[Cite as Bader v. Ferri, 2013-Ohio-3074.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




MEGAN A. BADER,

        PLAINTIFF-APPELLANT,                              CASE NO. 1-13-01

        v.

PAUL T. FERRI, ET AL.,                                    OPINION

        DEFENDANTS-APPELLEES.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CV20120454

                                      Judgment Affirmed

                              Date of Decision: July 15, 2013




APPEARANCES:

        Michael A. Rumer and Victoria Maisch Rumer for Appellant

        Carol K. Metz for Appellees
Case No. 1-13-01


PRESTON, P.J.

          {¶1} Plaintiff-appellant, Megan A. Bader (“Bader”), appeals the Allen

County Court of Common Pleas’ December 12, 2012 judgment entry granting the

motion for summary judgment of defendants-appellees Huffman, Kelley, Brock &

Gottschalk, LLC (“HKBG”) law firm and former HKBG associate, Paul G. Ferri

(“Ferri”) (collectively “Appellees”), and dismissing the case, and January 8, 2013

judgment entry denying Bader’s Civ.R. 60(B) motion for relief from the trial

court’s December 12, 2012 judgment entry. For the reasons that follow, we

affirm.

          {¶2} Bader filed a complaint against the Appellees on June 4, 2012,

alleging legal malpractice.    (Doc. No. 1).    Bader alleged that the Appellees

“agreed to provide legal representation to [Bader] with regard to a personal

injury/malpractice action which occurred on or about April, 2009 arising out of

[Bader’s] participation on the Women’s Golf Team at Bowling Green State

University [“BGSU”] * * *.” (Id. ¶ 4). She further alleged that the Appellees

“failed to institute the proper legal proceedings in [Bader’s] personal

injury/malpractice action against BGSU and/or others associated with BGSU

within the applicable statute of limitations period and, therefore, breached their

duties owed to [Bader].” (Id. ¶ 6). Bader alleged that as a result of the Appellees’

“negligent legal representation,” she was barred from recovering for her “personal


                                        -2-
Case No. 1-13-01


injury/malpractice action,” and that “[a]s a direct and proximate result of [the

Appellees’] breach of their duties to [Bader], [Bader] has suffered compensatory

and consequential damages, including but not limited to past and future medical

expenses, pain and suffering, and additional attorneys’ fees and expenses.” (Id. ¶

9).

      {¶3} The Appellees filed their answer on June 26, 2012, denying that they

were liable and that they caused Bader’s alleged damages. (Doc. No. 5). The trial

court issued a scheduling order on September 6, 2012, establishing dates and

deadlines in the case, including a June 3, 2013 deadline for filing motions for

summary judgment. (Doc. No. 9). The scheduling order stated, “[t]hirty days

after a motion for summary judgment is filed, it will be deemed submitted for

decision on the briefs and material submitted pursuant to Civ. R. 56(C) unless

otherwise ordered by the Court.” (Id.).

      {¶4} On November 5, 2012, the Appellees filed a “motion for summary

judgment as to underlying claim.” (Doc. No. 13). In it, they argued that the

Appellees were entitled to summary judgment because Bader’s “claim against

BGSU was precluded by the Release and Indemnity Agreement she signed prior to

consulting” the Appellees. (Id.). Attached to the motion was a two-paragraph

affidavit of Appellees’ attorney, Carol K. Metz, in which she swore that she was

“competent to testify as to the matters set forth herein” and to which she attached


                                          -3-
Case No. 1-13-01


“a true and accurate copy of the release received from Plaintiff’s Responses to

Defendants’ Request for Production of Documents.” (Metz Aff. ¶ 1-2, Ex. A,

Doc. No. 13, attached).

       {¶5} Three days later, counsel for the Appellees deposed Bader and her

parents, Marc and Cheryl Bader. (Doc. Nos. 14-16). On December 12, 2012—

thirty-seven days after the Appellees filed their motion for summary judgment—

the trial court issued a judgment entry granting summary judgment in favor of the

Appellees. (Doc. No. 17). The trial court concluded that summary judgment was

proper because Bader released BGSU from all liability in the underlying case for

which she retained the Appellees, and her underlying claim against BGSU was

thus precluded. (Id. at 1, 7). In its judgment entry, the trial court noted that Bader

did not respond to the Appellees’ motion for summary judgment. (Id. at 1).

       {¶6} Five days after the trial court filed its judgment entry, Bader moved

for relief from that judgment pursuant to Civ.R. 60(B). (Doc. No. 19). In her

motion, Bader argued that her counsel never received a copy of the Appellees’

motion for summary judgment, notwithstanding that motion’s certificate of

service, in which counsel for the Appellees certified that she served Bader’s

counsel with a copy of the motion “via regular U.S. mail, postage prepaid, on this

30th day of October, 2012 * * *.” (Id. at 1); (Doc. No. 13 at 10). Bader’s

attorneys swore in affidavits attached to Bader’s Civ.R. 60(B) motion that they did


                                         -4-
Case No. 1-13-01


not receive or see a copy of the Appellees’ motion for summary judgment before

December 14, 2012. (M. Rumer Aff., V. Rumer Aff., Maisch Aff., Doc. No. 19,

attached). Bader acknowledged that she signed the release—titled “RELEASE,

CONSENT TO TREATMENT, AND INDEMNIFICATION AGREEMENT”

(“Release”)—but argued that the Release applied only to her participation in golf

and that she possessed a meritorious claim because the Release did not bar

recovery for her alleged injury, which she says resulted from BGSU athletic

trainers’ improper diagnosis and failure to refer her to a qualified orthopedic or

neurosurgeon. (Doc. No. 19 at 5).

