[Cite as Dennis v. Nickajack Farms, Ltd., 2014-Ohio-5468.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


MARC S. DENNIS, et al.,                                 :    OPINION

                 Plaintiffs-Appellants,                 :
                                                             CASE NO. 2014-G-3188
        - vs -                                          :

NICKAJACK FARMS, LTD., et al.,                          :

                 Defendants-Appellees.                  :


Civil Appeal from the Geauga County Court of Common Pleas, Case No. 12 P 365.

Judgment: Affirmed.


Paul M. Kaufman, 1300 Fifth Third Center, 600 Superior Avenue East, Cleveland, OH
44114 (For Plaintiffs-Appellants).

Amanda M. Gatti and John A. Neville, Reminger Co., L.P.A., 1400 Midland Building,
101 Prospect Avenue, West, Cleveland, OH 44115-1093 (For Defendants-Appellees,
Nickajack Farms, Ltd. and Bernadette Golem).

Katherine S. Riedel, Law Offices of Katherine S. Riedel Co., L.P.A., Jefferson
Commercial Park, 1484 State Route 46 North, No. 5, Jefferson, OH 44047 (For
Defendants-Appellees, William Chiboroski and Lisa Brokaw Chiboroski).



THOMAS R. WRIGHT, J.

        {¶1}     This appeal is from the Geauga County Court of Common Pleas.

 Appellants Marc S. Dennis and Emily Dennis appeal the trial court’s granting of

 summary judgment to appellees Nickajack Farms LTD. (“Nickajack Farms”),

 Bernadette Golem, Lisa Brokaw Chiboroski and William Chiboroski, determining that
appellees were not responsible for injuries Marc sustained while riding a horse. For the

following reasons we affirm.

      {¶2}   In July of 2010, Marc saw a horse named Cash with a temperament rating

of five for sale on a website. A temperament rating of a five requires an experienced

rider, and Marc claims he is an experienced rider, although Golem acknowledged that

individuals often overestimate their riding abilities. Marc contacted the owner Lisa, and

she directed him to contact Golem, the trainer for Nickajack Farms, to set up an

appointment. On July 22, 2010, Marc met Golem, and was subsequently brought to

Cash’s stall. Golem informed Marc that Cash had not been ridden or exercised at all

that day, and so she suggested that Marc “take a minute in the round pen.” Golem

also informed Marc numerous times to remove the spurs he was wearing before riding

Cash. Marc, however, did not remove his spurs.

      {¶3}   When Marc attempted to mount Cash, the horse “violently whipped” him

off. Marc then took off his spurs, because he thought that may have caused Cash to

behave as it did. As Marc removed his spurs, Golem walked and trotted Cash around

the arena for 10 minutes.      Once Cash appeared fine, Marc mounted the horse a

second time and was bucked again, causing a hip injury.

      {¶4}   As the sole assignment of error, appellants assert: “The trial court

commited (sic) reversible error in granting defendants-appellees’ motions for summary

judgment.”

      {¶5}   Within this assignment, appellants raise three issues. First, they contend,

without any underlying support, that “[t]here are numerous issues of fact and law in

dispute and the Defendants were not entitled to judgment as a matter of law.” Second,

they assert a question of fact exists as to whether Golem’s and Nickajack Farms’


                                           2
conduct was wanton misconduct. Finally, appellants argue that the trial court erred in

not considering some of appellants’ expert affidavits concerning whether Golem and

Nickajack and Golem’s conduct was wanton.

      {¶6}   Appellants’ first issue is without merit as it is a general argument that the

trial court erred without any support from the record. App.R. 16(A)(7) requires an

appellant’s brief to provide “[a]n argument containing the contentions of the appellant

with respect to each assignment of error presented for review and the reasons in

support of the contentions, with citations to the authorities, statutes, and parts of the

record on which appellant relies.” (Emphasis added.) It is not an appellate court’s duty

to guess the arguments of an appellant. Kuper v. Halbach, 10th Dist. Franklin No.

09AP-899, 2010-Ohio-3020, ¶86. As such, we will not consider the first issue.

      {¶7}   As for the other two issues, we note summary judgment is a procedural

tool that terminates litigation and thus should be entered with circumspection. Davis v.

Loopco Industries, Inc., 66 Ohio St.3d 64, 66, 1993-Ohio-195, 609 N.E.2d 144 (1993).

Summary judgment is proper where (1) there is no genuine issue of material fact

remaining to be litigated; (2) the movant 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 the evidence in the non-moving party's favor, that conclusion

favors the movant. See, e.g., Civ.R. 56(C).

