concluding that reasonable minds could differ on the issue of control where alleged employer 10 did not distribute equipment, did not discuss when or how work was to be performed, and did not have a presence on a particular job site
How later courts described this case
- concluding that reasonable minds could differ on the issue of control where alleged employer 10 did not distribute equipment, did not discuss when or how work was to be performed, and did not have a presence on a particular job site
- holding that "it is without question under Ohio law that courts cannot initiate summary judgment proceedings of their own volition"
- stating that Ohio courts may not suasponte grant summary judgment in favor of the nonmovant
- where the plaintiff did not file a summary judgment motion, some defendants sought summary judgment, and the Supreme Court found the entry of summary judgment for a non-moving defendant was improper because the issues related to that defendant were different and were not addressed in any motion
Written by the judges who cited it.
The opinion
Locher, J.,
concurring in part and dissenting in part. I concur with the majority where specific facts are articulated that might lead reasonable minds to disagree on a motion for summary judgment. In this respect, Edward R. Boord should be retained as a defendant.
ABco Industrial Painting (“ABco”) and Donald R. Aaron (the other partner in ABco) have no relationship to this suit except to the extent that defendant Boord is a partner in ABco. ABco and Aaron are residents of West Virginia and ABco has never worked for CEI in any capacity. Finally, the majority is unable to articulate a basis to keep either ABco or Aaron as parties herein. The majority test that requires Aaron and ABco to “clearly extinguish any triable issue of fact” prior to allowance of summary judgment seems contrary to the explicit test of Civ. R. 56(C) “that reasonable minds can come to but one conclusion” viewing the evidence in the light most favorable to the party opposing summary judgment. It is noteworthy that the majority could not articulate any evidence to support its assertion. As I have stated previously, “I question how a jury can perceive what a majority of this court is apparently unable to articulate.” Shinaver v. Szymanski (1984), 14 Ohio St. 3d 51 . Accordingly, I would allow summary judgment with respect to defendants ABco and Aaron.
I would, however, include CEI as a defendant in this matter solely on the basis that the plaintiff did not receive notice prior to the imposition of summary judgment with respect to CEI. It is incorrect to justify this result, as the majority does, solely on the basis of federal cases and an apparently de novo reading of Civ. R. 56(C). The novelty is apparent from the overbroad syllabus promulgated today which ignores the fact that summary judgment may also be granted in instances such as a judicial modification of a Civ. R. 12(B)(6) motion.
In Petrey v. Simon (1983), 4 Ohio St. 3d 154 (a case apparently now *53 overruled sub silmtio by today’s syllabus), this court clearly held a court must notify all parties that it has changed a Civ. R. 12(B)(6) motion into a motion for summary judgment in order to ensure that the party opposing the summary judgment might properly respond. Similarly, the trial court’s unilateral action in changing CEI’s perfunctory prayer for relief into a motion for summary judgment without giving appellant an opportunity to respond to the motion, as such, operated to appellant’s serious prejudice contrary to the express requirements of Civ. R. 56(C) that the motion be set fourteen days prior to hearing.
Contrary to the syllabus and argument presented by the majority, it is not “new law” (presumably the sole rationale for offering a syllabus) to hold that summary judgment generally requires a motion under Civ. R. 56. Civ. R. 56(B) states this requirement on its face:
“* * * A party * * * may at any time, move with or without supporting affidavits for a summary judgment * * (Emphasis added.)
The real issue here, as it was in Petrey , is one of an ignored notice requirement and not the form of the motion made initiating summary judgment.
Given the simple requirements of Civ. R. 56(B) and the necessity for notice pursuant to Civ. R. 56(C) for the policy rationale articulated in Petrey , CEI or a trial court should clearly be required to offer some motion before CEI may take advantage of summary judgment, so appellant may be given sufficient opportunity to respond to summary judgment pursuant to Civ. R. 56(C). To state, as the syllabus does here, that a specific Civ. R. 56 motion is a prerequisite to summary judgment is incorrect.
Therefore, I would allow summary judgment for defendants Hart, ABco, and Aaron and reverse with respect to Boord and CEI. A reading of Civ. R. 56 in its entirety, as well as our prior decisions with respect to alternative methods of obtaining summary judgment, such as Petrey , supports my conclusions herein.