[Cite as Bader v. Ferri, 2013-Ohio-3074.]

 

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

MEGAN A. BADER, 

 PLAINTIFF-APPELLANT, CASE NO. 1-13-01 

 v. 

PAUL T. FERRI, ET AL., O P I N I O N 

 DEFENDANTS-APPELLEES. 

 

Appeal from Allen County Common Pleas Court 

Trial Court No. CV20120454 

Judgment Affirmed 

Date of Decision: July 15, 2013 

 

APPEARANCES: 

 

Michael A. Rumer and Victoria Maisch Rumer for Appellant 

Carol K. Metz for Appellees 
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PRESTON, P.J. 

{¶1} Plaintiff-appellant, Megan A. Bader (“Bader”), appeals the Allen 

County Court of Common Pleas’ December 12, 2012 judgment entry granting the 

motion for summary judgment of defendants-appellees Huffman, Kelley, Brock & 

Gottschalk, LLC (“HKBG”) law firm and former HKBG associate, Paul G. Ferri 

(“Ferri”) (collectively “Appellees”), and dismissing the case, and January 8, 2013 

judgment entry denying Bader’s Civ.R. 60(B) motion for relief from the trial 

court’s December 12, 2012 judgment entry. For the reasons that follow, we 

affirm. 

{¶2} Bader filed a complaint against the Appellees on June 4, 2012, 

alleging legal malpractice. (Doc. No. 1). Bader alleged that the Appellees 

“agreed to provide legal representation to [Bader] with regard to a personal 

injury/malpractice action which occurred on or about April, 2009 arising out of 

[Bader’s] participation on the Women’s Golf Team at Bowling Green State 

University [“BGSU”] * * *.” (Id. ¶ 4). She further alleged that the Appellees 

“failed to institute the proper legal proceedings in [Bader’s] personal 

injury/malpractice action against BGSU and/or others associated with BGSU 

within the applicable statute of limitations period and, therefore, breached their 

duties owed to [Bader].” (Id. ¶ 6). Bader alleged that as a result of the Appellees’ 

“negligent legal representation,” she was barred from recovering for her “personal 
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injury/malpractice action,” and that “[a]s a direct and proximate result of [the 

Appellees’] breach of their duties to [Bader], [Bader] has suffered compensatory 

and consequential damages, including but not limited to past and future medical 

expenses, pain and suffering, and additional attorneys’ fees and expenses.” (Id. ¶ 

9). 

{¶3} The Appellees filed their answer on June 26, 2012, denying that they 

were liable and that they caused Bader’s alleged damages. (Doc. No. 5). The trial 

court issued a scheduling order on September 6, 2012, establishing dates and 

deadlines in the case, including a June 3, 2013 deadline for filing motions for 

summary judgment. (Doc. No. 9). The scheduling order stated, “[t]hirty days 

after a motion for summary judgment is filed, it will be deemed submitted for 

decision on the briefs and material submitted pursuant to Civ. R. 56(C) unless 

otherwise ordered by the Court.” (Id.). 

{¶4} On November 5, 2012, the Appellees filed a “motion for summary 

judgment as to underlying claim.” (Doc. No. 13). In it, they argued that the 

Appellees were entitled to summary judgment because Bader’s “claim against 

BGSU was precluded by the Release and Indemnity Agreement she signed prior to 

consulting” the Appellees. (Id.). Attached to the motion was a two-paragraph 

affidavit of Appellees’ attorney, Carol K. Metz, in which she swore that she was 

“competent to testify as to the matters set forth herein” and to which she attached 
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“a true and accurate copy of the release received from Plaintiff’s Responses to 

Defendants’ Request for Production of Documents.” (Metz Aff. ¶ 1-2, Ex. A, 

Doc. No. 13, attached). 

{¶5} Three days later, counsel for the Appellees deposed Bader and her 

parents, Marc and Cheryl Bader. (Doc. Nos. 14-16). On December 12, 2012—

thirty-seven days after the Appellees filed their motion for summary judgment—

the trial court issued a judgment entry granting summary judgment in favor of the 

Appellees. (Doc. No. 17). The trial court concluded that summary judgment was 

proper because Bader released BGSU from all liability in the underlying case for 

which she retained the Appellees, and her underlying claim against BGSU was 

thus precluded. (Id. at 1, 7). In its judgment entry, the trial court noted that Bader 

did not respond to the Appellees’ motion for summary judgment. (Id. at 1). 

{¶6} Five days after the trial court filed its judgment entry, Bader moved 

for relief from that judgment pursuant to Civ.R. 60(B). (Doc. No. 19). In her 

motion, Bader argued that her counsel never received a copy of the Appellees’ 

motion for summary judgment, notwithstanding that motion’s certificate of 

service, in which counsel for the Appellees certified that she served Bader’s 

counsel with a copy of the motion “via regular U.S. mail, postage prepaid, on this 

30th day of October, 2012 * * *.” (Id. at 1); (Doc. No. 13 at 10). Bader’s 

attorneys swore in affidavits attached to Bader’s Civ.R. 60(B) motion that they did 
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not receive or see a copy of the Appellees’ motion for summary judgment before 

December 14, 2012. (M. Rumer Aff., V. Rumer Aff., Maisch Aff., Doc. No. 19, 

attached). Bader acknowledged that she signed the release—titled “RELEASE, 

CONSENT TO TREATMENT, AND INDEMNIFICATION AGREEMENT” 

(“Release”)—but argued that the Release applied only to her participation in golf 

and that she possessed a meritorious claim because the Release did not bar 

recovery for her alleged injury, which she says resulted from BGSU athletic 

trainers’ improper diagnosis and failure to refer her to a qualified orthopedic or 

neurosurgeon. (Doc. No. 19 at 5). 

