Heimberger v. Zeal Hotel Grp., Ltd.

• Decision Date: 22 September 2015
• Docket Number: No. 15AP–99.,15AP–99.
• Citation: 42 N.E.3d 323
• Parties: Debra A. HEIMBERGER et al., Plaintiffs–Appellants, v. ZEAL HOTEL GROUP, LTD., Defendant–Appellee.
• Court: Ohio Court of Appeals

42 N.E.3d 323

Debra A. HEIMBERGER et al., Plaintiffs–Appellants

v.ZEAL HOTEL GROUP, LTD., Defendant–Appellee.

No. 15AP–99.

Court of Appeals of Ohio, Tenth District, Franklin County.

Sept. 22, 2015.

Debra A. Heimberger, and Robert J. Churilla, pro se.

The Law Offices of Raymond H. Decker, and Molly G. Vance, Cincinnati, for appellee.

Opinion

SADLER, J.

{¶ 1} Plaintiffs-appellants, Debra A. Heimberger and Robert J. Churilla, appeal the January 13, 2015 judgment of the Franklin County Court of Common Pleas dismissing appellants' complaint and granting the motion for summary judgment filed by defendant-appellee, Zeal Hotel Group, Ltd. For the following reasons, we affirm the trial court judgment.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} This case arises from a stranger's theft of Heimberger's handbag from appellee's hotel lobby. Specifically, throughout the day on April 28, 2012, appellants and a third person conducted business in the lobby of appellee's hotel, in which Churilla alone was a paying guest. After appellants concluded their business, at approximately 9:00 p.m., a stranger entered the hotel through the front door, stole Heimberger's handbag, and exited through the same door.

{¶ 3} Originally, appellants filed a complaint in the Franklin County Municipal Court on November 19, 2012, alleging negligence on the part of Baymont Inn and Suites. After a discovery dispute arose, the municipal court awarded appellants $250 in sanctions. Appellants later amended their complaint to substitute appellee as defendant.

{¶ 4} On December 23, 2013, appellants dismissed their complaint in the municipal court without prejudice and filed the instant action, alleging claims of spoliation of evidence and negligence resulting in damages and emotional distress to Heimberger as well as damages to Churilla. Appellants amended their complaint on January 27, 2014 to additionally demand payment of the $250 discovery sanction.

{¶ 5} On July 5, 2014, appellants filed a motion to compel discovery in regard to appellants' first set of interrogatories and request for production of documents “on the grounds that a substantial number of their responses are evasive or incomplete, or raise objections to requests that are reasonably calculated to lead to the disclosure of admissible evidence.” (Appellants' Motion to Compel Discovery, 1.) The trial court granted the motion on August 21, 2014. On September 4, 2014, appellee supplemented its responses to appellants' first set of interrogatories.

{¶ 6} On September 23, 2014, appellants filed a motion for sanctions requesting $2,500 or, in the alternative, a default judgment for appellee's alleged failure to comply with the trial court's order regarding the first set of interrogatories. At the same time, appellants filed a motion to compel discovery in regard to appellants' second set of interrogatories and request for production of documents “on the grounds that [appellee] has not provided complete responses to Interrogatory No. 3 and are evasive or incomplete [and] also failed to provide the verification provided by Ohio Civil Rule 33.” (Appellants' Second Motion to Compel Discovery, 1.)

{¶ 7} On September 29, 2014, appellee filed a motion for summary judgment asserting that, as to the negligence claims, appellants could not show appellee owed a duty to protect Heimberger from criminal acts of third parties or that Churilla suffered harm or damages. Appellee also contended that the evidence which appellants' claim was destroyed would not create an issue of material fact sufficient to overcome summary judgment.

{¶ 8} On October 13, 2014, appellants filed a motion to stay the ruling on the summary judgment motion pending resolution of the discovery motions. The trial court, on November 3, 2014, denied appellants' motion to stay as well as appellants' pending motion for sanctions and motion to compel. Appellants then, on November 22, 2014, filed a memorandum in opposition to appellee's motion for summary judgment, to which appellee filed a reply and a motion to strike portions of appellants' affidavits allegedly based on inadmissible hearsay.

