[Cite as Kozel v. Andrews, 2014-Ohio-4793.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
MARK D. KOZEL, AS CHAPTER 7 JUDGES: TRUSTEE FOR TWIN CITY HOSPITAL Hon. William B. Hoffman, P. J. Hon. Sheila G. Farmer, J. Plaintiff-Appellant Hon. John W. Wise, J.
-vs- Case No. 2013 AP 12 0049
GREGG ANDREWS, et al.
Defendants-Appellees OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No 2012 CT 05 0474
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 28, 2014
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
JONATHON M. YARGER LEE E. PLAKAS VICTOR D. RADEL JOSHUA E. O'FARRELL ANDREW J. YARGER DAVID L. DINGWELL YARGER RADEL & PENTZ EDMOND J. MACK 1111 Superior Avenue TZANGAS, PLAKAS & MANNOS Suite 530 220 Market Avenue South, 8th Floor Cleveland, Ohio 44114 Canton, Ohio 44702 Tuscarawas County, Case No. 2013 AP 12 0049 2
Wise, J.
{¶1} Plaintiff-appellant Mark D. Kozel, as Chapter 7 Trustee for Twin City
Hospital, appeals the November 15, 2013, Judgment Entry entered by the Tuscarawas
County Court of Common Pleas, which granted summary judgment in favor of
Defendants-appellees Gregg Andrews, et al.
STATEMENT OF THE CASE AND FACTS
{¶2} The following facts and procedural history were taken from Appellant’s last
appeal with this Court, Kozel v. Andrews, Tuscarawas App. No. 2012 AP 11 0066,
2013-Ohio-3887.
{¶3} Twin City Hospital (hereinafter “Twin City”) is a small rural acute care
hospital located in Dennison, Tuscarawas County, Ohio. Twin City has served the
community for over one hundred years.
{¶4} On October 13, 2010, Twin City filed Chapter 11 Bankruptcy. The
creditors of Twin City duly elected Appellant as Trustee, replacing the originally
appointed Trustee. The proceeding under Chapter 11 was subsequently converted to a
Chapter 7 proceeding.
{¶5} On January 23, 2012, Appellant filed a complaint in the U.S. Bankruptcy
Court for the Northern District of Ohio, Eastern Division, against Appellees Carol
Hoffman, Marge Jentes, Darrell Pancher, John Rypien, Bill Surber, Jim Weaver, Dr.
Gregg Andrews, Fred Bollon, Greg DiDonato, Tim McKnight, Rod Rafael, and Doug
Ross as defendants. Appellees are the former Board Members of Twin City. Appellant
asserted Appellees acted improperly by issuing approximately $17.3 million in tax
exempt revenue bonds to fund new construction and renovations to Twin City and to Tuscarawas County, Case No 2013 AP 12 0049. 3
refinance the hospital's outstanding long-term obligations while its finances were in poor
condition. On March 12, 2012, Appellees filed their motion for abstention, asking the
bankruptcy court to exercise its permissive authority to abstain from hearing the
adversary proceeding pursuant to 28 U.S.C. § 1334(c)(1), and allow the matter to be
heard by the Tuscarawas County Court of Common Pleas. The bankruptcy court
granted Appellees' motion and ordered the case be filed in the Tuscarawas County
Court of Common Pleas.
{¶6} Appellant filed the instant action on May 22, 2012. A visiting judge was
assigned to the case. Appellees filed a Civ.R. 12(B)(6) motion to dismiss. Appellant filed
a brief in opposition thereto. Via Order of the Court filed August 15, 2012, the trial court
found the parties' motions presented matters outside the complaint and ordered the
motion to dismiss be treated as a motion for summary judgment, and permitted the
parties to file supplemental briefs and supporting evidence.
{¶7} The evidence presented in support of and in opposition to summary
judgment revealed the following. Effective January 1, 2001, Twin City received full
accreditation from the Center for Medicare and Medicaid Services for a critical access
hospital designation. Such designation allowed Twin City to receive reasonable, cost-
based reimbursement for both inpatient and outpatient services provided to Medicare
beneficiaries, thereby affecting Twin City's revenue.