{¶7} On January 2, 2013, the Appellees filed an opposition to Bader’s 

Civ.R. 60(B) motion, arguing that Bader did not satisfy her burden under Civ.R. 

60(B). (Doc. No. 20). They argued that the Release “expressly releases the 

BGSU trainers from liability, including liability related to diagnosis and 

treatment[.]” (Id. at 6). On January 8, 2013, the trial court issued a judgment 

entry denying Bader’s Civ.R. 60(B) motion, concluding that while she made her 

motion within a reasonable time and was entitled to relief under one of the 

grounds stated in Civ.R. 60(B)(1) through (5), she failed to demonstrate that she 

had a meritorious claim. (Doc. No. 21 at 3-8). 
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{¶8} Bader appealed the trial court’s December 12, 2012 and January 8, 

2013 judgment entries to this Court on January 10, 2013. (Doc. No. 23). She 

raises five assignments of error for our review, which we address out of order. 

Assignment of Error No. I 

The trial court erred in granting defendants’ motion for 

summary judgment in that defendants failed to meet the 

requisite standards of Civ. R. 56. 

{¶9} In her first assignment of error, Bader argues that it was error for the 

trial court to consider Metz’s affidavit and the copy of the Release attached to it. 

She argues that as the Appellees’ counsel, Metz did not have “personal 

knowledge” of the Release and was not competent to authenticate it. Therefore, 

Bader argues, the Release was not proper evidence under Civ.R. 56(C), and the 

trial court erred in basing its summary judgment decision on it. 

{¶10} As an initial matter, Bader, in her notice of appeal, directly appealed 

two judgment entries. (Doc. No. 23). We will, therefore, review each judgment 

entry—the first granting summary judgment, and the second denying Bader’s 

Civ.R. 60(B) motion—independently and according to the standard of review 

governing each. See Civ.R. 54. 

{¶11} We review a decision to grant summary judgment de novo. Doe v. 

Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there 

is no genuine issue of material fact, the moving party is entitled to judgment as a 
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matter of law, and reasonable minds can reach but one conclusion when viewing 

the evidence in favor of the non-moving party, and the conclusion is adverse to the 

non-moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist. 

Bd. of Edn., 69 Ohio St.3d 217, 219 (1994). If a non-moving party does not 

respond to a motion for summary judgment, “summary judgment, if appropriate, 

shall be entered against the party.” Chase Home Fin., L.L.C. v. Heft, 3d Dist. Nos. 

8-10-14 and 8-11-16, 2012-Ohio-876, ¶ 28, quoting Civ.R. 56(E) (internal 

quotation marks omitted). 

{¶12} Bader centers her argument on the trial court’s consideration of a 

copy of the Release that she argues was improperly authenticated by Metz’s 

affidavit. “Civ.R. 56(C) controls the materials that the court may consider when it 

determines whether there are any triable issues of fact for the purposes of 

summary judgment.” Armaly v. City of Wapakoneta, 3d Dist. No. 2-05-45, 2006-

Ohio-3629, ¶ 17, citing Bowmer v. Dettelbach, 109 Ohio App.3d 680, 684 (6th 

Dist.1996). The rule directs the court to consider only “pleadings, depositions, 

answers to interrogatories, written admissions, affidavits, transcripts of evidence, 

and written stipulations of fact, if any, timely filed in the action * * *.” Civ.R. 

56(C). See also Armaly, 2006-Ohio-3629, at ¶ 17. 

{¶13} “A document that does not fit within a category listed in Civ.R. 56 

may be introduced as evidentiary material supporting a motion for summary 
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judgment where it is incorporated by reference in a properly framed affidavit.” 

Retail Recovery Serv. of NJ v. Conley, 3d Dist. No. 10-09-15, 2010-Ohio-1256, ¶ 

15, citing Civ.R. 56(E) (additional citations omitted). “The incorporated 

document must be properly authenticated to be of the evidentiary nature required 

by Civ.R. 56(C).” Id., citing Gen. Motors Acceptance Corp. v. Hollanshead, 105 

Ohio App.3d 17, 20 (3d Dist.1995). However, when a party fails to object to 

evidence that is otherwise inadmissible under Civ.R. 56(C), “the court may, but is 

not required to consider such evidence when it determines whether summary 

judgment is appropriate.” Armaly, 2006-Ohio-3629, at ¶ 17, citing State ex rel. 