      {¶7} On January 2, 2013, the Appellees filed an opposition to Bader’s

Civ.R. 60(B) motion, arguing that Bader did not satisfy her burden under Civ.R.

60(B). (Doc. No. 20). They argued that the Release “expressly releases the

BGSU trainers from liability, including liability related to diagnosis and

treatment[.]” (Id. at 6). On January 8, 2013, the trial court issued a judgment

entry denying Bader’s Civ.R. 60(B) motion, concluding that while she made her

motion within a reasonable time and was entitled to relief under one of the

grounds stated in Civ.R. 60(B)(1) through (5), she failed to demonstrate that she

had a meritorious claim. (Doc. No. 21 at 3-8).




                                       -5-
Case No. 1-13-01


       {¶8} Bader appealed the trial court’s December 12, 2012 and January 8,

2013 judgment entries to this Court on January 10, 2013. (Doc. No. 23). She

raises five assignments of error for our review, which we address out of order.

                           Assignment of Error No. I

       The trial court erred in granting defendants’ motion for
       summary judgment in that defendants failed to meet the
       requisite standards of Civ. R. 56.

       {¶9} In her first assignment of error, Bader argues that it was error for the

trial court to consider Metz’s affidavit and the copy of the Release attached to it.

She argues that as the Appellees’ counsel, Metz did not have “personal

knowledge” of the Release and was not competent to authenticate it. Therefore,

Bader argues, the Release was not proper evidence under Civ.R. 56(C), and the

trial court erred in basing its summary judgment decision on it.

       {¶10} As an initial matter, Bader, in her notice of appeal, directly appealed

two judgment entries. (Doc. No. 23). We will, therefore, review each judgment

entry—the first granting summary judgment, and the second denying Bader’s

Civ.R. 60(B) motion—independently and according to the standard of review

governing each. See Civ.R. 54.

       {¶11} We review a decision to grant summary judgment de novo. Doe v.

Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there

is no genuine issue of material fact, the moving party is entitled to judgment as a


                                        -6-
Case No. 1-13-01


matter of law, and reasonable minds can reach but one conclusion when viewing

the evidence in favor of the non-moving party, and the conclusion is adverse to the

non-moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist.

Bd. of Edn., 69 Ohio St.3d 217, 219 (1994). If a non-moving party does not

respond to a motion for summary judgment, “summary judgment, if appropriate,

shall be entered against the party.” Chase Home Fin., L.L.C. v. Heft, 3d Dist. Nos.

8-10-14 and 8-11-16, 2012-Ohio-876, ¶ 28, quoting Civ.R. 56(E) (internal

quotation marks omitted).

       {¶12} Bader centers her argument on the trial court’s consideration of a

copy of the Release that she argues was improperly authenticated by Metz’s

affidavit. “Civ.R. 56(C) controls the materials that the court may consider when it

determines whether there are any triable issues of fact for the purposes of

summary judgment.” Armaly v. City of Wapakoneta, 3d Dist. No. 2-05-45, 2006-

Ohio-3629, ¶ 17, citing Bowmer v. Dettelbach, 109 Ohio App.3d 680, 684 (6th

Dist.1996). The rule directs the court to consider only “pleadings, depositions,

answers to interrogatories, written admissions, affidavits, transcripts of evidence,

and written stipulations of fact, if any, timely filed in the action * * *.” Civ.R.

56(C). See also Armaly, 2006-Ohio-3629, at ¶ 17.

       {¶13} “A document that does not fit within a category listed in Civ.R. 56

may be introduced as evidentiary material supporting a motion for summary


                                        -7-
Case No. 1-13-01


judgment where it is incorporated by reference in a properly framed affidavit.”

Retail Recovery Serv. of NJ v. Conley, 3d Dist. No. 10-09-15, 2010-Ohio-1256, ¶

15, citing Civ.R. 56(E) (additional citations omitted).       “The incorporated

document must be properly authenticated to be of the evidentiary nature required

by Civ.R. 56(C).” Id., citing Gen. Motors Acceptance Corp. v. Hollanshead, 105

Ohio App.3d 17, 20 (3d Dist.1995). However, when a party fails to object to

evidence that is otherwise inadmissible under Civ.R. 56(C), “the court may, but is

not required to consider such evidence when it determines whether summary

judgment is appropriate.” Armaly, 2006-Ohio-3629, at ¶ 17, citing State ex rel.

The V Cos. v. Marshall, 81 Ohio St.3d 467, 473 (1998) and Bowmer, 109 Ohio

App.3d at 684; Consumer Portfolio Servs., Inc. v. Staples, 6th Dist. No. S-06-031,

2007-Ohio-1531, ¶ 30, citing State ex rel. Cincinnati Enquirer v. Hamilton Cty.

Commrs., 1st Dist. No. C-010605, 2002-Ohio-2038.

      {¶14} In our de novo review of the trial court’s decision to grant summary

judgment, we consider the evidence that the trial court did, even if the evidence

was otherwise inadmissible. Staples, 2007-Ohio-1531, at ¶ 30, citing State ex rel.

