MEGAN A. BADER, PLAINTIFF-APPELLANT, v. PAUL T. FERRI, ET AL., DEFENDANTS-APPELLEES.
CASE NO. 1-13-01
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
July 15, 2013
[Cite as Bader v. Ferri, 2013-Ohio-3074.]
Appeal from Allen County Common Pleas Court Trial Court No. CV20120454
Judgment Affirmed
Date of Decision: July 15, 2013
APPEARANCES:
Michael A. Rumer and Victoria Maisch Rumer for Appellant
Carol K. Metz for Appellees
{¶1} Plaintiff-appellant, Megan A. Bader (“Bader“), appeals the Allen County Court of Common Pleas’ December 12, 2012 judgment entry granting the motion for summary judgment of defendants-appellees Huffman, Kelley, Brock & Gottschalk, LLC (“HKBG“) law firm and former HKBG associate, Paul G. Ferri (“Ferri“) (collectively “Appellees“), and dismissing the case, and January 8, 2013 judgment entry denying Bader‘s
{¶2} Bader filed a complaint against the Appellees on June 4, 2012, alleging legal malpractice. (Doc. No. 1). Bader alleged that the Appellees “agreed to provide legal representation to [Bader] with regard to a personal injury/malpractice action which occurred on or about April, 2009 arising out of [Bader‘s] participation on the Women‘s Golf Team at Bowling Green State University [“BGSU“] * * *.” (Id. ¶ 4). She further alleged that the Appellees “failed to institute the proper legal proceedings in [Bader‘s] personal injury/malpractice action against BGSU and/or others associated with BGSU within the applicable statute of limitations period and, therefore, breached their duties owed to [Bader].” (Id. ¶ 6). Bader alleged that as a result of the Appellees’ “negligent legal representation,” she was barred from recovering for her “personal injury/malpractice action,” and that “[a]s a direct and proximate result of [the Appellees‘] breach of their duties to [Bader], [Bader] has suffered compensatory and consequential damages, including but not limited to past and future medical expenses, pain and suffering, and additional attorneys’ fees and expenses.” (Id. ¶ 9).
{¶4} On November 5, 2012, the Appellees filed a “motion for summary judgment as to underlying claim.” (Doc. No. 13). In it, they argued that the Appellees were entitled to summary judgment because Bader‘s “claim against BGSU was precluded by the Release and Indemnity Agreement she signed prior to consulting” the Appellees. (Id.). Attached to the motion was a two-paragraph affidavit of Appellees’ attorney, Carol K. Metz, in which she swore that she was “competent to testify as to the matters set forth herein” and to which she attached “a true and accurate copy of the release received from Plaintiff‘s Responses to Defendants’ Request for Production of Documents.” (Metz Aff. ¶ 1-2, Ex. A, Doc. No. 13, attached).
{¶6} Five days after the trial court filed its judgment entry, Bader moved for relief from that judgment pursuant to
Assignment of Error No. I
The trial court erred in granting defendants’ motion for summary judgment in that defendants failed to meet the requisite standards of
{¶9} In her first assignment of error, Bader argues that it was error for the trial court to consider Metz‘s affidavit and the copy of the Release attached to it. She argues that as the Appellees’ counsel, Metz did not have “personal knowledge” of the Release and was not competent to authenticate it. Therefore, Bader argues, the Release was not proper evidence under
{¶10} As an initial matter, Bader, in her notice of appeal, directly appealed two judgment entries. (Doc. No. 23). We will, therefore, review each judgment entry—the first granting summary judgment, and the second denying Bader‘s
{¶11} We review a decision to grant summary judgment de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there is no genuine issue of material fact, the moving party is entitled to judgment as a
{¶12} Bader centers her argument on the trial court‘s consideration of a copy of the Release that she argues was improperly authenticated by Metz‘s affidavit. ”
{¶13} “A document that does not fit within a category listed in
{¶14} In our de novo review of the trial court‘s decision to grant summary judgment, we consider the evidence that the trial court did, even if the evidence was otherwise inadmissible. Staples, 2007-Ohio-1531, at ¶ 30, citing State ex rel. Cincinnati Enquirer, 2002-Ohio-2038; Zivich v. Village of Northfield, 9th Dist. No. 24836, 2010-Ohio-1039, ¶ 11. Conversely, we may not consider evidence that the trial court did not consider. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 360 (1992).
