2nd Dist.
Montgomery No. 24151, 2011-Ohio-2821, ¶ 15.
{¶71} In Stevenson v. Prettyman, 193 Ohio App.3d 234, 2011-Ohio-718,
951 N.E.2d 794 (8th Dist.), ¶¶ 27-28, the court held that police records are not
listed as Civ.R. 56(C) evidence that a trial court may consider when ruling on a
summary judgment motion. The court stated:
“In Butler v. Young, (Jan. 14, 1999), 8th Dist. No. 73549, 1999 WL
13986, this court explained: ‘Police reports and private investigator's
statements are not materials authorized by Civ.R. 56(C) for
consideration on a motion for summary judgment. Moreover,
plaintiffs did not offer evidence to authenticate these documents or to
certify that they were true copies of what they were purported to be.
Such authentication is a condition precedent to admissibility. Evid.R.
901. Although the police report is a public record, the report was not
self-authenticating because the document was not certified as a true
copy of an official public record. Evid.R. 902; Civ.R. 44.
Accordingly, the trial court properly refused to consider these
materials. Id.’
***
We further noted in Butler that ‘even if plaintiffs had properly
authenticated the police report, its contents were hearsay and were not
admissible under Evid.R. 803(8) as a public record and report. Petti v.
Perna, (1993), 86 Ohio App.3d 508 [621 N.E.2d 580]. The report
was recorded by an officer who responded to the scene after the
collision, was not based on his own personal observations, and merely
collected statements by other witnesses. Id.’ ”
{¶72} We find the trial court did not abuse its discretion in striking the
Gallia App. No. 15CA4 38
evidence submitted from the Gallia County Sheriff’s Office. Even if the
documents were authenticated from a representative of the sheriff’s department,
the contents of Appellant’s statement were hearsay and not admissible.
{¶73} Exhibit E consisted of employment records regarding Alana Fraley
from the Gallipolis Development Center. These records, even if authenticated by
an employee of the Gallipolis Development Center, were not properly attached to
an affidavit as required. As such, we find the trial court did not abuse its discretion
by striking them as evidence.
{¶74} For the foregoing reasons, we find the trial court did not abuse its
discretion in granting Appellee’s motions to strike. As such, we overrule the first
assignment of error as it pertains to the motion to strike. We will conclude this
opinion by addressing Appellant’s contention in the first assignment of error that
the grant of summary judgment was erroneous in conjunction with Appellant’s
fourth assignment of error that the trial court’s decision was based only upon self-
serving testimony presented by Appellee.
Assignment of Error IV
“IV. WHETHER THE TRIAL COURT ERRED BY GRANTING
SUMMARY JUDGMENT TO PLAINTIFF-APPELLEE PREMISED
WHOLLY UPON SELF-SERVING TESTIMONY.”
Standard of Review
Gallia App. No. 15CA4 39
{¶75} Here, our task is to conduct a de novo review of the record. After
determining above that the trial court’s grant of Appellee’s motion to strike was
not in error, we begin by setting forth what materials were properly in the trial
court’s record. It appears the following relevant materials were what the trial court
had to consider:
Appellee’s Motion for Summary Judgment and Memorandum in Opposition:
1. The depositions of Steven Wandling, Alana Fraley, Tyler Martin,
Connie Condee, and Timothy Scott Condee;
2. The affidavit of Timothy Scott Condee; and,
3. The Nationwide Agribusiness policy insured Timothy Condee.
Appellant’s Motion for Summary Judgment and Memorandum in
Opposition:
