FIELDS, Appellee, v. CSX TRANSPORTATION, INC., Appellant.
No. 96831
Court of Appeals of Ohio, Eighth District, Cuyahoga County
Decided Dec. 29, 2011
197 Ohio App.3d 561, 2011-Ohio-6761
SEAN C. GALLAGHER, Judge.
CONCLUSION
{¶ 19} PAC‘s partial surrender of its lease of oil and gas estates did not terminate the Kramers’ right to free gas, because the free-gas clause created a covenant running with the surface estate of the land. The judgment of the Wayne County Common Pleas Court is reversed.
Judgment reversed and cause remanded.
BELFANCE, P.J., concurs.
CARR, J., dissents.
CARR, Judge, dissenting.
{¶ 20} I respectfully dissent. “When a trial court enters a judgment in a declaratory judgment action, the order must declare all of the parties’ rights and obligations in order to constitute a final, appealable order.” No-Burn, Inc. v. Murati, 9th Dist. No. 24577, 2009-Ohio-6951, 2009 WL 5174077, at ¶ 11, quoting Dutch Maid Logistics, Inc. v. Acuity, 8th Dist. No. 86600, 2006-Ohio-1077, 2006 WL 562168, at ¶ 10. Because the trial court‘s judgment did not declare all parties’ rights, there is no final, appealable order, and this court lacks jurisdiction to consider the merits of the appeal.
Burns White, L.L.C., Patrick C. Booth, David A. Damico, and Ira L. Podheiser, for appellant.
SEAN C. GALLAGHER, Judge.
{¶ 1} Defendant-appellant, CSX Transportation, Inc., appeals the decision of the Cuyahoga County Court of Common Pleas that found that the decedent was not a smoker pursuant to
{¶ 2} In June 2008, plaintiff-appellee, Pearl Fields, as representative of the estate of Paul H. Fields, filed an action against CSX under the Federal Employ-
{¶ 3} In January 2009, CSX filed a motion to administratively dismiss the complaint for failure to comply with the prima facie filing requirements of
{¶ 4} More specifically, in Fields I, we found as follows:
The trial court‘s decision * * * predates Farnsworth. Clearly, as this court stated in Farnsworth, when there is a dispute as to whether a person is a smoker, the parties must first submit evidence, and then the trial court must review the evidence submitted by both parties to resolve the issue. If the defendant submits competent, credible evidence establishing that a plaintiff is a smoker, then the burden shifts to the plaintiff to establish that the exposed person is not a smoker as defined in
R.C. 2307.91(DD) because “the plaintiff * * * has the ultimate burden to prove that the exposed person is not a smoker.” Farnsworth, 2009-Ohio-3890, 2009 WL 2400867, at ¶ 32.If the trial court determines that the exposed person is a smoker, “then the plaintiff must meet the requirements under H.B. 292 by filing the written report establishing a prima facie case through competent medical authority and the other evidence that is required.” Id. at ¶ 25. If the exposed person is not a smoker, then “the plaintiff does not have to establish a prima facie case * * *.” Id. at ¶ 24.
Fields I at ¶ 23-24. Because the trial court had not resolved the disputed issue of whether Paul was a smoker, we remanded the matter to the trial court for a determination as outlined in Farnsworth.
{¶ 5} Upon remand, Pearl filed a motion for a judicial determination that Paul is a nonsmoker under the statute. Following a hearing, the trial court granted the motion, finding that Paul did not meet the statutory definition of a “smoker” under
{¶ 7} In In re Special Docket No. 73958, 115 Ohio St.3d 425, 2007-Ohio-5268, 875 N.E.2d 596, the Ohio Supreme Court stated as follows:
In the case before us, the trial court‘s order denies the appellants’ motion to apply the prima facie filing requirements in
R.C. 2307.92 , which the General Assembly enacted with the intent to “give priority to those asbestos claimants who can demonstrate actual physical harm or illness caused by exposure to asbestos” and to enable courts to administratively dismiss the claims of those claimants who cannot present prima facie evidence of an impairment caused by exposure to asbestos. Am.Sub.H.B. No. 292, Section 3(B), 150 Ohio Laws, Part III, 3991. If the appellants in this matter are unable to challenge the trial court‘s finding in an interlocutory appeal, they will be unable to obtain the remedy set forth in the legislation upon an appeal from a final judgment—it would be meaningless at that point either to require a claimant to present prima facie evidence, or to administratively dismiss a claimant‘s case for failure to present prima facie evidence, after the case has proceeded to a final judgment on the merits. As we stated in State v. Upshaw, 110 Ohio St.3d 189, 2006-Ohio-4253, 852 N.E.2d 711, at ¶ 18, “without immediate judicial review, that mistake is uncorrectable.”
Id. at ¶ 31. See also Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-Ohio-5584, 876 N.E.2d 1217 (order that determined the action with respect to the prima facie showing and prevented a judgment in favor of defendants with respect to the prima facie showing was final and appealable).
