Court of Appeals of Ohio, Eighth District, Cuyahoga
VIOREL MURGU, ET AL. PLAINTIFFS-APPELLEES
LAKEWOOD CITY SCHOOL DISTRICT, BOARD OF EDUCATION DEFENDANT-APPELLANT
Appeal from the Cuyahoga County Court of Common Pleas Case
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
LASTER MAYS, J.
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.
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.
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
entry No. 503338 (Jan. 18, 2017).
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."
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