[Cite as Committe v. Rudolchick, 2013-Ohio-2373.]


STATE OF OHIO                    )                      IN THE COURT OF APPEALS
                                 )ss:                   NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

MICHAEL COMMITTE                                        C.A. No.   12CA010186

        Appellant

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
JAMES RUDOLCHICK, et al.                                COURT OF COMMON PLEAS
                                                        COUNTY OF LORAIN, OHIO
        Appellees                                       CASE No.   05 CV 142911

                                DECISION AND JOURNAL ENTRY

Dated: June 10, 2013



        WHITMORE, Judge.

        {¶1}    Plaintiff-Appellant, Michael Committe, appeals from the judgment of the Lorain

County Court of Common Pleas, granting summary judgment in favor of Defendant-Appellee,

Thomas Arndt. This Court reverses.

                                                    I

        {¶2}    In 1999, Arndt purchased a 1997 Ford Escort for his wife’s use. He obtained

financing for the car through Fifth Third Bank and made payments of $252 per month.

Subsequently, Arndt and his wife began divorce proceedings and his wife took over the

payments for the car. In February 2000, however, she returned the car to Arndt. Arndt learned

that the bank meant to repossess the car because his wife had missed several loan payments.

After Arndt complained to one of his co-workers about the car, the co-worker expressed an

interest in buying it. Arndt and his co-worker, James Rudolchick, agreed that Rudolchick would

give $700 to Arndt in order to avoid the repossession and Arndt would deliver the car to
                                                    2


Rudolchick at his home. According to Arndt, they also agreed that (1) Rudolchick would take

over the monthly payments for the car until he could obtain financing, and (2) Rudolchick would

not drive the car until the title transferred to him.

        {¶3}    Rudolchick continued to make Arndt’s monthly loan payments to Fifth Third

Bank and retained possession of the Ford Escort until June 17, 2000. On that date, Rudolchick

drove the car and collided with another driver. The force of the impact caused the other driver’s

car to hit Committe, a motorcyclist who was stopped at the intersection where the collision

occurred. Committe received serious injuries as a result of the collision.

        {¶4}    Subsequently, Committe brought a suit against Arndt for negligent entrustment,

voluntarily dismissed the suit, and later re-filed it.1 Arndt filed a motion for summary judgment,

and Committe filed a memorandum in opposition. Arndt then filed a reply brief, and the trial

court issued a ruling on the written briefs. The trial court granted Arndt’s motion for summary

judgment, finding that there was no evidence Arndt knew or should have known Rudolchick was

an incompetent, inexperienced, or reckless driver.

        {¶5}    Committe now appeals from the trial court’s judgment and raises two assignments

of error for our review. For ease of analysis, we consolidate the assignments of error.

                                                   II

                                  Assignment of Error Number One

        THE TRIAL COURT ERRED IN GRANTING ARNDT’S MOTION FOR
        SUMMARY JUDGMENT.




1
  The suit also contained negligence counts against Rudolchick and Wingate (the driver of the
other vehicle involved in the incident), but those counts are not at issue in this appeal.
                                               3


                                Assignment of Error Number Two

       A GENUINE ISSUE OF MATERIAL FACT IS IN DISPUTE AS TO
       WHETHER ARNDT NEGLIGENTLY ENTRUSTED HIS VEHICLE TO
       RUDOLCHICK.

       {¶6}    In his two assignments of error, Committe argues that the trial court erred by

granting Arndt’s motion for summary judgment because genuine issues of material fact exist

with regard to whether Arndt negligently entrusted his vehicle to Rudolchick. We agree that the

trial court erred by granting the motion.