{¶8} The Joint Commission on the Accreditation of Healthcare Organizations
(“JCAHO”), a peer review organization, conducted independent reviews of hospitals to
assess the appropriateness of the admission of Medicare program beneficiaries. In July,
2004, JCAHO conducted an inspection of Twin City, after which the organization Tuscarawas County, Case No 2013 AP 12 0049. 4
mandated Twin City upgrade its emergency room or lose its accreditation. JCAHO
required Twin City to have construction of the new emergency room underway by the
next inspection, which was to be conducted in late 2006. JCAHO's mandate was the
result of a number of concerns, including the fact stronger standards required better
patient flow, increased privacy, and less overcrowding; the outdated infrastructure could
not support new technologies; space constraints limited the emergency room's
capabilities; and emergency room visits had reached capacity.
{¶9} The limitations of and the need to replace the emergency room were
discussed at Board Meetings. Twin City physicians advised Appellees improvements to
the emergency room would increase visits, admissions, and the use of outpatient
services. Twin City physicians saw the emergency room as “the greatest obstacle to the
success of Twin City Hospital”. As a result, Appellees retained Alberici Constructors,
Inc. of St. Louis, Missouri, in April, 2005, to create drawings for the emergency room
capital improvement project. Appellees also retained Carnegie Consulting, Inc. of Akron,
Ohio, to facilitate the creation of a comprehensive financial feasibility study and
implementation plan to determine the viability of the project. In July, 2005, the cost of
the emergency room capital improvement project was estimated at $10 million.
Carnegie investigated possible lenders. Appellees evaluated a variety of fundraising
and grant opportunities. Carnegie advised Appellees the “[a]verage trend is a 20%
increase in volumes after opening new construction.”
{¶10} In 2005, Twin City had a net operating income of $24,870. However, in
2006, the operating income fell to negative $407,216. The operating income loss Tuscarawas County, Case No 2013 AP 12 0049. 5
continued in 2007, at negative $795,000; in 2008, at negative $895,000; and in 2009, at
negative $2,146,000.
{¶11} Appellees began the fundraising efforts and by January, 2006, $2.8 million
in donations had been pledged to Twin City. In addition, the City Councils of Uhrichsville
and Dennison approved a resolution to place a property tax levy which would generate
$1.5 million over a ten-year period. The levy passed by a two-to-one margin.
{¶12} At a Special Board Meeting held November 14, 2005, Appellees received
a “Rural Hospital Replacement Study” which outlined the impact of new construction on
the operations and bottom lines of critical access hospitals. The Study highlighted four
main points:
Rural communities which built new critical access hospitals
experienced increased market share and local usage of services;
Rural communities which built new critical access hospitals
reported enhanced clinical performance, improved workforce
recruitment and retention, and improved quality performance efforts
overall;
New rural critical access hospitals experienced volume, efficiency,
and profitability gains in excess of industry averages; and
While growth could not be attributed solely to the new facility, the
results of the 20 rural critical access hospitals which built new
facilities were “nearly universally positive.”
{¶13} Appellees retained the certified public accounting firm of Arnett & Foster
PLLC to provide projected balance sheets, statements of operations, and other Tuscarawas County, Case No 2013 AP 12 0049. 6
analyses to facilitate the completion of the financial feasibility study for the emergency
room capital improvement project.
{¶14} Appellees contemplated expanding the scope of the emergency room
capital improvement project to include improvement to the second floor of the facility.
Carnegie advised Appellees, “From a financial standpoint, the project looks favorable
with no different risk level with completion of the second floor.” Thereafter, in August,
2006, Carnegie provided Appellees with a business plan for Twin City which was based
upon Appellees' projection of a 6% growth in revenue in 2006. In actuality, Twin City
only experienced a 2% growth in revenue in 2006. The business plan set forth a
comprehensive description of the revised capital improvement project, which was
projected to cost over $21 million.
