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Wilson v. Smith2/2/2005
ellant's son nor his wife] were named 'insureds' * nor were they 'resident relatives.'"
{ } Even after Appellant explicitly raised the issue in her response to Appellee's motion for summary judgment, Appellee did not address the issue or expend the effort to show a lack of evidence regarding residency. Appellee simply continued to argue that, assuming Appellant's son was not an insured under the policy, Appellant was not entitled to UIM damages absent personal bodily injury . As previously noted, the trial court properly rendered partial summary judgment on that issue. However, as Appellee did not raise the issue of residency in its motion for summary judgment, it was improper for the trial court to grant summary judgment on the additional basis that Appellant's son was not an insured. Accordingly, we sustain Appellant's second assignment of error.
{ } In closing, this Court would also like to address the format of the trial court's journal entry on summary judgment. The matter before this Court is of a serious nature. The legal issues in this case may be contractual in nature, but the underlying events involve the death of Appellant's son. In consideration of these circumstances, this Court finds the trial court's use of a golfing gecko cartoon on its judgment entry entirely inappropriate. Such behavior offends the solemnity of the proceedings in multiple ways and should be avoided in the future.
{ } We overrule Appellant's first assignment of error and affirm the partial grant of summary judgment in that regard. However, we sustain Appellant's second assignment of error, reverse the grant of summary judgment to Appellee based upon residency, and remand to the Summit County Court of Common Pleas for further proceedings consistent with this opinion.
Judgment affirmed in part, reversed in part, and cause remanded.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Costs taxed to both parties equally.
Exceptions.
LYNN C. SLABY
CARR, J., WHITMORE, J. CONCUR
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