[Cite as Stefansky v. Cantina Laredo Columbus/Nashville, L.P. c/o CT Corp., 2016-Ohio-7008.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Darci Stefansky,                                    :

                Plaintiff-Appellant,                :                    No. 15AP-927
                                                                   (C.P.C. No. 13CVC-5023)
v.                                                  :
                                                                (REGULAR CALENDAR)
Cantina Laredo                                      :
Columbus/Nashville, L.P.
c/o CT Corporation,                                 :

                Defendant-Appellee.                 :




                                        D E C I S I O N

                                  Rendered on September 27, 2016


                On brief: Cesner Law, L.L.C., and Robert E. Cesner, Jr., for
                appellant. Argued: Robert E. Cesner, Jr.

                On brief: Gallagher Sharp, Thomas J. Cabral, Colleen A.
                Mountcastle, and Steven D. Strang, for appellee. Argued:
                Colleen A. Mountcastle.

                  APPEAL from the Franklin County Court of Common Pleas

BROWN, J.

        {¶1}    Darci Stefansky, plaintiff-appellant, appeals the following two judgments of
the Franklin County Court of Common Pleas: (1) a judgment in which the trial court
granted the motion for summary judgment filed by Cantina Laredo, Columbus/Nashville
L.P., c/o CT Corporation, defendant-appellee, and (2) a judgment in which the trial court
denied appellant's motion for relief from judgment pursuant to Civ.R. 60(B).
        {¶2}    On April 25, 2012, appellant was dining at the Cantina Laredo restaurant,
which is owned by appellee. Appellant ordered three fish tacos. When she bit into the
No. 15AP-927                                                                              2


second taco, she bit into a fish bone. After speaking to the manager, the manager gave
appellant a complimentary dessert and a new order of fish tacos. Appellant took the new
order of fish tacos home without eating any of them. On April 26, 2012, while eating the
new order of fish tacos, appellant bit into a hard object. She chipped her tooth and
suffered pain, requiring significant dental work.
        {¶3}   On May 6, 2013, appellant filed a complaint against appellee, alleging
negligence. Her counsel at the time of the filing of the complaint was George Georgeff.
After the parties had difficulties scheduling appellant's deposition, on November 26, 2013,
the trial court stayed the proceedings, at appellant's request, on the basis that appellant
was unable to be deposed due to medical incapacity. Appellant was deposed on June 20,
2014.
        {¶4}   In January 2015, Georgeff was injured in a car accident. During his
hospitalization, he was diagnosed with another medical condition that required
treatment. Appellant claims that during the ensuing months, Georgeff did not advise her
regarding various legal issues involving the present action.
        {¶5}   The trial court lifted the stay on June 17, 2015.
        {¶6}   On June 29, 2015, appellee filed a motion for summary judgment.
        {¶7}   Appellant claims that, on July 1, 2015, Georgeff was admitted to a hospital
due to his medical condition. On July 1, 2015, appellant asked the court for an extension
of time to respond to appellee's discovery requests and pending motions, and the trial
court granted a 30-day extension on July 7, 2015. On July 4, 2015, Georgeff went into a
coma.
        {¶8}   Georgeff died on August 2, 2015. Appellant claims she had no knowledge of
the pending motion for summary judgment during this time.
        {¶9}   On August 5, 2015, the office of appellant's counsel filed a motion to
withdraw due to counsel's death. Appellant claims she was never served with appellee's
motion. On August 18, 2015, the trial court filed an order granting the motion to
withdraw. In the order, the trial court indicated that appellant would have until
September 1, 2015 to obtain new counsel and/or respond to appellee's pending motions.
No. 15AP-927                                                                               3


Appellant claims she was never properly served with the trial court's order. Appellant did
not respond to the motion for summary judgment.
       {¶10} On September 9, 2015, the trial court granted appellee's motion for
summary judgment.
       {¶11} On September 22, 2015, appellant's new counsel, her current appellate
counsel, filed an entry of appearance. On the same date, appellant filed a motion for relief
from judgment. On October 6, 2015, the trial court filed a decision and entry denying
appellant's motion for relief from judgment. Appellant appeals the judgments, asserting
the following assignments of error:
                [I.] THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S
                MOTION FOR RELIEF FROM SUMMARY JUDGMENT
                GRANTED IN FAVOR OF THE DEFENDANT, BECAUSE
                THE PLAINTIFF WAS NOT GRANTED A FAIR
                OPPORTUNITY TO BE HEARD ON DEFENDANT'S
                MOTION FOR SUMMARY JUDGMENT.

