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Miller v. Mangan

Court of Appeals of Ohio, Tenth District

June 25, 2013

Kevin Miller, Plaintiff-Appellant,
v.
Patrick F. Mangan, Administrator of the Estate of Arthur S. Vogle, Deceased et al., Defendants-Appellees.

APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 11CVC-01-1004)

Malek & Malek, and James Malek, for appellant.

Gallagher, Gams, Pryor, Tallan & Littrell, LLP, Belinda S. Barnes, and Benjamin W. Wright, for appellee Patrick F. Mangan, Administrator of the Estate of Arthur S. Vogle, Deceased.

DECISION

SADLER, J.

{¶ 1} Plaintiff-appellant, Kevin Miller, appeals from a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendant-appellee, Patrick F. Mangan, Administrator of the Estate of Arthur S. Vogle, Deceased. For the following reasons, we reverse the judgment of the trial court and remand the matter to that court for further proceedings consistent with this decision.

I. BACKGROUND

{¶ 2} This case arises out of a two-vehicle accident between appellant and Arthur S. Vogle ("Vogle"). Appellant filed a complaint against Vogle alleging that the accident was caused by Vogle's negligent operation of his vehicle and that appellant suffered injury and damages as a result. Appellant also alleged that Vogle was negligent per se due to operating "a motor vehicle in such a manner as to violate" Ohio's traffic laws. (Amended Complaint, ¶ 16.) Appellant alleged negligent entrustment and respondeat superior against John Doe defendants.

{¶ 3} Prior to filing an answer to the lawsuit, counsel for Vogle notified the court that Vogle had died.[1] The trial court granted Vogle's motion to substitute the administrator of the estate for the deceased defendant Vogle. Appellant filed an amended complaint substituting appellee for Vogle.

{¶ 4} Pursuant to Civ.R. 56(C), appellee filed a motion for summary judgment and cited portions of appellant's deposition transcript to support the motion. Appellant filed a memorandum in opposition and attached with it an affidavit he executed in order to support his negligence claims against Vogle. The trial court granted appellee's motion for summary judgment on grounds that appellee satisfied his burden under Civ.R. 56 to show that there were no genuine issues of material fact and that he was entitled to judgment as a matter of law. The court also concluded that appellant improperly attempted to defeat summary judgment "with a self-serving affidavit that is contrary to his previous deposition testimony." (R. 38, 7.)

II. ASSIGNMENTS OF ERROR

{¶ 5} Appellant filed a timely notice of appeal and assigns the following as error:

[I.] The trial court erroneously granted defendant-appellees' motion for summary judgment because genuine issues of material fact remain which should properly be decided by a jury.
[II.] The trial court erroneously refused to consider the Affidavit of the Plaintiff-Appellant when applying the Summary Judgment standard which requires that evidence be interpreted in ...

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