1. The above depositions and including the deposition of Arlene
Martin; and,
2. The Nationwide Agribusiness policy.
Legal Analysis
{¶76} “[T]he interpretation of an insurance contract is a matter of law,
which we review de novo.” Comisford v. Erie Property Cas. Co., 4th Dist. Gallia
No. 10CA3, 2011-Ohio-1373, quoting Siegfried v. Farmers Ins. of Columbus, Inc.,
187 Ohio App.3d 710, 933 N.E.2d 815, 2010-Ohio-1173, at ¶ 11, citing
Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108, 652
N.E.2d 684, 1995-Ohio-214. “In interpreting an insurance policy, the court's role
Gallia App. No. 15CA4 40
is to give effect to the intent of the parties to the agreement. In doing so, [w]e
examine the insurance contract as a whole and presume that the intent of the
parties is reflected in the language used in the policy. We look to the plain and
ordinary meaning of the language used in the policy unless another meaning is
clearly apparent from the contents of the policy. When the language of a written
contract is clear, a court may look no further than the writing itself to find the
intent of the parties.” Eastley v. Volkman, Scioto App. Nos. 09CA3308 &
09CA3309, 2010-Ohio-4771, at ¶ 50, citing Westfield Ins. Co. v. Galatis, 100 Ohio
St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, at ¶ 11 (internal quotations omitted)
(alteration sic). However, “[w]here provisions of a contract of insurance are
reasonably susceptible of more than one interpretation, they will be construed
strictly against the insurer and liberally in favor of the insured.” King v.
Nationwide Ins. Co., 35 Ohio St.3d 208, 519 N.E.2d 1380, (1988), syllabus.
{¶77} The policy language at issue has been set forth above but we will
restate it here:
A. Coverage
1. We will pay all sums the “insured” is legally entitled to
recover as compensatory damages from the owner or operator of:
a. An “underinsured motor vehicle” as defined in Paragraph F.4.
because of “bodily injury”:
1) Sustained by the “insured”; and
2) Caused by an “accident”.
***
Gallia App. No. 15CA4 41
B. Who Is An Insured
If the named insured is:
1. An individual, then the following are “insureds”:
a. The named Insured and any “family members”.
***
C. Exclusions
This insurance does not apply to: * * *
7. A person suffering “bodily injury” who is not an
“insured” under this policy.
***
F. Additional Definitions
As used in this endorsement:
1. “Family member” means a person related to an individual Named
Insured by blood, marriage or adoption who is a resident of such
Named Insured’s household, including a ward or foster child.
{¶78} There is no dispute that Mr. Condee, the insured, is an individual; that
he is related to Bryant Martin as his maternal grandfather; that Bryant sustained
bodily injury as a result of an accident; and that Steven Wandling was an
underinsured person at the time of the accident. The principal issue between these
parties is the residency of Alana Fraley and Bryant Martin at the time of Bryant’s
accident. Appellee contends she and her sons resided at Blessing Road in Patriot,
Ohio, with her parents on June 18, 2011. Appellant disagrees, arguing that Bryant
Martin in particular resided at 1485 Herman Road, Gallipolis, Ohio.
{¶79} Appellant argues the trial court relied on the questionable testimony
of Tyler Martin, Arlene Martin, and Steven Wandling to corroborate the self-
serving testimony of Alana Fraley, Connie Condee, and Timothy Condee that
Gallia App. No. 15CA4 42
Alana Fraley and her children resided with the Condees at the Blessing Road
address at the time of Bryant’s accident. The trial court found that Bryant Martin
had lived in the household of Timothy S. Condee for a period of “some duration
and (not “or”) with regularity and as a result thereof was a resident and family
member within the meaning of the subject insurance policy.” However, Appellant
contends the weight of the documentary evidence supports Appellant’s position
that Fraley and her sons resided at Herman Road on the accident date. Appellant
concludes Appellee has failed to meet the burden of demonstrating entitlement to
coverage. Appellant requests the trial court’s grant of summary judgment to
Appellee should be reversed and Appellant’s motion for summary judgment should
be granted.