Cincinnati Enquirer, 2002-Ohio-2038; Zivich v. Village of Northfield, 9th Dist.

No. 24836, 2010-Ohio-1039, ¶ 11. Conversely, we may not consider evidence

that the trial court did not consider. Murphy v. Reynoldsburg, 65 Ohio St.3d 356,

360 (1992).


                                       -8-
Case No. 1-13-01


       {¶15} Here, the trial court based its summary judgment decision on the

copy of the Release attached to Metz’s affidavit. We agree with Bader that Metz’s

affidavit was insufficient to authenticate the copy of the Release attached to it.

Civ.R. 56(E) requires that affidavits “be made on personal knowledge,” “set forth

such facts as would be admissible in evidence,” and “show affirmatively that the

affiant is competent to testify to the matters stated in the affidavit.” Conley, 2010-

Ohio-1256, at ¶ 16, quoting Civ.R. 56(E) (internal quotations marks omitted).

“Personal knowledge” must be “gained through firsthand observation or

experience.” Emerson Family Ltd. Partnership v. Emerson Tool, L.L.C., 9th Dist.

No. 26200, 2012-Ohio-5647, ¶ 19, quoting Bonacorsi v. Wheeling & Lake Erie Ry.

Co., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 21 and Black’s Law Dictionary 875

(7th Ed.Rev.1999) (internal quotation marks omitted). “The subject of a witness’s

testimony must have been perceived through one or more of the senses of the

witness.” Id., quoting Bonacorsi, 2002-Ohio-2220, at ¶ 21 and Weissenberger,

Ohio Evidence 213, Section 602.1 (2002) (internal quotation marks omitted).

“Courts have found that the personal knowledge requirement of Civ.R. 56(E) is

satisfied where the affiant asserts personal knowledge and the nature of the facts

involved and the identity of the affiant ‘creates a reasonable inference that the

affiant has personal knowledge of the facts in the affidavit.’” Conley, 2010-Ohio-




                                         -9-
Case No. 1-13-01


1256, at ¶ 16, quoting Bank One, N.A. v. Lytle, 9th Dist. No. 04CA008463, 2004-

Ohio-6547, ¶ 13.

       {¶16} The affidavit of an attorney swearing to having personal knowledge

of receiving a document—in discovery, for example—is insufficient to

authenticate the document under Civ.R. 56, unless the attorney prepared or

executed the document, perceived its preparation or execution with his or her

senses, or otherwise has personal knowledge of the document’s origin. Emerson

Family Ltd. Partnership, 2012-Ohio-5647, at ¶ 20-21, citing Johnston v. Great

Lakes Constr. Co., 9th Dist. No. 95CA006111, *3 (Feb. 28, 1996) and Windsor v.

Noldge, 3d Dist. No. 13-96-11, *2 (Aug. 26, 1996). “Even if the attorney had

personal knowledge about where he received the documents and received them

directly from the keeper    of those records, an attestation to that effect does not

serve to authenticate them.” Id. at ¶ 21, citing Windsor at *2.

       {¶17} In the body of her affidavit, Metz swore that she was competent to

testify to the matters set forth in the affidavit and attached a copy of the Release

that she received in discovery:

       {¶18} Affiant, Carol Metz, first duly sworn states as follows:

       1.   I am of legal age and competent to testify as to the matters set

       forth herein.




                                        -10-
Case No. 1-13-01


       2.   Attached as Exhibit A is a true and accurate copy of the release

       received from Plaintiff’s Responses to Defendants’ Request for

       Production of Documents.

       AFFIANT FURTHER SAITH NAUGHT

(Metz Aff., Doc. No. 13, attached). In her affidavit, Metz did not swear to any

facts indicating that she had personal knowledge of the Release’s preparation,

execution, or origin. Rather, it is clear from her affidavit that Metz intended to

authenticate the Release based only on her having received it in discovery. Her

attempt at authentication of the Release was insufficient under Civ.R. 56, and the

Release was not evidence properly before the trial court. Emerson Family Ltd.

Partnership, 2012-Ohio-5647, at ¶ 21, citing Windsor at *2.

       {¶19} Nevertheless, we hold that it was not error for the trial court to

consider the Release. At the time it issued its judgment entry granting summary

judgment in favor of the Appellees, the trial court had before it only the

Appellees’ motion for summary judgment, with a certificate of service and Metz’s

affidavit attached to it. Bader did not file a response because, according to her and

her counsel, she did not receive a copy of the Appellees’ motion.

       {¶20} “A presumption of proper service arises when the record reflects that

a party has followed the Civil Rules pertaining to service of process.” Poorman v.

