[Cite as Smith v. Ray Esser & Sons, Inc., 2011-Ohio-1529.]


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

RYAN SMITH                                                   C.A. No.   10CA009798

        Appellant

        v.                                                   APPEAL FROM JUDGMENT
                                                             ENTERED IN THE
RAY ESSER & SONS, INC.                                       COURT OF COMMON PLEAS
                                                             COUNTY OF LORAIN, OHIO
        Appellee                                             CASE No.   09CV161264

                                 DECISION AND JOURNAL ENTRY

Dated: March 31, 2011



        BELFANCE, Presiding Judge.

        {¶1}    Ryan Smith appeals the judgment of the Lorain County Court of Common Pleas

granting summary judgment in favor of Ray Esser & Sons, Inc. We reverse and remand this

matter to the trial court.

                                                      I.

        {¶2}    Appellee Ray Esser & Sons, Inc. (“Esser”) is a commercial plumbing contractor.

On Appellant Ryan Smith’s first day of work, June 30, 2008, Esser assigned Mr. Smith to work

on a leaking fire hydrant. Another Esser employee, Charlie Clouser, acted as foreman.

        {¶3}    On June 30, 2008, Esser dug a trench to access the source of the leak. Esser

recommenced work in it on July 2, 2008. Due to recent rain and the leak in the hydrant, the

trench was muddy at the bottom and the walls were wet. Mr. Clouser instructed Mr. Smith to

chip away at a block called a thrust block. The thrust block had to be chipped away in order to

access the area in the piping that required repair. While Mr. Smith was pulling out debris from
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chipping away the thrust block, the trench started to fill rapidly with water. This was apparently

because the removal of the thrust block allowed the piping to shift so that a mechanical

compression joint in the piping separated and flooded the trench.

       {¶4}    Mr. Smith attempted to stand up and get out of the trench, but discovered that his

left hand was trapped. He was submerged in the rising water. Although Mr. Clouser stated in an

affidavit that he pulled Mr. Smith out of the water, Mr. Smith testified that he remembered

floating up and climbing out of the water-filled trench himself. Mr. Smith sustained a torn

tendon and six fractures in his middle finger.

       {¶5}    In March 2009, Mr. Smith commenced a workplace intentional tort action against

Esser in the Lorain County Court of Common Pleas. Defendant Esser filed a Motion for

Summary Judgment. Although there is a statute, R.C. 2745.01, that sets forth the standard to be

applied in an employer intentional tort case, that statute was being challenged in a case before

the Supreme Court of Ohio. In the Motion for Summary Judgment, Esser acknowledged that the

statute was being challenged and instead argued that Esser was entitled to summary judgment

under the common law standard for employer intentional torts.

       {¶6}    Mr. Smith submitted his brief in opposition to the motion for summary judgment

on March 22, 2010. On March 23, 2010, the Supreme Court decided two cases upholding the

constitutionality of R.C. 2745.01. Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio

St.3d 280, 2010-Ohio-1029; Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-

Ohio-1027. On March 29, 2010, Esser filed a reply brief in which it argued that it was entitled to

summary judgment based on the standard set forth in Kaminski, Stetter, and R.C. 2745.01. The

trial court granted Esser’s motion the next day, March 30, 2010. The court’s analysis of the case
                                                   3


consisted of one sentence followed by a citation to Kaminski and R.C. 2745.01. Mr. Smith

appeals from that judgment.

                                                  II.

                               ASSIGNMENT OF ERROR I

        “THE TRIAL JUDGE ERRED, AS A MATTER OF LAW, BY GRANTING
        SUMMARY JUDGMENT ON THE BASIS OF STANDARDS WHICH WERE
        ASSERTED FOR THE FIRST TIME IN DEFENDANT-APPELLEE’S REPLY
        BRIEF.”

        {¶7}    Mr. Smith asserts, in his first assignment of error, that the trial court committed

reversible error in granting the motion for summary judgment based on grounds not set forth in

the original motion. We agree.

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

Edison Co. (1996), 77 Ohio St.3d 102, 105. This Court applies the same standard as the trial

court, viewing the facts in the case in the light most favorable to the non-moving party and

resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983), 13

Ohio App.3d 7, 12.

        {¶9}    Pursuant to Civ.R. 56(C), summary judgment is appropriate when:

        “(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. (1977), 50 Ohio St.2d 317, 327.

To succeed on a summary judgment motion, the movant “bears the initial burden of

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

the opponent's case.” Dresher v. Burt (1996), 75 Ohio St.3d 280, 292. If the movant satisfies

this burden, the non-moving party “ ‘must set forth specific facts showing that there is a genuine

issue for trial.’ ” Id. at 293, quoting Civ.R. 56(E).
                                                   4


       {¶10} In this case, it is undisputed that in its motion for summary judgment, Esser did

not cite Kaminski, as that case had not yet been decided. Furthermore, to the extent that it cited

R.C. 2745.01, Esser stated in its motion for summary judgment:

       “The legal standard to be applied in an employer intentional tort case is currently
       set forth in R.C. §2745.01. However, this statute was declared unconstitutional
       by the Seventh Ohio District Court of Appeals, and the case is currently pending
       in the Ohio Supreme Court (See Kaminiski [sic] v. Metal & Wire Prods., 7th
       Dist. No 07-CO-15, 2008-Ohio-1521, cert granted, (O.H. Aug. 6, 2008) (2008-
       0857). Until Kaminiski [sic] is decided, the standard by which employer
       intentional tort cases are to be judged reverts to the previously applied standard,
       articulated by the Ohio Supreme Court in Fyffe v. Jeno’s, Inc. (1991), 59 Ohio
       St.3d 115.”