{¶15} In January 2007, Appellees were advised all of the compliance information
had been submitted to JCAHO, and Twin City was no longer in danger of losing its
Medicare/Medicaid accreditation. Nonetheless, Appellees researched financing options,
and retained the law firm of Peck, Shaffer and Williams, LLP, to act as bond counsel.
Upon review of the financing options, Appellees decided to utilize the financial advising
services of Fifth Third Securities with potential financing to be underwritten by B.C.
Ziegler and Co. On April 25, 2007, Appellees entered into a resolution which set forth
Appellees' approval of Twin City's intent to finance the cost of the project through “the
consummation of a tax-exempt financing transaction * * * subject to the [acceptance of
the] final Feasibility Study” prepared by Arnett & Foster, “showing [Twin City] will be
able to service the necessary debt”. Arnett & Foster presented a tentative draft of the
Feasibility Study to Appellees on or about June 21, 2007. Arnett & Foster concluded: Tuscarawas County, Case No 2013 AP 12 0049. 7
The accompanying financial projection indicates sufficient funds
could be generated to meet [Twin City'] operating expense, working capital
needs, and other financial requirements including the debt service
requirements associated with the $16.9 million bond issuance during the
projection periods. However, the achievement of any financial projection is
dependent upon future events, the occurrence of which cannot be
assured.
{¶16} In a letter to Appellees, Arnett & Foster identified “Significant deficiencies”
in Twin City's internal control. Arnett & Foster explained a significant deficiency is:
a control deficiency, or combination of control deficiencies, that
adversely affects the entity's ability to initiate, authorize, record, process,
or report financial data reliably in accordance with generally accepted
accounting principles such that there is more than a remote likelihood that
a misstatement of the entity's financial statements that is more than
inconsequential will not be prevented or detected.
{¶17} Sometime during 2007, Twin City was forced to fire its CFO. Appellees
met with Peck, Shaffer and Williams, bond counsel, to review all of the documents
associated with the emergency room capital improvement project. Peck, Shaffer and
Williams informed Appellees, “The feasibility study does show that we should be able to
meet the debt service ratio.” On August 1, 2007, Appellees approved a “resolution to
proceed with bond transaction as means of providing financing for the building project.”
At the August 1st meeting, Appellees were advised Twin City had suffered an operating
loss of $407,216 in 2006. Tuscarawas County, Case No 2013 AP 12 0049. 8
{¶18} On August 8, 2007, Arnett & Foster completed the final financial feasibility
study, which was identical to the tentative draft in all respects except for the amount of
the bond issuance. The evidence indicates Appellees never read the feasibility study
despite conditioning approval of the bond on a positive feasibility study. The amount of
the bond issuance increased from $16.9 million to $17.3 million. Appellees finalized the
bond transaction. Ultimately, tax exempt revenue bonds in the amount of $16,775,000
were issued to finance the Twin City emergency room capital improvement project.
Appellees postponed approval of the financial statements, which would have shown the
incorrect projections, until after the bond transaction was approved and underway.
{¶19} Construction of the emergency room capital improvement project was
completed in the spring of 2009. During 2009, Twin City began to experience a dramatic
change in payor mix, seeing a significant increase in Medicaid and self-pay patients. As
a result, by mid–2010, Twin City was writing off 61% of charges which included
Medicaid and charity care. Twin City filed Chapter 11 bankruptcy in October 2010. Twin
City's assets including the physical building were sold through the bankruptcy court to
Trinity Hospital Twin City in May, 2011. Trinity Hospital Twin City operates as part of the
ministry of Sylvania Franciscan Health, which is operated by the Sisters of St. Francis of
Sylvania, Ohio.