Ohio Adult Parole Authority, 4th Dist. No. 01CA16, 2002-Ohio-1059, *2, citing


                                        -11-
Case No. 1-13-01


Potter v. Troy, 78 Ohio App.3d 372, 377 (2d Dist.1992). Civ.R. 5(B)(3) requires

that served documents be “accompanied by a completed proof of service which

shall state the date and manner of service, specifically identify the division of

Civ.R. 5(B)(2) by which the service was made, and be signed in accordance with

Civ.R. 11.” Here, the certificate of service accompanying the Appellees’ motion

for summary judgment and signed by Metz stated:

                          CERTIFICATE OF SERVICE

             The undersigned hereby certifies the foregoing Defendants

      Paul T. Ferri and Huffman, Kelley, Brock & Gottschalk, LLC’s

      Motion for Summary Judgment as to Underlying Claim was served

      via regular U.S. mail, postage prepaid, on this 30th day of October,

      2012 to the following:

      Victoria Maisch Rumer, Esq.
      Michael A. Rumer, Esq.
      Rumer & Maisch
      212 N. Elizabeth Street, Suite 410
      Lima, Ohio 45801

      Attorneys for Plaintiff

(Emphasis sic.) (Doc. No. 13 at 10). This certificate of service complied with

Civ.R. 5(B)(3) because it: stated the date of service—October 30, 2012; stated the

manner of service—regular U.S. mail, postage prepaid—which constituted service

under Civ.R. 5(B)(2)(c); and, was signed by Appellees’ counsel.


                                      -12-
Case No. 1-13-01


       {¶21} Based on the uncontested, Civil Rule-compliant certificate of service

that the trial court had before it at the time, it was free to presume that the

Appellees served Bader’s counsel with a copy of their motion for summary

judgment.    Poorman, 2002-Ohio-1059, at *2.          While Metz’s affidavit was

insufficient to authenticate the copy of the Release attached to it, at the time the

trial court decided the Appellees’ motion for summary judgment, Bader had not

responded or objected, and the trial court was free to consider it as well. Armaly,

2006-Ohio-3629, at ¶ 17. Therefore, the trial court did not consider more or less

than it was allowed to consider in rendering its summary judgment decision.

       {¶22} We recognize that this treatment of the record may appear harsh

considering that—after learning of the trial court’s decision to grant the Appellees’

motion for summary judgment—Bader’s attorneys filed uncontested affidavits

with a Civ.R. 60(B) motion swearing that they did not receive a copy of the

Appellees’ motion.    We also recognize that “[s]ummary judgment should be

granted with caution, resolving all doubts in favor of the nonmoving party.”

ISHA, Inc. v. Risser, 3d Dist. No. 1-12-47, 2013-Ohio-2149, ¶ 28, citing Osborne

v. Lyles, 63 Ohio St.3d 326, 333 (1992). However, in this direct appeal from the

trial court’s summary judgment decision, we consider the evidence that the trial

court did at the time it rendered its decision—no more, and no less. Staples, 2007-

Ohio-1531, at ¶ 30. Indeed, it would be improper for us to consider portions of the


                                        -13-
Case No. 1-13-01


record postdating the trial court’s summary judgment decision in evaluating

whether the trial court should have rendered summary judgment. See Reveille II,

L.L.C. v. Ion, 9th Dist. No. 25456, 2011-Ohio-1212, ¶ 13. When Bader learned of

the trial court’s decision, she was not without recourse. Indeed, she filed a Civ.R.

60(B) motion.

       {¶23} We next proceed to the merits of the trial court’s summary judgment.

In her brief, Bader does not address the substance of the trial court’s summary

judgment decision; however, she argues in her first assignment of error that the

Appellees “failed to meet the requisite standards of Civ. R. 56.” (Appellant’s

Brief at 3). Therefore, we elect to address the substance of the trial court’s

summary judgment decision, in which it concluded that summary judgment on

Bader’s legal malpractice claim against the Appellees was proper because Bader

could not have prevailed on her underlying claim against BGSU.

       {¶24} “The Ohio Supreme Court has held that the following elements are

necessary to establish a cause of action for legal malpractice: ‘(1) an attorney-

client relationship, (2) professional duty arising from that relationship, (3) breach

of that duty, (4) proximate cause, (5) and damages.’” Christensen v. Leuthold, 3d

Dist. No. 3-09-14, 2009-Ohio-6869, ¶ 18, quoting Shoemaker v. Gindlesberger,

118 Ohio St.3d 226, 2008-Ohio-2012, ¶ 8. “‘If a plaintiff fails to establish a

genuine issue of material fact as to any of the elements, the defendant is entitled to


                                        -14-
Case No. 1-13-01


summary judgment on a legal-malpractice claim.’” Id., quoting Shoemaker, 2008-

Ohio-2012, at ¶ 8.

       {¶25} “Where a plaintiff files a legal malpractice action premised on an

attorney’s failure to file an action within the applicable statute of limitations

period, the plaintiff must establish that, but for the attorney’s negligence, the

plaintiff would have succeeded on the ‘case within a case.’” Carter v. Vivyan,

10th Dist. No. 11AP-1037, 2012-Ohio-3652, ¶ 15, citing Young-Hatten v. Taylor,

10th Dist. No. 08AP-511, 2009-Ohio-1185, ¶ 26, Neighbors v. Ellis, 120 Ohio

St.3d 276, 2008-Ohio-6105, ¶ 2, and Environmental Network Corp. v. Goodman

Weiss Miller, L.L.P., 119 Ohio St.3d 209, 2008-Ohio-3833. If there is no genuine

issue of material fact that the plaintiff would not have succeeded on the underlying

claim, then summary judgment in favor of the defendant is proper.               See

Christensen, 2009-Ohio-6869, at ¶ 18, quoting Shoemaker, 2008-Ohio-2012, at ¶

8.

       {¶26} Bader based her legal malpractice claim against the Appellees on

their alleged failure to file Bader’s “personal injury/malpractice action” against

BGSU within the applicable statute of limitations. (Complaint ¶ 6, Doc. No. 1).

