Perelman v. Meade

2021 Ohio 4247

• Court: Ohio Court of Appeals
• Decided: December 6, 2021
• Docket: CA2021-06-054
• Status: Published

Opinion

[Cite as Perelman v. Meade, 2021-Ohio-4247.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

JULIE PERELMAN, :

Appellant, : CASE NO. CA2021-06-054

: OPINION - vs - 12/6/2021 :

PAUL C. MEADE, DVM, et al., :

Appellees. :

CIVIL APPEAL FROM LEBANON MUNICIPAL COURT Case No. CVH-2100041

Julie S. Perelman, pro se.

Rolfes Henry Co., L.P.A., and John A. Fiocca, Jr., for appellees.

HENDRICKSON, J.

{¶1} Appellant, Julie Perelman, appeals from the decision of the Lebanon

Municipal Court, which granted summary judgment in favor of appellees, Lebanon Animal

Hospital, Paul Meade, DVM, and Tom Meade, DVM (collectively, "the defendants"). For

the reasons detailed below, we affirm the trial court's decision.

{¶2} In September 2019, the Humane Association of Warren County ("Humane

Association") rescued a female Labrador Mix puppy named Piper. The record reflects that Warren CA2021-06-054

on September 30 and October 14, 2019, the Humane Association arranged for Piper's

veterinary care, vaccinations, and the insertion of a microchip.

{¶3} On October 16, 2019, an individual from Miamisburg, Ohio ("B.J.R.") agreed

to adopt Piper for $250. As a condition of the agreement, the Humane Association agreed

to have Piper spayed. Therefore, the Humane Association contracted with Lebanon Animal

Hospital to perform Piper's spay procedure for a $75 fee. The parties dispute whether Tom

Meade, DVM, or Paul Meade, DVM, performed the procedure.1 However, it is undisputed

that the procedure was performed on October 30, 2019.

{¶4} Following the procedure, B.J.R. retrieved Piper from the hospital. As relevant

to this case, dogs are considered personal property under Ohio law. R.C. 955.03; Sokolovic

v. Hamilton, 8th Dist. Cuyahoga No. 96189, 2011-Ohio-4638, ¶ 18.

{¶5} On February 13, 2020, B.J.R. returned Piper to the Humane Association. The

following day, on February 14, 2020, Perelman adopted Piper. The Veterinary Treatment

History associated with the adoption agreement indicated that Piper had been spayed.

{¶6} On March 3, 2020, Perelman reported that Piper's vulva was swollen, and she

appeared to be in heat. According to the summary judgment evidence presented,

Perelman's veterinarian, Joanne Goodman, DVM, explained that an ovarian remnant could

cause those symptoms and advised Perelman to wait and see if Piper came into heat again

in the fall or winter.

{¶7} In December 2020, Piper again showed signs of being in heat and Dr.

Goodman recommended exploratory surgery to look for an ovarian remnant. The

exploratory surgery was performed on December 11, 2020. During the procedure, Dr.

Goodman found that Piper's left ovary, suspensory ligament, ovarian pedicle, and left

1. Tom Meade averred that he performed the procedure while the "Spayed/Neutered Certificate" states that Paul Meade performed the procedure.

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uterine horn were completely intact down to the uterine body. Dr. Goodman proceeded to

remove the remnants, which she described as the "left side of Piper's reproductive tract."

Dr. Goodman also observed an abnormal, fluid filled structure off the side of Piper's bladder.

Dr. Goodman concluded that Piper's kidney was abnormal and referred Perelman to a

specialist. Dr. Goodman averred that the original spay procedure was below the standard

of care for any veterinarian and that the improper procedure resulted in the need for a

nephrectomy, the surgical removal of a kidney.

{¶8} On December 16, 2020, Eric Rowe, DVM, performed the nephrectomy on

Piper. Dr. Rowe opined that the original spay procedure was performed below the minimum

standard of care.

{¶9} On December 28, 2020, Perelman brought this action in the Lebanon

Municipal Court, Small Claims Division, against Lebanon Animal Hospital alleging that the

original spay procedure had been negligently performed. She claimed damages in the

amount of $3,214.34 for the expenses she incurred from the surgeries performed by Dr.

Goodman and Dr. Rowe.

{¶10} The case was subsequently transferred to the court's general civil docket.

Paul Meade and Tom Meade were later added as defendants. On March 24, 2021, the

defendants moved for summary judgment. On April 24, 2021, the trial court granted

summary judgment in favor of the defendants. Perelman now appeals, raising a single

assignment of error for review:

{¶11} THE TRIAL COURT ERRED TO THE PREJUDICE OF

PLAINTIFF/APPELLANT BY GRANTING SUMMARY JUDGMENT.

