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Bohdan R. Czepak, M.D. v. Charles W. Heiges

October 28, 2011

BOHDAN R. CZEPAK, M.D.
APPELLANT
v.
CHARLES W. HEIGES, ET AL.
APPELLEE



Trial Court No. 09CV580C

The opinion of the court was delivered by: Pietrykowski, J.

Cite as Czepak v. Heiges,

DECISION AND JUDGMENT

{¶1} We consider an appeal of a trial court judgment granting the defendant summary judgment in a premises liability action for personal injuries. Appellant,

Bohdan R. Czepak, M.D. appeals an October 7, 2010 judgment of the Ottawa County Court of Common Pleas. In the judgment, the trial court granted the motion for summary judgment of appellee, Charles W. Heiges, in an action brought by Czepak for personal injuries suffered when he stepped through a rotted wooden floor.

{¶2} Appellant asserts three assignments of error on appeal:

{¶3} "1. The trial court erred in granting summary judgment to defendant- appellee Charles W. Heiges ("Heiges") and in ruling that the evidence presented by plaintiff-appellant Bohdan R. Czepak, M.D. ("Czepak"), even when construed most strongly in his favor and against Heiges, would not allow reasonable minds to find Heiges liable.

{¶4} "2. The trial court erred in ruling, sua sponte, that Czepak was a licensee when Heiges had not advanced that argument as a ground for summary judgment.

{¶5} "3. The trial court erred in ruling, there was no evidence of hidden dangers and that the evidence 'suggested' the danger was open and obvious."

{¶6} Heiges filed transcripts of depositions of Czepak and Paul Coles, with exhibits, in support of his motion. Coles testified that Heiges' property was almost 25 acres in size with a cabin on the Portage River in Port Clinton, Ohio. The property came to his attention in November 2007 when he saw it listed on a list of foreclosures in a local newspaper.

{¶7} Coles contacted Heiges about the property and learned from Heiges that foreclosure was imminent and that Heiges believed there was nothing he could do to prevent foreclosure. Coles told Heiges that he was interested in stopping the foreclosure and in purchasing the property.

{¶8} Coles visited the property with Heiges in December 2007 and on two other occasions with others afterwards. He reached an agreement to purchase the property for $85,000 in December 2007, a day before the property was scheduled for sheriff's sale. Under the agreement Coles paid $10,000 down and the Lorain National Bank agreed to give him "30 days to come up with the rest of the financing." Coles testified that he made the $10,000 down payment in December 2007 and made the final payment after appellant was injured at the property.

{¶9} Czepak and Coles had discussed an interest in buying property for hunting in the past. According to Coles, he contacted Czepak and told him that he was purchasing an abandoned duck marsh. He also told Czepak that he was attempting to find a few investors because the purchase price was probably more than he could "handle." He invited Czepak to look at the property. It is undisputed that Heiges had no knowledge that appellant would be present on the property on January 12, 2008, when Czepak was injured.

Summary Judgment

{¶10} The standard of review of judgments granting motions for summary judgment is de novo; that is, an appellate court applies the same standard in determining whether summary judgment should be granted as the trial court. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. Civ.R. 56(C) provides:

{ΒΆ11} "* * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a ...


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