movant cannot benefit by changing statements
How later courts described this case
- movant cannot benefit by changing statements
Written by the judges who cited it.
The opinion
O’Donnell, J.,
dissenting.
{¶ 33} I respectfully dissent.
{¶ 34} The case is presented to us as a certified conflict: “Whether it is proper for courts to disregard an affidavit inconsistent with or contradictory to prior deposition testimony when ruling on a motion for summary judgment.”
{¶ 35} I would answer this question in the affirmative because a party to a lawsuit should not be able to create its own issue of fact by submitting an affidavit conflicting with earlier deposition testimony to create a genuine issue of material fact in order to prevent the granting of a motion for summary judgment.
{¶ 36} The majority, while distinguishing between moving and nonmoving parties in the summary-judgment context, nonetheless grants the nonmoving party an opportunity for additional explanation, which could cause the trial court either to delay ruling on or to deny a motion for summary judgment, neither of *32 which is contemplated by Civ.R. 56 or the court’s requirements for summary judgment set forth in Dresher v. Burt (1996), 75 Ohio St.3d 280 , 662 N.E.2d 264 .
Gary A. Rosenhoffer, for appellants.
Reminger & Reminger Co., L.P.A., Robert W. Hojnoski, and Joseph W. Borchelt, for appellee.
{¶ 37} This is a matter better left to the Commission on the Rules of Practice and Procedure for drafting changes to the Civil Rules and should not be resolved by case authority, which will serve only to frustrate the task of trial judges in resolving cases in accordance with Civ.R. 56.