Paolucci v. Morgan

[Cite as Paolucci v. Morgan, 2018-Ohio-793.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
DENISE PAOLUCCI, : OPINION
Plaintiff-Appellant, :
CASE NO. 2017-P-0020
- vs - :
TIMOTHY MORGAN, et al., :
Defendants-Appellees. :
Civil Appeal from the Portage County Court of Common Pleas, Case No. 2014 CV
00189.
Judgment: Affirmed.
Oliver T. Koo, 250 South Chestnut Street, Suite 23, Ravenna, OH 44266 (For Plaintiff-
Appellant).
John A. Neville and Holly Marie Wilson, Reminger Co., L.P.A., 1400 Midland Building,
101 Prospect Avenue, West Cleveland, OH 44115 (For Defendant-Appellees).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Denise Paolucci, appeals the trial court’s ruling granting
summary judgment in favor of appellees, Timothy and Maren Morgan, as to all three
claims in her complaint asserting that there are genuine issues of fact. We affirm.
{¶2} Appellees (“the Morgans”) own a large horse farm in Streetsboro, Portage
County, Ohio. The farm includes a pasture, the Morgans’ home, and a seven-stall
horse barn. Although the Morgans keep at least one of their horses in the barn, they
rent the majority of the stalls to others and provide boarding services. Tim Morgan
regularly feeds the horses, provides their bedding, and “turns them out to pasture.” The
“renters” are allowed to visit their horses at any time.
{¶3} As of early 2010, appellant owned three horses, two mares, and one
gelding. One of her mares was pregnant. Wanting to keep her horses in a more
convenient location, appellant orally contracted with the Morgans to board her horses.
At the outset, she told Timothy Morgan that she did not want her gelding to be placed in
the pasture with any stallions for fear that the gelding would be injured. She also told
him that she expected him to notify her and a veterinarian when her mare began to give
birth. Timothy informed her that he would not assist in delivery of foal. She assured
him that she would handle the delivery.
{¶4} Appellant’s claims against the Morgans are based upon three events.
First, on March 31, 2010, appellant visited her horses and noticed that her gelding
sustained a puncture and stifle injury. Appellate averred that this injury could not have
occurred without severe trauma. According to her, another woman who boarded a
horse saw the Morgans release appellant’s gelding into the pasture with a stallion, and
that the stallion “threw” the gelding into the fence, knocking down several boards.
However, appellant did not produce this woman as a witness. Appellant, did not say
that she witnessed the event, but nevertheless averred that she found broken boards in
the fence.
{¶5} Timothy Morgan, in an affidavit, did not deny putting a stallion in the
pasture with appellant’s gelding, but averred that he did not see the stallion hit or injure
the gelding.
{¶6} The second event occurred approximately ten days later. According to
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appellant, she went to the barn at 11:00 p.m. one evening to see her pregnant mare.
She thought the mare was close to giving birth and, therefore, stayed with her for three
hours. Appellant averred that she told Timothy to watch the pregnant mare closely and
to call the veterinarian if anything changed. She does not, however, give a definite
statement as to when she did so.
{¶7} Appellant left the barn at 2:00 a.m. The following morning, in accordance
with his regular schedule, Timothy went to the barn at 6:00 a.m. to feed the horses.
Upon arrival, he saw that the mare had given birth to the foal, but that the foal was
dead. He immediately called appellant. She came to the barn and tried to revive the
foal, without success. Appellant claimed that Timothy would not answer her questions
as to how the foal had died. She also claimed, without evidence, that Timothy tried to
deliver the foal himself when he should have called the veterinarian.
{¶8} The third event concerns the disposal of the foal’s remains. According to
Timothy, he buried the foal as a favor to appellant and did so after obtaining permission.
Appellant denied that she consented to burying the foal on the Morgans’ property.
{¶9} After dismissing her first action against the Morgans, appellant filed the
current case. As to the injury to the gelding and the death of the foal, she asserted
breach of contract and negligence claims. She also sought damages for the wrongful
disposal of the dead foal.
{¶10} After conducting discovery, the Morgans moved for partial summary
judgment as to both the breach of contract and negligence claims. They argued that
appellant could not prevail on either claim because she lacked evidence showing that
the injury to the gelding and the death of the foal were attributable to any action or
inaction on their part. In response, she asserted that construing the facts in a manner
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most favorable to her, a reasonable person could find the Morgans negligent under the
doctrine of res ipsa loquitur.