{¶16} The affidavit of an attorney swearing to having personal knowledge of receiving a document—in discovery, for example—is insufficient to authenticate the document under
{¶17} In the body of her affidavit, Metz swore that she was competent to testify to the matters set forth in the affidavit and attached a copy of the Release that she received in discovery:
{¶18} Affiant, Carol Metz, first duly sworn states as follows:
- I am of legal age and competent to testify as to the matters set forth herein.
Attached as Exhibit A is a true and accurate copy of the release received from Plaintiff‘s Responses to Defendants’ Request for Production of Documents.
AFFIANT FURTHER SAITH NAUGHT
(Metz Aff., Doc. No. 13, attached). In her affidavit, Metz did not swear to any facts indicating that she had personal knowledge of the Release‘s preparation, execution, or origin. Rather, it is clear from her affidavit that Metz intended to authenticate the Release based only on her having received it in discovery. Her attempt at authentication of the Release was insufficient under
{¶19} Nevertheless, we hold that it was not error for the trial court to consider the Release. At the time it issued its judgment entry granting summary judgment in favor of the Appellees, the trial court had before it only the Appellees’ motion for summary judgment, with a certificate of service and Metz‘s affidavit attached to it. Bader did not file a response because, according to her and her counsel, she did not receive a copy of the Appellees’ motion.
{¶20} “A presumption of proper service arises when the record reflects that a party has followed the Civil Rules pertaining to service of process.” Poorman v. Ohio Adult Parole Authority, 4th Dist. No. 01CA16, 2002-Ohio-1059, *2, citing
CERTIFICATE OF SERVICE
The undersigned hereby certifies the foregoing Defendants Paul T. Ferri and Huffman, Kelley, Brock & Gottschalk, LLC‘s Motion for Summary Judgment as to Underlying Claim was served via regular U.S. mail, postage prepaid, on this 30th day of October, 2012 to the following:
Victoria Maisch Rumer, Esq.
Michael A. Rumer, Esq.
Rumer & Maisch
212 N. Elizabeth Street, Suite 410
Lima, Ohio 45801Attorneys for Plaintiff
(Emphasis sic.) (Doc. No. 13 at 10). This certificate of service complied with
{¶22} We recognize that this treatment of the record may appear harsh considering that—after learning of the trial court‘s decision to grant the Appellees’ motion for summary judgment—Bader‘s attorneys filed uncontested affidavits with a
{¶23} We next proceed to the merits of the trial court‘s summary judgment. In her brief, Bader does not address the substance of the trial court‘s summary judgment decision; however, she argues in her first assignment of error that the Appellees “failed to meet the requisite standards of
{¶24} “The Ohio Supreme Court has held that the following elements are necessary to establish a cause of action for legal malpractice: ‘(1) an attorney-client relationship, (2) professional duty arising from that relationship, (3) breach of that duty, (4) proximate cause, (5) and damages.‘” Christensen v. Leuthold, 3d Dist. No. 3-09-14, 2009-Ohio-6869, ¶ 18, quoting Shoemaker v. Gindlesberger, 118 Ohio St.3d 226, 2008-Ohio-2012, ¶ 8. “‘If a plaintiff fails to establish a genuine issue of material fact as to any of the elements, the defendant is entitled to
{¶25} “‘Where a plaintiff files a legal malpractice action premised on an attorney‘s failure to file an action within the applicable statute of limitations period, the plaintiff must establish that, but for the attorney‘s negligence, the plaintiff would have succeeded on the ‘case within a case.‘‘” Carter v. Vivyan, 10th Dist. No. 11AP-1037, 2012-Ohio-3652, ¶ 15, citing Young-Hatten v. Taylor, 10th Dist. No. 08AP-511, 2009-Ohio-1185, ¶ 26, Neighbors v. Ellis, 120 Ohio St.3d 276, 2008-Ohio-6105, ¶ 2, and Environmental Network Corp. v. Goodman Weiss Miller, L.L.P., 119 Ohio St.3d 209, 2008-Ohio-3833. If there is no genuine issue of material fact that the plaintiff would not have succeeded on the underlying claim, then summary judgment in favor of the defendant is proper. See Christensen, 2009-Ohio-6869, at ¶ 18, quoting Shoemaker, 2008-Ohio-2012, at ¶ 8.
