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
Corp., 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.