Medina County Courthouse

Sunday, December 31, 2006

Limits on Judicial Power in Ruling on Summary Judgment Motions

The Ninth District Court of Appeals, sitting as the Lorain County Court of Appeals, issued a decision this past year that limits the power of judges to grant summary judgment on matters not raised in the parties' pleadings. The decision came down in KRK, Inc. v. Crone, 2006-Ohio-4415. The opinion, at paragraphs 11-13, contains the following language:

{¶11}We find error in the trial court’s reliance on this provision. A careful review of Appellees’ summary judgment motion reveals that Appellees did not raise this specific provision in their summary judgment motion. The Ohio Supreme Court has held that "[a] party seeking summary judgment must specifically delineate the basis upon which summary judgment is sought in order
to allow the opposing party a meaningful opportunity to respond." Mitseff v.Wheeler (1988), 38 Ohio St.3d 112, syllabus. Accordingly, "the trial court should, under most circumstances, restrict its ruling to those matters raised and argued by the parties in the motion for summary judgment." Tackett v. Columbia Energy Group Serv. Corp. (Nov. 20, 2001), 10th Dist. No. 01AP-89, at *3, citing Ferro Corp. v. Blaw Knox Food & Chem. Equip. Co. (1997), 121 Ohio App.3d 434, 443.

{¶12} The parties’ alleged discussion of this provision during a pre-trial proceeding does not meet the Supreme Court’s requirement that the moving party must set forth and argue its basis for moving for summary judgment in its motion. Moreover, the fact that Appellants did not acquire other collateral insurance does not necessarily indicate (1) that Appellants did not attempt to acquire collateral insurance for Appellees or (2) that Appellees maintained satisfactory insurance.

{¶13} Had Appellees raised this issue in their summary judgment motion or the trial court asked the parties to brief this issue, then Appellants would have had the opportunity to establish whether they attempted to purchase insurance for Appellees. We find the trial court committed reversible error by granting summary judgment in favor of Appellees on a ground neither raised nor argued by Appellees in their summary judgment motion. See Tackett, supra, at *3; Ferro
121 Ohio App.3d at 443. Accordingly, Appellants’ first assignment of error is sustained.

While the Ohio Supreme Court in Mitseff v. Wheeler, supra, used the term in "most circumstances", the Ninth District's opinion in KRK, Inc. v. Crone seems more definite and therefore easier for trial judges to follow.

Keeping Judicial Support Staff Happy

I used to give a talk once a year to University of Akron Law School students enrolled in a clinic program. The talk was titled "The Care and Feeding of Judges". One of the points that I made was that judges see their support staff every day while they see attorneys much less frequently. Even if you are an attorney whose practice takes you into a courtroom on a daily basis, for example, an assistant county prosecutor assigned to a particular courtroom, you are still seeing that judge much less frequently than his or her support staff.

What this means is that if you are arrogant, mean, or uncivil towards support staff, it is likely that the judge will learn of such behavior. Such behavior could influence how you are treated by that support staff. Such behavior might also affect how a judge handles discretionary matters like a motion for continuance or scheduling around an event on your calendar.

Over the course of the almost 21 years now that I have been a judge, I have had very few attorneys be rude to me either in or out of a courtroom. I have had many more, although certainly a very small minority, be rude to my support staff. Personally I find such behavior toward support staff more aggravating than such behavior toward myself. It strikes me as bullying to treat support staff in a way that you would never treat a judge.

Treat support staff the way you would want to be treated. Practice the Golden Rule: do onto others as you would want to be done to you. It was good advice over 2000 years ago and it is good advice now.

Thursday, December 28, 2006

Ohio Supreme Court Case: Robinson v. Bates

The Ohio Supreme Court issued a new case yesterday that will impact personal injury litigation in Ohio. The case, Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, has the following two paragraphs in the opinion syllabus:

1. Both an original medical bill rendered and the amount accepted as full
payment are admissible to prove the reasonableness and necessity of
charges rendered for medical and hospital care. (Wagner v. McDaniels
(1984), 9 Ohio St.3d 184, 9 OBR 469, 459 N.E.2d 561, followed.)