{¶26} Bader based her legal malpractice claim against the Appellees on their alleged failure to file Bader‘s “personal injury/malpractice action” against BGSU within the applicable statute of limitations. (Complaint ¶ 6, Doc. No. 1). Thus, if there was no genuine issue of material fact that Bader would not have succeeded on her “personal injury/malpractice action” against BGSU, then
{¶27} The trial court based its summary judgment decision on the Release, in which Bader released BGSU, its athletic trainers, and other affiliates from liability for any claims resulting from Bader‘s participation in intercollegiate athletics, including any consequences from diagnostic, medical, or surgical treatment:
RELEASE
In further consideration of being permitted to participate in intercollegiate athletics, I herby [sic] accept all risks to my health and of my injury or death that may result from such participation. I hereby release and discharge BGSU, its board of trustees, officers, employees, agents and representatives from any liability to me, my personal representatives, heirs, next of kin, and assigns, from any and all claims, causes of action, damages, and costs for any and all illness or injury to my person, including death that may result from or occur during my participation, or loss of or damage to my property, to the full extent allowed by law.
CONSENT TO TREATMENT
In further consideration of being permitted to participate in intercollegiate athletics, I hereby authorize and consent to such diagnostic, medical and/or surgical treatment as may be considered necessary or appropriate under the circumstances for the treatment of any illness or injury arising from or sustained by me while engaged in activities related to intercollegiate athletics. The attending physician(s), athletic trainer(s), appropriate staff, and BGSU and its officers, agents, and employees shall not be responsible in any way for any consequences from said diagnostic, medical and/or surgical treatment and are hereby released from any and all claims and causes of action that may arise, grow out of, or be incident to such diagnosis and treatment, to the full extent allowed by law.
* * *
I HAVE CAREFULLY READ THIS AGREEMENT AND UNDERSTAND IT TO BE A RELEASE OF ALL CLAIMS AND CAUSES OF ACTION FOR INJURY OR DEATH OR DAMAGE TO MY PROPERTY THAT OCCURS WHILE PARTICIPATING IN INTERCOLLEGIATE ATHLETICS * * *.
{¶28} “Releases from liability for future tortious conduct are generally not favored by the law and are narrowly construed.” Brown-Spurgeon v. Paul Davis Systems of Tri-State Area, Inc., 12th Dist. No. CA2012-09-069, 2013-Ohio-1845, ¶ 50, citing Glaspell v. Ohio Edison Co., 29 Ohio St.3d 44, 46-47 (1987). “Such exculpatory clauses are to be strictly construed against the drafter unless the language is clear and unequivocal.” Id., citing Glaspell, 29 Ohio St.3d at 47. “Additionally, while the execution of a release may bar claims of negligence, it cannot bar claims of willful and wanton conduct.” Id. (citations omitted).
