David L. Phillips v. James H. Rayburn
| Decision Date | 09 August 1996 |
| Docket Number | 96-LW-3353,95 CA 26 |
| Parties | DAVID L. PHILLIPS, et al., Plaintiffs-Appellees v. JAMES H. RAYBURN, Defendant-Appellant Case |
| Court | Ohio Court of Appeals |
COUNSEL FOR APPELLANT: Randy L. Happeney, Dagger, Johnston, Miller Ogilvie & Hampson, 144 E. Main Street, P.O. Box 667 Lancaster, Ohio 43130.
COUNSEL FOR APPELLEES: Charles H. Lease, O'Brien & Lease Co., L.P.A., 19 West Beck Street, Columbus, Ohio 43215.
DECISION
This is an appeal from a summary judgment entered by the Hocking County Common Pleas Court in favor of David L. Phillips, et al., plaintiffs below and appellees herein, and against James H. Rayburn, defendant below and appellant herein.
Appellant assigns the following errors:
The pertinent facts are not in dispute. On August 11, 1994, Appellant Rayburn shot Appellee David L. Phillips multiple times during an altercation that arose near the property line dividing their respective parcels in Hocking County, Ohio. Appellant was tried and convicted of aggravated assault for shooting Appellee David L. Phillips. Appellee and his wife thereafter filed a civil action alleging assault, battery, intentional infliction of emotional distress and loss of consortium.
On April 11, 19951, appellees filed a motion for summary judgment alleging that no genuine issues of material fact existed with respect to liability because the transcript from appellant's criminal trial clearly shows: (1) appellant shot and wounded Appellee David L. Phillips and (2) appellant's evidence of self-defense is insufficient to meet the appropriate legal standard. Appellees attached to their motion four (4) uncertified photocopies excerpted from appellant's criminal trial transcript. Appellees did not attach any evidence of appellant's conviction.
On May 24, 1995, the trial court granted summary judgment to appellees on the issue of liability. In its entry, the trial court wrote as follows:
"The court finds that the final transcript was filed as averred by the plaintiff, that there exists no genuine issue as to any material facts in the matter, the jury having found unanimously that the defendant committed felony assault against the plaintiff beyond a reasonable doubt."
The court then held a bench trial to determine damages. The court entered judgment on damages on December 6, 1995. Appellant filed a timely notice of appeal.
In his first assignment of error, appellant argues that the trial court erred when it granted summary judgment to appellees. Appellant asserts that while his conviction for aggravated assault may be admitted as evidence under Evid.R. 803(21) the conviction is not a prior adjudication of his intent, and therefore does not conclusively resolve liability. In other words, appellant concludes that his conviction does not collaterally estop him from disclaiming intent to harm appellee.
We note that summary judgment is appropriate when the movant demonstrates: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, said party being entitled to have the evidence construed most strongly in his favor. Turner v. Turner (1993), 67 Ohio St.3d 337, 339-340, 617 N.E.2d 1123, 1126; Bostic v. Conner (1988), 37 Ohio St.3d 144, 146, 524 N.E.2d 881, 884; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46, 47. The moving party bears the burden of proving no genuine issue of material fact exists. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801.
When reviewing a summary judgment, an appellate court must independently review the record to determine if summary judgment was appropriate. An appellate court need not defer to the trial court's decision in summary judgment cases. See Morehead v. Conley (1991), 75 Ohio App.3d 409, 599 N.E.2d 786.
Civ.R. 56(C) lists the types of documentary evidence admissible in summary judgment proceedings:
* * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to the interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * *
(Emphasis added.)
In the case sub judice, we note that appellees, motion for summary judgment did not include any evidence of appellant's conviction. The only supporting documents attached to the motion were four pages of photocopied testimony excerpted from the aggravated assault trial transcript. As noted above, Civ.R. 56(C) states that when determining summary judgment motions, courts may consider only "pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact." Appellees' documents do not fall into any of the Civ.R. 56(C) categories.