{¶80} In Farmers Ins. of Columbus v. Taylor, 39 Ohio App.3d 68, 528
N.E.2d 968, (10th Dist. 1987), the principal issue was the definition of “resident of
your household” in a homeowner’s policy. The Taylor court defined “resident” as
“[O]ne who lives in the home of the named insured for a period of some duration
or regularity, although not necessarily there permanently, but excludes a temporary
or transient visitor.” In Entenman v. Auto-Owner’s Ins. Co., 136 Ohio App.3d 541,
737 N.E.2d 119 (6th Dist. 2000), the appellate court noted the only other case
which adopted a different rule from Taylor was a bright-line test followed in
Plessinger v. Cox, 2nd Dist. Darke No. 1428, 1429, 1997 WL 797689 (Dec. 31,
Gallia App. No. 15CA4 43
1997), which defined the residency of a minor child of divorced parents as “[O]nly
when the minor is in the custody, care, supervision, and control of the insured
parent at the time of the accident [occurrence] pursuant to the court’s custody
and/or visitation decree.” (Emphasis added.) As Comisford, supra, is still relevant
law, our district continues to apply the Taylor rule. In recent years, Flynn v. State
Farm Mut. Auto Ins. Co., 554 Fed.Appx. 430, United States Court of Appeals, 6th
Circuit, (Feb. 10, 2014), cited Taylor observing: “All twelve of Ohio's appellate
districts have adopted this definition of ‘residing in the same household.’ ”
{¶81} The Entenman court also recognized the fact pattern of a particular
case plays a significant role in determining whether an individual is a resident of a
household. Prudential Property & Cas. Co. v. Koby, 124 Ohio App.3d at 178-179,
705 N.E.2d 748, 750-751 (Citations omitted.) Ohio courts usually examine several
factors including “the amount of time the person spends at the household, the
person's age, the person's intent, and whether the insured is ‘legally obligated’ to
the person.” Id.{¶82} Following the Taylor rule, we must determine whether the trial court
had evidence before it demonstrating that Bryant Martin lived in the home of his
grandfather, Timothy Condee, “for a period of some duration or regularity,” and
that he was not a “temporary or transient visitor.” As set forth above, the only
Gallia App. No. 15CA4 44
evidence the trial court had properly before it in determining this issue were the
depositions of the parties and the insurance policy.15
{¶83} In the case sub judice, the facts in the record indicate Bryant’s parents
Alana and Tyler met in 2005 and married in 2007. However, they divorced in
2008. Their older son, Brayden, was the subject of a court-ordered shared custody
plan pursuant to their divorce. Alana was the primary custodian of Brayden. Tyler
worked on a riverboat and was gone two weeks at a time.
{¶84} After the divorce, Alana and Tyler reunited for a period of time.
They purchased a home on Herman Road in approximately November 2009.
Subsequently Bryant was born on February 27, 2010. Alana testified
approximately one day after Bryant’s first birthday, on February 28, 2011, she and
Tyler again broke up.
{¶85} Alana testified on or about February 28, 2011, she moved out of the
Herman Road address she shared with Tyler, and moved into her parents’ home on
Blessing Road in late February or early March 2011. She stored her larger
furniture and she and her boys moved their necessities, clothes, and bedding into
rooms at her parents’ house. Since they had not remarried, Alana and Tyler
utilized the same shared parenting plan that covered Brayden for both boys.
Tyler’s visitation with the boys was every other weekend, time shared between
15
Appellant submitted a USPS change of address form of which the trial court declined to take judicial notice.
Appellant has not argued its exclusion on appeal. As such, we do not include it here.
Gallia App. No. 15CA4 45
holidays by arrangement, and vacation time by arrangement. Tyler did not dispute
Alana’s recollection of these dates and arrangements.
{¶86} Alana also testified she did not change her address because it wasn’t
convenient and due to her work schedule, she had not had the time to do so. She
had mail coming to both Blessing Road and Herman Road.
{¶87} Tyler Martin testified that between February 28, 2011 and June 18,
2011, the Herman Road address was empty. He went to work on February 28,
2011 and when he returned Alana was not living there. To his knowledge, she
lived at her parents and he picked up the children from the Condees’ residence.
Arlene Martin, Tyler’s mother, testified that she knew her son moved out of the
house after February 28, 2011. She did not know when Alana moved.