{¶ 8} Here, the trial court initially denied CSX‘s motion for an administrative dismissal and reconsideration thereof. In Fields I, we reversed the ruling and remanded the matter for the court to determine whether Paul was a smoker. The trial court resolved the issue by finding that Paul was not a smoker as defined in
{¶ 9} In this appeal, CSX has presented three assignments of error for our review. Because they are related, we shall address them together. The assigned errors provide as follows:
- The trial court erred in finding Paul Fields (Decedent) was not a “smoker” pursuant to the Ohio Asbestos Statute.
- The trial court erred in determining that the undisputed medical records establishing [Paul‘s] smoking history were inadmissible hearsay and could not be used to establish that [he] was a “smoker” under the Ohio Asbestos Statute * * *
- The trial court erred by not considering the “Asbestos Questionnaire,” completed by [Paul], which is admissible pursuant to Evid. R. 804(B)(3).
{¶ 10} Am.Sub.H.B. No. 292, Section 3(B), 150 Ohio Laws, Part III, 3991, which enacted
{¶ 11} Insofar as these preliminary proceedings are administrative in nature, we must recognize that the rules of evidence do not strictly apply. “[E]vidence which might constitute inadmissible hearsay where stringent rules of evidence are followed must be taken into account in [administrative] proceedings * * * where relaxed rules of evidence are applied.” Simon v. Lake Geauga Printing Co. (1982), 69 Ohio St.2d 41, 44, 430 N.E.2d 468. While the discretion to consider hearsay evidence cannot be exercised in an arbitrary manner, “[s]tatements that would elsewhere be excluded as hearsay will be admissible in an administrative proceeding where they are not inherently unreliable, and may constitute reliable, probative, and substantial evidence.” Vinci v. Ohio State Bd. of Pharmacy, Tuscarawas App. Nos. 2008 AP 08 0052 and 2008 AP 08 0053, 2010-Ohio-451, 2010 WL 529468, ¶ 118.2
{¶ 13} As this court recognized in Farnsworth and Fields I, a trial court must review evidence, including evidence of the exposed person‘s medical history submitted by both parties to resolve whether the exposed person is a smoker. The medical records submitted in this matter consistently report Paul‘s history of having been a smoker for over 40 pack years, having quit in 1996. The trial court abused its discretion in not considering this evidence.
{¶ 14} This is not to say that the medical records are absolute evidence that Paul was a smoker. Rather, the medical records as well as Pearl‘s affidavit are among the evidence that must be considered by the trial court in making its determination. So long as the trial court‘s determination is supported by competent, credible evidence in the record, its decision should be upheld. See Farnsworth, 2009-Ohio-3890, 2009 WL 2400867, at ¶ 42 (recognizing that an appellate court should not substitute its judgment for the trial court‘s when the factual findings are supported by some competent and credible evidence).
{¶ 15} Additionally, notwithstanding that the rules of evidence are to be relaxed at the administrative stage of the proceedings, the trial court erroneously found that “the medical records are hearsay and not within the exception provided by Evid.R. 803(4) as the statements were not made for purposes of medical diagnosis or treatment.” This determination was not consistent with the rule.
{¶ 17} “When examining the admissibility of hearsay statements under
{¶ 18} There are instances in which a statement may not be made for purposes of obtaining a medical diagnosis or treatment, as may arise in the course of the examination of a child-abuse or rape victim or with regard to personal-injury claims. In Hatfield v. Andermatt (1988), 54 Ohio App.3d 188, 561 N.E.2d 1023, relied on by the trial court, the court found that statements of a bicyclist who was in a collision with a police cruiser concerning the cause of the injury or the manner in which the accident happened were not admissible insofar as they were not pertinent to the diagnosis or treatment of the patient. This is not such a case.
{¶ 19} Here, the statements reporting Paul‘s smoking history were made for purposes of his medical diagnosis or treatment. A person‘s smoking history is regularly provided to treating physicians in connection with obtaining medical diagnosis or treatment and is obviously pertinent thereto. Moreover, it would be reasonable for a doctor to rely on such information, and there is no reason to suspect that a person would be untruthful about his smoking history. Whether the information was provided before or after diagnosis of lung cancer is irrelevant. Therefore, Paul‘s medical records would be admissible under
{¶ 20} Insofar as CSX also submitted an asbestos questionnaire purportedly signed by Paul, much of the document is handwritten, while the pertinent section of the smoking history is typewritten. CSX argues that the evidence would be admissible as a statement against interest pursuant to
{¶ 21} Because the trial court failed to properly consider the evidence before it, we must again remand the matter to the trial court for compliance with the administrative provisions. The trial court must follow the mandate herein and also must adhere to this court‘s decisions in Fields I and Farnsworth. We reiterate that in resolving the issue of Paul‘s smoking status, the trial court must consider all competent, credible evidence submitted by the parties, which would include the medical reports of Paul‘s smoking history. As we stated in Farnsworth; “[I]f a defendant submits competent, credible evidence establishing that a plaintiff is a smoker, then the burden should shift to a plaintiff to establish that the exposed person is not a smoker as defined in
{¶ 22} Accordingly, we sustain the second assignment of error, overrule the third assignment of error, and decline to address the first assignment of error as it remains premature.
Judgment reversed and cause remanded.
BLACKMON, P.J., and CONWAY COONEY, J., concur.