SELMA G. HUDSON v. LAGER & VINE GASTRO PUB & WINE BAR, et al.
C.A. No. 17CA0085-M
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF MEDINA, OHIO
July 16, 2018
[Cite as Hudson v. Lager & Vine Gastro Pub & Wine Bar, 2018-Ohio-2802.]
APPEAL FROM JUDGMENT ENTERED IN THE MEDINA MUNICIPAL COURT CASE No. 16 CVH 00618
Dated: July 16, 2018
SCHAFER, Judge.
{¶1} Plaintiff-Appellant, Selma Hudson, appeals the decision of the Medina Municipal Court granting summary judgment in favor of Defendants-Appellees, Lager & Vine Gastro Pub & Wine Bar and Lager & Vine, LLC (collectively “Lager & Vine“). This Court affirms.
I.
{¶2} On December 17, 2014, Ms. Hudson was a patron at Lager & Vine‘s dining establishment. Ms. Hudson used Lager & Vine‘s restroom facilities, wherein she slipped and fell on a wet spot. Ms. Hudson sustained significant physical injuries as a result of her fall.
{¶3} Ms. Hudson filed her complaint against Lager & Vine on April 11, 2016, alleging a claim of negligence. Thereafter, Lager & Vine moved the trial court for summary judgment on Ms. Hudson‘s claims. Ms. Hudson opposed the motion for summary judgment, and filed a “motion to strike [Lager & Vine]‘s affidavit of Clifton M. Cravens and [Lager & Vine]‘s Exhibits 1-8 referenced therein and all related references in the record[.]”
{¶5} The decision contained the following language:
EITHER PARTY MAY FILE OBJECTIONS TO A MAGISTRATE‘S DECISION. ANY OBJECTIONS MUST BE FILED WITHIN FOURTEEN (14) DAYS OF THE DATE THE MAGISTRATE‘S DECISION WAS FILED. OBJECTIONS MUST BE ACCOMPANIED BY A $15.00 FILING FEE. A COPY OF A TRANSCRIPT OF THE ORIGINAL PROCEEDINGS PREPARED BY A CERTIFIED COURT REPORTER MUST BE FILED WITHIN THIRTY (30) DAYS OF THE DATE THE OBJECTIONS WERE FILED. THE OBJECTING PARTY MUST SERVE A COPY OF THE OBJECTIONS ON THE OTHER PARTIES BY REGULAR MAIL AND CERTIFY IN WRITING ON THE OBJECTIONS THAT THIS WAS DONE. IF NO OBJECTION IS FILED, THIS DECISION WILL BECOME THE FINAL DECISION OF THE COURT.
UNLESS A PARTY TIMELY AND SPECIFICALLY OBJECTS TO A FACTUAL FINDING OR LEGAL CONCLUSION IN THE MAGISTRATE‘S DECISION AS REQUIRED BY CIVIL RULE 53(D)(3), NO PARTY MAY ASSIGN AS ERROR ON APPEAL THE COURT‘S ADOPTION OF ANY FACTUAL FINDING OR LEGAL CONCLUSION. ANY REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW MUST BE FILED WITHIN SEVEN (7) DAYS OF THE DATE THE MAGISTRATE‘S DECISION WAS FILED.
Rather than issuing a separate entry, the trial judge attempted to adopt the May 19, 2017 magistrate‘s decision as the order of the court within that same journal entry.
{¶6} On June 5, 2017, Ms. Hudson filed objections to the magistrate‘s decision of May 19, 2017. Lager & Vine then objected to Ms. Hudson‘s objections to the magistrate‘s decision as
{¶7} On September 25, 2017, this Court dismissed the appeal in Case No. 17CA0051-M, because the trial court attempted to adopt the decision of the magistrate as the order of the court without issuing its own judgment. This Court determined the trial court had not yet entered a final appealable order, and concluded that we lacked jurisdiction to consider the appeal.
{¶8} Following the dismissal of the attempted appeal, Ms. Hudson moved the trial court for a final and appealable judgment entry. The trial court entered a separate judgment on November 9, 2017. In that judgment entry, the trial court declined to consider Ms. Hudson‘s objections to the May 19, 2017 magistrate‘s decision, finding that they were not timely filed.
{¶9} Regarding Ms. Hudson‘s motion to strike, the trial court found that the magistrate correctly granted the motion, but incorrectly stated “‘the deposition and deposition exhibits’ were stricken, instead of stating that the affidavit and [Lager & Vine‘s] Exhibits 1-8 as referenced therein are stricken.” (Emphasis sic.) The trial court then modified the magistrate‘s decision to reflect that the court was striking “the affidavit of Clifton M. Cravens and [Lager & Vine‘s] Exhibits 1-8 as referenced therein, because the affidavit did not demonstrate personal knowledge of the affiant, and the exhibits were not attached to the affidavit.” The trial court clarified it was striking the Cravens affidavit and Exhibit‘s 1 through 8 “only to the extent referenced in the affidavit[.]”
