Noe v. Housel

• Decision Date: 17 April 2020
• Docket Number: No. L-18-1267,L-18-1267
• Citation: 2020 Ohio 1537,153 N.E.3d 941
• Parties: Janelle NOE, et al., Appellants v. Christopher HOUSEL, et al., Appellees
• Court: Ohio Court of Appeals

153 N.E.3d 941

2020 Ohio 1537

Janelle NOE, et al., Appellants

v.Christopher HOUSEL, et al., Appellees

No. L-18-1267

Court of Appeals of Ohio, Sixth District, Lucas County.

Decided: April 17, 2020

Marvin A. Robon and R. Ethan Davis, Maumee, for appellants.

Mark J. Seitzinger and Jessica Dillon Compton, Toledo, for appellee Thomas Leis.

Andrew J. Ayers and Robert J. Bahret, Holland, for appellees John Talbot and Clinton Caddell.

DECISION AND JUDGMENT

OSOWIK, J.

{¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas which granted appellees' motion for summary judgment. For the reasons set forth below, this court affirms the judgment of the trial court.

{¶ 2} On February 14, 2017, as amended on January 22, 2018, by leave of the trial court, plaintiffs-appellants Janelle Noe, Christopher Noe, and Mindy (aka Melinda) Noe filed a complaint with jury demand against defendants-appellees Clinton Caddell, John Talbot, and Thomas Leis and defendants-nonappellees Christopher Housel, Max Pro, Inc., and John Doe Nos. 1 through 3, setting forth claims of negligence by Housel (Count 1), social host liability by Caddell, Talbot and John Doe Nos. 1 through 3 (Count 2), negligence by Leis (Count 3), dram shop liability by Max Pro, Inc. (Count 4), a claim for market value of home healthcare services by Christopher and Mindy Noe (Count 5), and filial loss of consortium by Christopher and Mindy Noe (Count 6). Appellants alleged Janelle Noe (hereafter, "Noe") attended a party hosted by Housel, Caddell, Talbot and John Doe Nos. 1 through 3 on January 15, 2016, at their home in Toledo, Lucas County, Ohio. The hosts rented from their landlord, Leis. While at the party, appellants alleged an intoxicated, underage Housel ignited "the high proof alcohol he was drinking," threw the ignited fluid onto Noe, and set her clothes on fire. Appellants alleged Noe suffered permanent physical injuries and her parents incurred related damages. Appellees generally denied the allegations and asserted various affirmative defenses. Housel cross-claimed for indemnity and contribution from Caddell, Talbot and Leis, and the cross-claim defendants generally denied Housel's cross-claims. Discovery among the parties ensued.

{¶ 3} Talbot and Caddell filed a joint motion for summary judgment on May 17, 2017, which appellants opposed. On January 8, 2018, the trial court granted the motion and dismissed appellants' claims against Talbot and Caddell. Then Leis filed a motion for summary judgment on January 19, 2018, which appellants opposed. On April 4, 2018, the trial court granted the motion and dismissed appellants' claims against Leis. On October 18, 2018, appellants dismissed with prejudice Max Pro, Inc. from all of their claims.

{¶ 4} On October 26, 2018, appellants appealed the trial court's January 8 and April 4, 2018 determinations on summary judgment, and this court dismissed their appeal for lack of a Civ.R. 54(B) final order because appellants' claims against Housel and Housel's cross-claims against Caddell, Talbot and Leis remained pending. Noe v. Housel , 6th Dist. Lucas No. L-18-1230 (Nov. 15, 2018). Upon remand, appellants dismissed with prejudice Housel from all of their claims, and Housel dismissed with prejudice all of his cross-claims against Caddell, Talbot and Leis.

{¶ 5} Appellants filed their amended notice of appeal setting forth three assignments of error.

I. The trial court erred in granting summary judgment to Appellee Thomas Leis, when he had actual and/or constructive knowledge that underage drinking was routinely taking place at the Dorchester residence.

II. The trial court erred in finding that R.C. 4301.69(B) does not apply to co-tenants, and granting summary judgment to Appellees Talbot and Caddell.

III. Appellees Talbot and Caddell were negligent as "social hosts" by knowingly allowing the underage and drunken Christopher Housel to play with fire and high proof liquor.

{¶ 6} Then on November 8, 2019, appellants dismissed with prejudice Leis from all of their claims, and the trial court ordered his dismissal.¹ Consequently, appellants' first assignment of error is moot. App.R. 12(A)(1)(c). Hereafter, "appellees" shall refer to Talbot and Caddell.

I. Standard of Review

{¶ 7} Appellate review of trial court summary judgment determinations is de novo, employing the same Civ.R. 56 standard as trial courts. Hudson v. Petrosurance, Inc. , 127 Ohio St.3d 54, 2010-Ohio-4505, 936 N.E.2d 481, ¶ 29.

