Yuko v. Doe

• Decision Date: 14 September 2017
• Docket Number: Case No. 2016-00281-PR
• Citation: 2017 Ohio 8280
• Parties: IVANA YUKO, et al. Plaintiffs v. JOHN DOES 1-3 Defendants and GLOBAL SPECTRUM, L.P. Defendant/Third-Party Plaintiff v. CLEVELAND STATE UNIVERSITY Third-Party Defendant
• Court: Ohio Court of Claims

2017 Ohio 8280

IVANA YUKO, et al. Plaintiffs v. JOHN DOES 1-3 DefendantsandGLOBAL SPECTRUM, L.P. Defendant/Third-Party Plaintiff v. CLEVELAND STATE UNIVERSITY Third-Party Defendant

Case No. 2016-00281-PR

Court of Claims of Ohio

To S.C. Reporter October 23, 2017

September 14, 2017

Judge Patrick M. McGrath

DECISION

{¶1} Before the court in this case, which is removed from the Cuyahoga County Court of Common Pleas, are two summary judgment motions filed on July 27, 2017:

• Third-party defendant Cleveland State University's summary judgment motion on Global Spectrum, L.P.'s third-party complaint, and

• Global Spectrum, L.P.'s summary judgment motion on its third-party complaint against Cleveland State University.

The court holds that Cleveland State University's summary judgment motion should be granted, that Global Spectrum's summary judgment motion on its third-party complaint against CSU should be denied, and that this removed case should be remanded to the Cuyahoga County Court of Common Pleas for further proceedings.

I. Introduction

{¶2} According to court filings, on October 11, 2013, while Ivana Yuko worked at a career services fair at the Wolstein Center at Cleveland State University (CSU), she sustained an injury. Later Ivana and her husband, John Yuko, sued (1) Global Spectrum, L.P. (which managed the Wolstein Center on behalf of CSU at the time of the Ivana Yuko's injury) and (2) the Ohio Bureau of Workers' Compensation (BWC) in the Cuyahoga County Common Pleas Court. The Yukos contended in their complaint that Ivana Yuko had been an employee of the CSU Career Services Office, and, while she was working at a career services fair, a metal pipe holding a drape, which was designed to serve as a backdrop, fell on her head. The Yukos asserted claims of negligence and loss of consortium against Global Spectrum and they sought a declaratory judgment against the BWC.

{¶3} The BWC moved the common pleas court to realign the parties; the court granted the BWC's motion. The BWC, with the Yukos as named plaintiffs, filed a "New Party Complaint" against Global Spectrum, asserting a subrogation claim against Global Spectrum.

{¶4} With leave of court, Global Spectrum brought a third-party complaint against CSU, relying on a license agreement between Global Spectrum and CSU Career Services Center. In its third-party complaint, Global Spectrum sought a declaratory judgment for contractual defense and indemnification, and asserted a breach-of-contract claim. On Global Spectrum's petition for removal, the matter was removed to this court.

{¶5} On July 27, 2017, CSU and Global Spectrum separately moved the court for summary judgment in their respective favor, with CSU seeking summary judgment on Global Spectrum's third-party complaint and Global Spectrum seeking summary judgment on its third-party complaint against CSU, as well as plaintiffs' complaint. CSU's summary judgment motion and the portion of Global Spectrum's summary judgment motion on its third-party complaint are presently before the court—on the Yukos's motion, the court has deferred ruling on Global Spectrum's motion for summary judgment on the plaintiffs' complaint.

{¶6} Relevant to CSU's and Global Spectrum's summary judgment motions are two contracts: (1) a management agreement of August 2010 between CSU and Global Spectrum, and (2) a license agreement of July 2013 between Global Spectrum, as agent of CSU, and the CSU Career Services Center.