{¶11} In November 2015, the trial court granted the Morgans’ motion for partial
summary judgment on the breach of contract and negligence claims.
{¶12} Appellant appealed. We dismissed that appeal for lack of a final
appealable order because the judgment did not decide the wrongful disposal claim or
contain Civ.R. 54(B) language. Paolucci v. Morgan, 11th Dist. Portage No. 2015-P-
0086, 2016-Ohio-3009.
{¶13} Upon remand, the Morgans filed a separate motion for summary judgment
on the wrongful disposal claim, arguing that appellant could not recover for emotional
distress because the foal is considered personal property. Second, they maintained
that the foal lacked economic value.
{¶14} In response, appellant contended that regardless of the value of the foal,
she was entitled to recover the cost to exhume and transport the remains to a proper
resting place.
{¶15} In February 2017, the trial court granted summary judgment in favor of the
Morgans on the remaining wrongful disposal claim.
{¶16} Appellant appeals asserting two assignments for review:
{¶17} “[1.] The trial court committed error in granting summary judgment while
there are still genuine issues of material fact and the disputed facts were not taken in
the light most favorable for the non-movant (Appellant).
{¶18} “[2.] The trial court erred in failing to recognize that replevin is an available
remedy for Appellant before granting Summary Judgment on the wrongful disposal
claim.”
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{¶19} Under her first assignment, appellant asserts three arguments contesting
the trial court’s first summary judgment ruling on the breach of contract and negligence
claims. She maintains that the trial court failed to comply with Civ.R. 56(D):
{¶20} “If on motion under this rule summary judgment is not rendered upon the
whole case or for all the relief asked and a trial is necessary, the court in deciding the
motion, shall examine the evidence or stipulation properly before it, and shall if
practicable, ascertain what material facts exist without controversy and what material
facts are actually and in good faith controverted. The court shall thereupon make an
order on its journal specifying the facts that are without controversy, including the extent
to which the amount of damages or other relief is not in controversy, and directing such
further proceedings in the action as are just.” (Emphasis added.)
{¶21} Compliance with Civ.R. 56(D) is only necessary when summary judgment
has not been rendered upon all the relief asked. Holeski v. Lawrence, 85 Ohio App.3d
824, 834, 621 N.E.2d 802 (11th Dist.1993). The Morgans’ partial summary judgment
motion pertained only to appellant’s breach of contract and negligence claims.
Moreover, in ruling upon that motion, the trial court disposed of those claims entering
judgment in favor of the Morgans. The trial court, at that time, rendered summary
judgment for “all the relief asked,” and, therefore, did not err.
{¶22} Under her second argument, appellant submits that both of the trial court’s
decisions are flawed because material issues of fact remain. As to the breach of
contract and negligence claims, she states that there are genuine issues regarding the
boarding contract terms and the extent of the Morgans’ duty. In relation to the wrongful
disposal claim, she asserts an issue of fact as to whether she gave consent for Timothy
to dispose of the remains.
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{¶23} Concerning the breach of contract and negligence claims, the trial court
concluded that there is no evidence that the Morgans caused harm to the gelding or the
foal. In order to prevail on either a breach of contract or negligence claim, the plaintiff
must prove, inter alia, the lack of compliance with an obligation or duty, leading to
damages. Carbone v. Nueva Constr. Group, L.L.C., 83 N.E.3d 375, 8th Dist. Cuyahoga
Nos. 103942 & 104147, 2017-Ohio-382, ¶14; Konet v. Roberts, 11th Dist. Portage No
2015-P-0030, 2016-Ohio-1306, ¶25. Appellant did not present any evidence as to duty
or breach. Consideration of the other issues was therefore unnecessary.
{¶24} As to the injury to the gelding, the dissent concludes that the Morgans
have the burden of disproving negligence due to a “bailor-bailee” relationship.
