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Heard v. Daytonview Commons Homes

Court of Appeals of Ohio, Second District, Montgomery

February 16, 2018

JAMES A. HEARD Plaintiff-Appellant

         Civil Appeal from Common Pleas Court Trial Court Case No. 16-CV-5890

          JAMES A. HEARD, Plaintiff-Appellant, Pro Se

          WILLIAM H. KOTAR III, Atty. Reg. No. 0073462, Attorney for Defendant-Appellee


          FROELICH, J.

         {¶ 1} James A. Heard appeals from a judgment of the Montgomery County Court of Common Pleas, which granted summary judgment in favor of Dayton View Commons Homes and Oberer Management Services (collectively "Dayton View") on Heard's claim for personal injury. For the following reasons, the judgment of the trial court will be affirmed.

         {¶ 2} Heard's pro se complaint was filed on November 17, 2016. The complaint had several attachments and alleged that, on November 24, 2014, he had fallen at the threshold of his apartment because of water that had seeped under the exterior door, a problem about which he had previously complained to management. He stated that he hit his back, neck, and head on the ground, that the fall caused him to have surgery on his "cervical, " and that treatment was ongoing. He sought $5 million in compensatory and punitive damages. No specific medical records or expert opinions were attached to the complaint.[1]

         {¶ 3} Dayton View filed an answer denying Heard's allegations and raising affirmative defenses. It also filed a notice disclosing its expert witness, a notice to take a medical examination (of Heard), and a notice to take Heard's deposition.

         {¶ 4} On May 25, 2017, Dayton View filed a motion for summary judgment. The motion stated that Heard alleged that he had neck surgery as a result of his fall, but that his medical records indicated that his physicians had been recommending neck surgery for a couple of years prior to the fall. Dayton View's motion also asserted that Heard presented "no expert testimony to establish that the neck surgery was in any way proximately related to the alleged slip and fall." The motion relied on Heard's deposition testimony.

         {¶ 5} Heard did not file a response to the motion for summary judgment. On July 28, 2017, the trial court granted Dayton View's motion.

         {¶ 6} Heard filed a notice of appeal and a pro se brief. The brief does not set forth assignments of error or otherwise comply with App.R. 16(A), but it does demonstrate that Heard disagrees with the trial court's award of summary judgment.

         Summary Judgment Standard

         {¶7} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds, after construing the evidence most strongly in favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving party carries the initial burden of affirmatively demonstrating that no genuine issue of material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996).

         {¶ 8} Once the moving party satisfies its burden, the nonmoving party may not rest upon the mere allegations or denials of the party's pleadings. Dresher at 293; Civ.R. 56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is a genuine issue of material fact for trial. Id. The non-moving party has the burden "to produce evidence on any issue for which that party bears the burden of production at trial" and may not rest upon unsworn or unsupported allegations in the pleadings. Parker v. Bank One, N.A., 2d Dist. Montgomery No. 18573, 2001 WL 303284, * 3, citing Leibreich v. A.J. Refrigeration, Inc., 67 Ohio St.3d 266, 269, 617 N.E.2d 1068 (1993), Wing v. Anchor Media, Ltd., 59 Ohio St.3d 108, 111, 570 N.E.2d 1095 (1991), and others. Throughout, the evidence must be construed in favor of the nonmoving party. Drescher at 293.

         {¶ 9} In its motion for summary judgment, Dayton View misstated the standard for summary judgment. Citing Wing, it argued that the party moving for summary judgment "is not required to present evidence negating elements of the Plaintiffs claim. Rather, the party opposing summary judgment has the burden of producing specific evidence to establish each element of each claim for which he bears the burden of production at trial." Actually, it is only once the moving party had met its burden of pointing to evidentiary material that shows there is no genuine issue of material fact that the non-moving party has to do anything. Regardless, the ...

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