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Leonard L. Wesley, et al v. James Walraven

February 5, 2013

LEONARD L. WESLEY, ET AL., PLAINTIFFS-APPELLANTS,
v.
JAMES WALRAVEN, ET AL., DEFENDANTS-APPELLEES.



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

Cite as Wesley v. Walraven,

DECISION AND JUDGMENT ENTRY

CIVIL CASE FROM COMMON PLEAS COURT

{¶1} This is an appeal from a Washington County Common Pleas Court summary judgment in favor of Todd and Joanna Knapp, defendants below and appellees herein. The trial court determined that appellees are not liable for the death of LaMarr Wilder, who attended a party at appellees' home that another couple, James and Shenandoah Walraven, hosted.

{¶2} Leonard L. Wesley, Individually and as Administrator of the Estate of Lamarr R. Wilder, plaintiff below and appellant herein, assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN CONSIDERING THE

AFFIDAVIT OF DEFENDANT-APPELLEE JOANNA KNAPP IN SUPPORT OF DEFENDANTS-APPELLEES' MOTION FOR SUMMARY JUDGMENT AND DENYING

PLAINTIFF-APPELLANT'S MOTION TO COMPEL DISCOVERY AND TO STRIKE SAID AFFIDAVIT."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN REFUSING TO CONSIDER THE AFFIDAVIT OF DETECTIVE HAEGLE AND THE DOCUMENTS SUBMITTED BY PLAINTIFF-APPELLANT IN OPPOSITION TO DEFENDANTS-APPELLEES' MOTION FOR SUMMARY JUDGMENT."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN GRANTING SUMMARY

JUDGMENT ON PLAINTIFF-APPELLANT'S CLAIMS, SUCH THAT THE JUDGMENT BELOW MUST BE REVERSED."

{¶3} This case arises out of a very unfortunate and sad stabbing incident that occurred at appellees' home where the Walravens hosted a combined high-school graduation and birthday party for their daughter while appellees were out of town. Appellees agreed to the arrangement, but informed the Walravens of certain restrictions for the party. Appellees advised the Walravens that no one under the age of twenty-one would be permitted to consume alcohol and that no one under the age of eighteen could attend the party. Appellees did not purchase any alcohol to be consumed at the party.

{¶4} C.L. attended the party but did not drink any alcohol.*fn1 As C.L. and two of his friends sat in a car, three unknown males approached and began to beat on the roof of the car and demanded that C.L. and his friends exit so they could fight. One of C.L.'s friends exited the driver's door and asked why there was going to be a fight. C.L. exited the passenger door to stand near his friend.

{¶5} Once outside the car, C.L. and his friends recognized the male antagonists as Scott Walraven's son, T.C., and LaMarr Wilder. As C.L.'s friend was tried to explain that he had no intention to fight, T.C. punched C.L.'s friend in the back of the head. Wilder then punched C.L. in the temple and knocked him to the ground. The Walravens' son punched C.L.'s second friend in the face, dazing him and possibly rendering him unconscious.

{¶6} Once C.L. was on the ground, he rolled to his stomach and Wilder began to pummel his head and neck. Wilder was 5'10", nearly 240 pounds, a football player, and 19 years old.

C.L. was a few inches taller and 10 pounds heavier than Wilder, but C.L. had never been in a fight and was 17. C.L. testified that he tried to get up, but was able to get only onto his elbows. C.L.'s vision began to darken as Wilder continued to pummel his head, so C.L. reached into his pocket for his pocket knife. In addition to his waning consciousness, C.L. was unsure when Wilder would stop hitting him because Wilder had been drinking. C.L. also thought that more than one person was holding him down or punching him because he could not get up.

{¶7} After C.L. unfolded his knife, he thrust it in Wilder's general direction. Wilder exclaimed that C.L. was "trying to poke him," but continued to punch C.L. in the head. After several thrusts of the knife, Wilder ceased the beating. C.L. then got up and ran to his truck.

{¶8} As C.L. attempted to leave, Scott Walraven and his son assaulted C.L. in his truck. Scott Walraven grabbed C.L.'s shirt and punched him in the face several times. C.L. tried to kick him away, to no avail. Finally, Scott Walraven released C.L., who immediately started his truck and drove home.

{¶9} In the aftermath, Wilder made his way to the garage and collapsed. Several of C.L.'s swipes with the knife had connected with Wilder's legs and one cut Wilder's femoral artery, which proved fatal.

{¶10} On September 23, 2010, appellant filed a wrongful death complaint against the Walravens, appellees, and C.L. The court subsequently entered default judgments against C.L. and the Walravens.

{¶11} On December 2, 2011, appellees requested summary judgment and asserted that no genuine issues of material fact remained concerning their liability for the decedent's death.

{¶12} On January 6, 2012, appellant filed a motion to compel appellees to provide discovery and a motion to strike Mrs. Knapp's affidavit. On that same date, appellant filed his opposition memorandum and attached investigative reports taken during the investigation into Wilder's death and a search warrant affidavit.

{¶13} Subsequently, appellees filed a motion to strike the exhibits attached to appellant's memorandum.

{¶14} On February 6, 2012, the trial court overruled appellant's motion to compel, partially overruled his motion to strike Mrs. Knapp's affidavit, granted appellees' motion to strike the documents attached to appellant's opposition memorandum, and granted appellees summary judgment. On March 21, 2012, the court entered a final judgment entry and granted appellees summary judgment. This appeal followed.

{¶15} Appellant's three assignments of error challenge the propriety of the trial court's summary judgment decision, thus, for ease of analysis we have combined them for review.

[Cite as Wesley v. Walraven, 2013-Ohio-473.]

{¶16} In his first assignment of error, appellant argues that the trial court erred by denying his motion to strike Mrs. Knapp's affidavit. Appellant asserts that the trial court should have stricken the affidavit because it (1) is not based upon personal knowledge, (2) contradicts her deposition testimony and interrogatory answers, and (3) contains hearsay and other inadmissible information. Within his first assignment of error, appellant also contends that the trial court erred by overruling his motion to compel discovery and to stay ruling on appellees' summary judgment until appellees provided proper discovery responses.

{¶17} In his second assignment of error, appellant argues that the trial court erred by striking the documents he submitted in opposition to appellees' summary judgment motion.

{ΒΆ18} In his third assignment of error, appellant contends that the trial court improperly entered summary judgment in appellees' favor. Appellant asserts that genuine issues of material fact remain as to ...


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