      {¶8}   When considering a motion for summary judgment, the trial court may not

weigh the evidence or select among reasonable inferences. Dupler v. Mansfield

Journal Co., 64 Ohio St.2d 116, 121, 413 N.E.2d 1187 (1980). Rather, all doubts and

questions must be resolved in the non-moving party's favor. Murphy v. Reynoldsburg,

65 Ohio St.3d 356, 359, 1992-Ohio-95, 604 N.E.2d 138 (1992). Hence, a trial court is


                                           3
required to overrule a motion for summary judgment where conflicting evidence exists

and alternative reasonable inferences can be drawn. Pierson v. Norfork Southern

Corp., 11th Dist. Ashtabula No. 2002-A-0061, 2003-Ohio-6682, ¶36. In short, the

central issue on summary judgment is, “whether the evidence presents sufficient

disagreement to require submission to a jury or whether it is so one-sided that one

party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

251-252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). On appeal, we review a trial court's

entry of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,

105, 1996-Ohio-336, 671 N.E.2d 241 (1996).

       {¶9}   Appellees assert, and appellants do not contest, that Ohio’s Equine

Liability Law immunizes appellees from liability unless an exception applies.

Appellants’ second issue as to whether Nickajack Farms’ and Golem’s conduct

amounted to wanton misconduct addresses an exception to Ohio’s Equine Liability

Law.

       {¶10} R.C. 2305.321(B)(2)(d) states that any immunity provided by [Ohio’s

Equine Liability Law] will be forfeited if “[a]n act or omission of an equine activity

sponsor, equine activity participant, equine professional, veterinarian, farrier, or other

person constitutes a willful or wanton disregard for the safety of an equine activity

participant and proximately causes the harm involved.” Although the exception also

encompasses willful misconduct, appellants have limited their arguments solely to

wanton misconduct.

       {¶11} The Ohio Supreme Court has defined wanton misconduct as “the failure to

exercise any care toward those to whom a duty of care is owed in circumstances in




                                           4
which there is great probability that harm will result.” Anderson v. City of Massillon,

134 Ohio St.3d 380, 2012-Ohio-5711, syllabus paragraph three.

         {¶12} Nickajack Farms and Golem assert that the evidence precludes a finding

of wanton misconduct because (1) Golem warned Marc that Cash had not been

exercised that day and Dennis should “take a minute in the round pen and put him

through his gaits” or, in other words, warm-up Cash, (2) Golem warned Marc numerous

times not to wear his spurs, because Golem was not certain how Cash would react, (3)

Golem exercised Cash herself for 10 minutes after Marc’s first fall, and (4) Marc knew

of the inherent risks of riding Cash. Appellant has not directed our attention to any

evidence that creates a factual issue as to whether any these assertions are accurate.

Rather, appellants allege that Golem’s and Nickajack Farms’ conduct amounts to

wanton misconduct for the following six reasons: (1) Golem had not ridden, lunged or

tuned Cash out for normal exercise on the day of the incident, (2) it was normal to turn

Cash out to pasture for exercise approximately five to six hours per day, (3) Golem

knew very little if anything about Marc’s riding ability, (4) any information Golem might

have obtained would probably have had no bearing on her allowing Marc to get up on

Cash, (5) Golem allowed Marc to get up on Cash after he had fallen or been thrown off

Cash once and (6) Golem allowed Marc to continue riding the horse without intervening

even after Golem claimed to have seen Marc “off balance [and] not having a good

seat.”

         {¶13} Golem’s deposition testimony concerning the actions she took in making

Cash safe to ride is uncontroverted. As Golem’s testimony demonstrates she provided

some care to Marc, summary judgment was proper.




                                           5
      {¶14} In light of our disposition of the second issue, we need not address the

third issue of whether exclusion of the expert affidavits was error. Appellees claim and

our review confirms that these affidavits do not provide any additional facts not

considered in the second issue.        Rather these affidavits, according to appellants,

provide expert opinion on whether Nickajack Farms’ and Golem’s conduct amounted to

wanton misconduct. However, “expert-witness testimony stating that the actions of [a

party] were ‘deliberate’ willful or wanton conduct does not create any issue of fact, but

merely states [a party’s] position with respect to [the other party’s] culpability, which is a

legal conclusion” and therefore is inadmissible evidence.           Donlin v. Rural Metro

Ambulance, Inc., 11th Dist. Trumbull No. 2002-T-0148, 2004-Ohio-1704, ¶26; State

Auto. Mut. Ins. Co. v. Chrysler Corp., 36 Ohio St.2d 151, 162 (1973). Accordingly,

even if these affidavits were considered, it would not change the outcome.

      {¶15} The sole assignment of error is without merit. In light of our disposition of

the first assignment of error, Nickajack Farms’ and Golem’s cross-assignment of error

is moot.

      {¶16} The judgment of the Geauga County Court of Common Pleas is affirmed.



TIMOTHY P.CANNON, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




                                             6