Thus, if there was no genuine issue of material fact that Bader would not have

succeeded on her “personal injury/malpractice action” against BGSU, then




                                       -15-
Case No. 1-13-01


summary judgment in favor of the Appellees was proper. See Christensen, 2009-

Ohio-6869, at ¶ 18, quoting Shoemaker, 2008-Ohio-2012, at ¶ 8.

      {¶27} The trial court based its summary judgment decision on the Release,

in which Bader released BGSU, its athletic trainers, and other affiliates from

liability for any claims resulting from Bader’s participation in intercollegiate

athletics, including any consequences from diagnostic, medical, or surgical

treatment:

      RELEASE

      In further consideration of being permitted to participate in

      intercollegiate athletics, I herby [sic] accept all risks to my health

      and of my injury or death that may result from such participation. I

      hereby release and discharge BGSU, its board of trustees, officers,

      employees, agents and representatives from any liability to me, my

      personal representatives, heirs, next of kin, and assigns, from any

      and all claims, causes of action, damages, and costs for any and all

      illness or injury to my person, including death that may result from

      or occur during my participation, or loss of or damage to my

      property, to the full extent allowed by law.




                                       -16-
Case No. 1-13-01


      CONSENT TO TREATMENT

      In further consideration of being permitted to participate in

      intercollegiate athletics, I hereby authorize and consent to such

      diagnostic, medical and/or surgical treatment as may be considered

      necessary or appropriate under the circumstances for the treatment of

      any illness or injury arising from or sustained by me while engaged

      in activities related to intercollegiate athletics.    The attending

      physician(s), athletic trainer(s), appropriate staff, and BGSU and its

      officers, agents, and employees shall not be responsible in any way

      for any consequences from said diagnostic, medical and/or surgical

      treatment and are hereby released from any and all claims and causes

      of action that may arise, grow out of, or be incident to such diagnosis

      and treatment, to the full extent allowed by law.

      ***

      I HAVE CAREFULLY READ THIS AGREEMENT AND

      UNDERSTAND IT TO BE A RELEASE OF ALL CLAIMS

      AND CAUSES OF ACTION FOR INJURY OR DEATH OR

      DAMAGE TO MY PROPERTY THAT OCCURS WHILE

      PARTICIPATING IN INTERCOLLEGIATE ATHLETICS * *

      *.


                                       -17-
Case No. 1-13-01


(Emphasis sic.) (Release, Metz Aff., Ex. A, Doc. No. 13, attached).

       {¶28} “Releases from liability for future tortious conduct are generally not

favored by the law and are narrowly construed.” Brown-Spurgeon v. Paul Davis

Systems of Tri-State Area, Inc., 12th Dist. No. CA2012-09-069, 2013-Ohio-1845,

¶ 50, citing Glaspell v. Ohio Edison Co., 29 Ohio St.3d 44, 46-47 (1987). “Such

exculpatory clauses are to be strictly construed against the drafter unless the

language is clear and unequivocal.” Id., citing Glaspell, 29 Ohio St.3d at 47.

“Additionally, while the execution of a release may bar claims of negligence, it

cannot bar claims of willful and wanton conduct.” Id. (citations omitted).

       {¶29} “Nonetheless, courts routinely apply such releases to bar future tort

liability as long as the intent of the parties, with regard to exactly what kind of

liability and what persons [or] entities are being released, is stated in clear and

unambiguous terms.” Id. at ¶ 51, citing Hague v. Summit Acres Skilled Nursing &

Rehab., 7th Dist. No. 09 NO 364, 2010-Ohio-6404, ¶ 20. “On the other hand,

where the language of the release is ambiguous or too general, courts have held

that the intent of the parties is a factual matter for the jury.” Id., citing Hague,

2010-Ohio-6404, at ¶ 20. “‘The pivotal inquiry is whether it is clear from the

general terms of the entire contract, considered in light of what an ordinary

prudent and knowledgeable party of the same class would understand, that the




                                       -18-
Case No. 1-13-01


proprietor is to be relieved from liability for its own negligence.’” Id., quoting

Swartzentruber v. Wee-K Corp., 117 Ohio App.3d 420, 425 (4th Dist.1997).

       {¶30} We agree with the trial court that the Release clearly and

unambiguously reflects the intent of Bader and BGSU and barred Bader’s

“personal injury/malpractice action” as a matter of law. We conclude, as the

Fourth District did in Swartzentruber, that it is sufficiently clear from the general

terms of the Release, considered in light of what an ordinary prudent and

knowledgeable student-athlete would understand, that BGSU and its employees,

agents, and representatives were to be relieved from liability for their own

negligence. 117 Ohio App.3d at 425. The Release applied to “any and all claims”

resulting from “participation” in intercollegiate athletics, as well as “any and all

claims” arising from “diagnostic, medical and/or surgical treatment” of injuries

sustained by Bader “while engaged in activities related to intercollegiate athletics

* * *.” Id. at 426 (“[I]t is difficult to construe a release ‘from any and all claims’

that arise ‘out of any and all personal injuries’ as anything but a release of liability

for negligence.”). Above the signature line is a conspicuous, bolded statement

reading, “I HAVE CAREFULLY READ THIS AGREEMENT AND

UNDERSTAND IT TO BE A RELEASE OF ALL CLAIMS AND CAUSES

OF    ACTION        FOR     INJURY       *   *   *    THAT      OCCURS        WHILE

PARTICIPATING IN INTERCOLLEGIATE ATHLETICS * * *.” The scope


                                         -19-
Case No. 1-13-01


of the Release is bounded by the phrase, “to the full extent allowed by law.”

