COURT OF COMMON PLEAS
FAIRFIELD COUNTY, OH
ROBERT NEINAST
Plaintiff,v.BOARD OF TRUSTEES OF THE FAIRFIELD COUNTY DISTRICT LIBRARY,
Defendants.
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Case No. 09 CV 0657
Judge Chris Martin
PLAINTIFF'S MEMORANDUM CONTRA DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The Library’s Motion for Summary Judgment was basically a refiling of its Motion to Dismiss of October 29, 2009, with the following changes: a new title; a new section describing the “Summary Judgment Standard;” an introductory phrase at the beginning of the first sentence under “Facts and Related Cases;” a similar introductory phrase three paragraphs down; and a new, penultimate paragraph relating the Library’s argument to the summary judgment standard.
Rather than further fill up the case file, Plaintiff notes that his “Memorandum Contra Defendant’s Motion to Dismiss,” of November 12, 2009, fully addresses the issues of collateral estoppel raised in the Library’s Motion for Summary Judgment. Hence, Neinast’s “Memorandum Contra Defendant’s Motion to Dismiss” of November 12, 2009 and all of its attachments are hereby incorporated by reference. From that brief, it is clear that the relevant facts in this case (e.g., the conditions on the Library’s floors) do not support the Library’s contentions. Furthermore, when the facts are viewed most strongly in Neinast’s favor, almost all of the issues in the instant case are different than those in any previous case. Finally, the Library is not entitled to judgment as a matter of law, since to do so would require this Court to stretch the existing law regarding collateral estoppel far beyond that established by the Ohio Supreme Court and the Ohio Courts of Appeal.
However, the Library’s Motion for Summary Judgment is easily disposed of.
The Library’s burden for its summary judgment motion, in this instance based upon collateral estoppel, is described in Dresher v. Burt (1996), 75 Ohio St.3d 280, 293:
Accordingly, we hold that a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden 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 material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied.
The Library was required, in order to meet its initial burden, to point to evidence of the type listed in Civ.R. 56(C). “In ruling upon a motion for summary judgment, a trial court is limited to consideration of the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact. Civ. R. 56(C).” Mitchell v. Ross (8th Dist. 1984), 14 Ohio App.3d 75. Courts have relaxed this standard a small amount, also allowing certified copies of court documents. “In addition, it is generally understood that a requirement that papers be sworn or certified may be satisfied by a certification contained within the paper itself rather than an external affidavit.” Costoff v. Akron General Medical Center (9th Dist. 2004), 2004-Ohio-5166, at ¶14. Certified copies of court documents are considered self-authenticating: “These certified documents are self-authenticating.” Nationwide Mut. Fire Ins. Co. v. Kubacko (11th Dist. 1997), 124 Ohio App.3d 282, 289, fn. 8. See also Marrie v. International Local 717 (11th Dist. 2002), 2002-Ohio-3148 at ¶21 (“Further, we will not consider the federal motion to dismiss and its memorandum in support which were attached to appellant’s response to appellee's motion for summary judgment in the instant matter. That is because appellant failed to provide a certified copy of this document to the instant trial court.”).
The Library has not attached any affidavits or certified copies authenticating the court opinions that it attached to its motion. It has attached no evidence to support its claim of collateral estoppel. “Documents which are not sworn, certified, or authenticated by way of affidavit have no evidentiary value and shall not be considered by the trial court.” Mitchell v. Ross, 14 Ohio App.3d at 75. There is thus no evidence before this court regarding collateral estoppel. “Without the record in the various trial courts, there is no factual basis upon which to rest a conclusion that the issues there involved were the same issues involved in the current action, and that there was a fair opportunity available to appellant to therein litigate those issues.” Johnson v. Linder (3rd Dist. 1984), 14 Ohio App.3d 412, 415.
An explanation for why those court opinions cannot simply be attached might be in order.1 Court opinions are normally cited for one of two reasons: precedent or persuasive authority. Precedent refers to the ruling of a higher court that the lower court is obligated to follow. Persuasive authority refers to the ruling of a sister court that does not have to be followed, but for which the argument and analysis of the case may be persuasive. There is no requirement of authentication for those reasons. But there is a third reason, and that is the reason that applies to res judicata (or its twin, collateral estoppel). For cases asserting res judicata, those previous opinions are being presented as evidence of res judicata, and as evidence, they must be properly authenticated.
In summary, the Library has pointed to no evidence of the sort required by Civ.R. 56 supporting its defense of collateral estoppel. It has failed to meet its initial burden. As such, its motion for summary judgment must be denied. Dresher v. Burt, 75 Ohio St.3d at 293.
Respectfully submitted,
_______________________
Robert A. Neinast
Plaintiff, PRO SE
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
Email: neinast@att.net
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Memorandum Contra was served, by hand delivery to his office, upon Mr. Roy E. Hart, Assistant Prosecuting Attorney, Attorney for Defendants, 201 South Broad Street — Suite 400, Lancaster, OH, 43130, this 22th day of January, 2010.
_______________________
Robert A. Neinast
Plaintiff, pro se
Footnotes:
1. Please excuse the professorial tone. However, this is an issue that so many litigants get wrong and so many Courts of Appeal have to address, that it seems that a clear and logical exposition may be helpful. [Back]