[Cite as Soft Cloth, L.L.C. v. Dollar General Corp., 2016-Ohio-192.]


                                        COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

SOFT CLOTH, LLC.                                            JUDGES:
                                                            Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                                 Hon. Patricia A. Delaney, J.
                                                            Hon. Craig R. Baldwin, J.
-vs-
                                                            Case No. 15 CA 14
DOLLAR GENERAL CORPORATION,
ET AL.
                                                            OPINION
        Defendant-Appellee




CHARACTER OF PROCEEDING:                                Appeal from the Guernsey County Common
                                                        Pleas Court, Case No. 13-CV-379


JUDGMENT:                                               Reversed and Remanded


DATE OF JUDGMENT ENTRY:                                 January 15, 2016


APPEARANCES:


For Plaintiff-Appellant                                 For Defendant-Appellee

C. KEITH PLUMMER                                        TYLER TARNEY
Tribbie, Scott, Plummer & Padden, LLC                   Reminger Co., LPA
139 West 8th Street                                     Capitol Square Building
P.O. Box 640                                            65 East State Street, 4th Floor
Cambridge, Ohio 43725                                   Columbus, Ohio 43215
Guernsey County, Case No. 15 CA 14                                                         2

Hoffman, P.J.


      {¶1}   Plaintiff-appellant Soft Cloth, LLC appeals the April 29, 2015 Entry entered

by the Guernsey County Court of Common Pleas, which granted defendant-appellee

Dollar General Corporation's motion for summary judgment.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}   Soft Cloth is an Ohio Limited Liability Company which operates a 24 hour a

day/seven day a week car wash located at 1704 Southgate Parkway, Cambridge, Ohio.

At approximately 10 p.m. on June 2, 2013, a tractor hauling a trailer bearing the Dollar

General logo struck a car wash bay at Soft Cloth's facility, causing significant damage.

      {¶3}   On August 21, 2013, Soft Cloth filed a complaint, alleging Dollar General or

its unknown agent failed to exercise due care in the operation of a tractor trailer, and

seeking compensatory and punitive damages. Dollar General filed a timely answer. The

matter proceeded through the discovery process.

      {¶4}   The parties filed their respective motions for summary judgment on January

30, 2015. The substantive portions of the parties’ argument in their motions for summary

judgment focused on Dollar General’s liability under the doctrine of respondent superior.

      {¶5}   Via Judgment Entry filed April 29, 2015, the trial court granted summary

judgment in favor of Dollar General.

      {¶6}   It is from this judgment entry Soft Cloth appeals, raising as its sole

assignment of error:

      {¶7}   “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY

GRANTING        DEFENDANT-APPELLEE,          DOLLAR      GENERAL      CORPORATION’S
Guernsey County, Case No. 15 CA 14                                                           3


MOTION FOR SUMMARY JUDGMENT BASED WHERE A GENUINE ISSUE OF

MATERIAL FACT REMAINED FOR DETERMINATION BY THE TRIER OF FACT.”

                                        Summary Judgment

       {¶8}   Civ. R. 56 states in pertinent part:

       {¶9}   “Summary judgment shall be rendered forthwith if the pleadings,

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

evidence, and written stipulations of fact, if any, timely filed in the action, show that there

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

matter of law. No evidence or stipulation may be considered except as stated in this rule.

A summary judgment shall not be rendered unless it appears from the evidence or

stipulation, and only from the evidence or stipulation, that reasonable minds can come to

but one conclusion and that conclusion is adverse to the party against whom the motion

for summary judgment is made, that party being entitled to have the evidence or

stipulation construed mostly strongly in the party's favor. A summary judgment,

interlocutory in character, may be rendered on the issue of liability alone although there

is a genuine issue as to the amount of damages.”

       {¶10} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co. (1981), 67 Ohio St.2d 427, 424 N.E.2d

311. The court may not resolve any ambiguities in the evidence presented. Inland Refuse

Transfer Co. v. Browning–Ferris Inds. of Ohio, Inc. (1984), 15 Ohio St.3d 321, 474 N.E.2d

271 (1984). A fact is material if it affects the outcome of the case under the applicable
Guernsey County, Case No. 15 CA 14                                                           4

substantive law. Russell v. Interim Personnel, Inc. (1999), 135 Ohio App.3d 301, 733

N.E.2d 1186.

       {¶11} When reviewing a trial court's decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The Wedding

Party, Inc. (1987), 30 Ohio St.3d 35, 506 N.E.2d 212. This means we review the matter

de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000–Ohio–186, 738 N.E.2d 1243.

       {¶12} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the record

which demonstrate the absence of a genuine issue of fact on a material element of the

non-moving party's claim. Drescher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264.