{¶29} “Nonetheless, courts routinely apply such releases to bar future tort liability as long as the intent of the parties, with regard to exactly what kind of liability and what persons [or] entities are being released, is stated in clear and unambiguous terms.” Id. at ¶ 51, citing Hague v. Summit Acres Skilled Nursing & Rehab., 7th Dist. No. 09 NO 364, 2010-Ohio-6404, ¶ 20. “On the other hand, where the language of the release is ambiguous or too general, courts have held that the intent of the parties is a factual matter for the jury.” Id., citing Hague, 2010-Ohio-6404, at ¶ 20. “The pivotal inquiry is whether it is clear from the general terms of the entire contract, considered in light of what an ordinary prudent and knowledgeable party of the same class would understand, that the
{¶30} We agree with the trial court that the Release clearly and unambiguously reflects the intent of Bader and BGSU and barred Bader‘s “personal injury/malpractice action” as a matter of law. We conclude, as the Fourth District did in Swartzentruber, that it is sufficiently clear from the general terms of the Release, considered in light of what an ordinary prudent and knowledgeable student-athlete would understand, that BGSU and its employees, agents, and representatives were to be relieved from liability for their own negligence. 117 Ohio App.3d at 425. The Release applied to “any and all claims” resulting from “participation” in intercollegiate athletics, as well as “any and all claims” arising from “diagnostic, medical and/or surgical treatment” of injuries sustained by Bader “while engaged in activities related to intercollegiate athletics * * *.” Id. at 426 (“[I]t is difficult to construe a release ‘from any and all claims’ that arise ‘out of any and all personal injuries’ as anything but a release of liability for negligence.“). Above the signature line is a conspicuous, bolded statement reading, ”I HAVE CAREFULLY READ THIS AGREEMENT AND UNDERSTAND IT TO BE A RELEASE OF ALL CLAIMS AND CAUSES OF ACTION FOR INJURY * * * THAT OCCURS WHILE PARTICIPATING IN INTERCOLLEGIATE ATHLETICS * * *.” The scope
{¶31} Having concluded that the Release clearly and unambiguously reflects the intent of Bader and BGSU, we hold that the trial court properly concluded that there is no genuine issue of material fact that Bader would not have succeeded on her “personal injury/malpractice action” against BGSU because the Release barred her claim. Bader alleged in her complaint that her “personal injury/malpractice action * * * ar[ose] out of [Bader‘s] participation on the Women‘s Golf Team at [BGSU] * * *.” (Complaint ¶ 4, Doc. No. 1). The Release encompassed claims for injuries to Bader “that may result from or occur during [Bader‘s] participation” in intercollegiate athletics—in Bader‘s case, women‘s golf. (Emphasis added.) (Release, Metz Aff., Ex. A, Doc. No. 13, attached). Therefore, the plain language of the Release barred Bader‘s underlying “personal injury/malpractice action” against BGSU.
{¶32} Bader‘s first assignment of error is, therefore, overruled.
The trial court erred in considering and granting defendants’ motion for summary judgment in that defendants failed to timely file said motion pursuant to
{¶33} In her fourth assignment of error, Bader argues that the trial court erred in considering the Appellees’ motion for summary judgment because the Appellees filed it six days after purportedly serving it by mail on Bader, in violation of
{¶34} ”
{¶35} Here, the certificate of service accompanying the Appellees’ motion for summary judgment said the motion was served by United States mail on October 30, 2012—a Tuesday. (Doc. No. 13). The clerk‘s stamp on the motion is
{¶36} Nevertheless, Bader cites no authority suggesting that the trial court abused its discretion by considering the Appellees’ motion. As we discussed above, the certificate of service complied with the requirements of
{¶37} Bader‘s fourth assignment of error is, therefore, overruled.
Assignment of Error No. III
The trial court erred when it determined plaintiff failed to meet the
Assignment of Error No. II
The trial court erred and denied plaintiff due process of law when it determined that plaintiff did not receive service (notice) of defendants’ motion for summary judgment, but then denied
{¶38} In her third assignment of error, Bader argues that the trial court erred when it concluded that she did not satisfy her burden under
{¶39}
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under
Rule 59(B) ; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable
that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.