The V Cos. v. Marshall, 81 Ohio St.3d 467, 473 (1998) and Bowmer, 109 Ohio 

App.3d at 684; Consumer Portfolio Servs., Inc. v. Staples, 6th Dist. No. S-06-031, 

2007-Ohio-1531, ¶ 30, citing State ex rel. Cincinnati Enquirer v. Hamilton Cty. 

Commrs., 1st Dist. No. C-010605, 2002-Ohio-2038. 

{¶14} In our de novo review of the trial court’s decision to grant summary 

judgment, we consider the evidence that the trial court did, even if the evidence 

was otherwise inadmissible. Staples, 2007-Ohio-1531, at ¶ 30, citing State ex rel. 

Cincinnati Enquirer, 2002-Ohio-2038; Zivich v. Village of Northfield, 9th Dist. 

No. 24836, 2010-Ohio-1039, ¶ 11. Conversely, we may not consider evidence 

that the trial court did not consider. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 

360 (1992). 
Case No. 1-13-01 

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{¶15} Here, the trial court based its summary judgment decision on the 

copy of the Release attached to Metz’s affidavit. We agree with Bader that Metz’s 

affidavit was insufficient to authenticate the copy of the Release attached to it. 

Civ.R. 56(E) requires that affidavits “be made on personal knowledge,” “set forth 

such facts as would be admissible in evidence,” and “show affirmatively that the 

affiant is competent to testify to the matters stated in the affidavit.” Conley, 2010-

Ohio-1256, at ¶ 16, quoting Civ.R. 56(E) (internal quotations marks omitted). 

“Personal knowledge” must be “gained through firsthand observation or 

experience.” Emerson Family Ltd. Partnership v. Emerson Tool, L.L.C., 9th Dist. 

No. 26200, 2012-Ohio-5647, ¶ 19, quoting Bonacorsi v. Wheeling & Lake Erie Ry. 

Co., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 21 and Black’s Law Dictionary 875 

(7th Ed.Rev.1999) (internal quotation marks omitted). “The subject of a witness’s 

testimony must have been perceived through one or more of the senses of the 

witness.” Id., quoting Bonacorsi, 2002-Ohio-2220, at ¶ 21 and Weissenberger, 

Ohio Evidence 213, Section 602.1 (2002) (internal quotation marks omitted). 

“Courts have found that the personal knowledge requirement of Civ.R. 56(E) is 

satisfied where the affiant asserts personal knowledge and the nature of the facts 

involved and the identity of the affiant ‘creates a reasonable inference that the 

affiant has personal knowledge of the facts in the affidavit.’” Conley, 2010-Ohio-
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1256, at ¶ 16, quoting Bank One, N.A. v. Lytle, 9th Dist. No. 04CA008463, 2004-

Ohio-6547, ¶ 13. 

{¶16} The affidavit of an attorney swearing to having personal knowledge 

of receiving a document—in discovery, for example—is insufficient to 

authenticate the document under Civ.R. 56, unless the attorney prepared or 

executed the document, perceived its preparation or execution with his or her 

senses, or otherwise has personal knowledge of the document’s origin. Emerson 

Family Ltd. Partnership, 2012-Ohio-5647, at ¶ 20-21, citing Johnston v. Great 

Lakes Constr. Co., 9th Dist. No. 95CA006111, *3 (Feb. 28, 1996) and Windsor v. 

Noldge, 3d Dist. No. 13-96-11, *2 (Aug. 26, 1996). “Even if the attorney had 

personal knowledge about where he received the documents and received them 

directly from the keeper of those records, an attestation to that effect does not 

serve to authenticate them.” Id. at ¶ 21, citing Windsor at *2. 

{¶17} In the body of her affidavit, Metz swore that she was competent to 

testify to the matters set forth in the affidavit and attached a copy of the Release 

that she received in discovery: 

{¶18} Affiant, Carol Metz, first duly sworn states as follows: 

1. I am of legal age and competent to testify as to the matters set 

forth herein. 
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2. Attached as Exhibit A is a true and accurate copy of the release 

received from Plaintiff’s Responses to Defendants’ Request for 

Production of Documents. 

AFFIANT FURTHER SAITH NAUGHT 

(Metz Aff., Doc. No. 13, attached). In her affidavit, Metz did not swear to any 

facts indicating that she had personal knowledge of the Release’s preparation, 

execution, or origin. Rather, it is clear from her affidavit that Metz intended to 

authenticate the Release based only on her having received it in discovery. Her 

attempt at authentication of the Release was insufficient under Civ.R. 56, and the 

Release was not evidence properly before the trial court. Emerson Family Ltd. 

Partnership, 2012-Ohio-5647, at ¶ 21, citing Windsor at *2. 

{¶19} Nevertheless, we hold that it was not error for the trial court to 

consider the Release. At the time it issued its judgment entry granting summary 

judgment in favor of the Appellees, the trial court had before it only the 

Appellees’ motion for summary judgment, with a certificate of service and Metz’s 

affidavit attached to it. Bader did not file a response because, according to her and 

her counsel, she did not receive a copy of the Appellees’ motion. 

{¶20} “A presumption of proper service arises when the record reflects that 

a party has followed the Civil Rules pertaining to service of process.” Poorman v. 