{¶88} Connie Condee also testified that her daughter and grandsons moved
back to the Condees’ home on Blessing Road, however, she recalled it was about
the second week of April 2011. She admitted there was no discussion as to how
long they would be staying. She also recalled that they stored their furniture
elsewhere. Mrs. Condee testified even when Alana and Tyler were together, the
Condees had the boys 95% of the time due to Alana’s and Tyler’s work schedules.
In fact, Mrs. Condee testified she had cared for the boys in her home 6-7 days a
week since Bryant was born, due to the work schedules. Mr. Condee also recalled
his daughter and her sons moved back with them in mid-April, 2011.
Gallia App. No. 15CA4 46
{¶89} Steven Wandling’s recollection of Alana’s and Tyler’s living
arrangements was that no one lived at Herman Road after Tyler moved out. Mr.
Wandling actually looked at the Herman Road property approximately a month
and a half prior to the accident and it was empty. He also testified that Alana and
her sons lived with her parents.
{¶90} Based upon the evidence properly before the court, we find the trial
court did not err when it granted summary judgment to Appellee. The record
indicates that Alana and her sons had moved to the Condees’ Blessing Road
address at least by mid-April 2011. The trial court found that at the time of the
accident, June 18, 2011, Bryant lived at Blessing Road with some duration and
with regularity. We agree.
{¶91} Bryant was 16 months old at the time of the accident. The evidence
demonstrates that prior to the accident, and even prior to his parents’ second and
final separation, Bryant stayed with his grandparents 95% of the time. While we
do not know how long Alana intended to stay with her parents, and while Mr.
Condee was not legally obligated to have Bryant in his home, the evidence
demonstrates that Bryant was not a temporary or transient visitor. He had lived
with his grandparents since at least mid-April 2011 and was regularly there
anyway.
Gallia App. No. 15CA4 47
{¶92} Furthermore, we are not persuaded that the parties and witnesses
collaborated to provide manufactured or self-serving testimony. If so, they would
have likely “gotten their stories straight” in order to avail Alana and Bryant of all
insurance proceeds possible. Alana Fraley, Tyler Martin, Arlene Martin, and
Steven Wandling were deposed on July 30, 2014. However, Alana did not testify
to any specificity about where Tyler lived in order to avail Bryant and herself of
the underinsured benefits of Arlene Martin’s policy. She even testified that
sometimes Tyler did not get the boys for his visitation. Similarly, Arlene Martin
was unable to provide evidence as to where Alana went after Tyler moved out of
the Herman Road address.
{¶93} Mr. and Mrs. Condee were deposed on September 11, 2014. With
over a month after the other witnesses were deposed to “develop” their own
testimony, Mrs. Condee could not specify a date when Tyler moved out of the
Herman Road address. Mr. Condee was unable to corroborate the details of the
visitation arrangements between Alana and Tyler. Mr. and Mrs. Condee indicated
Alana and the children moved in with them in mid-April 2011, whereas Alana
recalled it was late February or early March 2011. We also agree with the trial
court that Alana’s failure to change her mailing address on various documents is
hardly dispositive of the issue of her address on the date of Bryant’s accident.
Gallia App. No. 15CA4 48
{¶94} For the foregoing reasons, we find the trial court did not err when it
granted summary judgment to Appellee and overruled Appellant’s motion for
summary judgment. We agree with the trial court’s finding that Bryant Martin had
resided in the Condee household for some duration and with regularity on June 18,
2011. Accordingly, the fourth assignment of error is also without merit and is
hereby overruled. As such, the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Gallia App. No. 15CA4 49
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee
recover of Appellants any costs herein.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Gallia County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date
of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Hoover, J.: Concurs in Judgment and Opinion as to Assignments of Error I, III,
& IV; Concurs in Judgment Only as to Assignment of Error II.
Harsha, J.: Concurs in Judgment Only as to Assignments of Error I, III, & IV;
Dissents as to Assignment of Error II.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.