{¶20} Via Judgment Entry filed October 12, 2012, the trial court granted
summary judgment in favor of Appellees. The trial court found Appellant had failed to
establish by clear and convincing evidence any Appellees were “conscious that Board
approval of the bond transaction would, in all probability, result in the failure of Twin City
Hospital.” October 12, 2012 Judgment Entry at p. 5. Appellant filed an appeal with this Tuscarawas County, Case No 2013 AP 12 0049. 9
Court. We reversed the trial court’s decision and issued a remand with instructions to
the trial court to re-determine the motion for summary judgment applying the definition
of “reckless” as set forth in Anderson v. Massillon, 134 Ohio St.3d 380, 983 N.E.2d 266,
2012–Ohio–5711. See, Kozel v. Andrews, supra.
{¶21} Upon remand, Appellees filed a supplemental motion for summary
judgment. Appellant filed a brief in opposition which included evidence and an affidavit
from an expert witness. Appellees filed a motion to strike, which Appellant opposed.
Appellant requested the trial court postpone ruling on the summary judgment pursuant
to Civ.R. 56(F), in order for Appellant to conduct discovery.
{¶22} Via Judgment Entry filed November 15, 2013, the trial court granted
summary judgment in favor of Appellees.
{¶23} It is from this judgment entry Appellant appeals, raising the following
Assignments of Error:
ASSIGNMENTS OF ERROR
{¶24} “I. THE TRIAL COURT ERRED IN GRANTING THE DEFENDANTS–
APPELLEES' MOTION FOR SUMMARY JUDGMENT.
{¶25} “II. THE TRIAL COURT ERRED IN GRANTING THE DEFENDANTS–
{¶26} “III. THE TRIAL COURT ERRED IN GRANTING THE DEFENDANTS–
{¶27} “IV. THE TRIAL COURT ERRED IN GRANTING THE DEFENDANTS–
APPELLEES' MOTION FOR SUMMARY JUDGMENT. Tuscarawas County, Case No 2013 AP 12 0049. 10
{¶28} “V. THE TRIAL COURT ERRED IN GRANTING THE DEFENDANTS–
APPELLEES' MOTION FOR SUMMARY JUDGMENT.”
STANDARD OF REVIEW
{¶29} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As
such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.
{¶30} Civ.R. 56 provides summary judgment may be granted only after the trial
court determines: 1) no genuine issues as to any material fact remain to be litigated; 2)
the moving party 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 such
evidence most strongly in favor of the party against whom the motion for summary
judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc.
(1977), 50 Ohio St.2d 317, 364 N.E.2d 267.
{¶31} It is well established the party seeking summary judgment bears the
burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v.
Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for
granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280
at 293, 662 N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that
the nonmoving party cannot prove its case, bears the initial burden of informing the trial
court of the basis for the motion, and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on the essential element(s) Tuscarawas County, Case No 2013 AP 12 0049. 11
of the nonmoving party's claims. The moving party cannot discharge its initial burden
under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no
evidence to prove its case. Rather, the moving party must be able to specifically point to
some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the
nonmoving party has no evidence to support the nonmoving party's claims. If the
moving party fails to satisfy its initial burden, the motion for summary judgment must be
denied. However, if the moving party has satisfied its initial burden, the nonmoving party
then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing
there is a genuine issue for trial and, if the nonmovant does not so respond, summary
judgment, if appropriate, shall be entered against the nonmoving party.” The record on
summary judgment must be viewed in the light most favorable to the opposing party.
Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 309 N.E.2d 924.
I., II., III., IV. and V
{¶32} In each of his Assignments of Error, Appellant contends the trial court
erred in granting summary judgment in favor of Appellees. We shall address Appellant’s
assignments of error together for ease of discussion as we find them to be interrelated.
{¶33} In its November 15, 2013 Judgment Entry, the trial court found:
{¶34} “If this case were tried, [Appellant] would have to prove, by clear and
convincing evidence, that [Appellees] (in their capacity as directors) acted against the
best interests of Twin City with a conscious disregard of or indifference to a known or
obvious risk of harm to Twin City that was unreasonable under the circumstances and
was substantially greater than negligent conduct, i.e., that it was conduct characterized Tuscarawas County, Case No 2013 AP 12 0049. 12
by a substantial and unjustifiable risk of harm to others and a conscious disregard of or
indifference to the risk, but the actor did not desire harm.”