2. Any difference between an original medical bill and the amount accepted
as full payment for the bill is not a "benefit" under the collateral-source

The case came to the Ohio Supreme Court on a discretionary appeal from the Hamilton County Court of Appeals. Robinson, who was a tenant of Bates, tripped and fell over a concrete footer that had been exposed during construction by a contractor hired by Bates's son. Robinson knew that the construction work was taking place since she lived at the residence where the work was occurring . At trial Robinson proffered medical bills in the amount of $1919.00. She stipulated that the providers had accepted as payment in full the $1350.43 tendered by her medical insurance provider. Bates's attorney argued that the difference between the amount billed and the amount paid was a collateral-source benefit and therefore not admissible. The trial court limited her amount of damages to the amount paid by the insurance company. The trial court also directed a verdict for Bates holding that the concrete footer was an "open and obvious danger" and therefore there was no duty breached by Bates.

The Hamilton Court Court of Appeals reversed that decision. The Court of Appeals for Hamilton County reversed the judgment, stating that a jury should have determined the matter because reasonable minds could conclude that Bates, as the landlord, had violated her duty under R.C.
5321.04(A)(2) to repair the leased premises and that she had therefore committed negligence per se. Robinson v. Bates, 160 Ohio App.3d 668, 2005-Ohio-1879, 828 N.E.2d 657. The court of appeals also held that the trial court had erred in refusing to admit the original medical bills. Citing R.C. 2317.421 only in passing, it relied on the collateral-source rule to hold that Robinson was entitled to seek recovery of the entire amount of her medical bills, rather than simply the amount paid by her insurer. The case was remanded for a new trial.

The Ohio Supreme Court reversed the appellate court on the issue of the medical bills, as seen by the two paragraphs of the syllabus quoted above. The Ohio Supreme Court held that since there was a statutory duty of the landlord to repair the leased premises, the case should have been submitted to the jury. If the jury finds that there was a violation of the statutory duty to repair the leased premises, then the "open and obvious" doctrine will not protect Bates from liability. If, however, the jury found no such violation, then the "open and obvious" doctrine would be available to Bates as a defense.

The Ohio Supreme Court opinion was written by Justice Lanzinger. It was concurred in by Chief Justice Moyer, Justice Resnick, Justice Pfeifer and Justice O'Connor. Justice O'Donnell concurred in the judgment only. Justice Lundberg Stratton concurred in part and dissented in part. She agreed that both the amount billed and the amount paid should be admitted into evidence, but she thought that only the amount paid should be permitted as damages. Her reasoning was that if the jury only heard the amount that was actually paid, it might get a distorted view of what was the pain and suffering incurred by the plaintiff. Thus, she felt that admissibility of the amount billed was appropriate because it allowed the jury to more properly evaluate the extent of the plaintiff's injuries. She also felt, however, that allowing the jury to consider both in determining what amount to award was confusing and would be unfair to the defendant.

The entire opinion can be read at

Tuesday, December 19, 2006

Objections and Depositions

A lot of trial attorneys in Ohio believe that there is a difference between a "discovery" deposition and a "trial" deposition. This is an artificial distinction. The Ohio Rules of Civil Procedure do not make any distinction between depositions used for discovery purposes and depositions used during a trial.

Civ. R. 30 concerns depositions. It doesn't make any distinction between a "discovery" deposition or a "trial" deposition. It governs all depositions taken in a civil case, no matter what their purpose. Civ. R. 32 is the Rule that controls the use of depositions as evidence at a trial or other hearing. (Civ. R. 32 (A)). Civ. R. 32 (D) (3) covers errors and irregularities that occur during the taking of a deposition. Civ. R. 32 (D) (3) (a) and (b) read as follows:

(a) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.

(b) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition.

