[Cite as Morrow v. Sacred Heart School, 2015-Ohio-5321.]


                                      COURT OF APPEALS
                                  COSHOCTON COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


TIFFANI MORROW, et al.                           :         JUDGES:
                                                 :         Hon. William B. Hoffman, P.J.
        Plaintiffs - Appellants                  :         Hon. Patricia A. Delaney, J.
                                                 :         Hon. Craig R. Baldwin, J.
-vs-                                             :
                                                 :
SACRED HEART SCHOOL                              :         Case No. 2015CA0004
                                                 :
        Defendant - Appellee                     :         OPINION



CHARACTER OF PROCEEDING:                                   Appeal from the Coshocton County
                                                           Court of Common Pleas, Case No.
                                                           2014-CI-0384




JUDGMENT:                                                  Affirmed




DATE OF JUDGMENT:                                          December 18, 2015




APPEARANCES:

For Plaintiffs-Appellants                                  For Defendant-Appellee

MICHELA HUTH                                               CHRISTOHER J. WEBER
257 Canal Street                                           Kegler, Brown, Hill & Ritter Co., LPA
P.O. Box 17                                                65 E. State Street, Suite 1800
Bolivar, Ohio 44612                                        Columbus, Ohio 43215
Coshocton County, Case No. 2015CA0004                                                      2

Baldwin, J.

       {¶1}    Appellants Tiffani Morrow and David Buxer appeal a summary judgment of

the Coshocton County Common Pleas Court dismissing their complaint against appellee

Sacred Heart School on summary judgment.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}    Appellants are the parents of a minor son who entered pre-kindergarten at

Sacred Heart School in Coshocton in 2011, and attended the school through completion

of first grade. Appellants filed the instant action on September 8, 2014, seeking damages

for negligence, misrepresentation, defamation, breach of contract, and promissory

estoppel.

       {¶3}    Appellee filed a motion for summary judgment on February 17, 2015.

Appellee attached to its motion affidavits of school personnel averring that throughout his

enrollment, the child was treated with dignity and respect and afforded the same

educational opportunities as other students. The affidavits further set forth that the school

reported bite marks observed on the child’s arm to Coshocton County Job and Family

Services as required by Ohio law, and also reported his unexcused absences to the

Juvenile Court as required by school attendance laws. The affidavits stated that at no time

did the school require the child to clean himself up after vomiting, and that the school did

not give him food which he was not permitted to eat.

       {¶4}    Appellants responded, attaching the affidavit of Tiffani Morrow and a copy

of the 2013-2014 Student/Parent Handbook which was referenced in her affidavit. In her

affidavit, Morrow averred that the child had vomited on himself and appellee refused to

help him clean up the vomit and failed to notify appellants that the child was sick. She
Coshocton County, Case No. 2015CA0004                                                      3


further averred that the child was fed dairy foods and peanuts, despite being informed by

appellants of his dietary restrictions. She stated that appellee made a false report to a

truancy officer concerning the child’s number of absences, and made a false report of

abuse to Coshocton County Job and Family Services. She averred that she was informed

by an employee of appellee that the child needed speech therapy when he did not need

speech therapy, and that he was not provided educational assistance which was provided

to other students.

       {¶5}   The trial court granted the motion for summary judgment. The trial court’s

judgment cited extensively to appellee’s affidavits and did not specifically reference the

affidavit of appellant Morrow. Appellant assigns a single assignment of error on appeal:

       {¶6}   “THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND ABUSED

ITS DISCRETION WHEN IT GRANTED DEFENDANT, SACRED HEART SCHOOL’S

MOTION FOR SUMMARY JUDGMENT.”

       {¶7}   Appellants’ brief argues solely that the court erred in failing to review and

consider Morrow’s affidavit and the attached exhibit, which “would or could have, arguably,

created a genuine issue of material fact.”

       {¶8}   Appellants rely on the Ohio Supreme Court’s decision in Murphy v.

Reynoldsburg, 65 Ohio St. 3d 356, 604 N.E.2d 138, 1992-Ohio-95. In Murphy, the trial

court scheduled an oral hearing on a summary judgment motion. At the hearing, the court

stated, “Let me be up front with all of you. I haven't read your motion. I haven't read your

briefs. So, educate me.” The parties proceeded to orally argue the summary judgment

motion. At the conclusion of the argument, the trial court granted the motion for summary

judgment.
Coshocton County, Case No. 2015CA0004                                                       4


        {¶9}   On appeal, the Court of Appeals concluded that although the trial court

erred in failing to review the evidence filed by the parties before granting summary

judgment, any error was not prejudicial because the appellate court reviews summary

judgment de novo. The court then conducted a de novo review and concluded that

summary judgment was appropriate on the evidence filed with the court.

        {¶10} The Ohio Supreme Court reversed, holding:

                      Compliance with the terms of Civ.R. 56(C) is of

               fundamental importance at the trial court level, where the

               initial examination of the evidence occurs, and where the

               issues framing the litigation are shaped. When, as in the case

               before us, a trial court does not examine the evidence

               presented on the motion for summary judgment, but makes its

               ruling entirely based on oral argument presented by the

               parties, the trial court disregards the mandatory duties placed

               upon it by Civ.R. 56(C). The rule mandates that the trial court

               make the initial determination whether to award summary

               judgment; the trial court's function cannot be replaced by an

               “independent” review of an appellate court. Id. at 360, 604

               N.E.2d at 141.

        {¶11} The instant case is distinguishable from Murphy. Although the trial court

did not specifically cite to Morrow’s affidavit, the record does not affirmatively demonstrate

that the court failed to consider appellants’ evidence, as the record did in Murphy. The

court’s judgment specifically noted that appellants filed a response to appellee’s motion
Coshocton County, Case No. 2015CA0004                                                       5


on March 17, 2015, having been granted an extension of time by the court on March 5,

2015. The judgment further states, “Based upon the affidavits and pleadings of the parties

the Court finds that the Defendant’s Motion for Summary Judgment is well-taken and is

hereby granted.” Judgment Entry, April 6, 2015, emphasis added. The use of the plural

“parties” indicates that the court considered appellants’ affidavit, as well as the affidavits

filed by appellee.

        {¶12} The assignment of error is overruled. The judgment of the Coshocton

County Common Pleas Court is affirmed. Costs are assessed to appellants.

By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.
