Canter v. Kingdomwork, L.L.C. ( 2024 )

[Cite as Canter v. Kingdomwork, L.L.C., 2024-Ohio-1231.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
DOMINICK CANTER, et al., :
Appellants, : CASE NO. CA2023-05-049
: OPINION
- vs - 4/1/2024
:
KINGDOMWORK, LLC, et al., :
Appellees. :
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CV 2021 09 1343
The Attkisson Law Firm, LLC, and Jack J. Lah, for appellant, Dominick Canter.
Bruns, Connell, Vollmar & Armstrong, LLC, and Thomas B. Bruns and Lucinda C.
Shirooni, for appellee, Kingdomwork, LLC.
PIPER, J.
{¶ 1} Appellant, Dominick Canter ("Canter"), timely appeals the trial court's entry
which adopted the magistrate's decision granting summary judgment to appellee,
Kingdomwork, LLC ("Kingdomwork").
{¶ 2} The single-car accident that is the subject of this suit occurred on March 9,
Butler CA2023-05-049
2021. Canter was a passenger along with Charles Barrett and Kahil Cozad in a vehicle
driven by Jordan Kenyon. Kenyon was driving nearly 80 miles per hour when he lost
control of the vehicle. The car went off the road onto Kingdomwork's property and hit a
freestanding sign constructed of brick. The vehicle then careened onward, hitting a
nearby building. Canter and Cozad were seriously injured while Barrett died from the
injuries he sustained.
{¶ 3} Canter filed suit against Kenyon and Kingdomwork,1 and alleged that
Kingdomwork was negligent per se because the sign was too close to the road. Andrew
Larkin, personal representative of Barrett's estate, and Cozad later joined the suit, also
alleging negligence by Kingdomwork for the sign's placement.
{¶ 4} Canter filed a motion for summary judgment, and Kingdomwork filed a
motion for summary judgment against all three passengers. The parties' cross motions
focused on whether the placement of the brick sign on Kingdomwork's property
constituted negligence per se. The parties agreed that because the sign was less than
10 feet from the road that it would be in violation of the Middletown Development Code
("MDC") unless an exception applied.
{¶ 5} Kingdomwork presented to the court, via affidavit, a certified copy of a
certificate of zoning compliance from the city of Middletown regarding the construction of
the sign at the property. According to that document, the sign was constructed in 1974
when the property was owned by Ohio Bell Telephone. The certificate is not signed by
the applicant who submitted the form, but it was signed by the Middletown zoning
administrator on April 2, 1974 and issued certificate number 1990.74. The copy of the
certificate submitted with Kingdomwork's motion was certified as a true and accurate copy
1. The complaint also named State Farm Mutual Insurance, the Ohio Department of Medicaid, and United
Healthcare as defendants because they may have subrogation interest in the case.
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by Middletown Development Services on July 26, 2022.
{¶ 6} In resolving the motions for summary judgment, a Butler County magistrate
applied a "grandfather clause" found within the MDC and found that because the sign
was compliant when it was constructed, the sign remained compliant at the time of the
accident. The magistrate also noted that Canter did not provide any evidence to counter
the evidence put forward by Kingdomwork that showed the sign was compliant when it
was installed. Thus, the trial court found negligence per se could not be established and
that Kingdomwork was entitled to judgment as a matter of law as to the parties' negligence
claim.
{¶ 7} Kingdomwork moved for summary judgment on several other grounds as
well: (1) the sign was not a hazard to ordinary on the road travel; (2) Canter had assumed
the risk of being in a high-speed vehicle; (3) that Canter and the others in the vehicle were
trespassers; (4) the sign was an open and obvious risk; and (5) the sign was not the
proximate cause of Canter's injuries. Regarding these arguments, the magistrate simply
stated, "With the exception of Kingdomwork's arguments regarding primary assumption
of the risk, this Court finds all of Kingdomwork's arguments persuasive. This Court finds
particularly persuasive the authority set forth in the case of Snay v. Burr, 167 Ohio St.3d
123, 2021-Ohio-4113 (2021)."
{¶ 8} After reviewing the applicable law and the magistrate's factual
determinations, the trial court adopted the magistrate's decision, and Canter filed this
appeal.
{¶ 9} On appeal, Canter raises a single assignment of error:
THE TRIAL COURT ERRED AS A MATTER OF LAW TO
APPELLANT'S PREJUDICE IN HOLDING THAT A
VIOLATION OF MIDDLETOWN DEVELOPMENT CODE
SECTION 122.08(d)(4), A SAFETY ORDINANCE
REQUIRING ALL FREESTANDING SIGNS TO BE SET
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BACK NO LESS THAN TEN FEET FROM THE PUBLIC
RIGHT-OF-WAY, DOES NOT CONSTITUTE NEGLIGENCE
PER SE.