{¶35} The trial court defined “clear and convincing evidence”, and concluded:
{¶36} “[Appellees] have met their burden of production. However, [Appellant]
has failed to establish a genuine issue of material fact in response. In light of the burden
of proof and the definition of “reckless” * * * the court concludes that it appears from
the evidence that reasonable minds can come to but one conclusion when viewing the
evidence most strongly in favor of the nonmoving party, and that conclusion is adverse
to the nonmoving party.”
{¶37} The trial court also stated "…if this were a case of ordinary negligence …
to be proven by a preponderance of the evidence summary judgment would not be."
{¶38} Appellant herein argues that the trial court erred by entering summary
judgment in favor of the Defendants-appellees claiming that issues of fact exist that
should be resolved by a jury. Appellant argues that the trial court's finding that it proved
its case by a preponderance of the evidence precludes summary judgment and that it
was error for the trial court to factor the trial standard of clear and convincing evidence
into its decision to grant Appellees' motion for summary judgment.
Burden of Proof at Trial
{¶39} A court should enter summary judgment on a claim if the evidence
“show[s] that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Civ.R. 56(C).
{¶40} Appellees rely on Myocare Nursing Home, Inc. v. Fifth Third Bank, 98
Ohio St.3d 545, 2003-Ohio-2287, for the proposition when reviewing summary Tuscarawas County, Case No 2013 AP 12 0049. 13
judgment, a trial court must view the evidence in light of the substantive evidentiary
burden applicable at trial.
{¶41} In Myocare, supra, the Ohio Supreme Court held:
{¶42} “Summary judgment may not be granted if there is any genuine issue of
material fact. Civ.R. 56(C). However, in determining whether a genuine issue exists as
to a material fact, a court of appeals must determine whether the evidence presented a
“sufficient disagreement to require submission to a jury' or [is] ‘so one-sided that one
party must prevail as a matter of law.’ ” Turner v. Turner (1993), 67 Ohio St.3d 337, 340,
617 N.E.2d 1123, quoting Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 251–
252, 106 S.Ct. 2505, 91 L.Ed.2d 202. “[T]he determination of whether a given factual
dispute requires submission to a jury must be guided by the substantive evidentiary
standards that apply to the case.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505, 91
L.Ed.2d 202. “[I]n ruling on a motion for summary judgment, the judge must view the
evidence presented through the prism of the substantive evidentiary burden.” Id., 477
U.S. at 254, 106 S.Ct. 2505, 91 L.Ed.2d 202. Accordingly, in determining whether a
triable issue of fact exists so as to preclude summary judgment, a court should
determine whether a reasonable jury could find that the evidence satisfies the
evidentiary standards required at trial. Only then does a genuine issue of material fact
precluding summary judgment exist.”
{¶43} Based on the foregoing, we find that the trial court did not err in
considering the “clear and convincing” burden of proof at trial. Tuscarawas County, Case No 2013 AP 12 0049. 14
Trial Court’s Findings of Fact
{¶44} Appellate courts review grants of summary judgment de novo. Sogg v.
Zurz, 121 Ohio St.3d 449, 2009-Ohio-1526, ¶ 5 (Citation omitted). We will now consider
the evidence with respect to each claim.
Medicare/Medicaid accreditation
{¶45} Appellant argues that the trial court erred in finding that Appellees'
believed the new hospital project was necessary for the Hospital to keep its federal
Medicare/Medicaid accreditation.
{¶46} Appellant argues that the record reflects the Hospital was in full
compliance with the requirements of the JCAHO prior to approval of the capital project
and, therefore, accreditation could not have been a motivating factor.
{¶47} Upon review, we find such argument unpersuasive as continued
compliance and retention of JCAHO accreditation would certainly always be a
motivating factor in all of the Board’s decisions.