{¶ 9} Ultimately, on January 13, 2015, the trial court issued its decision granting appellee's motion for summary judgment and dismissing appellants' complaint with prejudice.¹ Resolving Heimberger's negligence claim against appellee, the trial court found that, in the totality of the circumstances, theft of her handbag was not foreseeable and, therefore, appellee did not owe a duty to warn or protect her from third-party criminal acts. Further, the court found that, “[s]ince [appellee] did not owe [Heimberger] a duty, it likewise did not owe [Churilla] a duty,” and Churilla failed to show that he personally suffered any compensable damages. (Jan. 13, 2015 Decision and Entry, 7.) Lastly, the trial court held that appellants failed to meet the requirements of sustaining a spoliation claim, stating that:

Outside of stating that [appellee] has not provided the surveillance tape of the night in question as well as the sign, [appellants] have presented nothing to the Court to show that (1) the tape and sign have been actually destroyed; (2) that even if they have been, [appellee] wrongfully destroyed these items; and (3) that the present case has been disrupted due to this destruction. While in certain instances a spoliation claim can stand on its own, in this case [appellee] owed no duty to either [appellant]. Since this is so, even if the surveillance tape and sign were destroyed, said destruction has no bearing on the present case and caused no actual damage to [appellants].

(Jan. 13, 2015 Decision and Entry, 7.)

II. ASSIGNMENTS OF ERROR

{¶ 10} Appellants assign five assignments of error for our review:

1. The trial court erred in granting Appellee's Motion for Summary Judgment on Appellant Heimberger's claim for negligence when Appellant presented sufficient evidence that a criminal act was foreseeable at the hotel.

2. The trial court erred in granting Appellee's Motion for Summary Judgment on Appellant Churilla's claim for negligence and breach of his hotel contract claim when the hotel breached its duty to provide him and his guest a safe work environment and he suffered damages.

3. The trial court erred in granting Appellee's Motion for Summary Judgment on Appellant's claims for spoliation.

4. The trial court erred in denying Appellants' Motion to Stay Ruling on Summary Judgment Motion Pending Resolution of Discovery Motions.

5. The trial court erred in denying Appellants' Motion for Sanctions.

III. DISCUSSION

A. Standard of Review

{¶ 11} We review a summary judgment motion de novo. Koos v. Cent. Ohio Cellular, Inc., 94 Ohio App.3d 579, 588, 641 N.E.2d 265 (8th Dist.1994), citing Brown v. Scioto Cty. Bd. of Commrs.,

87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993). When an appellate court reviews a trial court's disposition of a summary judgment motion, it applies the same standard as the trial court and conducts an independent review, without deference to the trial court's determination. Maust v. Bank One Columbus, N.A., 83 Ohio App.3d 103, 107, 614 N.E.2d 765 (10th Dist.1992) ; Brown at 711, 622 N.E.2d 1153. We must affirm the trial court's judgment if any grounds the movant raised in the trial court support it. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41–42, 654 N.E.2d 1327 (9th Dist.1995).

{¶ 12} Pursuant to Civ.R. 56(C), summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, 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.” Accordingly, summary judgment is appropriate only under the following circumstances: (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, that conclusion being adverse to the nonmoving party. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).

{¶ 13} “[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim.” Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). “ ‘The requirement that a party seeking summary judgment disclose the basis for the motion and support the motion with evidence is well founded in Ohio law.’ ” Vahila v. Hall, 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997), quoting Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). Thus, the moving party may not fulfill its initial burden simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Dresher at 293, 662 N.E.2d 264.

{¶ 14} Rather, the moving party must support its motion by pointing to some evidence of the type set forth in Civ.R. 56(C), which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. Id. If the moving party has satisfied its initial burden under Civ.R. 56(C), then “the nonmoving party * * * has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.” Id.

B. First Assignment of Error

{¶ 15} Under the first assignment of error, appellants contend that the criminal act against Heimberger was foreseeable for four reasons: (1) appellee had a “heightened duty” to increase security at the hotel because appellants learned that at least one youth soccer team was...