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Wicks v. Lover's Lane Market

Court of Appeals of Ohio, Ninth District, Summit

June 28, 2019

RONDA WICKS, as Administrator of the Estate of Paris D. Wicks, II, etc. Appellant
v.
LOVER'S LANE MARKET, et al. Appellees

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2015-08-4200

          KENNETH D. MYERS, Attorney at Law, for Appellant.

          MARK A. GREER and RICHARD CO. REZIE, Attorneys at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          Jennifer Hensal, Judge.

         {¶1} Ronda Wicks appeals a judgment of the Summit County Court of Common Pleas that granted summary judgment to Lover's Lane Market on her wrongful death and other claims. For the following reasons, this Court affirms in part and reverses in part.

         I.

         {¶2} A group of men attacked and killed Paris Wicks outside of the Lover's Lane Market. Ms. Wicks, the administrator of Mr. Wicks's estate, sued the Market, two of its employees, and the men who committed the attack, alleging wrongful death, gross negligence, and multiple theories of negligence. Owners Insurance Company intervened and filed a complaint seeking a declaration that it has no duty to defend or indemnify the Market. After the men who committed the attack failed to answer, the trial court granted Ms. Wicks a default judgment against them.

         {¶3} Owners moved for summary judgment on its complaint, which the trial court granted in part and denied in part. The Market moved for summary judgment on Ms. Wicks's claims, which the trial court granted. After the court determined the amount of damages owed by the attackers, it dismissed Owners' complaint as moot, and entered final judgment. Ms. Wicks has appealed the trial court's decision to grant summary judgment to the Market, assigning three errors. This Court will rearrange and combine some of the assignments of error for ease of disposition.

         II.

ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT TO LLM ON WICKS'S WRONGFUL DEATH, SURVIVORSHIP, GROSS NEGLIGENCE, NEGLIGENCE PER SE AND RESPONDEAT SUPERIOR CLAIMS AS THOSE ISSUES WERE NOT PROPERLY BRIEFED OR ARGUED BY LLM.

         {¶4} Ms. Wicks argues that the trial court incorrectly granted summary judgment to the Market on all of her claims because it only moved for summary judgment on some of the claims. Under Civil Rule 56(C), summary judgment is appropriate if:

(1) [n]o 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 party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a motion for summary judgment, the movant bears the initial burden of demonstrating that there are no genuine issues of material fact concerning an essential element of the opponent's case. Dresherv. Burt,75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Id. at 293, quoting Civ.R. 56(E). This Court ...


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