Note that objections that are waived are objections that could be "obviated, removed, or cured" if promptly presented, and objections as to the form of the questions or answers but other objections are not waived. Given the above language, it would seem that a party could still present objections when a deposition is presented at trial if the objection is one that could not have been obviated, cured, or removed if made at the time of the deposition. The upshot of this is that just because an objection is not made at the time of the taking of the deposition doesn't necessarily mean that it can't be made later. It also means that an attorney doesn't automatically "waive" any objection not made during the taking of the deposition.

One example of the above might be if an expert witness gave an opinion at a deposition that was based not on the witness's personal observations but on facts or data that had not yet been introduced into evidence. The opposing attorney at the deposition doesn't make an objection based on Evid. R. 703, assuming that the attorney propounding the evidence will have introduced the facts or data into evidence at the trial the deposition is presented at trial. If, in such a case, the underlying facts or data were not introduced prior to the presenting of the deposition, then the opposing attorney would seem to be able to object at trial. This is because arguably the basis for such an objection could not have been removed or obviated if made at the time of the taking of the deposition. There would be no way that the underlying facts or data could be introduced into evidence at the time of the taking of the deposition.

A more problematic example would be the following: a witness is testifying as to a statement made by a witness at the scene of an accident. The opposing attorney doesn't object at the time the deposition is taken, but objects at trial. The basis for the objection is hearsay. The attorney presenting the deposition argues that the statement is an excited utterance and if the objection had been made at the time of the taking of the deposition, the attorney would have introduced the foundational evidence required for the admission of such statement under Evid. R. 803 (2).

The bottom line: don't assume that just because your opponent hasn't objected at the time a deposition is taken, he or she has waived such objection, even if the deposition is one that is being taken for the purpose of introducing such deposition into evidence at trial.

Monday, December 11, 2006

Warning: Hearsay Ahead

When an attorney asks questions of a witness such as "are you aware", or "did you learn", often it is to hide the fact that the witness's knowledge is based on hearsay and not on personal knowledge. Evid. R. 602 requires that a witness have "personal knowledge" of a matter before testifying about such matter. The rule reads as follows:

RULE 602. Lack of Personal Knowledge
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.

"Personal knowledge", as used above, does not include information given to the witness by another, which, if offered for the truth of the matter asserted, is hearsay and subject to the provisions of Evid. R. 801, et seq. In the situation described above, the trial court should be told something like "Objection, lack of personal knowledge".

Friday, December 01, 2006

"We're Killing Each Other Off"

This last week I took part in a continuing legal education seminar sponsored by the Medina law firm of Walker and Jocke. I spoke on professionalism. During the discussion one of the lawyers present made the following observation about the decline of professionalism among attorneys: "We're killing each other off." What he meant by that was when lawyers act in an unprofessional manner toward each other and non-lawyers observe such interaction respect for the legal profession is diminished.

All of us who are lawyers and judges have seen lawyers be rude, boorish, and sometimes downright mean to each other. Often lawyers seem to believe that such behavior is necessary to prove their effectiveness to their clients or to intimidate opposing attorneys into settling cases. They never seem to think about the effect of such behavior on non-attorneys who are observing such behavior. Or, if they do think about it, they don't care enough to change their behavior.

This behavior is not common to all professions. You don't see doctors acting this way toward each other, or accountants, or professors, at least not in public. Such behavior seems peculiar to attorneys and perhaps political consultants.

One reason is that unlike other professions, law, and especially litigation, is inherently competitive. The adversarial system of justice pits lawyers against each other in the belief that out of the mix will emerge the truth. The adversarial system, however, doesn't mean that lawyers have to act uncivilly toward each other.

In the course of getting ready for my presentation I informally surveyed attorneys regarding conduct they saw as unprofessional. Examples they gave including yelling at opposing counsel, being rude during hearings and depositions, snatching papers from other attorneys' hands during depositions, and misrepresenting facts to a judge to gain an advantage. Such behavior does nothing to convey an image of professionalism to others, especially non-attorneys.

If you are an attorney and you are interacting with others, treat them the way you would want to be treated yourself. That is probably advice your Mom gave you when you were growing up, and it still works today.