However, appellant did not raise this argument before the trial court and it has therefore,
been waived. Fifth Third Bank v. Richards, 11th Dist. Portage No. 2014-P-0040, 2015-
Ohio-638, *3 (Grendell, J., writing for the majority); Marks v. Aurora Bd. of Zoning
Appeals, 11th Dist. Portage No. 2015-P-0048, 2016-Ohio-5182, ¶13-14 (Grendell, J.,
writing the lead opinion). “It is well settled that where a party proceeds in trial on a
certain legal theory, he may not abandon that theory on appeal and proceed on a
different theory in the appellate court.” State v. Urso, 195 Ohio App.3d 665, 2011-Ohio-
4702, 961 N.E.2d 689, ¶77 (11th Dist.), citing Dolan v. Dolan, 11th Dist. Trumbull Nos.
2000-T-0154 and 2001-T-0003, 2002-Ohio-2440, ¶7 (Grendell, J., writing for the
majority).
{¶25} Furthermore, appellant has not argued or briefed this issue on appeal and,
therefore, it is precluded as a basis for disposition. Toledo’s Great Eastern Shoppers
City, Inc. v. Abde’s Black Angus Steak House No. III, Inc., 24 Ohio St.3d 198, 202, 494
N.E.2d 1101 (1986) (“‘[i]n fairness to the parties, a Court of Appeals which contemplates
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a decision upon an issue not briefed should * * * give the parties notice of its intention
and an opportunity to brief the issue.’”).
{¶26} Similarly, as to the wrongful disposal claim, the trial court’s decision was
based solely upon the conclusion that appellant could not recover any economic or
emotional damages. At the trial level, appellant did not contest the Morgans’ argument
regarding economic or emotional damages, but maintained that she was still entitled to
recover the costs for exhuming the foal’s remains. As will be discussed under the
second assignment, appellant did not comply with statutory requirements for seeking
damages under replevin. Thus, the trial court is affirmed for alternative reasons.
{¶27} Under the final argument of her first assignment, appellant asserts the trial
court failed to apply res ipsa loquitur.
{¶28} “The doctrine of res ipsa loquitur is not a substantive rule of law, but rather
is a rule of evidence which permits the trier of fact to infer negligence on the part of the
defendant when the logical premises for the inference are demonstrated. The
application of res ipsa loquitur does not alter the nature of the plaintiff’s claim in a
negligence action, but instead simply permits the plaintiff to prove his or her case
through circumstantial evidence, as opposed to direct evidence.
{¶29} “Res ipsa loquitur permits the trier of fact to infer negligence on the part of
the defendant from the circumstances surrounding the infliction of injury on the plaintiff.
In order to warrant its application, the plaintiff must establish the following: (1) the
instrumentality causing the injury was under the exclusive management and control of
the defendant at the time of the actual injury or at the time of the creation of the
condition which resulted in the injury; and (2) the injury occurred under such
circumstances that in the ordinary course of events it would not have occurred if
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ordinary care had been observed.
{¶30} “The doctrine of res ipsa loquitur is premised upon the absence of direct
evidence of acts or omissions constituting negligence. It raises the circumstantial
inference of negligence only in those rare instances where the instrumentality was
accessible only to the defendant and where the nature of the accident was such that it
ordinarily would not have happened in the absence of negligent conduct.” (Citations
omitted.) Fleegle v. Funtime, Inc., 11th Dist. Geauga No. 98-G-2158, 1999 WL 960575,
*2-3 (Sept. 30, 1999).
{¶31} Injury to a gelding and death of a foal are things that can happen in any
number of ways, with or without negligence. Appellant did not establish that the
gelding’s injury or the foal’s death occurred under such circumstances that in the
ordinary course of events would not have occurred but for negligence. Accordingly, the
trial court did not err. Appellant’s first assignment is without merit.
{¶32} Appellant’s second assignment addresses the trial court’s decision as to
her wrongful disposal claim. As noted above, the court granted summary judgment due
to the failure to show damages. Appellant does not contest the trial court’s analysis as
to the economic or emotional harm, but still maintains that she would be entitled to
damages covering the costs of exhuming the foal’s remains and taking them elsewhere
for burial.
{¶33} Although appellant raised the replevin issue in her response to the second
motion for summary judgment, the trial court did not address the point in its second
decision. Nevertheless, for the following reasons, appellant was not prejudiced
because she failed to comply with statutory requirements for obtaining replevin.