Ohio Adult Parole Authority, 4th Dist. No. 01CA16, 2002-Ohio-1059, *2, citing 
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Potter v. Troy, 78 Ohio App.3d 372, 377 (2d Dist.1992). Civ.R. 5(B)(3) requires 

that served documents be “accompanied by a completed proof of service which 

shall state the date and manner of service, specifically identify the division of 

Civ.R. 5(B)(2) by which the service was made, and be signed in accordance with 

Civ.R. 11.” Here, the certificate of service accompanying the Appellees’ motion 

for summary judgment and signed by Metz stated: 

CERTIFICATE OF SERVICE

The undersigned hereby certifies the foregoing Defendants 

Paul T. Ferri and Huffman, Kelley, Brock & Gottschalk, LLC’s 

Motion for Summary Judgment as to Underlying Claim was served 

via regular U.S. mail, postage prepaid, on this 30th day of October, 

2012 to the following: 

Victoria Maisch Rumer, Esq. 

Michael A. Rumer, Esq. 

Rumer & Maisch 

212 N. Elizabeth Street, Suite 410 

Lima, Ohio 45801 

Attorneys for Plaintiff 

(Emphasis sic.) (Doc. No. 13 at 10). This certificate of service complied with 

Civ.R. 5(B)(3) because it: stated the date of service—October 30, 2012; stated the 

manner of service—regular U.S. mail, postage prepaid—which constituted service 

under Civ.R. 5(B)(2)(c); and, was signed by Appellees’ counsel. 
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{¶21} Based on the uncontested, Civil Rule-compliant certificate of service 

that the trial court had before it at the time, it was free to presume that the 

Appellees served Bader’s counsel with a copy of their motion for summary 

judgment. Poorman, 2002-Ohio-1059, at *2. While Metz’s affidavit was 

insufficient to authenticate the copy of the Release attached to it, at the time the 

trial court decided the Appellees’ motion for summary judgment, Bader had not 

responded or objected, and the trial court was free to consider it as well. Armaly, 

2006-Ohio-3629, at ¶ 17. Therefore, the trial court did not consider more or less 

than it was allowed to consider in rendering its summary judgment decision. 

{¶22} We recognize that this treatment of the record may appear harsh 

considering that—after learning of the trial court’s decision to grant the Appellees’ 

motion for summary judgment—Bader’s attorneys filed uncontested affidavits 

with a Civ.R. 60(B) motion swearing that they did not receive a copy of the 

Appellees’ motion. We also recognize that “[s]ummary judgment should be 

granted with caution, resolving all doubts in favor of the nonmoving party.” 

ISHA, Inc. v. Risser, 3d Dist. No. 1-12-47, 2013-Ohio-2149, ¶ 28, citing Osborne 

v. Lyles, 63 Ohio St.3d 326, 333 (1992). However, in this direct appeal from the 

trial court’s summary judgment decision, we consider the evidence that the trial 

court did at the time it rendered its decision—no more, and no less. Staples, 2007-

Ohio-1531, at ¶ 30. Indeed, it would be improper for us to consider portions of the 
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record postdating the trial court’s summary judgment decision in evaluating 

whether the trial court should have rendered summary judgment. See Reveille II, 

L.L.C. v. Ion, 9th Dist. No. 25456, 2011-Ohio-1212, ¶ 13. When Bader learned of 

the trial court’s decision, she was not without recourse. Indeed, she filed a Civ.R. 

60(B) motion. 

{¶23} We next proceed to the merits of the trial court’s summary judgment. 

In her brief, Bader does not address the substance of the trial court’s summary 

judgment decision; however, she argues in her first assignment of error that the 

Appellees “failed to meet the requisite standards of Civ. R. 56.” (Appellant’s 

Brief at 3). Therefore, we elect to address the substance of the trial court’s 

summary judgment decision, in which it concluded that summary judgment on 

Bader’s legal malpractice claim against the Appellees was proper because Bader 

could not have prevailed on her underlying claim against BGSU. 

{¶24} “The Ohio Supreme Court has held that the following elements are 

necessary to establish a cause of action for legal malpractice: ‘(1) an attorneyclient relationship, (2) professional duty arising from that relationship, (3) breach 

of that duty, (4) proximate cause, (5) and damages.’” Christensen v. Leuthold, 3d 

Dist. No. 3-09-14, 2009-Ohio-6869, ¶ 18, quoting Shoemaker v. Gindlesberger, 

118 Ohio St.3d 226, 2008-Ohio-2012, ¶ 8. “‘If a plaintiff fails to establish a 

genuine issue of material fact as to any of the elements, the defendant is entitled to 
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summary judgment on a legal-malpractice claim.’” Id., quoting Shoemaker, 2008-

Ohio-2012, at ¶ 8. 