                [II.] THE TRIAL COURT ERRED IN GRANTING
                DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON
                SEPTEMBER 9, 2015, AND ERRED IN FAILING TO SET
                ASIDE SUMMARY JUDGMENT IN ITS DECISION AND
                ENTRY FILED OCTOBER 5, 2015.

       {¶12} We address appellant's assignments of error together, as they are related.
Appellant argues in both assignments of error that the trial court erred when it denied her
motion for relief from judgment and granted appellee's motion for summary judgment.
We first note that, although appellant raised the argument in her appellate brief that the
trial court improperly treated her motion for relief from judgment as a Civ.R. 60(B)
motion when she intentionally did not file it pursuant to Civ.R. 60(B), she concedes in her
reply brief that the correct procedure to obtain relief from judgment is in accordance with
Civ.R. 60(B).
       {¶13} Civ.R. 60(B) provides that a trial court may relieve a party 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
No. 15AP-927                                                                                4


               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 that the judgment should have prospective
               application; or (5) any other reason justifying relief from the
               judgment.

The rule requires the motion to 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." Civ.R. 60(B). "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). The term "abuse of discretion" connotes more than an error of law or judgment; it
implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219 (1983), citing State v. Adams, 62 Ohio St.2d 151, 157
(1980). When applying an abuse of discretion standard, an appellate court may not
substitute its judgment for that of the trial court. Berk v. Matthews, 53 Ohio St.3d 161,
169 (1990).
       {¶14} To prevail under Civ.R. 60(B), the movant must show that: (1) the movant
has a meritorious defense or claim to present if relief is granted, (2) the movant 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. GTE Automatic Elec., Inc. v. ARC Industries,
Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. The movant must satisfy all
three of these requirements to obtain relief. State ex rel. Richard v. Seidner, 76 Ohio St.3d
149, 151 (1996).
       {¶15} Appellant raised two grounds for relief from judgment in her motion before
the trial court. Appellant first argued that she was denied a full and fair opportunity to
address appellee's motion for summary judgment due to her counsel's health issues and
subsequent death during the pendency of the motion for summary judgment, and she had
no notice of the motion for summary judgment, the motion to withdraw as counsel after
his death, and the trial court's order granting the motion to withdraw, which provided
appellant only 13 days to find a new attorney and/or respond to any pending motions. She
No. 15AP-927                                                                                5


next argued that, even in the absence of a memorandum contra from appellant, the trial
court should not have granted summary judgment because the object in the fish tacos was
not naturally occurring and she was not required to identify the object specifically.
       {¶16} Summary judgment is appropriate when the moving party demonstrates
that: (1) there is no genuine issue of material fact, (2) the moving party is entitled to
judgment as a matter of law, and (3) reasonable minds can come to but one conclusion
when viewing the evidence most strongly in favor of the non-moving party, and that
conclusion is adverse to the non-moving party. Hudson v. Petrosurance, Inc., 127 Ohio
St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-
Ohio-5584, ¶ 29. Appellate review of a trial court's ruling on a motion for summary
judgment is de novo. Hudson at ¶ 29. This means that an appellate court conducts an
independent review, without deference to the trial court's determination. Zurz v. 770 W.
Broad AGA, L.L.C., 192 Ohio App.3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.); White v.
Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 6 (10th Dist.).
       {¶17} When seeking summary judgment on the ground that the non-moving party
cannot prove its case, the moving party bears the initial burden of informing the trial
court of the basis for the motion and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on an essential element of the
non-moving party's claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The moving
party does not discharge this initial burden under Civ.R. 56 by simply making a
conclusory allegation that the non-moving party has no evidence to prove its case. Id.
Rather, the moving party must affirmatively demonstrate by affidavit or other evidence
allowed by Civ.R. 56(C) that the non-moving party has no evidence to support its claims.
Id. If the moving party meets its burden, then the non-moving party has a reciprocal
burden to set forth specific facts showing that there is a genuine issue for trial. Civ.R.
56(E); Dresher at 293. If the non-moving party does not so respond, summary judgment,
if appropriate, shall be entered against the non-moving party. Id.
       {¶18} Here, in addressing appellant's motion to vacate, the trial court concluded
that appellant failed to satisfy the first prong of the GTE test by failing to demonstrate she
had a meritorious claim. The court found that appellant had failed to provide any
No. 15AP-927                                                                               6


