[Cite as Ramsey v. Dash Tree Servs., Inc., 2020-Ohio-2668.]


                                    IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


 MICHAEL RAMSEY,                                         :    OPINION

                  Plaintiff-Appellant,                   :
                                                              CASE NO. 2019-L-081
         - vs -                                          :

 DASH TREE SERVICES, INC., et al.,                       :

                  Defendants-Appellees.                  :


 Civil Appeal from the Lake County Court of Common Pleas, Case No. 2018 CV 001365.

 Judgment: Affirmed in part; reversed in part and remanded.


 Ryan M. Harrell, Green Haines Sgambati Co., LPA, 100 Federal Plaza East, Suite 800,
 P.O. Box 849, Youngstown, Ohio 44501 (For Plaintiff-Appellant).

 Gary L. Nicholson, Clark D. Rice, and Richard C.O. Rezie, Gallagher Sharp, LLP, Sixth
 Floor, Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115 (For Defendant-
 Appellant).



THOMAS R. WRIGHT, J.

        {¶1}      Appellant, Michael Ramsey, appeals the judgment granting summary

judgment in favor of Appellees, Dash Tree Services, Inc. and David Pitz. We affirm in

part, reverse in part, and remand.

        {¶2}      Ramsey was employed as a laborer and driver by Dash Tree Services, Inc.

(Dash), which is owned and operated by David Pitz. In September of 2017 while at a

jobsite, Pitz was operating a stump grinder via remote control when it ran over Ramsey’s
foot and leg causing personal injuries. Months earlier, Pitz had disabled the stump

grinder’s audible warning beeper that sounded when the machine was in motion.

       {¶3}   Ramsey filed suit and his first amended complaint names Dash and Pitz as

defendants and alleges they committed employer intentional tort in violation of R.C.

2745.01. Ramsey also asserts common law tort claims against Dash and Pitz. After the

parties completed discovery, Dash and Pitz moved for summary judgment, which the trial

court granted on all claims.

       {¶4}   Ramsey raises three assigned errors:

       {¶5}   “The trial court committed prejudicial error by not denying summary

judgment on appellant’s claims against appellee and movant David Pitz after he failed his

initial burden as required by Ohio Civ.R. 56 and other relevant, binding case law. (T.d.

48).

       {¶6}   “The trial court committed prejudicial error by considering and relying upon

arguments and evidence contained only in a proposed pleading which was never filed

and not made a part of the record. (T.d. 48).

       {¶7}   “The trial court committed prejudicial error by finding there were no genuine

issues of material fact regarding appellant Ramsey’s common law claims against appellee

Pitz and consequently granting summary judgment in Pitz’s favor. (T.d. 48).”

       {¶8}   Ramsey does not take issue with the trial court’s decision awarding Dash

summary judgment and does not contest its summary judgment decision in favor of Pitz

on his statutory claim. Instead, each assigned error challenges that summary judgment

was improper on Ramsey’s common law intentional tort claim against Pitz in his personal

capacity as a co-employee under Head v. Reilly Painting & Contracting, Inc., 8th Dist.




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Cuyahoga No. 101718, 2015-Ohio-688, 28 N.E.3d 126, ¶ 15-18 (analyzing a claim of co-

employee intentional tort under Fyffe v. Jeno's, Inc., 59 Ohio St.3d 115, 570 N.E.2d 1108

(1991), without addressing whether R.C. 2745.01 supersedes all common law intentional

tort claims against fellow employees because the issue was not raised on appeal).

       {¶9}    Ramsey’s first assignment raises a procedural deficiency and argues

summary judgment in Pitz’s favor on Ramsey’s common law claim was impermissible

because Pitz did not initially move for summary judgment on this basis. We agree.

       {¶10} “The application of a civil rule is a question of law, which we review de

novo.” Haskett v. Haskett, 11th Dist. Lake No. 2011-L-155, 2013-Ohio-145, ¶ 17, citing

Gumins v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 10AP-941, 2011-Ohio-

3314, ¶ 11.

       {¶11} Civ.R. 56 governs summary judgment and states in part:

       {¶12} “(B) For Defending Party. A party against whom a claim, counterclaim, or

cross-claim is asserted or a declaratory judgment is sought may, at any time, move with

or without supporting affidavits for a summary judgment in the party's favor as to all or

any part of the claim, counterclaim, cross-claim, or declaratory judgment action. If the

action has been set for pretrial or trial, a motion for summary judgment may be made only

with leave of court.”

       {¶13} “(C) Motion and Proceedings. * * * 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. * * * A summary judgment shall not be




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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. * * *

       {¶14} “* * *

       {¶15} “(E) Form of Affidavits; Further Testimony; Defense Required. * * * When a

motion for summary judgment is made and supported as provided in this rule, an adverse

party may not rest upon the mere allegations or denials of the party's pleadings, but the

party's response, by affidavit or as otherwise provided in this rule, must set forth specific

facts showing that there is a genuine issue for trial. If the party does not so respond,

summary judgment, if appropriate, shall be entered against the party.”

