[Cite as Wemer v. Walker, 2013-Ohio-2005.]


                                      COURT OF APPEALS
                                     KNOX COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


JAMES R. WEMER, ET AL.,                      :   JUDGES:
                                             :
                                             :   Hon. John W. Wise, P.J.
       Plaintiffs-Appellants                 :   Hon. Patricia A. Delaney, J.
                                             :   Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :   Case No. 12CA17
JOHN WALKER AKA JOHNNIE                      :
WALKER                                       :
                                             :
                                             :
       Defendant-Appellee                    :   OPINION


CHARACTER OF PROCEEDING:                         Appeal from the Knox County Court of
                                                 Common Pleas, Case No. 11PI03-0146



JUDGMENT:                                        Reversed and Remanded




DATE OF JUDGMENT ENTRY:                          May 5, 2013




APPEARANCES:

For Appellants:                                  For Appellee:
Robert E. Cesner, Jr.                            Bruce A. Curry
456 Haymore Avenue North                         Curry, Roby & Mulvey Co., LLC
Worthington, Ohio 43085-2445                     8000 Ravine’s Edge Court, Ste. 103
                                                 Columbus, Ohio 43235
Baldwin, J.

      {¶1} Plaintiffs-appellants James R. Wemer and Clara Wemer appeal from the

July 24, 2012 Judgment Entry of the Knox County Court of Common Pleas granting

the Motion for Summary Judgment filed by appellee John Walker aka Johnnie Walker.

                          STATEMENT OF THE FACTS AND CASE

      {¶2} On or about May 31, 2010, appellant James Wemer was injured when he

was bit by one of two ponies owned by appellee John Walker. Subsequently, on

March 11, 2011, appellant and his wife, Clara Wemer, filed a personal injury complaint

against appellee in the Knox County Court of Common Pleas. Appellee filed an

answer to their complaint on March 31, 2011. Appellee, in his answer, raised the

affirmative defenses of comparative negligence, assumption of the risk, and failure to

join all necessary and/or indispensible parties and an affirmative defense that he did

not know or should not have known of any vicious propensities of the subject ponies.

      {¶3} Appellee, with leave of court, filed a Motion for Summary Judgment on

March 20, 2012, arguing that he was immune from liability under Ohio’s Equine

Activity Liability Act, which is codified at R.C. 2305.321. Appellants filed a

memorandum in opposition to appellee’s motion. Pursuant to a Judgment Entry filed

on July 24, 2012, the trial court granted appellee’s motion.

      {¶4} Appellants now raise the following assignments of error on appeal:

      {¶5} “I. THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION

FOR SUMMARY JUDGMENT. APPELLANTS ARE ENTITLED TO A TRIAL UPON

THE MERITS, BECAUSE THE EVIDENCE PRESENTS A JURY QUESTION ON THE

ISSUE OF WHETHER THE ACTS OR OMISSIONS OF THE APPELLEE
CONSTITUTE A FORFEITURE OF IMMUNITY UNDER O.R.C. 2305.321(B)(2)(b)

AND (d).”

       {¶6} “II.   THE    TRIAL     COURT      ERRED      IN   GRANTING       PLAINTIFF-

APPELLANT’S (SIC) MOTION FOR SUMMARY JUDGMENT UPON THE BASIS

THAT THIS DECISION DENIED THEM A SUBSTANTIVE RIGHT TO A REMEDY, AS

GUARANTEED IN SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.”

                                               I, II

  {¶7}        Appellants, in their two assignments of error, argue that the trial court

erred in granting appellee’s Motion for Summary Judgment. Appellants, in their first

assignment of error, argue that the evidence presents a jury question as to whether or

not appellee’s acts or omissions constituted a forfeiture of immunity under R.C.

2305.321(B). In their second assignment of error, they contend that the trial court’s

decision denied them a right to a remedy.

  {¶8}        As noted by the court in Supportive Solutions Training Academy L.L.C. v.

Electronic Classroom of Tomorrow, 8th Dist. Nos. 95022, 95287, 2012-Ohio-1185,

“Under Civ.R. 8(C), a defendant is required to affirmatively set forth matters that will

effectively preclude a finding of liability on the part of the defendant. Failure to raise

such defenses in a responsive pleading or motion will constitute a waiver of those

defenses. Statutory immunity is an affirmative defense, and if it is not raised in a timely

fashion, it is waived. State ex rel. Koren v. Grogan, 68 Ohio St.3d 590, 594, 629 N.E.2d

446 (1994), Civ.R. 8(C); Civ.R. 12(H). Further, even if immunity is asserted as an

affirmative defense in a defendant's answer, it still must be asserted in the motion for

summary judgment. Leibson v. Ohio Dept. of Mental Retardation & Developmental
Disabilities, 84 Ohio App.3d 751, 761, 618 N.E.2d 232 (8th Dist.1992). However, a

summary judgment motion is not the proper format in which to raise an affirmative

defense for the first time in a case. Mossa v. W. Credit Union, Inc., 84 Ohio App.3d 177,

181, 616 N.E.2d 571 (10th Dist.1992). Affirmative defenses cannot be asserted for the

first time in a motion for summary judgment. Carmen v. Link (1997), 119 Ohio App.3d

244, 695 N.E.2d 28.” Id at paragraph 24. See also Brown v. Lincoln Hts., 195 Ohio

App.3d 149, 2011-Ohio- 3551, 958 N.E.2d 1280 (1st Dist). In Brown, the appellant

argued that the trial court had erred in granting the appellee’s motion for summary

judgment on the issue of recreational-user immunity under R.C. 1533.181. The

appellant asserted that the appellee waived the affirmative defense of recreational-

user immunity by failing to raise the defense in its answer. The First District Court of

Appeals agreed and reversed the trial court’s grant of summary judgment on the basis

of recreational-user immunity. See also Eulrich v. Weaver Bros., Inc., 165 Ohio

App.3d 313, 2005-Ohio-5891, 846 N.E.2d 542 (3rd Dist.).

  {¶9}       In the case sub judice, appellee did not raise the affirmative defense of

immunity under R.C. 2305.321 in his answer. He, therefore, could not raise such

defense for the first time in his Motion for Summary Judgment. We find, therefore, that

the trial court erred in granting appellee’s Motion for Summary Judgment.

      {¶10} Appellants’ first assignment of error is, therefore, sustained. Appellants’

second assignment of error is moot.
      {¶11} Accordingly, the judgment of the Knox County Court of Common Pleas is

reversed and this matter is remanded for further proceedings.

By: Baldwin, J.

Wise, P.J. and

Delaney, J. concur.



                                       HON. CRAIG R. BALDWIN



                                       HON. JOHN W. WISE



                                       HON. PATRICIA A. DELANEY


CRB/dr
               IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO
                          FIFTH APPELLATE DISTRICT


                                        :
JAMES R. WEMER, ET. AL.,                :
                                        :
   Plaintiffs-Appellants                :       JUDGMENT ENTRY
                                        :
                                        :
-vs-                                    :
                                        :       Case No.   12CA17
JOHN WALKER AKA JOHNNIE                 :
WALKER                                  :
                                        :
   Defendant - Appellee                 :



       For the reasons stated in our accompanying Opinion on file, the judgment of the

Knox County Court of Common Pleas is reversed and this matter is remanded for

further proceedings. Costs assessed to appellee.




                                        HON. CRAIG R. BALDWIN



                                        HON. JOHN W. WISE



                                        HON. PATRICIA A. DELANEY