evidence that would support a meritorious claim at trial because she could not identify the
object she bit into.
       {¶19} Whether the object was a fish bone or an object foreign to the food is legally
significant. There are two tests to determine whether a food product is defective or
adulterated: the "foreign-natural" test and the "reasonable-expectation" test. Ohio has
not formally adopted either test. Woeste v. Washington Platform Saloon & Restaurant,
163 Ohio App.3d 70, 2005-Ohio-4694, ¶ 25 (1st Dist.). Under the foreign-natural test,
substances that are natural to the type of food served (such as bones in fish or shell pieces
in fried oysters) cannot legitimately be called a foreign substance, and a consumer who
consumes such foods ought to anticipate and be on guard against the presence of such
substances. Mathews v. Maysville Seafoods, Inc., 76 Ohio App.3d 624, 625 (12th
Dist.1991). Courts have applied this foreign-natural test to many types of food. See, e.g.,
Ruvolo v. Homovich, 149 Ohio App.3d 701, 2002-Ohio-5852 (8th Dist.) (chicken bone
fragments in a chicken gordita sandwich); Mitchell v. T.G.I. Fridays, 140 Ohio App.3d
459 (7th Dist.2000) (clam shells in fried clams); Parianos v. Bruegger's Bagel Bakery,
8th Dist. No. 84664, 2005-Ohio-113, ¶ 15 (pig bone in a sausage, egg, and cheese bagel
sandwich); Lewis v. Handel's Homemade Ice Cream & Yogurt, 11th Dist. No. 2002-T-
0126, 2003-Ohio-3507 (pistachio shells in a pistachio nut ice cream cone); Soles v.
Cheryl & Co. Gourmet Food & Gifts, 3d Dist. No. 14-99-36 (Nov. 23, 1999) (pecan shells
in a pecan cookie); and Krumm v. ITT Continental Baking Co., 5th Dist. No. 23-CA-81
(Dec. 9, 1981) (cherry pits in a cherry pie). Under the reasonable-expectation test, the
focus is on what is reasonably expected by the consumer in the food as served, not what
might be natural to the ingredients of that food prior to preparation. Id. As applied to an
action for negligence, the test is related to the foreseeability of harm on the part of the
defendant. Id.
       {¶20} Appellant argues that, contrary to the trial court's conclusion, her
deposition testimony was sufficient to establish a meritorious claim and a genuine issue of
material fact. She claims her testimony demonstrated that she sufficiently described the
object she bit into to raise a genuine issue of material fact and withstand summary
judgment. In her deposition, the whole of appellant's testimony regarding her
identification of the object was as follows:
No. 15AP-927                                                                            7


               A. I bit down on a foreign object in a fish taco from Cantina
               Laredo.

               ***

               A. And it hurt, and it was a -- it's a -- I assumed it was a bone.
               It's round. It's hard. It's a -- it's something. It's a foreign object
               of some kind.

               Q. Was it white?

               A. No. It was dark. It almost kind of looks, I don't know, like
               wood. It just is -- it's round and hard * * *.

               ***

               A. I have it. Dr. Levy looked at it too, I believe, or his assistant
               did, and he said it was a foreign object.