{¶25} “Where a plaintiff files a legal malpractice action premised on an 

attorney’s failure to file an action within the applicable statute of limitations 

period, the plaintiff must establish that, but for the attorney’s negligence, the 

plaintiff would have succeeded on the ‘case within a case.’” Carter v. Vivyan, 

10th Dist. No. 11AP-1037, 2012-Ohio-3652, ¶ 15, citing Young-Hatten v. Taylor, 

10th Dist. No. 08AP-511, 2009-Ohio-1185, ¶ 26, Neighbors v. Ellis, 120 Ohio 

St.3d 276, 2008-Ohio-6105, ¶ 2, and Environmental Network Corp. v. Goodman 

Weiss Miller, L.L.P., 119 Ohio St.3d 209, 2008-Ohio-3833. If there is no genuine 

issue of material fact that the plaintiff would not have succeeded on the underlying 

claim, then summary judgment in favor of the defendant is proper. See 

Christensen, 2009-Ohio-6869, at ¶ 18, quoting Shoemaker, 2008-Ohio-2012, at ¶ 

8. 

{¶26} Bader based her legal malpractice claim against the Appellees on 

their alleged failure to file Bader’s “personal injury/malpractice action” against 

BGSU within the applicable statute of limitations. (Complaint ¶ 6, Doc. No. 1). 

Thus, if there was no genuine issue of material fact that Bader would not have 

succeeded on her “personal injury/malpractice action” against BGSU, then 
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summary judgment in favor of the Appellees was proper. See Christensen, 2009-

Ohio-6869, at ¶ 18, quoting Shoemaker, 2008-Ohio-2012, at ¶ 8. 

{¶27} The trial court based its summary judgment decision on the Release, 

in which Bader released BGSU, its athletic trainers, and other affiliates from 

liability for any claims resulting from Bader’s participation in intercollegiate 

athletics, including any consequences from diagnostic, medical, or surgical 

treatment: 

RELEASE

In further consideration of being permitted to participate in 

intercollegiate athletics, I herby [sic] accept all risks to my health 

and of my injury or death that may result from such participation. I 

hereby release and discharge BGSU, its board of trustees, officers, 

employees, agents and representatives from any liability to me, my 

personal representatives, heirs, next of kin, and assigns, from any 

and all claims, causes of action, damages, and costs for any and all 

illness or injury to my person, including death that may result from 

or occur during my participation, or loss of or damage to my 

property, to the full extent allowed by law. 
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CONSENT TO TREATMENT

In further consideration of being permitted to participate in 

intercollegiate athletics, I hereby authorize and consent to such 

diagnostic, medical and/or surgical treatment as may be considered 

necessary or appropriate under the circumstances for the treatment of 

any illness or injury arising from or sustained by me while engaged 

in activities related to intercollegiate athletics. The attending 

physician(s), athletic trainer(s), appropriate staff, and BGSU and its 

officers, agents, and employees shall not be responsible in any way 

for any consequences from said diagnostic, medical and/or surgical 

treatment and are hereby released from any and all claims and causes 

of action that may arise, grow out of, or be incident to such diagnosis 

and treatment, to the full extent allowed by law. 

* * * 

I HAVE CAREFULLY READ THIS AGREEMENT AND 

UNDERSTAND IT TO BE A RELEASE OF ALL CLAIMS 

AND CAUSES OF ACTION FOR INJURY OR DEATH OR 

DAMAGE TO MY PROPERTY THAT OCCURS WHILE 

PARTICIPATING IN INTERCOLLEGIATE ATHLETICS * * 

*.
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(Emphasis sic.) (Release, Metz Aff., Ex. A, Doc. No. 13, attached). 

{¶28} “Releases from liability for future tortious conduct are generally not 

favored by the law and are narrowly construed.” Brown-Spurgeon v. Paul Davis 

Systems of Tri-State Area, Inc., 12th Dist. No. CA2012-09-069, 2013-Ohio-1845, 

¶ 50, citing Glaspell v. Ohio Edison Co., 29 Ohio St.3d 44, 46-47 (1987). “Such 

exculpatory clauses are to be strictly construed against the drafter unless the 

language is clear and unequivocal.” Id., citing Glaspell, 29 Ohio St.3d at 47. 

“Additionally, while the execution of a release may bar claims of negligence, it 

cannot bar claims of willful and wanton conduct.” Id. (citations omitted). 

{¶29} “Nonetheless, courts routinely apply such releases to bar future tort 

liability as long as the intent of the parties, with regard to exactly what kind of 

liability and what persons [or] entities are being released, is stated in clear and 

unambiguous terms.” Id. at ¶ 51, citing Hague v. Summit Acres Skilled Nursing & 

Rehab., 7th Dist. No. 09 NO 364, 2010-Ohio-6404, ¶ 20. “On the other hand, 

where the language of the release is ambiguous or too general, courts have held 

that the intent of the parties is a factual matter for the jury.” Id., citing Hague, 

2010-Ohio-6404, at ¶ 20. “‘The pivotal inquiry is whether it is clear from the 

general terms of the entire contract, considered in light of what an ordinary 

prudent and knowledgeable party of the same class would understand, that the 
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proprietor is to be relieved from liability for its own negligence.’” Id., quoting 

Swartzentruber v. Wee-K Corp., 117 Ohio App.3d 420, 425 (4th Dist.1997). 