Finally, the Release clearly sets forth who Bader was releasing: “BGSU, its board

of trustees, officers, employees, agents and representatives” in the “RELEASE”

clause, and “[t]he attending physician(s), athletic trainer(s), appropriate staff, and

BGSU and its officers, agents, and employees” in the “CONSENT TO

TREATMENT” clause. For these reasons, we conclude that the Release is clear,

unambiguous, and enforceable.

       {¶31} Having concluded that the Release clearly and unambiguously

reflects the intent of Bader and BGSU, we hold that the trial court properly

concluded that there is no genuine issue of material fact that Bader would not have

succeeded on her “personal injury/malpractice action” against BGSU because the

Release barred her claim. Bader alleged in her complaint that her “personal

injury/malpractice action * * * ar[ose] out of [Bader’s] participation on the

Women’s Golf Team at [BGSU] * * *.” (Complaint ¶ 4, Doc. No. 1). The

Release encompassed claims for injuries to Bader “that may result from or occur

during [Bader’s] participation” in intercollegiate athletics—in Bader’s case,

women’s golf. (Emphasis added.) (Release, Metz Aff., Ex. A, Doc. No. 13,

attached). Therefore, the plain language of the Release barred Bader’s underlying

“personal injury/malpractice action” against BGSU.

       {¶32} Bader’s first assignment of error is, therefore, overruled.


                                        -20-
Case No. 1-13-01


                           Assignment of Error No. IV

       The trial court erred in considering and granting defendants’
       motion for summary judgment in that defendants failed to
       timely file said motion pursuant to Civ. R. 5(D).

       {¶33} In her fourth assignment of error, Bader argues that the trial court

erred in considering the Appellees’ motion for summary judgment because the

Appellees filed it six days after purportedly serving it by mail on Bader, in

violation of Civ.R. 5(D). We disagree.

       {¶34} “Civ.R. 5(D) provides that all papers, after the complaint, required to

be served upon a party shall be filed with the court within three days after service

upon the opposing party.” Sovey v. Lending Group of Ohio, 8th Dist. No. 84823,

2005-Ohio-195, ¶ 9. Service by mailing a document to the recipient’s last known

address by United States mail is complete upon mailing.          Civ.R. 5(B)(2)(c).

“Failure to file within the three-day period can result in the court striking the

filing.” Sovey, 2005-Ohio-195, at ¶ 9. “The trial court’s decision regarding

whether to permit or reject a filing will not be disturbed on appeal absent an abuse

of discretion.” Id. at ¶ 10, citing State ex rel. Lindenschmidt v. Butler Cty. Bd. of

Commrs., 72 Ohio St.3d 464 (1995).

       {¶35} Here, the certificate of service accompanying the Appellees’ motion

for summary judgment said the motion was served by United States mail on

October 30, 2012—a Tuesday. (Doc. No. 13). The clerk’s stamp on the motion is


                                         -21-
Case No. 1-13-01


dated November 5, 2012—the following Monday, six calendar days and four

business days later. (Id.). Thus, the Appellees failed to timely file their motion

under Civ.R. 5(D). It is the responsibility of the filer, not the clerk of courts, to

ensure that a document is timely filed.

       {¶36} Nevertheless, Bader cites no authority suggesting that the trial court

abused its discretion by considering the Appellees’ motion. As we discussed

above, the certificate of service complied with the requirements of Civ.R. 5(B)(3).

“The filing of the subsequent pleading, written motion, or other important paper

under Rule 5(D), although obviously very important for record purposes, is a

secondary act.” Nosal v. Szabo, 8th Dist. Nos. 83974 and 83975, 2004-Ohio-

4076, ¶ 17, quoting 1970 Staff Note, Civ.R. 5 (internal quotation marks omitted).

We hold that the trial court did not abuse its discretion in considering the

Appellees’ motion.

       {¶37} Bader’s fourth assignment of error is, therefore, overruled.

                           Assignment of Error No. III

       The trial court erred when it determined plaintiff failed to meet
       the Civ. R. 60(B)(1) requirement when the court used improper
       Civ. R. 56(C) evidence to overcome plaintiff’s allegations in her
       complaint of operative facts giving rise to a meritorious claim.

                           Assignment of Error No. II

       The trial court erred and denied plaintiff due process of law
       when it determined that plaintiff did not receive service (notice)
       of defendants’ motion for summary judgment, but then denied

                                          -22-
Case No. 1-13-01


      plaintiff the right to respond to defendants’ motion for summary
      judgment by denying plaintiff relief from judgment.

      {¶38} In her third assignment of error, Bader argues that the trial court

erred when it concluded that she did not satisfy her burden under Civ.R. 60(B) of

establishing a meritorious claim. In her second assignment of error, Bader argues

that the trial court denied her due process of law when it concluded that she did

not receive a copy of the Appellees’ motion for summary judgment, but denied her

Civ.R. 60(B) motion and did not afford her the opportunity to respond to the

motion for summary judgment. We disagree.