{¶ 8} Summary judgment may be granted only:

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. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that 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, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor.

Civ.R. 56(C).

{¶ 9} When seeking summary judgment, the moving party must identify those portions of the record that affirmatively demonstrate the absence of a genuine issue of material fact regarding an essential element of the non-movant's case and not rely on conclusory assertions the non-movant has no evidence to prove its case. Dresher v. Burt , 75 Ohio St.3d 280, 296, 662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is made, an adverse party may not rest on mere allegations or denials in the pleadings, but must respond with specific facts showing that there is a genuine issue of material fact for trial in accordance with Civ.R. 56(E). Id. at 293, 662 N.E.2d 264. A "material" fact is one which would affect the outcome of the suit under the applicable substantive law. Beckloff v. Amcor Rigid Plastics USA, LLC , 2017-Ohio-4467, 93 N.E.3d 329, ¶ 14 (6th Dist.).

II. No R.C. 4301.69(B) Civil Liability

{¶ 10} In support of their second assignment of error, appellants argue appellees have "social host liability" pursuant to R.C. 4301.69(B). Appellants argue under R.C. 4301.69(B) appellees are civilly liable to appellants "as they were ‘occupants’ of a ‘private place’ who ‘knowingly’ allowed the underage Housel to ‘remain in or on the place while possessing or consuming beer or intoxicating liquor * * *.’ " Appellants argue appellees' duty to Noe was not about removing Housel from the residence, but was about not " ‘allowing’ the underage consumption of alcohol on the leased property."

{¶ 11} R.C. 4301.69(B) does not use the phrase "social host," stating in its entirety:

No person who is the owner or occupant of any public or private place shall knowingly allow any underage person to remain in or on the place while possessing or consuming beer or intoxicating liquor, unless the intoxicating liquor or beer is given to the person possessing or consuming it by that person's parent, spouse who is not an underage person, or legal guardian and the parent, spouse who is not an underage person, or legal guardian is present at the time of the person's possession or consumption of the beer or intoxicating liquor.

An owner of a public or private place is not liable for acts or omissions in violation of this division that are committed by a lessee of that place, unless the owner authorizes or acquiesces in the lessee's acts or omissions.

{¶ 12} A violation of R.C. 4301.69(B) is a misdemeanor of the first degree. R.C. 4301.99(C).

{¶ 13} "[D]etermining whether a statute is civil or criminal is a matter of statutory interpretation." State v. Cook , 83 Ohio St.3d 404, 415, 700 N.E.2d 570 (1998). A court determines legislative intent when interpreting a statute in its entirety, using the language employed, " ‘and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the law-making body, there is no occasion to resort to other means of interpretation.’ " (Citation omitted.)

Horvath v. Ish , 134 Ohio St.3d 48, 2012-Ohio-5333, 979 N.E.2d 1246, ¶ 10. When a statute is unambiguous, we apply the statute as written. Johnson v. Montgomery , 151 Ohio St.3d 75, 2017-Ohio-7445, 86 N.E.3d 279, ¶ 15. Where a violation of a statute is clearly penal, there is no question the legislature intended the statute to be criminal. State v. Williams , 126 Ohio St.3d 65, 2010-Ohio-2453, 930 N.E.2d 770, ¶ 22.

{¶ 14} We expect that if the state legislature wanted to create civil liability in addition to a criminal offense, it would have done so. State v. Britton , 6th Dist. Lucas No. L-06-1265, 2007-Ohio-2147, 2007 WL 1300547, ¶ 14, citing Myers v. Toledo , 110 Ohio St.3d 218, 2006-Ohio-4353, 852 N.E.2d 1176, ¶ 24 (the doctrine of expressio unius est exclusio alterius means the express inclusion of one thing implies the exclusion of the other). "Courts will not infer that a statute grants a private right of action unless the language of the statute indicates a clear intent that the legislature intended such a remedy." Perkins v. Columbus Bd. of Edn. , 10th Dist. Franklin No. 13AP-803, 2014-Ohio-2783, 2014 WL 2927516, ¶ 15. Generally no private right of action in an individual's name is created by a purely criminal statute because criminal statutes only give rise to a right of prosecution by the state. Wurdlow v. Turvy , 2012-Ohio-4378, 977 N.E.2d 708, ¶ 11 (10th Dist.) ; Cort v. Ash , 422 U.S. 66, 79-80, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) ; Ibanez v. Mosser , 10th Dist. Franklin No. 11AP-1100, 2012-Ohio-4375, 2012 WL 4364343, ¶ 10.

{¶ 15} We find that R.C. 4301.69(B) is a criminal statute that, standing alone, does not authorize appellants to pursue a private cause of action in their names...