{¶12} In her sole assignment of error, Perelman alleges the trial court erred by

granting summary judgment in favor of the defendants.

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{¶13} This court reviews summary judgment decisions de novo. Ludwigsen v.

Lakeside Plaza, L.L.C., 12th Dist. Madison No. CA2014-03-008, 2014-Ohio-5493, ¶ 8.

Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there are no genuine

issues of material fact to be litigated, (2) the moving party is entitled to judgment as a matter

of law and, (3) when all evidence is construed most strongly in favor of the nonmoving party,

reasonable minds can come to only one conclusion, and that conclusion is adverse to the

nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 369-70 (1998).

{¶14} The moving party bears the initial burden of informing the court of the basis

for the motion and demonstrating the absence of a genuine issue of material fact. Robinson

v. Cameron, 12th Dist. Butler No. CA2014-09-191, 2015-Ohio-1486, ¶ 9. Once this burden

is met, the nonmoving party has a reciprocal burden to set forth specific facts showing there

is some genuine issue of material fact yet remaining for the trier of fact to resolve. Id. In

determining whether a genuine issue of material fact exists, the evidence must be construed

in favor of the nonmoving party. Avila v. Hughes, 12th Dist. Warren No. CA2020-08-047,

2021-Ohio-2463, ¶ 34.

{¶15} In order to establish an actionable negligence claim, a plaintiff must establish

that (1) the defendant owed plaintiff a duty, (2) the defendant breached that duty, and (3)

the defendant's breach proximately caused the plaintiff's injuries. Vanderbilt v. Pier 27,

L.L.C., 12th Dist. Butler No. CA2013-02-029, 2014-Ohio-5205, ¶ 9.2 Duty refers to the

2. Damages for loss or injury to personal property, including dogs, is generally limited to the fair market value of the property. Rego v. Madalinski, 6th Dist. Lucas No. L-16-1030, 2016-Ohio-7339, ¶ 6. Because of this standard, Ohio courts have admitted that damages will seldom be awarded for the loss of a family pet, since pets have little or no market value. Sokolovic, 2011-Ohio-4638 at ¶ 15; Davison v. Parker, 11th Dist. Lake No. 2013-L-098, 2014-Ohio-3277, ¶ 13. However, several Ohio cases have awarded damages beyond fair market value, including the cost of veterinary expenses. Oberschlake v. Veterinary Assocs. Animal Hosp., 151 Ohio App.3d 741, 2003-Ohio-917 (2d Dist.) (costs connected with an improper veterinary surgery); Lewis v. Hendrickson, 4th Dist. Gallia No. 02CA18, 2003-Ohio-3756 (veterinary bills incurred in the misdiagnosis of a tumor in a dog's ear); Pacher v. Invisible Fence of Dayton, 154 Ohio App.3d 744, 2003-Ohio-5333, ¶ 19 (2d Dist.) (veterinary bills incurred when a dog was injured by electric fence); Saratte v. Schroeder, 7th Dist. Belmont No. 08-BE-18, 2009-Ohio-1176 (allowing damages for veterinary bills when a dog is injured by another dog); Rego (remanding for calculation of damages beyond fair market value).

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relationship between a plaintiff and a defendant from which an obligation arises on the part

of the defendant to exercise due care toward the plaintiff. Howard v. Kirkpatrick, 12th Dist.

Fayette No. CA2008-11-040, 2009-Ohio-3686, ¶ 11. The existence of a duty is fundamental

to establishing actionable negligence, without which there is no legal liability. Uhl v.

Thomas, 12th Dist. Butler No. CA2008-06-131, 2009-Ohio-196, ¶ 10. A determination of

whether a duty exists is a question of law for the court to decide. Williamson v. Geeting,

12th Dist. Preble No. CA2011-09-011, 2012-Ohio-2849, ¶ 13, citing Mussivand v. David, 45

Ohio St.3d 314, 318 (1989).

{¶16} In the present case, Perelman brought this negligence case against the

defendants alleging that they improperly performed the original spay procedure and

requested damages for the two additional surgeries performed on Piper. The defendants

claimed they were entitled to summary judgment for a variety of reasons, including that

Perelman lacked standing to sue and that her claims were barred by the economic loss

doctrine. The defendants also argued that Perelman incurred unnecessary veterinary

expenses because she could have returned the dog pursuant to her contract with the

Humane Association. The trial court granted summary judgment in favor of the defendants

in a brief written entry concluding that there were no genuine issues of material fact.