      {¶39} Civ.R. 60(B) sets forth the bases upon which a court may relieve a

party from judgment and provides, in pertinent part:

      On motion and upon such terms as are just, the court may relieve a

      party or his legal representative from a final judgment, order or

      proceeding for the following reasons: (1) mistake, inadvertence,

      surprise or excusable neglect; (2) newly discovered evidence which

      by due diligence could not have been discovered in time to move for

      a new trial under Rule 59(B); (3) fraud (whether heretofore

      denominated intrinsic or extrinsic), misrepresentation or other

      misconduct of an adverse party; (4) the judgment has been satisfied,

      released or discharged, or a prior judgment upon which it is based

      has been reversed or otherwise vacated, or it is no longer equitable

                                       -23-
Case No. 1-13-01


       that the judgment should have prospective application; or (5) any

       other reason justifying relief from the judgment. The motion shall

       be made within a reasonable time, and for reasons (1), (2) and (3)

       not more than one year after the judgment, order or proceeding was

       entered or taken.

In order to prevail on a motion brought pursuant to Civ.R. 60(B),

       the movant must demonstrate that: (1) the party has a meritorious

       defense or claim to present if relief is granted; (2) the party is

       entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)

       through (5); and (3) the motion is made within a reasonable time,

       and, where the grounds of relief are Civ.R. 60(B)(1), (2), or (3), not

       more than one year after the judgment, order or proceeding was

       entered or taken. GTE Automatic Elec., Inc. v. ARC Industries, Inc.,

       47 Ohio St.2d 146 (1976), paragraph two of the syllabus.

“These requirements are independent and in the conjunctive; thus the test is not

fulfilled if any one of the requirements is not met.” Bish Constr., Inc. v. Wickham,

3d Dist. No. 13-12-16, 2013-Ohio-421, ¶ 15.

       {¶40} Where the movant is seeking relief from the granting of a motion for

summary judgment to which he did not respond, “the party seeking relief must

show that it could make an adequate response, demonstrating the existence of a


                                       -24-
Case No. 1-13-01


genuine issue of material fact, pursuant to Dresher v. Burt (1996), 75 Ohio St.3d

280, 662 N.E.2d 264, if it had the opportunity to respond.” G&S Mfg. v. Lagos &

Lagos, 2d Dist. No. 2005 CA 72, 2007-Ohio-1507, ¶ 7, quoting Dysert v. State

Auto Mut. Ins. Co., 2d Dist. No. 98-CA-46 (Apr. 23, 1999) (internal quotation

marks omitted). In other words, the movant must allege “operative facts” with

enough specificity to demonstrate the existence of a genuine issue of material fact.

Id. at ¶ 7, 18; Community Natl. Bank v. Parsons, 3d Dist. No. 8-11-15, 2013-Ohio-

2383, ¶ 13.    “Operative facts are facts that tend to show the existence of a

meritorious defense or claim.” Gregory v. Abdul Aal, 11th Dist. No. 2002-T-0176,

2004-Ohio-1703, ¶ 22.

       {¶41} “A motion for relief from judgment under Civ.R. 60(B) is addressed

to the sound discretion of the trial court, and that court’s ruling will not be

disturbed on appeal absent a showing of abuse of discretion.” Griffey v. Rajan, 33

Ohio St.3d 75, 77 (1987). An abuse of discretion constitutes more than an error of

judgment; rather, it implies that the trial court acted unreasonably, arbitrarily, or

unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶42} Here, the trial court concluded that Bader made her Civ.R. 60(B)

motion within a reasonable time, thus satisfying the third prong of the GTE test.

(Doc. No. 21 at 3). The trial court also concluded that Bader satisfied the second

prong of the GTE test, presumably based on a theory of “excusable neglect” under


                                        -25-
Case No. 1-13-01


Civ.R. 60(B)(1). (Id. at 3-4). The trial court cited the uncontested affidavits of

Bader’s attorneys, in which they swore that they did not receive or see the

Appellees’ motion for summary judgment before the trial court issued its

December 12, 2012 judgment entry granting summary judgment. (Id.). However,

the trial court concluded that Bader failed to demonstrate that she had a

meritorious claim under the first prong of the GTE test.

       {¶43} To demonstrate that she had a meritorious claim, Bader was required

to allege sufficiently specific “operative facts” demonstrating the existence of a

genuine issue of material fact. G&S Mfg., 2007-Ohio-1507, at ¶ 7, 18. Bader

argued in her Civ.R. 60(B) motion that her alleged injuries were not covered by

the Release because the injuries stemmed not from her participation in golf at

BGSU, but from the BGSU athletic trainers improperly diagnosing her with

sciatica, and their refusal “to refer Bader to a qualified orthopedic or neurosurgeon

as requested by Bader.” (Doc. No. 19 at 5). The trial court rejected this argument,

concluding that Bader failed to allege sufficiently specific operative facts.

       {¶44} As we noted above, Bader alleged in her complaint that her “personal

injury/malpractice action * * * ar[ose] out of [her] participation on the Women’s

Golf Team at [BGSU] * * *.” (Complaint ¶ 4, Doc. No. 1). She backtracked in

her Civ.R. 60(B) motion, alleging that her injuries resulted from “the conduct of

the BGSU trainers,” “not her golf.” (Doc. No. 19 at 5). Even setting aside this


                                         -26-
Case No. 1-13-01


contradiction and accepting as true Bader’s allegations in her Civ.R. 60(B) motion,

they do not demonstrate facts tending to show the existence of a meritorious claim.

