Hendrickson v. Grider

• Decision Date: 14 December 2016
• Docket Number: No. 16CA3537.,16CA3537.
• Citation: 70 N.E.3d 604,2016 Ohio 8474
• Parties: Jo Ellen HENDRICKSON, et al., Plaintiffs–Appellants, v. Randall D. GRIDER, et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

70 N.E.3d 604

2016 Ohio 8474

Jo Ellen HENDRICKSON, et al., Plaintiffs–Appellants,

v.Randall D. GRIDER, et al., Defendants–Appellees.

No. 16CA3537.

Court of Appeals of Ohio, Fourth District, Ross County.

Dec. 14, 2016.

Michael L. Benson and Mark D. Tolles, II, Chillicothe, OH, for Appellants.

J. Richard Brown, Columbus, OH, for Appellee Norma Gartner.

Brian D. Cope, Chillicothe, OH, appellee, pro se.

ABELE, J.

{¶ 1} This is an appeal from two Ross County Common Pleas Court summary judgments in favor of Norma Gartner and Brian D. Cope, defendants below and appellees herein.¹ Jo Ellen and Richard E. Hendrickson, plaintiffs below and appellants herein, assign the following errors for review:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT BRIAN COPE, RELATING TO HIS FIRST MOTION FOR SUMMARY JUDGMENT, WHERE HE FAILED TO STATE WITH PARTICULARITY THE GROUNDS FOR HIS FIRST MOTION FOR SUMMARY JUDGMENT, AS REQUIRED BY CIV.R. 7(B)(1), AND FURTHER FAILED TO IDENTIFY THOSE PORTIONS OF THE RECORD THAT DEMONSTRATE THE ABSENCE OF ANY GENUINE ISSUE OF MATERIAL FACT, AS REQUIRED BY CIV.R. 56(C)."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN FAILING TO STRIKE DEFENDANT BRIAN COPE'S SECOND, UNTIMELY MOTION FOR SUMMARY JUDGEMENT [SIC]."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT BRIAN COPE, RELATIVE TO HIS SECOND, UNTIMELY MOTION FOR SUMMARY JUDGEMENT [SIC], WHEN THE TRIAL COURT RELIED UPON UNSUPPORTED STATEMENTS MADE IN DEFENDANT BRIAN COPE'S SECOND, UNTIMELY MOTION FOR SUMMARY JUDGEMENT [SIC], INCLUDING STATEMENTS REGARDING THE ALLEGED CONTENTS OF THE AFFIDAVITS OF BRIAN D. COPE, BRIAN C. COPE, SCOTT FREELAND, JR., RANDALL GRIDER, AND RANDY GRIDER, WHICH WERE NOT PRESENTED TO THE TRIAL COURT OR PLAINTIFFS' COUNSEL AND WHICH WERE NOT SUPPORTED BY THE EVIDENCE BEFORE THE TRIAL COURT. WITHOUT SUCH EVIDENCE, DEFENDANT BRIAN COPE FAILED TO MEET HIS BURDEN OF DEMONSTRATING THAT NO GENUINE ISSUES OF MATERIAL FACT EXISTED."

FOURTH ASSIGNMENT OF ERROR:

"PURSUANT TO R.C. 951.02 AND R.C. 951.10, THE OWNERS OF ANIMALS ARE LIABLE FOR ANY DAMAGES THAT RESULT FROM SUCH ANIMALS RUNNING AT LARGE. THE TRIAL COURT ERRED IN DETERMINING THAT DEFENDANT BRIAN COPE WAS NOT AN AGENT OF THE OWNER OF THE HORSES THAT CAUSED DAMAGES TO THE PLAINTIFFS AND, THEREFORE, ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT BRIAN COPE."

FIFTH ASSIGNMENT OF ERROR:

"PURSUANT TO R.C. 951.02 AND R.C. 951.10, THE KEEPERS OF ANIMALS ARE LIABLE FOR ANY DAMAGES THAT RESULT FROM SUCH ANIMALS RUNNING AT LARGE.

THE TRIAL COURT ERRED IN DETERMINING THAT DEFENDANT NORMA GARTNER WAS NOT A KEEPER OF THE HORSES THAT CAUSED DAMAGES TO THE PLAINTIFFS AND, THEREFORE, ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT NORMA GARTNER."

SIXTH ASSIGNMENT OF ERROR:

"PURSUANT TO R.C. 951.02 AND R.C. 951.10, THE KEEPERS OF ANIMALS ARE LIABLE FOR ANY DAMAGES THAT RESULT FROM SUCH ANIMALS RUNNING AT LARGE. THE TRIAL COURT ERRED IN DETERMINING THAT DEFENDANT BRIAN COPE WAS NOT AN AGENT OF DEFENDANT NORMA GARTNER, WHO WAS A KEEPER OF THE HORSES THAT CAUSED DAMAGES TO THE PLAINTIFFS, AND, THEREFORE, ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT BRIAN COPE."

SEVENTH ASSIGNMENT OF ERROR:

"PURSUANT TO R.C. 951.02 AND R.C. 951.10, THE KEEPERS OF ANIMALS ARE LIABLE FOR ANY DAMAGES THAT RESULT FROM SUCH ANIMALS RUNNING AT LARGE. THE TRIAL COURT ERRED IN DETERMINING THAT DEFENDANT BRIAN COPE WAS NOT A KEEPER OF THE HORSES THAT CAUSED DAMAGES TO THE PLAINTIFFS IN HIS INDIVIDUAL CAPACITY AND, THEREFORE, ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT BRIAN COPE."

EIGHTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT NORMA GARTNER ON PLAINTIFFS' COMMON LAW NEGLIGENCE CLAIM."

NINTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT BRIAN COPE ON PLAINTIFFS' COMMON LAW NEGLIGENCE CLAIM."

{¶ 2} The present case arises out of a December 3, 2013 motor vehicle accident that occurred when Jo Ellen's vehicle hit two horses that were located upon the roadway. Randall D. Grider owned the horses. Gartner owned the lot where Grider kept the horses. Cope is Gartner's son-in-law and acted as an intermediary between Gartner and Grider.

{¶ 3} On May 7, 2014, appellants filed a complaint against Grider, Cope, and Gartner and alleged that they were owners and/or keepers of horses within the meaning of R.C. Chapter 951 and that they negligently allowed the horses to escape. Appellants sought damages for Jo Ellen's injuries and a loss of consortium claim on Richard's behalf.

{¶ 4} Gartner subsequently requested summary judgment motion and asserted that she was not an owner or a keeper of the horses and, thus, could not be liable for appellants' injuries.

{¶ 5} On November 20, 2015, Cope filed a "motion to accept instantor [sic ] defendant's motion for summary judgment." Cope requested the trial court to excuse his late filing because (1) Jo Ellen's deposition had not been filed, (2) he did not learn that Grider's deposition was available until it was filed on October 9, 2015, and (3) counsel incorrectly marked the due date on his calendar. Cope further alleged that Grider admitted fault and that neither Cope nor Gartner had any responsibility for the horses. Cope attached Grider's affidavit to his motion.

{¶ 6} On December 10, 2015, appellants filed a motion to strike Cope's motion to accept his summary judgment motion instanter. They asserted that Cope failed to demonstrate excusable neglect. Also, on December 10, 2015, appellants filed a memorandum in opposition to Gartner's summary judgment motion. They asserted that genuine issues of material fact remain regarding whether (1) Gartner was a keeper and therefore liable under R.C. 951.02 and R.C. 951.10, and (2) Gartner exercised ordinary care.

{¶ 7} On December 15, 2015, the trial court granted Cope's motion to file his summary judgment motion instanter. At the same time, Cope filed his summary judgment motion. In his motion, Cope argued that he was not an owner or keeper of the horses and, thus, could not be held liable for appellants' injuries. To support his motion, Cope attached his, Gartner's, Grider's, and Scott Freeland, Jr.'s affidavits.

{¶ 8} In her affidavit, Gartner explained that she owned the vacant lot where Grider kept his horses. She stated that Cope, who lived on the property directly north of her vacant lot, asked her if Cope's friend's stepfather (Grider) could keep his three horses on Gartner's lot. Gartner testified that she informed "Cope that would be fine so long as Mr. Grider took care of the horses and put up a suitable fence." Gartner averred that before Jo Ellen's accident, she "did not have any involvement in the maintenance, care or control of Mr. Grider's horses on my land. Specifically, I had no involvement in maintaining the fence, watering, maintaining, caring for or have any control or management of Mr. Grider's horses." Gartner further stated that before the accident, she "had no knowledge that Mr. Grider's horses had ever escaped."

{¶ 9} In his affidavit, Scott Freeland Jr. (Grider's stepson), stated that he is friends with Cope, who is Gartner's son-in-law. Freeland stated that Grider expressed interest in keeping his horses on Gartner's lot. Freeland contacted Cope and asked him to discuss Grider's request with Gartner. Cope subsequently informed Freeland that Gartner advised Cope that Grider could keep his horses on Gartner's "property, at no charge, [and with the] understanding that [Grider] would have to construct and maintain adequate fencing for the horses." Freeland then relayed the message to Grider.

{¶ 10} Grider likewise stated in his affidavit that he asked Freeland to inquire whether Grider could use Gartner's land for Grider's horses. Grider averred that he "understood that [he] could keep [the] horses on the property, at no charge, if [he] constructed and maintained adequate fencing for the horses." Grider further indicated that he never requested assistance maintaining the fence or caring for the horses.

{¶ 11} In his affidavit, Cope similarly stated that Freeland asked Cope to ask Gartner whether Grider could keep his horses on Gartner's vacant lot. Cope also indicated that Gartner agreed to allow Grider to keep the horses on her lot, as long as Grider "took care of the horses" and built "a suitable fence." Cope stated that before the accident, he "did not have involvement in maintaining the fence, watering, maintaining, caring for or having any control or management of Mr. Grider's horses." Cope additionally testified that before the accident, he "had no knowledge that Mr. Grider's horses had ever escaped."

{¶ 12} On December 30, 2015, appellants filed a "motion to strike the second untimely motion for summary judgement [sic ] filed by" Cope. They claimed that on November 20, 2015, "Cope filed his first, untimely Motion for Summary Judgment in a document entitled a ‘Motion to Accept Instantor [sic ] Defendant's Motion for Summary Judgment.’ " Appellants asserted that this was "an all-inclusive document, which included * * * Cope's arguments and the evidence that he intended to rely upon in support of his Motion for Summary Judgment. That document did not reference nor rely upon any separate Motion for Summary Judgment document to be considered." Appellants claimed that the court granted Cope's motion on December 10, 2015. They thus argued that Cope's December 15, 2015 motion was untimely. They also argued that Cope did not properly serve them with a copy of his "second" summary judgment motion.

{¶ 13} On December 30, 2015, appellants filed a memorandum in opposition to Cope's "first motion for summary judgment." They argued that genuine issues of material fact exist regarding whether Cope was Grider's or Gartner's agent and whether Cope was a keeper of the horses. Appellants further alleged that Cope failed to...