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Stuller v. Price9/20/2001
then only did so in response to appellee's summary judgment motion. Appellants also failed to comply with the clear requirements of Evid.R. 601(D). Appellants were put on notice by appellee's reply to their memorandum contra the summary judgment motion that the affidavit was deficient, and they could have requested leave of the court to supplement the affidavit or file further affidavits under Civ.R. 56(E). Under these circumstances, we cannot conclude that the trial court abused its discretion in concluding that Dr. Jacoby was not competent to offer expert medical testimony and in excluding his affidavit as inadmissible.
Appellants also argue that the trial court erred by not addressing the issue of res ipsa loquitor; however, as appellee argues, appellants have waived this argument by not properly raising it before the trial court. Issues not raised before the trial court are waived on appeal. State ex rel. Quarto Mining Co. v. Foreman (1997), 79 Ohio St.3d 78, 81. Despite appellants' vigorous argument to the contrary in their reply brief, their mere recitation of the words "res ipsa loquitor" in their memorandum contra the motion for summary judgment was insufficient to place the issue in play. Appellants merely stated that " he facts of this case are so patently obvious that it may well be a matter of res ipsa loquitor." Appellants use of this sentence appears to be more hyperbole than proper legal argument with citation to authority. Moreover, appellants concede in their appellate brief that they did properly raise the issue before the trial court:
* lthough the Plaintiffs-Appellants did not argue res ipsa loquitor in its memorandum contra, their pleadings should have been carefully reviewed by the lower Court. *
Because appellants provided no admissible evidence that appellee did not comply with the standard of care, no genuine issue of material fact existed that precluded summary judgment for appellee. Consequently, the trial court did not err in granting appellee's summary judgment motion, and appellants' assignment of error is overruled.
Based upon the foregoing reasons, appellants' single assignment of error is overruled and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BOWMAN and LAZARUS, JJ., concur.
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