               Q. Did he say specifically what it was?
               A. No. But he couldn't really tell, but it's in with the fish.

               Q. And you've been kind of using the word "foreign object"
               and "fish bone" interchangeably today. Would you agree with
               that?

               A. Well, I would have to say yes. I distinctively knew a fish
               bone was in my tacos on Wednesday, April 25th, 2012;
               however, on the 26th, one would assume -- make an
               assumption it's a fish bone; however, it does not appear to be
               a fish bone, it doesn't look like a fish bone, and it looked
               completely different. It's a round, hard, foreign object. It is
               hard, and it was hard enough to cause my jaw to become
               ajarred and my tooth to chip.

               Q. You don't know for sure what this object is; is that --

               A. No.

               Q. Would that be accurate?

               A. Correct.

(Stefansky Depo. at 13, 37, 38-39.)
No. 15AP-927                                                                                8


          {¶21} Appellant also testified regarding what she told Dr. Mark Levy about the
object:
                Q. When you described the incident to Dr. Levy, did you tell
                him it was a fish bone?

                A. No. I didn't know what it was.

                Q. But he did see it; correct?

                A. I can't confirm he saw it. I don't know if he did or his
                assistant at the time, but the witnesses who witnessed it were
                my mom and sister, and, of course, then Dr. Levy and his
                assistants.

(Stefansky Depo. at 43-44.)

          {¶22} Counsel for appellee then showed appellant a February 4, 2013 letter from
Dr. Levy and read the portion of the letter that stated, "Within a reasonable degree of
certainty, as she had no prior symptoms I feel that her injuries were the result of her
biting into a foreign body, most likely, as described by Ms. Stefansky, fish bones."
However, appellant testified that she "never specified it was a fish bone to Dr. Levy. Dr.
Levy -- I never specified either way." (Stefansky Depo. at 44, 45.)
          {¶23} After reviewing this testimony, we agree with the trial court that the
testimony was insufficient to demonstrate that appellant had a meritorious claim if relief
were granted. To set forth a claim for negligence a plaintiff must prove four elements:
(1) the existence of a duty owed by the defendant to the plaintiff, (2) a breach of that duty,
(3) causation, and (4) damages. Strother v. Hutchinson, 67 Ohio St.2d 282, 285 (1981).
          {¶24} Although the trial court did not indicate on what precise ground it was
basing its denial of appellant's motion for relief from judgment, appellant failed to put
forth any evidence to demonstrate there remains a genuine issue of material fact as to
whether the object was a foreign object, she could have reasonably expected the object to
be in the fish tacos, or appellee's negligence had caused the object to be in the tacos.
Appellant's deposition testimony regarding the identification of the object was fatally
indefinite. At first, her testimony suggested she assumed the object was a fish bone, but
she then testified that it did not look like a fish bone. Ultimately, she conceded that she
No. 15AP-927                                                                                9


did not know for sure what the object was. Her failure to present any evidence or
testimony to identify the object or how it got into the food eviscerates her ability to raise
any genuine issues of material fact as to whether the object was foreign to the food, was
something she could not have reasonably expected in the food, or appellee's negligent act
or omission had allowed or caused the object to be in the food. See Currie v. Big Fat
Greek Restaurant, Inc., 10th Dist. No. 12AP-440, 2012-Ohio-6168, ¶ 13-19 (summary
judgment granted to restaurant when plaintiff could not identify the object she bit into
when eating a gyro and could not point to defendant as the proximate cause of the
injury); Popham v. Golden Corral Corp., 12th Dist. No. CA2006-04-087, 2007-Ohio-
1365, ¶ 22 (summary judgment was proper when plaintiff failed to produce the hook she
claimed was in the serving of green beans she ate, there was no evidence supporting a
conclusion that the restaurant created the alleged hazardous condition, and plaintiff
presented no evidence describing or identifying the hook, except her own testimony and
that of her sister); Haughey v. Twins Group, Inc., 2d Dist. No. 2004-CA-7, 2005-Ohio-
1371, ¶ 17-18 (summary judgment was proper for restaurant owner when plaintiff was
unable to identify what she bit into that broke her tooth while eating pizza).
       {¶25} Having failed to demonstrate such, appellant cannot show that she has a
meritorious defense or claim to present if relief is granted or that any genuine issues of
material fact remain. For these reasons, the trial court did not err when it granted
summary judgment to appellee and denied appellant's motion to vacate the judgment.
       {¶26} With regard to appellant's first assignment of error, appellant claims that
she was not given a full and fair opportunity to respond to appellee's motion for summary
judgment. She asserts she was without proper legal representation due to the fact that her
attorney was hospitalized three days after appellee filed its motion for summary judgment
and then lapsed into a coma three days thereafter and never recovered. She also argues
the trial court granted summary judgment prematurely, given it granted the motion for
summary judgment only eight days after the September 1, 2015 deadline for responses to
motions that it imposed in its August 18, 2015 order granting the motion to withdraw. She
contends she should have been permitted to obtain new counsel first and then have a
deadline imposed for her response. She asserts that the 13 days the court gave her in its
August 18, 2015 order to obtain legal representation and/or respond to any pending
No. 15AP-927                                                                                10


