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Party Moving for Summary Judgment Not Required to Anticipate Opponent’s Affirmative Defenses

2007-0041. Todd Dev. Co., Inc. v. Morgan, Slip Opinion No. 2008-Ohio-87.
Warren App. No. CA2005-11-124, 2006-Ohio-4825. The certified question is answered in the negative, and the judgment of the court of appeals is reversed.
Moyer, C.J., and Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Lanzinger, J., concurs in judgment only.
Pfeifer, J., dissents and would answer the certified question in the affirmative and affirm the judgment of the court of appeals.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2008/2008-Ohio-87.pdf

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(Jan. 17, 2008) The Supreme Court of Ohio ruled today that a plaintiff or counterclaimant in a civil lawsuit who files a motion for summary judgment does not bear the initial burden of addressing affirmative defenses that may be raised in the opposing party’s responsive pleading. The Court’s 6-1 decision was authored by Chief Justice Thomas J. Moyer.

The case involved a dispute between a group of homeowners in a Warren County subdivision and a developer who purchased multiple undeveloped lots in the subdivision from the original developer. The buyer sought a judgment from the Warren County Court of Common Pleas declaring that it was not bound by restrictions in the original subdivision covenants that barred any further subdivision of the purchased lots.

The legal issue on which the Supreme Court agreed to hear arguments in the case did not involve the substance of the dispute between the parties, but focused instead on procedures followed by the trial court in ruling on a pretrial motion for summary judgment. Under Rule 56 of the Ohio Rules of Civil Procedure, a motion for summary judgment may be granted to the moving party if the trial court finds that the non-moving party’s pleadings have not raised a “genuine issue of material fact” that could support a judgment in favor of the non-moving party.

After both sides in the Warren County dispute had filed written pleadings supporting their legal arguments, attorneys for the homeowners filed a motion seeking summary judgment on several issues. The developer filed a reply opposing the summary judgment motion, in which it asserted the affirmative defense of laches (excessive delay by the opposing party in asserting a claim). The developer’s brief did not provide factual information supporting its assertion of a laches defense.

The trial court granted partial summary judgment in favor of the homeowners. The developer appealed, and the ruling of the trial court was subsequently reversed by the 12thsup> District Court of Appeals.  In its decision, the 12th District held that the trial judge erred in granting summary judgment to the homeowners because the pleadings they filed in support of their motion did not address the affirmative defense of  laches, and therefore left open a “question of material fact” regarding whether the homeowners had engaged in unreasonable delay in asserting their legal claim. The 12th District certified that its ruling negating the trial court’s award of summary judgment was in conflict with decisions in other Ohio courts of appeals, and the Supreme Court agreed to hear arguments to resolve the conflict among appellate districts. In today’s decision, which reversed the 12th District and reinstated the trial court’s partial summary judgment in favor of the homeowners, Chief Justice Moyer wrote: “The basic standard for summary judgment has been well established in Ohio jurisprudence. The issue in this case is whether the moving party’s burden to support its motion for summary judgment includes the burden to address the nonmoving party’s affirmative defenses. The language of Civ.R. 56 and our case law do not support the proposition that a party moving for summary judgment has the burden to prove its case and disprove the opposing party’s case as well. We agree with the appellants that there is no requirement in the Civil Rules that a moving party must negate the nonmoving party’s every possible defense to its motion for summary judgment. To the contrary, Civ.R. 56(E) states that a party opposing summary judgment may not rest upon its pleadings, but must set forth specific facts showing there is a genuine issue for trial.”

Applying that legal reasoning to the facts of the current case, the Chief Justice wrote:  “In this case, both appellants and appellees have had an opportunity to submit evidence to the trial court. Both parties have had legal notice of the moving party’s summary judgment motion. Appellees had the opportunity in their response to appellants’ summary judgment motion to submit evidence showing a genuine issue of material fact with respect to their affirmative defenses. Appellees were not required to conclusively demonstrate their case, but to produce only enough evidence to show that there remained a genuine issue of material fact. … Appellees did not do so, and the trial court did not err in granting summary judgment in favor of appellants.”  

Chief Justice Moyer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp. Justice Judith Ann Lanzinger concurred, but entered a separate opinion. Justice Paul E. Pfeifer dissented without opinion, stating that he would answer the certified conflict question in the affirmative and would affirm the ruling of the court of appeals.

In her separate opinion, Justice Lanzinger concurred with the majority’s judgment reversing the ruling of the 12th District, but stated that she would strike from the majority opinion a reference to a 1996 case, Dresher v. Burt.  “In Dresher, a plurality of this court held that a moving party has the burden to identify those portions of the record that demonstrate the absence of an issue of fact on a nonmoving party’s claim,” wrote Justice Lanzinger. “The decision, limited in scope, does not lead to the conclusion that affirmative defenses need not be addressed by a plaintiff or counterclaimant filing a summary judgment motion. The holding in this case adequately rests upon Civ.R. 56 alone, and on that basis I concur.”

Gary J. Leppla, 937.294.5959, for Sonny Morgan and other homeowners.

James A. Matre, 513.671.6333, for Todd Development Co.