{¶ 10} As an initial matter, we note that Canter's single assignment of error does
not address the other grounds under which summary judgment was granted. As a result,
our analysis on review will be limited to whether the placement of the sign was compliant
under the law and whether Kingdomwork was negligent per se.
{¶ 11} Canter argues on appeal there is no evidence which shows the certificate
of zoning compliance was "valid." The certificate, he argues, was not signed by an
applicant or accompanied by other documentation the certification required. In addition,
Canter asserts that the certificate does not, by itself, demonstrate that the sign "was
erected in conformance with a valid certificate of zoning and compliance." Canter asserts
these issues should have been decided by a jury.
{¶ 12} Under Civ.R. 56, a trial court may grant summary judgment when, "there is
no genuine issue of material fact remaining for trial, the moving party is entitled to
judgment as a matter of law, and reasonable minds can only come to a conclusion
adverse to the nonmoving party, construing the evidence most strongly in that party's
favor." Total Quality Logistics, L.L.C. v. JK & R Express, L.L.C., 12th Dist. Clermont,
2022-Ohio-3969, ¶ 17. Trial courts should hesitatingly grant summary judgment, giving
the nonmoving party all benefits of doubt. Welco Indus., Inc. v. Applied Cos., 67 Ohio
St.3d 344, 346 (1993), citing Murphy v. Reynoldsburg, 65 Ohio St.3d 356 (1992).
{¶ 13} The unsupported assertion by the moving party that the nonmoving party
has no evidence to prove its case is not sufficient ground for the trial court to grant
summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107 (1996).
However, if the moving party fulfills its burden and the nonmoving party presents no
evidence to support the merits of their case, summary judgment is proper. Welco Indus.
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at 346, citing Wing v. Anchor Media, Ltd. of Texas, 59 Ohio St.3d. 108, paragraph three
of the syllabus (1991). "Mere speculation is insufficient to create a genuine issue of
material fact to avoid summary judgment." Fontain v. H&R Cincy Properties, LLC, 12th
Dist. Warren No. CA2021-02-015, 2022-Ohio-1000, ¶ 67.
{¶ 14} The granting or denial of summary judgment is reviewed on a de novo basis,
and appellate courts consider the same standard as the trial court. Holtrey v. Wiedeman,
12th Dist. Warren No. CA2023-01-011, 2023-Ohio-2440, ¶ 12.
{¶ 15} MDC 1230.02 defines freestanding signs as "[a]ny sign supported upon the
ground by a monument, pedestal, pole, bracing, or other permanent measure and not
attached to any building." Under MDC 1220.08(d)(4), "All freestanding signs shall be set
back a minimum of 10 feet from all rights-of-way and from adjacent lot lines and 50 feet
from any adjacent lot in a residential zoning district or used solely for residential uses."
However, MDC 1220.10(a) states that "signs that do not conform to the specific standards
of this code may be considered legally nonconforming if the sign was erected in
conformance with a valid certificate of zoning compliance and complied with all applicable
laws at the time of the sign's installation * * *."
{¶ 16} We find no error by the trial court in granting summary judgment against
Canter. The parties agree that the sign is not compliant under MDC 1220.08(d)(4)
because the sign is only five feet away from the road. However, Kingdomwork presented
evidence that the city of Middletown issued a certificate of zoning compliance regarding
the sign in 1974. Regardless of whether the application, or the certified copy of it, contains
the signature of the person who applied for the certification or whether all the required
paperwork was attached to the application for certification, the certificate was signed and
issued by the city of Middletown. As a result, there is no evidence suggesting the
certificate is invalid or that the sign otherwise failed to comply with all applicable laws at
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the time it was constructed. As a result, the sign is "legally nonconforming" under the
MDC.
{¶ 17} Similarly, there is no reason to believe that the sign was not constructed in
conformance with the certificate. Canter's argument amounts to mere speculation. There
is nothing in the record which remotely speaks to, let alone supports, Canter's assertion
that the sign was not compliant when it was constructed. Therefore, Canter's negligence
claim on the basis of negligence per se fails as a matter of law.
{¶ 18} As a result of the foregoing, we agree with the trial court that there is no
genuine issue of material fact remaining for trial and that Kingdomwork was entitled to
judgment as a matter of law. The sign fell under the "grandfather" clause of the MDC.
{¶ 19} Judgment affirmed.
S. POWELL, P.J., and BYRNE, J., concur.
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