       {¶45} We concluded above that the Release is valid and enforceable against

Bader. In it, Bader “authorize[d] and consent[ed] to such diagnostic, medical

and/or surgical treatment as may be considered necessary or appropriate under the

circumstances for the treatment of any illness or injury arising from or sustained

by [Bader] while engaged in activities related to intercollegiate athletics,” and she

“released from any and all claims and causes of action that may arise, grow out of,

or be incident to such diagnosis and treatment, to the full extent allowed by law.”

Bader released the BGSU athletic trainers from negligence claims related to their

diagnosis and treatment of Bader, which encompasses the conduct that Bader

alleges in her Civ.R. 60(B) motion—an improper diagnosis and failure to refer

Bader to a specialist.

       {¶46} Bader failed to allege any facts demonstrating the existence of a

genuine issue of material fact. Bader failed to contest the authenticity of the

Release in the trial court and has waived that argument on appeal. Hartley v.

Miller, 3d Dist. No. 8-08-33, 2009-Ohio-1923, ¶ 17, citing Marysville

Newspapers, Inc. v. Delaware Gazette Co., Inc., 3d Dist. No. 14-06-34, 2007-

Ohio-4365, ¶ 23. In fact, in her Civ.R. 60(B) motion, Bader acknowledged that

the Release was “signed by Bader on August 21, 2007” and “was provided defense


                                        -27-
Case No. 1-13-01


counsel in discovery.” (Doc. No. 19 at 5). Nor has Bader alleged that the conduct

of the BGSU athletic trainers was wanton or willful and, therefore, not covered by

the Release.

      {¶47} We hold, therefore, that the trial court did not abuse its discretion in

concluding that Bader failed to allege sufficiently specific operative facts to

demonstrate a meritorious claim and in denying her Civ.R. 60(B) motion.

      {¶48} In her second assignment of error, Bader argues that the trial court

denied her due process of law when it denied her Civ.R. 60(B) motion and did not

permit her to respond to the Appellees’ motion for summary judgment.

      {¶49} Judging by her brief, it appears Bader believes she was automatically

entitled to an opportunity to respond to the Appellees’ motion for summary

judgment when the trial court acknowledged Bader’s attorneys’ uncontested

affidavits swearing that they did not receive or see a copy of the motion for

summary judgment before the trial court issued its decision granting summary

judgment.      Bader offers no authority supporting her blanket proposition and

ignores the requirements of the GTE test.

      {¶50} If Bader would have demonstrated the existence of a genuine issue of

material fact in her motion, in addition to satisfying the other elements of the GTE

test, then the trial court could have granted her motion and given her the

opportunity to respond to the Appellees’ motion for summary judgment. See G&S


                                       -28-
Case No. 1-13-01


Mfg., 2007-Ohio-1507, at ¶ 7.       The trial court’s acknowledging that Bader’s

attorneys did not receive a copy of the Appellees’ motion for summary judgment

satisfied but one prong of the GTE test—excusable neglect under Civ.R. 60(B)(1).

Byers v. Dearth, 4th Dist. No. 09CA3117, 2010-Ohio-1988, ¶ 10 (affirming trial

court’s denial of appellant’s Civ.R. 60(B) motion for relief from summary

judgment, despite appellant satisfying the second prong of the GTE test because

his counsel did not receive a copy of the motion for summary judgment).

       {¶51} Bader was still required to allege sufficiently specific operative facts

demonstrating the existence of a genuine issue of material fact. G&S Mfg., 2007-

Ohio-1507, at ¶ 7, 18. Her failure to do so does not constitute a violation of her

due process rights.

       {¶52} Bader’s third and second assignments of error are, therefore,

overruled.

                           Assignment of Error No. V

       The trial court erred in denying plaintiff a hearing on the
       motion for relief from judgment filed pursuant to Civ. R. 60(B).

       {¶53} In her fifth assignment of error, Bader argues that the trial court erred

by not holding a hearing on her Civ.R. 60(B) motion. We disagree.

       {¶54} “It is an abuse of discretion for a trial court to overrule a Civ.R.

60(B) motion for relief from judgment without holding an evidentiary hearing only

if the motion or supportive affidavits contain allegations of operative facts which

                                        -29-
Case No. 1-13-01


would warrant relief under Civ.R. 60(B).” (Emphasis sic.) McFall v. McFall, 9th

Dist. No. 26418, 2013-Ohio-2320, ¶ 13, quoting Aurora Loan Servs., L.L.C. v.

Wilcox, 2d Dist. No. 2009 CA 9, 2009-Ohio-4577, ¶ 15 (internal quotation marks

omitted).

       {¶55} We held above that the trial court properly concluded that Bader

failed to allege sufficiently specific operative facts tending to show the existence

of a genuine issue of material fact, or meritorious claim. Therefore, the trial court

did not abuse its discretion in denying Bader’s Civ.R. 60(B) motion without

holding an evidentiary hearing.

       {¶56} Bader’s fifth assignment of error is, therefore, overruled.

       {¶57} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

WILLAMOWSKI, J., concurs.

ROGERS, J., concurs in Judgment Only as to Assignment of Error No. I

/jlr




                                        -30-
