Mahvi v. Stanley Builders12/9/2005
that the moving party must support it's motion with affidavits or other similar materials negating the opponent's claim." Celotex Corp. v. Catrett (1986), 477 U.S. 317, 323 (emphasis sic). In other words, the defendant, in supporting his motion for summary judgment is not required to "prove a negative." Catrett v. Johns-Manville Sales Corp. (D.C. Cir. 1985), 756 F.2d 181, 187 (Bork, J., dissenting).
{ } For the foregoing reasons, appellants' sole assigned error is without merit, and we affirm the judgment of the Geauga County Court of Common Pleas. Accordingly, RPM's cross-assignment of error is rendered moot, since "cross-assignments of error may only be considered for the limited purpose of preventing reversal." Strongsville v. Terry Development Corp. 8th Dist. No. 62057, 62061, 62120, 1993 Ohio App. LEXIS 2692, at *11.
CYNTHIA WESTCOTT RICE, J., concurs,
DONALD R. FORD, P.J., concurs with a Concurring Opinion.
DONALD R. FORD, P.J., concurring.
{ } Although I concur with the majority, I believe that the following language cited in the opinion is subject to further qualification and is not the law in our district. The majority states that: " nless it is subject to a recognized exception, hearsay evidence is ordinarily not allowed in opposing a properly supported motion for summary judgment to shift the burden of proof. Harmon v. Schroeder (Dec. 17, 1986), 3rd Dist. No. 4-85-17, 1986 Ohio App. LEXIS 9391, at 6 (plaintiff was not allowed to use deposition testimony to provide proof of an element of the case, when the testimony was simply relaying hearsay statements of others); Cf. Civ.R. 56(E) ('affidavits * shall set forth such facts as would be admissible in evidence'); Orlando v. Powertrain Div., General Motors Corp. (Aug. 6, 1999), 6th Dist. No. L-99-1037, 1999 Ohio App. LEXIS 3579, at 9 (affidavits and deposition testimony containing 'hearsay and speculation' cannot be considered by the trial court or the appellate court)."
{ } This writer notes that when there is no timely objection to submissions that otherwise could be excluded, the trial court might include such material in its analysis regarding a decision on a motion for summary judgment. Rodger v. McDonald's Restaurants of Ohio, Inc. (1982), 8 Ohio App.3d 256, at paragraph one of the syllabus; Chiles v. Cuyahoga Community College (Dec. 5, 1996), 8th Dist. No. 70658, 1996 Ohio App. LEXIS 5466, at 4; Christe v. GMS Mgt. Co., Inc. (1997), 124 Ohio App.3d 84, 90; Sreshta v. Kaydan (May 6, 1999), 8th Dist. No. 74081, 1999 Ohio App. LEXIS 2066, at 6-7; Jarrell v. Englefield (Mar. 17, 2000), 11th Dist. No. 98-P-0105, 2000 Ohio App. LEXIS 1076, at 2; Ryser v. Conrad (Mar. 31, 2000), 11th Dist. No. 98-T-0088, 2000 Ohio App. LEXIS 1428, at 8; Kanu v. George Dev., Inc., 6th Dist. Nos. L-02-1140 and L-02-1139, 2002-Ohio-6356, at .
{ } For the foregoing reasons, I respectfully concur in the judgment.
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