Once the moving party meets its initial burden, the burden shifts to the nonmoving party

to set forth specific facts demonstrating a genuine issue of material fact does exist. Id.

The non-moving party may not rest upon the allegations and denials in the pleadings, but

instead must submit some evidentiary materials showing a genuine dispute over material

facts. Henkle v. Henkle (1991), 75 Ohio App.3d 732, 600 N.E.2d 791.

                                                  I

       {¶13} In its sole assignment of error, Soft Cloth contends the trial court erred in

granting summary judgment to Dollar General. Specifically, Soft Cloth argues the trial

court improperly granted summary judgment on a ground not raised by Dollar General.

We agree.

       {¶14} In granting summary judgment in favor of Dollar General, the trial court

found “both parties have vigorously argued their side of respondent superior. However,
Guernsey County, Case No. 15 CA 14                                                           5


there is no evidence that the tractor/trailer which was at [Soft Cell’s] place of business

actually caused the damage alleged.” April 29, 2015 Entry.

       {¶15} The Introduction to Dollar General’s motion for summary judgment reads as

follows:

              According to Soft Cloth, a tractor hauling a trailer with Dollar

       General's name on the side of it negligently caused thousands in damage

       to the inside of its car wash during the night of Sunday June 2, 2013. But

       Soft Cloth failed to identify the driver of the tractor. Instead, it has improperly

       tried to shift its burden of proof to Dollar General based on nothing more

       than three fuzzy photographs from its video surveillance that purport to

       show - at most - that a trailer with Dollar General's name on the side was

       inside the car wash around the time of the alleged incident. But those

       photographs do not show damage being caused. Nor are the driver or the

       tractor even visible from them. Critically, Soft Cloth admits it does not know

       who was driving the tractor, whether the driver was an employee of Dollar

       General, who owned the tractor, or whether the trailer was hauling any

       merchandise much less Dollar General merchandise.

              Dollar General's [sic] improper attempt to shift its burden of proof of

       identifying the driver of the tractor that caused the incident must be rejected.

       The undisputed evidence shows that Dollar General does not own the

       tractors used to haul its products from its Distribution Centers to its stores.

       The common carriers who own those tractors are independent contractors

       with exclusive control and direction over both the drivers and the tractors.
Guernsey County, Case No. 15 CA 14                                                         6


       Dollar General cannot be liable for the alleged acts of an independent

       contractor driving a tractor it did not own.     Even if the driver was an

       employee of Dollar General, Soft Cloth's claims still fail because the driver's

       alleged criminal conduct in the car wash was plainly outside the scope of

       his employment. For these reasons, Dollar General’s Motion for Summary

       Judgment should be granted.

       Motion for Summary Judgment at 2.

       {¶16} Despite the one time reference to the “three fuzzy photographs” in the

Introduction of its motion, we find the basis of Dollar General’s motion for summary

judgment was not causation, but rather liability. In the Law & Argument section of its

motion, Dollar General asserted, “Soft Cloth’s claims must be dismissed because: (1)

Dollar General cannot be liable for the alleged acts of an independent contractor driving

a tractor it did not own; and (2) even if the driver was an employee, his alleged criminal

activity inside the car wash was outside the scope of employment.” Motion for Summary

Judgment at 9.

       {¶17} Civ.R. 7(B)(1) provides: “[a]n application to the court for an order shall be

by motion which * * * shall be made in writing. A motion * * * shall state with particularity

the grounds therefor, and shall set forth the relief or order sought.” (Emphasis added.) “It

is reversible error to award summary judgment on grounds not specified in the motion for

summary judgment.” State ex rel. Sawicki v. Court of Common Pleas of Lucas Cty., 2009-

Ohio-1523, ¶¶ 26-28, 121 Ohio St. 3d 507, 513. “A party seeking summary judgment must

specifically delineate the basis upon which summary judgment is sought in order to allow
Guernsey County, Case No. 15 CA 14                                                     7

the opposing party a meaningful opportunity to respond.” Mitseff v. Wheeler (1988), 38

Ohio St.3d 112, 526 N.E.2d 798, syllabus.

      {¶18} By relying on a ground not argued by Dollar General, we find the trial court

denied Soft Cloth a meaningful opportunity to respond to the issue of causation. We,

therefore, conclude the trial court erred when it granted Dollar General’s summary

judgment upon a finding Soft Cloth did not establish causation. Soft Cloth’s first

assignment of error is sustained.

      {¶19} The judgment of the Guernsey County Court of Common Pleas is reversed

and the matter remanded for further proceedings consistent with this Opinion and the law.

By: Hoffman, P.J.

Delaney, J. and

Baldwin, J. concur
