IVANA YUKO, et al. Plaintiffs
JOHN DOES 1-3 Defendants and GLOBAL SPECTRUM, L.P. Defendant/Third-Party Plaintiff
CLEVELAND STATE UNIVERSITY Third-Party Defendant
to S.C. Reporter 10/23/17
T. Saadi Special Counsel to Attorney General.
V. Jacobus Lee Ann Rabe Assistant Attorneys General.
PATRICK M. McGRATH JUDGE.
Before the court in this case, which is removed from the
Cuyahoga County Court of Common Pleas, are two summary
judgment motions filed on July 27, 2017:
. Third-party defendant Cleveland State
University's summary judgment motion on Global Spectrum,
L.P.'s third-party complaint, and
. Global Spectrum, L.P.'s summary
judgment motion on its third-party complaint against
Cleveland State University.
court holds that Cleveland State University's summary
judgment motion should be granted, that Global Spectrum's
summary judgment motion on its third-party complaint against
CSU should be denied, and that this removed case should be
remanded to the Cuyahoga County Court of Common Pleas for
According to court filings, on October 11, 2013, while Ivana
Yuko worked at a career services fair at the Wolstein Center
at Cleveland State University (CSU), she sustained an injury.
Later Ivana and her husband, John Yuko, sued (1) Global
Spectrum, LP. (which managed the Wolstein Center on behalf of
CSU at the time of the Ivana Yuko's injury) and (2) the
Ohio Bureau of Workers' Compensation (BWC) in the
Cuyahoga County Common Pleas Court. The Yukos contended in
their complaint that Ivana Yuko had been an employee of the
CSU Career Services Office, and, while she was working at a
career services fair, a metal pipe holding a drape, which was
designed to serve as a backdrop, fell on her head. The Yukos
asserted claims of negligence and loss of consortium against
Global Spectrum and they sought a declaratory judgment
against the BWC.
The BWC moved the common pleas court to realign the parties;
the court granted the BWC's motion. The BWC, with the
Yukos as named plaintiffs, filed a "New Party
Complaint" against Global Spectrum, asserting a
subrogation claim against Global Spectrum.
With leave of court, Global Spectrum brought a third-party
complaint against CSU, relying on a license agreement between
Global Spectrum and CSU Career Services Center. In its
third-party complaint, Global Spectrum sought a declaratory
judgment for contractual defense and indemnification, and
asserted a breach-of-contract claim. On Global Spectrum's
petition for removal, the matter was removed to this court.
On July 27, 2017, CSU and Global Spectrum separately moved
the court for summary judgment in their respective favor,
with CSU seeking summary judgment on Global Spectrum's
third-party complaint and Global Spectrum seeking summary
judgment on its third-party complaint against CSU, as well as
plaintiffs' complaint. CSU's summary judgment motion
and the portion of Global Spectrum's summary judgment
motion on its third-party complaint are presently before the
court-on the Yukos's motion, the court has deferred
ruling on Global Spectrum's motion for summary judgment
on the plaintiffs' complaint.
Relevant to CSU's and Global Spectrum's summary
judgment motions are two contracts: (1) a management
agreement of August 2010 between CSU and Global Spectrum, and
(2) a license agreement of July 2013 between Global Spectrum,
as agent of CSU, and the CSU Career Services Center.
Standard for Summary Judgment
Civ.R. 56(C) pertains to motions and proceedings for summary
judgment, stating in part: "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 matter of law. No evidence or stipulation may
be considered except as stated in this rule." In
State ex rel. Grady v. State Emp. Rels. Bd, 78 Ohio
St.3d 181, 183, 677 N.E.2d 343 (1997), construing Civ.R.
56(C), the Ohio Supreme Court stated: "Civ.R. 56(C)
provides that before summary judgment may be granted, it must
be determined that (1) no genuine issue as to any material
fact remains to be litigated, (2) the moving party is
entitled to judgment as a matter of law, and (3) it appears
from the evidence that reasonable minds can come to but one
conclusion, and viewing such evidence most strongly in favor
of the nonmoving party, that conclusion is adverse to the
party against whom the motion for summary judgment is made.
Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d
317, 327, 4 Ohio Op. 3d 466, 472, 364 N.E.2d 267, 274."
And in Dresher v. Burt, 75 Ohio St.3d 280, 298, 662
N.E.2d 264 (1996), a plurality opinion, the Ohio Supreme
Court stated that "there is no requirement in
Civ.R. 56 that any party submit affidavits to
support a motion for summary judgment. See, e.g.,
Civ.R. 56(A) and (B). There is a requirement,
however, that a moving party, in support of a summary
judgment motion, specifically point to something in the
record that comports with the evidentiary materials set forth
in Civ.R. 56(C)." (Emphasis sic.) And Dresher
a. a party seeking summary judgment, on the ground that the
nonmoving party cannot prove its case, bears the initial
burden of informing the trial court of the basis for the
motion, and identifying those portions of the record which
demonstrate the absence of a genuine issue of material fact
on the essential element(s) of the nonmoving party's
claims. The moving party cannot discharge its initial burden
under Civ.R. 56 simply by making a conclusory assertion that
the nonmoving party has no evidence to prove its case.
Rather, the moving party must be able to specifically point
to some evidence of the type listed in Civ.R. 56(C)
which affirmatively demonstrates that the nonmoving party has
no evidence to support the nonmoving party's claims. If
the moving party fails to satisfy its initial burden, the
motion for summary judgment must be denied. However, if the
moving party has satisfied its initial burden, the nonmoving
party then has a reciprocal burden outlined in Civ.R. 56(E)
to set forth specific facts showing that there is a genuine
issue for trial and, if the nonmovant does not so respond,
summary judgment, if appropriate, shall be entered against
the nonmoving party.
The court shall apply Civ.R. 56, as interpreted by relevant
authority, to the summary judgment motions before it.
CSU's Summary Judgment Motion
CSU moves for a summary judgment on Global Spectrum's
third-party complaint against it, urging that an indemnity
provision in the license agreement signed by a CSU employee
fails, as a matter of law, because (1) the indemnity
provision in the license agreement, as written, would
obligate CSU to pay uncertain sums over an uncertain period
in violation of certain provisions of the Ohio Constitution,
and (2) a management agreement between CSU and Global
Spectrum supersedes the license agreement. To support its
contentions, CSU relies on 1996 Ohio Atty.Gen.Ops. No.
96-060. With its summary judgment motion, CSU appended (1) an
affidavit of Clare Rahm, (2) a copy of the ...