In order to prevail on a motion brought pursuant to
{¶40} Where the movant is seeking relief from the granting of a motion for summary judgment to which he did not respond, “the party seeking relief must show that it could make an adequate response, demonstrating the existence of a
{¶41} “A motion for relief from judgment under
{¶42} Here, the trial court concluded that Bader made her
{¶43} To demonstrate that she had a meritorious claim, Bader was required to allege sufficiently specific “operative facts” demonstrating the existence of a genuine issue of material fact. G&S Mfg., 2007-Ohio-1507, at ¶ 7, 18. Bader argued in her
{¶44} As we noted above, Bader alleged in her complaint that her “personal injury/malpractice action * * * ar[ose] out of [her] participation on the Women‘s Golf Team at [BGSU] * * *.” (Complaint ¶ 4, Doc. No. 1). She backtracked in her
{¶45} We concluded above that the Release is valid and enforceable against Bader. In it, Bader “authorize[d] and consent[ed] to such diagnostic, medical and/or surgical treatment as may be considered necessary or appropriate under the circumstances for the treatment of any illness or injury arising from or sustained by [Bader] while engaged in activities related to intercollegiate athletics,” and she “released from any and all claims and causes of action that may arise, grow out of, or be incident to such diagnosis and treatment, to the full extent allowed by law.” Bader released the BGSU athletic trainers from negligence claims related to their diagnosis and treatment of Bader, which encompasses the conduct that Bader alleges in her
{¶46} Bader failed to allege any facts demonstrating the existence of a genuine issue of material fact. Bader failed to contest the authenticity of the Release in the trial court and has waived that argument on appeal. Hartley v. Miller, 3d Dist. No. 8-08-33, 2009-Ohio-1923, ¶ 17, citing Marysville Newspapers, Inc. v. Delaware Gazette Co., Inc., 3d Dist. No. 14-06-34, 2007-Ohio-4365, ¶ 23. In fact, in her
{¶47} We hold, therefore, that the trial court did not abuse its discretion in concluding that Bader failed to allege sufficiently specific operative facts to demonstrate a meritorious claim and in denying her
{¶48} In her second assignment of error, Bader argues that the trial court denied her due process of law when it denied her
{¶49} Judging by her brief, it appears Bader believes she was automatically entitled to an opportunity to respond to the Appellees’ motion for summary judgment when the trial court acknowledged Bader‘s attorneys’ uncontested affidavits swearing that they did not receive or see a copy of the motion for summary judgment before the trial court issued its decision granting summary judgment. Bader offers no authority supporting her blanket proposition and ignores the requirements of the GTE test.
{¶50} If Bader would have demonstrated the existence of a genuine issue of material fact in her motion, in addition to satisfying the other elements of the GTE test, then the trial court could have granted her motion and given her the opportunity to respond to the Appellees’ motion for summary judgment. See G&S
{¶51} Bader was still required to allege sufficiently specific operative facts demonstrating the existence of a genuine issue of material fact. G&S Mfg., 2007-Ohio-1507, at ¶ 7, 18. Her failure to do so does not constitute a violation of her due process rights.
{¶52} Bader‘s third and second assignments of error are, therefore, overruled.
Assignment of Error No. V
The trial court erred in denying plaintiff a hearing on the motion for relief from judgment filed pursuant to
{¶53} In her fifth assignment of error, Bader argues that the trial court erred by not holding a hearing on her
{¶54} “It is an abuse of discretion for a trial court to overrule a
{¶55} We held above that the trial court properly concluded that Bader failed to allege sufficiently specific operative facts tending to show the existence of a genuine issue of material fact, or meritorious claim. Therefore, the trial court did not abuse its discretion in denying Bader‘s
{¶56} Bader‘s fifth assignment of error is, therefore, overruled.
{¶57} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, J., concurs.
ROGERS, J., concurs in Judgment Only as to Assignment of Error No. I
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