We also note, however, that appellant did not object to the fact that the transcript excerpt does not fall into any of the Civ.R. 56(C) categories. By failing to object at the trial level, appellant has waived any error on appeal. See, generally, Dillon v. Medical Center Hospital (1993), 98 Ohio App.3d 510, 648 N.E.2d 1375; Boydston v. Norfolk S. Corp. (1991), 73 Ohio App.3d 727, 598 N.E.2d 171, motion to certify overruled in, 62 Ohio St.3d 1472, 580 N.E.2d 1101; Gaumont v. Emery Air Freight Corp. (1989), 61 Ohio App.3d 277, 572 N.E.2d 747; Rodger v. McDonald's Restaurants of Ohio Inc. (1982), 8 Ohio App.3d 256, 456 N.E.2d 1262; Richards v. Paterek (Dec. 1, 1989), Geauga App. No. 88-G-1481, unreported; Rambo v. E.B.P., Inc. (Oct. 19, 1989), Cuyahoga App. No. 55658, unreported.
Regarding the judgment of conviction, appellees should have presented the judgment entry to the trial court by incorporating it into an affidavit pursuant to Civ.R. 56. Biskupich v. Westbay Manor Nursing Home (1986), 33 Ohio App.3d 220, 515 N.E.2d 632; Freeman v. Holzer Medical Center (Mar. 26, 1992), Gallia App. No. 91 CA 8, unreported; Bartels v. Village of Syracuse (June 7, 1991), Meigs App. No. 448, unreported. By failing to present the judgment in an appropriate form, appellees deprived the trial court of any evidence of appellant's conviction. Further, while the trial court's May 24, 1995 judgment entry arguably attempts to take judicial notice of appellant's conviction, we note that the trial court lacked the authority to take judicial notice of its own records in another case.[1]
Because the court had no evidence before it of appellant's conviction and because of additional reasons set forth below, we agree with appellant's assertion that summary judgment was improper in the case sub judice. The primary issue for the trial court when considering an intentional tort is intent to harm. The court's judgment entry suggests that the court granted partial summary judgment on collateral estoppel grounds, based on the criminal trial adjudication of appellant's intent during the attack. As noted above, we find that summary judgment was improper because no evidence of the prior adjudication was before the court in any form.
Assuming, arguendo, that the judgment of conviction from appellant's criminal trial had been properly submitted to the trial court, we are inclined to agree with appellant that it would have constituted some evidence of his intent during the attack rather than collaterally estopping him from contesting the intent issue at all. In Ohio, res judicata encompasses both estoppel by judgment and collateral estoppel. State ex rel. Kirby v. S.G. Loewendick & Sons, Inc. (1992), 64 Ohio St.3d 433, 437, 596 N.E.2d 460, 463. Estoppel by judgment prevents a party from relitigating the same cause of action after a final judgment has been rendered on the merits as to that party. Krahn v. Kinney (1989), 43 Ohio St.3d 103, 107, 538 N.E.2d 1058, 1062. Collateral estoppel prevents parties or their privies from relitigating facts and issues in a subsequent suit that were fully litigated in a previous suit. Thompson v. Wing (1994), 70 Ohio St.3d 176, 183, 637 N.E.2d 917, 923.
As the Ohio Supreme Court stated in Broz v. Winland (1994), 68 Ohio St.3d 521, 629 N.E.2d 395:
"'The main legal thread which runs throughout the determination of the applicability of res judicata, inclusive of the adjunct principle of collateral estoppel, is the necessity of a fair opportunity to fully litigate and to be "heard" in the due process sense.'"
Id., 68 Ohio St.3d at 523, 629 N.E.2d at 397, quoting Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193, 200-201, 443 N.E.2d 978, 985. The Ohio Supreme Court has also held that Whitehead v. Gen. Tel. Co. of Ohio (1969) 20 Ohio St. 2d 108, 254 N.E. 2d 10; Goodson, supra, noting as follows:
To continue reading
Request your trial