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Murgu v. Lakewood City School District

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 26, 2018

VIOREL MURGU, ET AL. PLAINTIFFS-APPELLEES
v.
LAKEWOOD CITY SCHOOL DISTRICT, BOARD OF EDUCATION DEFENDANT-APPELLANT

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-856093

          ATTORNEYS FOR APPELLANT Kenneth A. Calderone Douglas G. Leak Carol N. Tran Hanna, Campbell & Powell, LL.P.

          ATTORNEYS FOR APPELLEES Joseph P. Dunson Dunson Law, LLC., Joseph E. Feighan Feighan & Feighan

          BEFORE: Laster Mays, J., E.T. Gallagher, P.J., and Boyle, J.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, J.

         {¶1} Defendant-appellant Lakewood City School District, Board of Education ("Lakewood"), appeals the trial court's decision denying their motion for leave to file a new motion for summary judgment. Lakewood asks this court to remand this matter to the trial court with instructions to grant Lakewood leave to pursue its political subdivision immunity defense through a motion for summary judgment. We dismiss the appeal.

         I. Procedural History

         {¶2} On December 21, 2015, plaintiffs-appellees Viorel and Marianne Murgu ("the Murgus") filed a complaint against Lakewood after their minor daughter, A.M., fell through an auditorium stage floor at Lakewood High School. Lakewood filed its answer denying all of the Murgus's allegations and did not raise its political subdivision immunity defense. Lakewood also filed a motion for summary judgment. Thereafter, Lakewood then filed a motion for leave to file supplement and surreply brief The trial court issued a journal entry denying Lakewood's motion and granted the Murgus's motion to strike Lakewood's supplement to its motion for summary judgment and surreply. Lakewood then filed a motion for leave to file a motion for summary judgment on political subdivision immunity.

         {¶3} The trial court did not rule on Lakewood's motion for leave to file a motion for summary judgment on political subdivision immunity. Instead, on October 18, 2016, the trial court granted Lakewood's motion for stay and ordered that Lakewood's motion for leave to file a motion for summary judgment on political subdivision immunity be held in abeyance. Lakewood had filed an appeal with this court, on October 6, 2016, arguing that the trial court abused its discretion in disallowing Lakewood from presenting its political subdivision immunity defense in summary judgment proceedings. The Murgus requested that this court dismiss the appeal. This court, in its journal entry, stated,

Motion by appellee to dismiss appeal is granted. A motion for summary judgment based on sovereign immunity is pending before the trial court. In light of the Ohio Supreme Court's decision in Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878, the trial court's resolution regarding sovereign immunity is necessary.

         Journal entry No. 503338 (Jan. 18, 2017).

         {¶4} On April 4, 2017, the trial court denied Lakewood's motion for summary judgment stating that "genuine issues of material fact exist and the moving party is not entitled to judgment as a matter of law." The trial court also denied Lakewood's motion for leave to file a motion for summary judgment on political subdivision immunity. In the journal entry, the trial court stated that "affirmative defenses will be addressed at trial based on evidence presented. Defendant's motion is out of rule."

         II. Facts

         {¶5} On December 7, 2011, A.M. participated in a school band assembly at Lakewood Civic Auditorium at Lakewood High School. As A.M. walked toward her seat, she stepped through a trap door on the stage floor with her right leg up to her hip and sustained permanent injury. When Lakewood employees ...


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