Esser then set forth the argument that there is no genuine dispute of material fact under the Fyffe

standard. It appears that Esser assumed the pending Kaminski case precluded the trial court from

applying R.C. 2745.01, even though the statute had not been found unconstitutional by either this

Court or the Supreme Court of Ohio. In any event, Esser did not seek to prove that it was

entitled to summary judgment under the statutory standard.

       {¶11} Esser’s reply, however, filed after Kaminski and Stetter were decided, made

arguments about whether Mr. Smith was able to meet the statutory standard. Esser had not made

these arguments in the motion for summary judgment.

       {¶12} “A party seeking summary judgment must specifically delineate the basis upon

which summary judgment is sought in order to allow the opposing party a meaningful

opportunity to respond.” Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, syllabus. Esser’s initial

brief in support of its motion for summary judgment did not suffice to provide Mr. Smith with a

meaningful opportunity to respond to Esser’s arguments under the statutory standard. These

arguments were first articulated in its reply brief.
                                                 5


       {¶13} In the context of a motion for summary judgment, the burden that the nonmovant

must meet in order to survive a motion for summary judgment is defined by the argument put

forward in the original motion:

       “Civ.R. 56(E) provides in part: ‘When a motion for summary judgment is made
       and supported as provided in this rule, an adverse party may not rest upon the
       mere allegations or denials of his pleadings, but his response, by affidavit or as
       otherwise provided in this rule, must set forth specific facts showing that there is a
       genuine issue for trial.’ Rather than eliminate the non-moving party's burden, the
       requirement that the moving party, here appellee, be specific in his reasons for
       requesting summary judgment provides the non-moving party with the
       information needed to formulate an appropriate response as required by Civ.R.
       56(E).” Id. at 115, quoting Civ.R. 56(E).

       {¶14} It is for this reason that “it is reversible error to award summary judgment on

grounds not specified in the motion for summary judgment.” (Internal quotations and citations

omitted.) State ex rel. Sawicki v. Court of Common Pleas of Lucas Cty., 121 Ohio St.3d 507,

2009-Ohio-1523, ¶27.

       {¶15} Typically, a reply brief should not set forth new arguments. Allowing new

arguments in a reply brief denies respondents the meaningful opportunity to respond. As we

have stated, “[r]eply briefs are usually limited to matters in rebuttal, and a party may not raise

new issues for the first time. Otherwise, a litigant may resort to summary judgment by ambush.”

(Internal quotations and citations omitted.) Lance Acceptance Corp. v. Claudio, 9th Dist. No.

02CA008201, 2003-Ohio-3503, ¶18. As such, a court may properly strike a reply that raises new

arguments, or it may allow time for respondents to file a surreply. See, generally, Lawson v.

Mahoning Cty. Mental Health Bd., 7th Dist. No. 10 MA 23, 2010-Ohio-6389, ¶¶50-51.

       {¶16} In this particular circumstance, however, because the trial court granted Esser’s

summary judgment motion on the day after its reply brief was filed, Mr. Smith did not have the
                                                 6


opportunity to file a motion to strike or a motion to allow time for further briefing. He was thus

denied a meaningful opportunity to respond to the arguments set forth in Esser’s reply brief.

       {¶17} The trial court’s brief judgment entry cites R.C. 2745.01 and Kaminski, which

were specifically argued only in the reply brief but not the original motion. Based on the

language contained in the judgment, this Court necessarily reaches the conclusion that the trial

court granted summary judgment on grounds not specified in the motion for summary judgment.

Mr. Smith’s first assignment of error is sustained and we reverse the judgment of the trial court.

                                  ASSIGNMENT OF ERROR II

       “SINCE GENUINE ISSUES OF MATERIAL FACT EXIST UPON
       PLAINTIFF’S COMMON LAW WORKPLACE INTENTIONAL TORT
       THEORY     OF  LIABILITY,  SUMMARY     JUDGMENT WAS
       IMPROVIDENTLY GRANTED AS A MATTER OF LAW.”

       {¶18} Mr. Smith argues in his second assignment of error that the trial court erred in

granting summary judgment because genuine issues of material fact exist as to his common law

workplace intentional tort claim. Because we have reversed the trial court’s grant of summary

judgment, this issue is moot.

       {¶19} We therefore reverse the judgment entry granting summary judgment to Esser and

remand this matter to the trial court.

                                                                               Judgment reversed,

                                                                              and cause remanded.




       There were reasonable grounds for this appeal.
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       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(E). 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.

       Costs taxed to Appellee.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



WHITMORE, J.
MOORE, J.
CONCUR


APPEARANCES:

W. CRAIN BASHEIN and THOMAS J. SHEEHAN, Attorneys at Law, for Appellant.

KENNETH J. KNABE, Attorney at Law, for Appellant.

PAUL W. FLOWERS, Attorney at Law, for Appellant.

JOHN A. FIOCCA, JR. and ROBERT F. SMITH, Attorneys at Law, for Appellee.