II. Standard for Summary Judgment

{¶7} Civ.R. 56(C) pertains to motions and proceedings for summary judgment, stating in part: "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. No evidence or stipulation may be considered except as stated in this rule." In State ex rel. Grady v. State Emp. Rels. Bd., 78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997), construing Civ.R. 56(C), the Ohio Supreme Court stated: "Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327, 4 Ohio Op. 3d 466, 472, 364 N.E.2d 267, 274." And in Dresher v. Burt, 75 Ohio St.3d 280, 298, 662 N.E.2d 264 (1996), a plurality opinion, the Ohio Supreme Court stated that "there is no requirement in Civ.R. 56 that any party submit affidavits to support a motion for summary judgment. See, e.g., Civ.R. 56(A) and (B). There is a requirement, however, that a moving party, in support of a summary judgment motion, specifically point to something in the record that comports with the evidentiary materials set forth in Civ.R. 56(C)." (Emphasis sic.) And Dresher holds that

a. a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then 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.

(Emphasis sic.)

{¶8} The court shall apply Civ.R. 56, as interpreted by relevant authority, to the summary judgment motions before it.

III. CSU's Summary Judgment Motion

{¶9} CSU moves for a summary judgment on Global Spectrum's third-party complaint against it, urging that an indemnity provision in the license agreement signed by a CSU employee fails, as a matter of law, because (1) the indemnity provision in the license agreement, as written, would obligate CSU to pay uncertain sums over an uncertain period in violation of certain provisions of the Ohio Constitution, and (2) a management agreement between CSU and Global Spectrum supersedes the license agreement. To support its contentions, CSU relies on 1996 Ohio Atty.Gen.Ops. No. 96-060. With its summary judgment motion, CSU appended (1) an affidavit of Clare Rahm, (2) a copy of the management agreement between CSU and Global Spectrum, and (3) a copy of the license agreement between Global Spectrum and CSU Career Services Center. In Rahm's affidavit, Rahm avers that:

• She is the Associate Vice President in the Division of Student Affairs.

• She has been the contract administrator for CSU since 2005, and that she is responsible for overseeing contracts that CSU holds with third parties.

• From August 2010 to August 2015, CSU contracted with Global Spectrum to run the Wolstein Center. The management agreement attached to her affidavit is a true and accurate copy; the management agreement became effective on August 10, 2010; and that the management agreement governed the relationship between CSU and Global Spectrum.

• The license agreement attached to Rahm's affidavit is a true and accurate copy and that the license agreement is maintained in her office because it "is a record of the University acquired when Global Spectrum ceased to manage the Wolstein Center."

• The Career Services Center is a department of CSU.

{¶10} In opposition, Global Spectrum contends that CSU is not entitled to summary judgment because (1) CSU's position is based on an opinion of the Ohio Attorney General, which is non-binding law, (2) CSU's position that the license agreement is invalid does not set forth any admissible facts in support of such argument, (3) CSU "has waived the claim, and is estopped from claiming, that the indemnity provision is invalid and unenforceable," and (4) the license agreement, not the management agreement is the governing contract.

{¶11} Neither the Yukos nor the BWC filed timely responses to CSU's summary judgment motion on Global Spectrum's third-party complaint.

IV. Global Spectrum's Summary Judgment Motion on Its Third-Party Complaint

{¶12} Global Spectrum moves for a summary judgment on its third-party complaint against CSU, asserting that it is "entitled to summary judgment in its favor, as a matter of law, on its contractual claims against CSU in the Third-Party Complaint, where, CSU is in breach of the License Agreement for failing to provide: 1) insurance coverage for Global Spectrum as required by Section 11 of the License Agreement; and 2) defense and indemnification as required by Section 12 of the License Agreement." (Motion, 11.) In support of its summary motion, Global Spectrum filed (1) a deposition of Yolanda Burt (former director of the CSU Career Services Center), (2) a deposition of Matthew Herpich (former general manager of the Wolstein Center), (3) a deposition of Ivana Yuko, and (4) CSU's amended responses and objections to Global Spectrum's requests for production of documents.

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