{¶34} Replevin is a statutory remedy that must be sought in accordance with
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specific procedures. Bond v. Bond, 11th Dist. Geauga No. 2001-G-2382, 2002-Ohio-
3843, ¶17. A request for the return of personal property must be made by motion with
an accompanying affidavit. R.C. 2737.03. Appellant never filed such a motion in this
case. Her various submissions, including her complaint, made no reference to recovery
under a theory of replevin until her response to the Morgans’ second motion for
summary judgment. Since appellant did not comply with R.C. 2737.03, the trial court
did not err in granting summary judgment on her wrongful disposal claim. Her second
assignment also lacks merit.
{¶35} The judgments of the Portage County Court of Common Pleas are
affirmed.
CYNTHIA WESTCOTT RICE, J., concurs,
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
____________________
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
{¶36} I respectfully dissent and would reverse the trial court’s decision with
respect to the injury to Paolucci’s gelding. In affirming the grant of summary judgment,
the majority asserts that, “[c]oncerning the breach of contract and negligence claims,”
Paolucci “did not present any evidence as to duty or breach.” Supra at ¶ 23. The
majority fails to recognize the substance of Paolucci’s relationship with the Morgans as
that of bailor and bailee and thus its analysis of the issues is deficient.
{¶37} Paolucci contracted with the Morgans for the care and boarding of three
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horses. While in the care of the Morgans, one of the horses (the gelding) “suffered a
puncture and stifle injury.” There is no evidence as to how the gelding was injured.
{¶38} “A bailment has been defined as the delivery of goods or personal
property by one person to another in trust for a particular purpose, with a contract,
express or implied, that the property shall be returned once the purpose has been
faithfully executed.” (Citation omitted.) Marculaitis v. Pisegna, 11th Dist. Ashtabula No.
2010-A-0045, 2011-Ohio-4019, ¶ 31. The delivery of horses to another for a particular
purpose creates such a bailment for hire, thereby obligating the bailee “by law to
exercise ordinary care in the safekeeping of the bailor’s property” and “to return the
property undamaged upon the termination of the bailment.” David v. Lose, 7 Ohio St.2d
97, 98, 218 N.E.2d 442 (1966). Accordingly:
1. In order to establish a prima facie case against a bailee in an
action sounding in contract, a bailor need prove only (1) the
contract of bailment, (2) delivery of the bailed property to the bailee
and (3) failure of the bailee to redeliver the bailed property
undamaged at the termination of the bailment.
2. In an action by a bailor against a bailee based upon a breach of
the contract of bailment, where the bailor proves delivery of the
bailed property and the failure of the bailee to redeliver upon legal
demand therefor, a prima facie case of want of due care is thereby
established, and the burden of going forward with the evidence
shifts to the bailee to explain his failure to redeliver. (Agricultural
Ins. Co. v. Constantine, 144 Ohio St. 275, 58 N.E.2d 658, followed.)
Id. at paragraphs one and two of the syllabus.
{¶39} In the present case, Paolucci has established a prima facie case of breach
of the bailment contract with the Morgans. Where “the bailee cannot show how the
damage occurred, he must, in order to escape liability, affirmatively prove that he took
reasonable precautions under the circumstances to prevent every possibility of damage
from actually occurring.” Id. at 100. The Morgans have not established the affirmative
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defense of non-negligence on their part. Rather, they have “left the question of their
conduct in a state of conjecture,” relying instead on Paolucci’s inability to demonstrate
the cause of the injury to the gelding. Id. at 101; see Affidavit of Timothy Morgan, at ¶
11 (“While Ms. Paolucci boarded her horses at my Property, I never observed a stallion
make contact with and/or injure her gelding.”).
{¶40} Given the state of the record before the court, it was error for the trial court
to grant summary judgment in favor of the Morgans as to Paolucci’s claim of injury to
the gelding and is erroneous for this court to affirm that decision. The majority claims
that the issue of bailment has been waived because it was not raised by Paolucci. But it
is a matter of law, not argument, that the Morgans bore the burden of explaining their
failure to redeliver the property undamaged. The Morgans moved for summary
judgment and it is the duty of the court to ensure that the standards of the Rule are met
before judgment is granted.
{¶41} For the foregoing reasons, I respectfully dissent and would reverse the
trial court with respect to the claims involving the gelding.
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