Losing Money in 2007
{¶48} Appellant also argues that the trial court erred in finding that Appellees did
not have any evidence before them that the Hospital was losing money in 2007.
{¶49} In its Judgment Entry, the trial court adopted “the factual recitations
contained in the affidavits of [Appellees] and the exhibits submitted with them, to the
extent that they are in compliance with Civ.R. 56(E).”
{¶50} Said Affidavits contained the following statement:
{¶51} “Kozel attempts to paint Twin City Hospital’s financial condition as
irreparably bleak in the summer of 2007. However, the information before the Board Tuscarawas County, Case No 2013 AP 12 0049. 15
Members at the time the Bond Transaction was entered into painted an entirely different
picture. Twin City Hospital had net operating income for 2005, thus there was no
evidence of the “negative trend” claimed by Kozel.” (Aff. at 10).
{¶52} The trial court, in its own findings, stated that in 2005, Twin City had a net
operating income of $24,870 but that the operating income fell to negative $407,216 in
2006, continuing to negative $795,000 in 2007. We therefore do not find that the trial
court held as one of its findings that the Board had no evidence before it that the
hospital was losing money
Inaccurate Financial Information
{¶53} Lastly, Appellant argues that the trial court erred in finding Appellees were
unaware of any inaccurate financial information.
{¶54} Again, Appellant cites to a statement contained in the Affidavits, which
reads:
{¶55} “The Board Members are unaware of any information management of
Twin City Hospital provided to A&F for use in their feasibility study that was inaccurate,
misleading, or otherwise false.” (Aff. at 8).
{¶56} Upon review, this Court finds that Appellant has presented no evidence
that Appellees knew that any of the studies, plans or projections in this case were
fraudulent.
{¶57} Carnegie Consulting advised Appellees that the “average trend is a 20%
increase in volume after opening new construction”. Further, the feasibility study
prepared by Arnett & Foster PLLC indicated that “sufficient funds could be generated to Tuscarawas County, Case No 2013 AP 12 0049. 16
meet [Twin City] operating expense, working capital needs, and other financial
requirements including debt service requirements …”
{¶58} Additionally, the Audit in this case found:
{¶59} “In our opinion, the consolidated financial statements referred to above
presented fairly, in all material respects, the financial position of Twin City Hospital … in
conformity with accounting principles generally accepted in the United States of
America.”
{¶60} Appellant was required to present sufficient evidence that members of the
Board consciously disregarded the risk that approval of the capital project in this matter
would result in injury/damage to the hospital. Upon review, we find Appellant failed to
satisfy this burden. Tuscarawas County, Case No 2013 AP 12 0049. 17
{¶61} Appellant has failed to demonstrate a genuine issue of material fact that
would require submitting any of his claims to a jury. Appellant’s Assignments of Error
are overruled.
{¶62} For the foregoing reasons, the judgment of the Court of Common Pleas of
Tuscarawas County, Ohio, is affirmed.
By: Wise, J.
Farmer, J., concurs.
Hoffman, P. J., concurs in part and dissents in part.
JWW/d 1008 Tuscarawas County, Case No 2013 AP 12 0049. 18
Hoffman, P.J., concurring in part and dissenting in part
{¶63} I concur in the majority's disposition of Appellant's first assignment of
error. I do so reluctantly because I believe Myocare Nursing Home, Inc. v. Fifth Third
Bank, 2003-Ohio-2287, is so significantly different in both the nature of the underlying
proceedings and the evidentiary issue presented that its application herein runs contra
to the plain language of Civ.R. 56.
{¶64} Myocare involved an action for declaratory judgment and injunctive relief
regarding the validity of a close corporation agreement. Crucial to the court's opinion
was the fact the close corporation agreement was a contract, or other written
instrument, regular on its face with no indications of erasure or falsity; therefore, was
rebuttably presumed to be correctly dated. The court stated where a rebuttable
presumption exists, the party challenging the presumed fact must produce evidence of a
nature that counterbalances the presumption or leaves the case in equipoise. The court
found the evidence offered to rebut the presumption reflected little more than unfounded
suspicion and personal vendetta, rising only to the level of speculation and innuendo.