{¶30} We agree with the trial court that the Release clearly and 

unambiguously reflects the intent of Bader and BGSU and barred Bader’s 

“personal injury/malpractice action” as a matter of law. We conclude, as the 

Fourth District did in Swartzentruber, that it is sufficiently clear from the general 

terms of the Release, considered in light of what an ordinary prudent and 

knowledgeable student-athlete would understand, that BGSU and its employees, 

agents, and representatives were to be relieved from liability for their own 

negligence. 117 Ohio App.3d at 425. The Release applied to “any and all claims” 

resulting from “participation” in intercollegiate athletics, as well as “any and all 

claims” arising from “diagnostic, medical and/or surgical treatment” of injuries 

sustained by Bader “while engaged in activities related to intercollegiate athletics 

* * *.” Id. at 426 (“[I]t is difficult to construe a release ‘from any and all claims’ 

that arise ‘out of any and all personal injuries’ as anything but a release of liability 

for negligence.”). Above the signature line is a conspicuous, bolded statement 

reading, “I HAVE CAREFULLY READ THIS AGREEMENT AND 

UNDERSTAND IT TO BE A RELEASE OF ALL CLAIMS AND CAUSES 

OF ACTION FOR INJURY * * * THAT OCCURS WHILE 

PARTICIPATING IN INTERCOLLEGIATE ATHLETICS * * *.” The scope 
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of the Release is bounded by the phrase, “to the full extent allowed by law.” 

Finally, the Release clearly sets forth who Bader was releasing: “BGSU, its board 

of trustees, officers, employees, agents and representatives” in the “RELEASE” 

clause, and “[t]he attending physician(s), athletic trainer(s), appropriate staff, and 

BGSU and its officers, agents, and employees” in the “CONSENT TO 

TREATMENT” clause. For these reasons, we conclude that the Release is clear, 

unambiguous, and enforceable. 

{¶31} Having concluded that the Release clearly and unambiguously 

reflects the intent of Bader and BGSU, we hold that the trial court properly 

concluded that there is no genuine issue of material fact that Bader would not have 

succeeded on her “personal injury/malpractice action” against BGSU because the 

Release barred her claim. Bader alleged in her complaint that her “personal 

injury/malpractice action * * * ar[ose] out of [Bader’s] participation on the 

Women’s Golf Team at [BGSU] * * *.” (Complaint ¶ 4, Doc. No. 1). The 

Release encompassed claims for injuries to Bader “that may result from or occur 

during [Bader’s] participation” in intercollegiate athletics—in Bader’s case, 

women’s golf. (Emphasis added.) (Release, Metz Aff., Ex. A, Doc. No. 13, 

attached). Therefore, the plain language of the Release barred Bader’s underlying 

“personal injury/malpractice action” against BGSU. 

{¶32} Bader’s first assignment of error is, therefore, overruled. 
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Assignment of Error No. IV 

The trial court erred in considering and granting defendants’ 

motion for summary judgment in that defendants failed to 

timely file said motion pursuant to Civ. R. 5(D). 

{¶33} In her fourth assignment of error, Bader argues that the trial court 

erred in considering the Appellees’ motion for summary judgment because the 

Appellees filed it six days after purportedly serving it by mail on Bader, in 

violation of Civ.R. 5(D). We disagree. 

{¶34} “Civ.R. 5(D) provides that all papers, after the complaint, required to 

be served upon a party shall be filed with the court within three days after service 

upon the opposing party.” Sovey v. Lending Group of Ohio, 8th Dist. No. 84823, 

2005-Ohio-195, ¶ 9. Service by mailing a document to the recipient’s last known 

address by United States mail is complete upon mailing. Civ.R. 5(B)(2)(c). 

“Failure to file within the three-day period can result in the court striking the 

filing.” Sovey, 2005-Ohio-195, at ¶ 9. “The trial court’s decision regarding 

whether to permit or reject a filing will not be disturbed on appeal absent an abuse 

of discretion.” Id. at ¶ 10, citing State ex rel. Lindenschmidt v. Butler Cty. Bd. of 

Commrs., 72 Ohio St.3d 464 (1995). 

{¶35} Here, the certificate of service accompanying the Appellees’ motion 

for summary judgment said the motion was served by United States mail on 

October 30, 2012—a Tuesday. (Doc. No. 13). The clerk’s stamp on the motion is 
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dated November 5, 2012—the following Monday, six calendar days and four 

business days later. (Id.). Thus, the Appellees failed to timely file their motion 

under Civ.R. 5(D). It is the responsibility of the filer, not the clerk of courts, to 

ensure that a document is timely filed. 

{¶36} Nevertheless, Bader cites no authority suggesting that the trial court 

abused its discretion by considering the Appellees’ motion. As we discussed 

above, the certificate of service complied with the requirements of Civ.R. 5(B)(3). 

“The filing of the subsequent pleading, written motion, or other important paper 

under Rule 5(D), although obviously very important for record purposes, is a 

secondary act.” Nosal v. Szabo, 8th Dist. Nos. 83974 and 83975, 2004-Ohio4076, ¶ 17, quoting 1970 Staff Note, Civ.R. 5 (internal quotation marks omitted). 