{¶17} On appeal, Perelman argues that the trial court erred in granting summary

judgment to the defendants. In so doing, she alleges that there were two genuine issues

of material fact. First, Perelman argues that there was a genuine issue of material fact

concerning which veterinarian at Lebanon Animal Hospital performed the original spay

procedure. Second, Perelman states that there is a dispute as to whether the October 30,

2019, procedure was a "proper" spay. She raised no additional legal claims until her reply

brief.

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{¶18} Following review, we find the trial court did not err in granting summary

judgment in favor of the defendants. As the record reveals, Piper was the personal property

of the Humane Association at the time of the procedure and was in the process of being

adopted by B.J.R. Approximately three months later, B.J.R. returned Piper to the Humane

Association. Perelman then adopted Piper on February 14, 2020.

{¶19} When Piper began exhibiting symptoms of being in heat, Perelman sought

assistance from Dr. Goodman. The record reflects that Perelman incurred substantial

medical bills to treat Piper's condition. We agree with Perelman that there is a dispute in

the record concerning which veterinarian performed the operation and whether or not the

original spay procedure was performed correctly. However, we find those disputed facts

are not material to the outcome of this case.

{¶20} As the Supreme Court of Ohio has stated, "a defendant's duty to a plaintiff

depends upon the relationship between the parties and the foreseeability of injury to

someone in the plaintiff's position." Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642,

645 (1992). In this case, Piper was the personal property of the Humane Association at the

time of the original spay procedure. The record also reflects that the contractual obligation

to perform the original spay procedure was between the Humane Association and Lebanon

Animal Hospital. Though Perelman adopted Piper months later, she fails to present any

evidence that she had a relationship with the defendants that establish any duty was owed

to her.3 Since there was no relationship between Perelman and the defendants, Perelman

cannot show the existence of a duty. As noted above, the existence of a duty is fundamental

to establishing actionable negligence, without which there is no legal liability. Uhl, 2009-

3. To that end, we recognize that animals can and do suffer pain and distress. However, a dog cannot recover for emotional distress, or indeed any other direct relief. Oberschlake, 2003-Ohio-917 at ¶ 18. We further note that Perelman's opening brief did not argue that she was a foreseeable plaintiff.

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Ohio-196 at ¶ 10. See, e.g, Kitchen v. Teeters, 12th Dist. No. CA2011-06-048, 2012-Ohio-

4343, ¶ 13 ("as there was no relationship between the appellants and the [defendants], no

duty was owed in this situation").

{¶21} Based upon those undisputed facts, we agree with the trial court that

summary judgment was appropriate in this case. In so doing, we note that Perelman failed

to raise many legal arguments until her reply brief and has forfeited them on appeal. Eckert

v. Warren Cty. Rural Bd. of Zoning Appeals, 12th Dist. Warren Nos. CA2017-06-095,

CA2017-07-107, CA2017-07-108, CA2017-07-109, 2018-Ohio-4384, ¶ 56 (it is a well-

established rule that an appellant may not raise new arguments or issues in his reply brief).

For example, in her reply brief, Perelman argues that she was an intended third-party

beneficiary of the contract between Lebanon Animal Hospital and the Humane Association.

She also claims that she is the proper party to pursue this action, as she is a "foreseeably

vested third-party."

{¶22} We are mindful that Perelman has represented herself throughout this

process. However, pro se litigants are held to the same standard as litigants who are

represented by counsel. Holmes v. Cobblestone Grove, 12th Dist. Butler No. CA2016-04-

075, 2017-Ohio-55, ¶ 21. As a result, pro se litigants are presumed to have knowledge of

the law and correct legal procedures so that they remain subject to the same rules and

procedures to which represented litigants are bound. Sparks v. Sparks, 12th Dist. Warren

No. CA2015-10-095, 2016-Ohio-2896, ¶ 6. In other words, "[p]ro se litigants are not to be

accorded greater rights and must accept the results of their own mistakes and errors,

including those related to correct legal procedure." Cox v. Zimmerman, 12th Dist. Clermont

No. CA2011-03-022, 2012-Ohio-226, ¶ 21. Accordingly, although we are sympathetic to

her situation, Perelman cannot establish an actionable claim for negligence on these facts

nor can we entertain any new argument she raised in her reply brief. Therefore, we find the

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trial court did not err in granting summary judgment in favor of the defendants. Perelman's

sole assignment of error is overruled.

{¶23} Judgment affirmed.

PIPER, P.J., and BYRNE, J., concur.

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