motions was unreasonably brief. Appellant further contends that she was never served
with the August 5, 2015 motion to withdraw filed by her counsel's office or the trial court's
August 18, 2015 order granting the motion to withdraw.
       {¶27} However, given our above analysis, we find that, even if she had responded
to the motion for summary judgment, she would have been unable to demonstrate there
remained any genuine issues of material fact. Appellant's motion to vacate makes it clear
that appellant has no evidence to support the required elements of her action. Appellant
had the opportunity to demonstrate she had a meritorious claim and that there were
genuine issues of material fact in her motion to vacate, but she failed to present or point to
any evidence to show such. For all of the foregoing reasons, we find the trial court did not
err when it granted appellee's motion for summary judgment and denied appellant's
motion to vacate judgment. Therefore, appellant's first and second assignments of error
are overruled.
       {¶28} Accordingly, appellant's two assignments of error are overruled, and the
judgments of the Franklin County Court of Common Pleas are affirmed.
                                                                       Judgments affirmed.

                                   KLATT, J., concurs.
                                  BRUNNER, J., dissents.

BRUNNER, J., dissenting.

        {¶29} I respectfully dissent from the decision of the majority. The record shows
that following appellant's attorney George Georgeff's death, a non-attorney filed a motion
to withdraw his appearance on the deceased's behalf. Appellant contends that she was
never served with the August 5, 2015 motion to withdraw filed by a non-attorney in
Georgeff's office or the August 18, 2015 order of the trial court granting the motion to
withdraw. Based on the record and upon learning of Georgeff's death via the motion, the
trial court should have sua sponte withdrawn his appearance and served its order on
appellant directly. No court should facilitate the unauthorized practice of law, even
under circumstances as the death of attorney Georgeff.
        {¶30} I agree with appellant that the 13 days the trial court gave her in its
August 18, 2015 order to obtain legal representation and/or respond to any pending
No. 15AP-927                                                                               11


motions was unreasonably brief. Nor can I countenance finding that appellant would
have been unable to demonstrate there remained any genuine issues of material fact
when she was not afforded a fair opportunity to respond to the dispositive motion that
has now prejudiced her claim.
       {¶31} Regardless of whether the appropriate vehicle was a motion for relief from
judgment as was filed or a motion pursuant to Civ.R. 60(B), I would find that the trial
court abused its discretion in not permitting appellant's new counsel enough time to
represent her on the dispositive motion. On review, I am uncomfortable second guessing
what appellant would, could or should have argued had she been given the opportunity
by the trial court to respond to the motion for summary judgment. Applying Civ.R.
60(B)(5) to the circumstances under review, at the very least, this is a situation that
justifies relief from judgment. Even taking into consideration that a stay had been
imposed for two years prior to Georgeff's death due to appellant's physical inability to be
deposed, the hurry to dispose of the case once it was reactivated did not serve the
interests of a fair process. Accordingly, I would vacate the decision of the trial court with
instructions that appellant be given a fair chance to respond to the motion for summary
judgment.

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