We hold that the trial court did not abuse its discretion in considering the 

Appellees’ motion. 

{¶37} Bader’s fourth assignment of error is, therefore, overruled. 

Assignment of Error No. III 

The trial court erred when it determined plaintiff failed to meet 

the Civ. R. 60(B)(1) requirement when the court used improper 

Civ. R. 56(C) evidence to overcome plaintiff’s allegations in her 

complaint of operative facts giving rise to a meritorious claim. 

Assignment of Error No. II 

The trial court erred and denied plaintiff due process of law 

when it determined that plaintiff did not receive service (notice) 

of defendants’ motion for summary judgment, but then denied 
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plaintiff the right to respond to defendants’ motion for summary 

judgment by denying plaintiff relief from judgment. 

{¶38} In her third assignment of error, Bader argues that the trial court 

erred when it concluded that she did not satisfy her burden under Civ.R. 60(B) of 

establishing a meritorious claim. In her second assignment of error, Bader argues 

that the trial court denied her due process of law when it concluded that she did 

not receive a copy of the Appellees’ motion for summary judgment, but denied her 

Civ.R. 60(B) motion and did not afford her the opportunity to respond to the 

motion for summary judgment. We disagree. 

{¶39} Civ.R. 60(B) sets forth the bases upon which a court may relieve a 

party from judgment and provides, in pertinent part: 

On motion and upon such terms as are just, the court may relieve a 

party or his legal representative from a final judgment, order or 

proceeding for the following reasons: (1) mistake, inadvertence, 

surprise or excusable neglect; (2) newly discovered evidence which 

by due diligence could not have been discovered in time to move for 

a new trial under Rule 59(B); (3) fraud (whether heretofore 

denominated intrinsic or extrinsic), misrepresentation or other 

misconduct of an adverse party; (4) the judgment has been satisfied, 

released or discharged, or a prior judgment upon which it is based 

has been reversed or otherwise vacated, or it is no longer equitable 
Case No. 1-13-01 

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that the judgment should have prospective application; or (5) any 

other reason justifying relief from the judgment. The motion shall 

be made within a reasonable time, and for reasons (1), (2) and (3) 

not more than one year after the judgment, order or proceeding was 

entered or taken. 

In order to prevail on a motion brought pursuant to Civ.R. 60(B), 

the movant must demonstrate that: (1) the party has a meritorious 

defense or claim to present if relief is granted; (2) the party is 

entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) 

through (5); and (3) the motion is made within a reasonable time, 

and, where the grounds of relief are Civ.R. 60(B)(1), (2), or (3), not 

more than one year after the judgment, order or proceeding was 

entered or taken. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 

47 Ohio St.2d 146 (1976), paragraph two of the syllabus. 

“These requirements are independent and in the conjunctive; thus the test is not 

fulfilled if any one of the requirements is not met.” Bish Constr., Inc. v. Wickham, 

3d Dist. No. 13-12-16, 2013-Ohio-421, ¶ 15. 

{¶40} Where the movant is seeking relief from the granting of a motion for 

summary judgment to which he did not respond, “the party seeking relief must 

show that it could make an adequate response, demonstrating the existence of a 
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genuine issue of material fact, pursuant to Dresher v. Burt (1996), 75 Ohio St.3d 

280, 662 N.E.2d 264, if it had the opportunity to respond.” G&S Mfg. v. Lagos & 

Lagos, 2d Dist. No. 2005 CA 72, 2007-Ohio-1507, ¶ 7, quoting Dysert v. State 

Auto Mut. Ins. Co., 2d Dist. No. 98-CA-46 (Apr. 23, 1999) (internal quotation 

marks omitted). In other words, the movant must allege “operative facts” with 

enough specificity to demonstrate the existence of a genuine issue of material fact. 

Id. at ¶ 7, 18; Community Natl. Bank v. Parsons, 3d Dist. No. 8-11-15, 2013-Ohio2383, ¶ 13. “Operative facts are facts that tend to show the existence of a 

meritorious defense or claim.” Gregory v. Abdul Aal, 11th Dist. No. 2002-T-0176, 

2004-Ohio-1703, ¶ 22. 

{¶41} “A motion for relief from judgment under Civ.R. 60(B) is addressed 

to the sound discretion of the trial court, and that court’s ruling will not be 

disturbed on appeal absent a showing of abuse of discretion.” Griffey v. Rajan, 33 

Ohio St.3d 75, 77 (1987). An abuse of discretion constitutes more than an error of 

judgment; rather, it implies that the trial court acted unreasonably, arbitrarily, or 

unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). 

{¶42} Here, the trial court concluded that Bader made her Civ.R. 60(B) 

motion within a reasonable time, thus satisfying the third prong of the GTE test. 

(Doc. No. 21 at 3). The trial court also concluded that Bader satisfied the second 

prong of the GTE test, presumably based on a theory of “excusable neglect” under 
Case No. 1-13-01 

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Civ.R. 60(B)(1). (Id. at 3-4). The trial court cited the uncontested affidavits of 

Bader’s attorneys, in which they swore that they did not receive or see the 

Appellees’ motion for summary judgment before the trial court issued its 

December 12, 2012 judgment entry granting summary judgment. (Id.). However, 

the trial court concluded that Bader failed to demonstrate that she had a 

meritorious claim under the first prong of the GTE test. 