       {¶7}    Initially, we note that Arndt did not file a responsive brief on appeal. As such,

this Court may “accept [Committe’s] statement of the facts and issues as correct and reverse the

judgment if [his] brief reasonably appears to sustain such action.” App.R. 18(C). We further

note that the trial court here premised its judgment upon its own factual findings. Rather than

just set forth the evidence the parties presented in support of and in opposition to summary

judgment, the court’s entry provided:

       This Court finds that Defendant James Rudolchick was driving a car * * * owned
       by Defendant Thomas Arndt when he was involved in an accident with
       [Committe] on June 17, 2000. This Court finds that prior to the accident, * * *
       Defendant Arndt entered into a contract to sell the escort to Defendant Rudolchick
       and Defendant took possession of the escort at that time. This Court further finds
       that Defendants Thomas Arndt and James Rudolchick were co-workers who did
       not socialize outside of the job. This Court further finds that Defendant Thomas
       Arndt had no knowledge of Defendant James Rudolchick’s driving history and no
       reason to believe Defendant James Rudolchick presented a driving hazard.
       Therefore, this Court finds no genuine issue of material fact which would
       demonstrate that Defendant Thomas Arndt negligently entrusted his car to
       Defendant James Rudolchick.

In ruling on a motion for summary judgment, a trial court must not resolve issues of fact because

issues of fact are properly reserved for trial. See Tucker v. Kanzios, 9th Dist. No. 08CA009429,

2009-Ohio-2788, ¶ 16. Instead, the role of the trial court is to determine whether there exist

genuine issues of material fact. The trial court here improperly resolved issues of fact in its
                                                4


summary judgment ruling. “Nevertheless, ‘[i]nasmuch as [our] review of an order granting

summary judgment is de novo, * * * [we] will proceed to determine whether, despite the trial

court’s incorrect analysis, [Arndt] [was] entitled to summary judgment.” Schaffer v. First Merit,

N.A., 186 Ohio App.3d 173, 2009-Ohio-6146, ¶ 15, quoting Tucker at ¶ 16. Accord Weisfeld v.

PASCO, Inc., 9th Dist. No. 26416, 2013-Ohio-1528, ¶ 9.

        {¶8}   This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civ.R. 56(C), summary judgment is

proper if:

        (1) No genuine issue as to any material fact remains to be litigated; (2) the
        moving party is entitled to judgment as a matter of law; and (3) it appears from
        the evidence that reasonable minds can come to but one conclusion, and viewing
        such evidence most strongly in favor of the party against whom the motion for
        summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for the motion and

pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher

v. Burt, 75 Ohio St.3d 280, 292-293 (1996). Specifically, the moving party must support the

motion by pointing to some evidence in the record of the type listed in Civ.R. 56(C). Id. Once

this burden is satisfied, the non-moving party bears the burden of offering specific facts to show

a genuine issue for trial. Id. at 293. The non-moving party may not rest upon the mere

allegations and denials in the pleadings but instead must point to or submit some evidentiary

material that demonstrates a genuine dispute over a material fact. Henkle v. Henkle, 75 Ohio

App.3d 732, 735 (12th Dist.1991).

        {¶9}   “The owner of a motor vehicle may be liable for an injury to a third party on the

grounds of negligence if the owner knowingly, either through actual knowledge or through
                                               5


knowledge implied from the known facts and circumstances, entrusts its operation to an

inexperienced or incompetent person whose negligent operation causes the injury.” Alarcon v.

Rasanow, 9th Dist. No. 05CA008833, 2006-Ohio-5804, ¶ 14. To prove negligent entrustment,

the plaintiff must show “that the owner of the automobile had knowledge of the driver’s

incompetence, inexperience or reckless tendency as an operator, or that the owner, in the

exercise of ordinary care, should have known thereof from facts and circumstances with which

he was acquainted.” Maeder v. Hale, 9th Dist. No. 10CA009925, 2012-Ohio-2, ¶ 4, quoting Mt.

Nebo Baptist Church v. Cleveland Crafts Co., 154 Ohio St. 185 (1950), paragraph two of the

syllabus.   “The plaintiff must also show that the driver negligently operated the vehicle.”

Hignett v. Schwarz, 9th Dist. No. 10CA009762, 2011-Ohio-3252, ¶ 20.