{¶10} As to the summary judgment motion, the trial court adopted the magistrate‘s decision. In doing so, the court found that Ms. Hudson had an unobstructed view of the hazard she attributed as the cause of her slip and fall. The trial court further found that the hazard was observable, open, and obvious; therefore, Lager & Vine owed no duty of care to Ms. Hudson.
{¶11} Ms. Hudson timely filed this appeal of the trial court‘s November 9, 2017 judgment entry, raising four assignments of error for our review. For ease of analysis, we elect to consider the assignments of error out of order and consolidate our review of the third and fourth assignments.
II.
Assignment of Error I
The trial court erred as a matter of law in ruling that [Ms. Hudson]‘s objections to the magistrate[‘s] decision were untimely[.]
{¶12} Ms. Hudson argues that the trial court erred by finding that her objections to the magistrate‘s decision, filed Monday, June 5, 2017, were not timely filed. Pursuant to
{¶13} Ms. Hudson acknowledges that she had fourteen days from the filing of the May 19, 2017 magistrate‘s decision to file her objections to the decision. Ms. Hudson takes issue, however, with the trial court‘s statement in the November 9, 2017 judgment entry indicating that her fourteen day period expired on “Friday, June 3, 2017.” Maintaining that her fourteen days did expire on June 3, 2017, she contends that date fell on a Saturday and not a Friday as stated in the judgment entry. Therefore, it is Ms. Hudson‘s contention that, pursuant to
{¶15} Upon review of the record, this Court concludes that the discrepancy in the judgment entry is not in stating the incorrect day of the week (Friday), but rather the incorrect date (June 3, 2017). The magistrate‘s decision, which clearly provided notice of the fourteen day period for filing objections, was filed May 19, 2017. Pursuant to
Assignment of Error III
The trial court erred as a matter of law by misapplying Ohio law regarding open and obvious dangers.
Assignment of Error IV
The trial court erred as a matter of law by ignoring genuine issues of material fact that precluded summary judgment.
{¶16} In her third assignment of error, Ms. Hudson argues that the trial court erred in its application of law regarding the open and obvious doctrine when it granted summary judgment. In her fourth assignment of error, Ms. Hudson argues the trial court erred by ignoring genuine issues of material fact that remained to be litigated. Lager & Vine contends that Ms. Hudson is
{¶17} As discussed in the first assignment of error, Ms. Hudson failed to file timely objections to the May 19, 2017 magistrate‘s decision. According to
{¶18}
Except for a claim of plain error, a party shall not assign as error on appeal the court‘s adoption of any factual finding or legal conclusion, whether or not specifically designated as [such] * * *, unless the party has objected to that finding or conclusion as required by Civ.R. 53(D)(3)(b).
Ms. Hudson did not timely object to the magistrate‘s decision pursuant to
The trial court abused its discretion by ruling that the stricken exhibits were properly considered in its summary judgment ruling because [Ms. Hudson] allegedly authenticated them.
{¶19} Ms. Hudson challenges the trial court‘s decision to consider Lager & Vine‘s Exhibits 1 through 8—photographs of the restroom—as part of the record for the purpose of ruling on the summary judgment motion in her second assignment of error. Ms. Hudson contends that these exhibits were not part of the record pursuant to the Craven affidavit, and the trial court abused its discretion by admitting the exhibits as part of the record based on Ms. Hudson‘s deposition. During the deposition, Ms. Hudson contends, “she could not authenticate the pictures.”
{¶20} In the judgment entry, the trial court adopted the magistrate‘s decision to grant Ms. Hudson‘s motion to strike. However, the trial court clarified that the magistrate‘s decision had incorrectly described Ms. Hudson‘s motion as a “[m]otion to [s]trike the deposition and deposition exhibits 1 through 8 of Clifton M. Cravens[.]” The trial court corrected that mistake to clarify that the motion being granted was actually Ms. Hudson‘s motion to strike the affidavit of Clifton M. Cravens and Lager & Vine‘s Exhibits 1-8 as referenced therein.
{¶21} In contrast, the trial court did not alter the magistrate‘s decision to consider the deposition of Ms. Hudson and “[E]xhibits 1 through 8, which [Ms. Hudson] authenticated in her deposition.” The trial court did not find error with respect to that issue and adopted the magistrate‘s decision finding that Ms. Hudson authenticated Exhibits 1 through 8 and considering them as summary judgment evidence. In her merit brief, Ms. Hudson argues that it was improper for the court to consider those exhibits based on Ms. Hudson‘s deposition, because
{¶22} As we determined above, Ms. Hudson failed to present timely objections to the magistrate‘s decision pursuant to
III.
{¶23} Ms. Hudson‘s assignments of error one through four are each overruled. The judgment of the Medina Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Medina Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
JULIE A. SCHAFER
FOR THE COURT
CARR, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
NATALIE F. GRUBB and MARK E. OWENS, Attorneys at Law, for Appellant.
GREGORY A. HUBER, Attorney at Law, for Appellee.
BLAKE R. GERNEY, Attorney at Law, for Appellee.