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Ullmann v. Duffus11/15/2005
} On March 1, 2005, prior to filing her notice of appeal, appellant filed a motion for relief from judgment pursuant to Civ.R. 60(B)(5). On March 18, 2005, after filing her reply memorandum in support of her motion for relief from judgment, appellant filed a "Supplement to Motion for Relief of Judgment or Order Pursuant to Rule 60 B," to which she attached an affidavit from Dr. Mohan. On March 29, 2005, after appellant filed her notice of appeal from the trial court's entry of summary judgment, the trial court denied appellant's motion for relief from judgment. Appellant did not file a notice of appeal from the judgment entry denying her Civ.R. 60(B)(5) motion.
{ } On appeal, appellant assigns the following as error:
I. ASSIGNMENT OF ERROR I
THE COURT ERRED IN GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT WHEN GENUINE ISSUES OF MATERIAL FACT WERE CLEARLY IN ISSUE.
II. THE COURT ERRED IN FAILING TO RULE ON MY 60B MOTION IN A TIMELY MANNER AND REOPEN THE CASE.
{ } In her first assignment of error, appellant contends that the trial court erred by entering summary judgment in favor of Dr. Duffus when genuine issues of fact remained for trial. Appellate review of summary judgment is de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588, citing Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711. When an appellate court reviews a trial court's disposition of a summary judgment motion, it applies the same standard as the trial court and conducts an independent review, without deference to the trial court's determination. Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Brown at 711.
{ } Pursuant to Civ.R. 56(C), summary judgment shall be rendered if "the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show 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." Accordingly, summary judgment is appropriate only where: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the non-moving party, reasonable minds can come to but one conclusion, that conclusion being adverse to the non-moving party. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66.
{ } " he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record * * * which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt (1996), 75 Ohio St.3d 280, 292. Once the moving party meets its initial burden, the non-movant must then produce competent evidence of the types listed in Civ.R. 56(C) showing that there is a genuine issue for trial. Id. at 293. Because summary judgment is a procedural device to terminate litigation, courts should award it cautiously after resolving all doubts in favor of the non-moving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-359.
{ } In the first count of her complaint, appellant alleges that Dr. Duffus was negligent in prescribing Panacur to treat roundworms in appellant's birds. At least one Ohio court has recognized that general rules regarding medical malpractice also apply to claims of professional negligence against veterinarians:
The broad basis of liability of a veterinarian * * * is to be tested by the general rules with respect to what is ordinary
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