       {¶16} The standards for granting summary judgment were fleshed out by the Ohio

Supreme Court in Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996):

       {¶17} “[T]he moving party bears the initial responsibility of informing the trial court

of the basis [or grounds] for the motion, and identifying those portions of the record before

the trial court which demonstrate the absence of a genuine issue of fact on a material

element of the nonmoving party's claim. * * * That is, the moving party bears the initial

burden of demonstrating that there are no genuine issues of material fact concerning an

essential element of the opponent's case. To accomplish this, the movant must be able

to point to evidentiary materials of the type listed in Civ.R. 56(C) that a court is to consider

in rendering summary judgment.” (Emphasis sic.)




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        {¶18} And “[i]f the moving party fails to satisfy its initial burden, the motion for

summary judgment must be denied. If the moving party has satisfied its initial burden, the

nonmoving party has a reciprocal burden outlined in the last sentence of Civ.R. 56(E) * *

*.” Id. at 293.

        {¶19} As a procedural tool designed to shortcut litigation, summary judgment

places the burden strictly upon the moving party to argue and establish that there is no

genuine issue of material fact and that the movant is entitled to judgment as a matter of

law. Fugate v. Volck, 79 Ohio App.3d 263, 266, 607 N.E.2d 78 (2nd Dist.1992), citing

AAAA Enterprises v. River Place, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “While

the party responding to the motion may have a formidable burden of proof to overcome

at trial, he does not have that burden in responding to the motion for summary judgment

* * *.” Id.

        {¶20} Here, appellees’ motion for summary judgment did not seek summary

judgment on Ramsey’s common law claim against Pitz.            Instead, the motion seeks

summary judgment on the statutory employer intentional tort claims against both

appellees and focuses on whether the removal of the grinder’s audible warning

constituted an equipment safety guard. Appellees’ motion also contends that summary

judgment is proper in Pitz’s favor on a piercing the corporate veil theory of recovery.

However, the summary judgment motion does not mention or reference Ramsey’s

common law cause of action against Pitz based on Head v. Reilly Painting & Contracting,

Inc., supra.

        {¶21} In his brief in opposition to summary judgment, Ramsey points out this

deficiency and asserts that summary judgment cannot be granted on his common law




                                             5
claim against Pitz in his personal capacity because Pitz failed to carry his initial burden.

And because Pitz did not move on this basis, the burden did not shift to Ramsey placing

the onus on him to produce facts and law in his favor, and summary judgment on this

claim must be denied.

       {¶22} Notwithstanding Pitz’s failure in this regard, Ramsey agues in the alternative

in his opposition brief and explains why his common law claim against Pitz, in his personal

capacity, should survive a summary judgment challenge, assuming one had been raised.

Ramsey’s secondary argument triggered Pitz to address the issue for the first time in his

reply brief, yet Pitz did not seek leave to amend or supplement his motion for summary

judgment. The issue is only addressed in the reply.

       {¶23} Upon ruling on the summary judgment motion, the trial court does not

acknowledge Ramsey’s primary challenge opposing summary judgment on his common

law claim against Pitz, i.e., Pitz’s failure to move on this ground. As stated, the court

grants summary judgment in appellees’ favor on all claims, including the common law

claim against Pitz, finding that Ramsey failed to produce sufficient evidence on his

common claim based on Head v. Reilly Painting & Contracting, Inc., supra, assuming it

is a viable cause of action.

       {¶24} As Ramsey argues, the party seeking summary judgment bears

the initial burden of informing the trial court of the factual and legal basis for the motion

and directing the court to record evidence that demonstrates the absence of a genuine

issue of material fact. Civ.R. 56(A); Dresher at 293, 662 N.E.2d 264. But when, as here,

the moving party fails to discharge his initial burden, the burden does not shift to the

nonmoving party under Civ.R. 56(E), and summary judgment must be denied. Id.; Hicks




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v. Cadle Co., 11th Dist. Trumbull No. 2014-T-0103, 2016-Ohio-4728, 66 N.E.3d 1255, ¶

20; Palmer v. Bowers, 9th Dist. Lorain No. 17CA011137, 2019-Ohio-1274, ¶ 27 (rejecting

arguments and evidence raised for the first time in movant’s reply brief as “circumvent[ing]

the substance of Civ.R. 56 and the Dresher burden shifting”); Carl Ralston Ins. Agency,

Inc. v. Kenneth A. Boldt Ins. Agency, Inc., 9th Dist. Summit No. 23016, 2006-Ohio-3916,

¶ 12 (finding deposition attached to reply brief insufficient to satisfy the movant’s burden

under Dresher).

       {¶25} And because Ramsey’s primary argument has merit, the court should have

denied summary judgment on that basis.            Thus, it erred in addressing Ramsey’s

alternative argument and addressing Ramsey’s common law claim on the merits.

       {¶26} Accordingly, Ramsey’s first assigned error has merit.             The award of

summary judgment on Ramsey’s common law claim against Pitz was improper and an

error of law. Thus, that aspect of the trial court’s decision is reversed, and the case is

remanded. Because Ramsey does not challenge the summary judgment award against

him on his other claims for relief, we affirm that part of the court’s decision.

       {¶27} Ramsey’s remaining two assigned error are moot since each likewise only

addresses the propriety of summary judgment on Ramsey’s common law claim against

Pitz. State v. Raybould, 11th Dist. Portage No. 2018-P-0085, 2019-Ohio-3057, ¶ 35.

       {¶28} The trial court’s decision is affirmed in part, reversed in part, and remanded

for further proceedings.

CYNTHIA WESTCOTT RICE, J.,

MARY JANE TRAPP, J.,

concur.




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