{¶65} This case does not involve a declaratory judgment/permanent injunction
action, but rather a complaint for monetary damages. And, it does not involve an
evidentiary presumption.
{¶66} Nonetheless, I must concede the Ohio Supreme Court stated in Myocare
in summary judgment proceedings, a court should determine whether a reasonable jury
could find the evidence satisfies the evidentiary standards required at trial. I urge the
Ohio Supreme Court to reconsider that holding for the following reasons. Tuscarawas County, Case No 2013 AP 12 0049. 19
{¶67} The issue presented in Myocare did not require an analysis of the overall
requisite burden of proof at trial, but rather focused on the lack of evidence to rebut an
evidentiary presumption of fact. To that extent, it can be argued application of its
holding extending to the overall requisite burden of proof at trial was not necessary and
dicta.
{¶68} Civ.R. 56(C) provides summary judgment shall be rendered if there is no
genuine issue of any material fact and the moving party is entitled to judgment as a
matter of law. The rule does not address, let alone require, consideration of the
requisite burden of proof at trial. The focus is upon whether the evidence, construed
most strongly in the non-movant's favor, demonstrates a genuine dispute of material
fact. The Myocare Court found the disputed fact (the date of the close corporation
agreement) was not "genuine" in light of the evidentiary presumption regarding the
validity of a writing, not because of a heightened burden of proof as to the underlying
action.
{¶69} To consider the overall requisite burden of proof at trial necessarily
involves a weighing of the evidence, inherently recognizing a disputed material fact
exists. I believe to do so improperly usurps the role of the jury. The trial court's role is
not to try the issue of fact,1 but to determine whether triable issues of fact exist. Viock v.
Stowe-Woodard, Co. (1983) 13 Ohio App. 3d 7, 15. The nonmoving party has no
burden of proof in overcoming a summary judgment motion regardless of that party's
1 That such happened it this case appears evident from the trial court's statement, "If this were a case of ordinary negligence … to be proven by a preponderance of the evidence, summary judgment would not lie. However, this is not such a case." Nov. 15, 2013 Judgment Entry at 16. The difference between negligence and reckless conduct is ordinarily left for the trier-of-fact to determine at trial. Tuscarawas County, Case No 2013 AP 12 0049. 20
burden of proof at trial. Whiteleather v. Yosowitz (1983), 10 Ohio App. 3d 272, 275. As
such, I find consideration of the requisite standard of proof at trial goes beyond the plain
reading of the rule.
{¶70} I note this Court has previously addressed this issue. In Franklin v.
Massillon Homes II, L.L.C., Stark App. No. 08–CA–288, 2009-Ohio-5487, 2009 WL
3321007, ¶ 34, this Court found the trial court erred in granting summary judgment
based upon a determination the plaintiff had not established her claim for adverse
possession because she had not satisfied the burden of proof necessary to succeed at
trial. We held, “Civ.R. 56 merely requires that the trial court determine whether there
are any genuine issues of material fact to be tried, not whether one party or the other
will satisfy its burden of proof when the case eventually comes to trial.” Id.
{¶71} While I concur in the majority's disposition of Appellant's first assignment
of error as stated supra, I respectfully dissent from its disposition of Appellant's
remaining assignments of error.
{¶72} Unlike the majority, I find when construing all the evidence in the record
most strongly in favor of Appellant, reasonable minds could differ as to whether
Appellees were reckless in their responsibilities regarding issuance of the bonds to
finance the hospital building project. I do not find the evidence "so one-sided that one
party must prevail as a matter of law." Turner v. Turner (1993), 67 Ohio St.3d 337, 340,
quoting Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 251-252. Tuscarawas County, Case No. 2013 AP 12 0049 21