       {¶10} As the summary judgment movant, Arndt bore the initial burden of showing the

absence of a genuine issue of material fact for trial. Arndt argued that he was entitled to

summary judgment on two separate bases. First, he argued that Committe’s claim against him

was barred by either the doctrine of res judicata or collateral estoppel. Second, he argued that

Committe’s claim should fail on its merits because there was no evidence that he knew or should

have known that Rudolchick was an incompetent, inexperienced, or reckless driver. In support

of his motion for summary judgment, Arndt relied upon: (1) a copy of his original motion for

summary judgment, which was filed in the original suit that Committe voluntarily dismissed; (2)

a copy of the trial judge’s ruling on Arndt’s motion for summary judgment in the original suit;

(3) a copy of a complaint against Rudolchick brought by Committe and his insurance company

in another suit; and (4) a copy of a certificate of judgment against Rudolchick in that suit. No

other items were attached as support for Arndt’s motion.
                                                 6


       {¶11} Civ.R. 56(C) limits the types of evidentiary materials that a party may present

when seeking or defending against summary judgment.             Civ.R. 56(C) (limiting summary

judgment evidence to “pleadings, depositions, answers to interrogatories, written admissions,

affidavits, transcripts of evidence, and written stipulations of fact”). “The proper procedure for

introducing evidentiary matter not specifically authorized by Civ.R. 56(C) is to incorporate it by

reference in a properly framed affidavit pursuant to Civ.R. 56(E).” Skidmore & Assoc. Co.,

L.P.A. v. Southerland, 89 Ohio App.3d 177, 179 (9th Dist.1993). “[I]f the opposing party fails to

object to improperly introduced evidentiary materials, the trial court may, in its sound discretion,

consider those materials in ruling on the summary judgment motion.” Wolford v. Sanchez, 9th

Dist. No. 05CA008674, 2005-Ohio-6992, ¶ 20, quoting Christe v. GMS Mgt. Co., Inc., 124 Ohio

App.3d 84, 90 (9th Dist.1997). If, however, the opposing party objects to the materials on the

basis that they have not been properly introduced under Civ.R. 56(C), the trial court may not rely

upon them in ruling on the motion for summary judgment. Target Natl. Bank v. Enos, 9th Dist.

No. 25268, 2010-Ohio-6307, ¶ 8.

       {¶12} None of the items that Arndt attached to his motion for summary judgment were

proper Civ.R. 56(C) materials.      In his memorandum in opposition to summary judgment,

Committe specifically objected to Arndt’s motion on the basis that none of the items he attached

were proper Civ.R. 56(C) evidence. “Because [Committe] objected to [Arndt’s] materials on the

basis that they were not proper Civ.R. 56(C) evidence, the trial court did not have the discretion

to consider them in the absence of a proper affidavit.” Id. The only affidavit that was included

in Arndt’s motion was an affidavit that was attached to the copy of his original motion for

summary judgment. That motion was filed in a different suit under a different case number.

Moreover, the affidavit attached to the motion did not incorporate any materials; it simply set
                                                 7


forth Arndt’s version of the events that occurred. Arndt did not file any affidavit in the current

suit authenticating any of the items that he attached to his current motion for summary judgment.

Consequently, Arndt did not offer any Civ.R. 56(C) evidence in support of his motion. Because

Arndt did not support his summary judgment motion with any Civ.R. 56(C) evidence, he did not

meet his initial Dresher burden. See Dresher, 75 Ohio St.3d at 292-293. Therefore, the trial

court erred by granting his motion. Committe’s assignments of error are sustained on that basis.

                                                III

       {¶13} Committe’s assignments of error are sustained. The judgment of the Lorain

County Court of Common Pleas is reversed, and the cause is remanded for further proceedings

consistent with the foregoing opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                           8


      Costs taxed to Appellees.




                                                 BETH WHITMORE
                                                 FOR THE COURT



MOORE, P. J.
BELFANCE, J.
CONCUR.


APPEARANCES:

BRENT L. ENGLISH, Attorney at Law, for Appellant.

GINO S. PULITO, Attorney at Law, for Appellee.

JAMES RUDOLCHICK, pro se, Appellee.