{¶43} To demonstrate that she had a meritorious claim, Bader was required 

to allege sufficiently specific “operative facts” demonstrating the existence of a 

genuine issue of material fact. G&S Mfg., 2007-Ohio-1507, at ¶ 7, 18. Bader 

argued in her Civ.R. 60(B) motion that her alleged injuries were not covered by 

the Release because the injuries stemmed not from her participation in golf at 

BGSU, but from the BGSU athletic trainers improperly diagnosing her with 

sciatica, and their refusal “to refer Bader to a qualified orthopedic or neurosurgeon 

as requested by Bader.” (Doc. No. 19 at 5). The trial court rejected this argument, 

concluding that Bader failed to allege sufficiently specific operative facts. 

{¶44} As we noted above, Bader alleged in her complaint that her “personal 

injury/malpractice action * * * ar[ose] out of [her] participation on the Women’s 

Golf Team at [BGSU] * * *.” (Complaint ¶ 4, Doc. No. 1). She backtracked in 

her Civ.R. 60(B) motion, alleging that her injuries resulted from “the conduct of 

the BGSU trainers,” “not her golf.” (Doc. No. 19 at 5). Even setting aside this 
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contradiction and accepting as true Bader’s allegations in her Civ.R. 60(B) motion, 

they do not demonstrate facts tending to show the existence of a meritorious claim. 

{¶45} We concluded above that the Release is valid and enforceable against 

Bader. In it, Bader “authorize[d] and consent[ed] to such diagnostic, medical 

and/or surgical treatment as may be considered necessary or appropriate under the 

circumstances for the treatment of any illness or injury arising from or sustained 

by [Bader] while engaged in activities related to intercollegiate athletics,” and she 

“released from any and all claims and causes of action that may arise, grow out of, 

or be incident to such diagnosis and treatment, to the full extent allowed by law.” 

Bader released the BGSU athletic trainers from negligence claims related to their 

diagnosis and treatment of Bader, which encompasses the conduct that Bader 

alleges in her Civ.R. 60(B) motion—an improper diagnosis and failure to refer 

Bader to a specialist. 

{¶46} Bader failed to allege any facts demonstrating the existence of a 

genuine issue of material fact. Bader failed to contest the authenticity of the 

Release in the trial court and has waived that argument on appeal. Hartley v. 

Miller, 3d Dist. No. 8-08-33, 2009-Ohio-1923, ¶ 17, citing Marysville 

Newspapers, Inc. v. Delaware Gazette Co., Inc., 3d Dist. No. 14-06-34, 2007-

Ohio-4365, ¶ 23. In fact, in her Civ.R. 60(B) motion, Bader acknowledged that 

the Release was “signed by Bader on August 21, 2007” and “was provided defense 
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counsel in discovery.” (Doc. No. 19 at 5). Nor has Bader alleged that the conduct 

of the BGSU athletic trainers was wanton or willful and, therefore, not covered by 

the Release. 

{¶47} We hold, therefore, that the trial court did not abuse its discretion in 

concluding that Bader failed to allege sufficiently specific operative facts to 

demonstrate a meritorious claim and in denying her Civ.R. 60(B) motion. 

{¶48} In her second assignment of error, Bader argues that the trial court 

denied her due process of law when it denied her Civ.R. 60(B) motion and did not 

permit her to respond to the Appellees’ motion for summary judgment. 

{¶49} Judging by her brief, it appears Bader believes she was automatically 

entitled to an opportunity to respond to the Appellees’ motion for summary 

judgment when the trial court acknowledged Bader’s attorneys’ uncontested 

affidavits swearing that they did not receive or see a copy of the motion for 

summary judgment before the trial court issued its decision granting summary 

judgment. Bader offers no authority supporting her blanket proposition and 

ignores the requirements of the GTE test. 

{¶50} If Bader would have demonstrated the existence of a genuine issue of 

material fact in her motion, in addition to satisfying the other elements of the GTE

test, then the trial court could have granted her motion and given her the 

opportunity to respond to the Appellees’ motion for summary judgment. See G&S 
Case No. 1-13-01 

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Mfg., 2007-Ohio-1507, at ¶ 7. The trial court’s acknowledging that Bader’s 

attorneys did not receive a copy of the Appellees’ motion for summary judgment 

satisfied but one prong of the GTE test—excusable neglect under Civ.R. 60(B)(1). 

Byers v. Dearth, 4th Dist. No. 09CA3117, 2010-Ohio-1988, ¶ 10 (affirming trial 

court’s denial of appellant’s Civ.R. 60(B) motion for relief from summary 

judgment, despite appellant satisfying the second prong of the GTE test because 

his counsel did not receive a copy of the motion for summary judgment). 

{¶51} Bader was still required to allege sufficiently specific operative facts 

demonstrating the existence of a genuine issue of material fact. G&S Mfg., 2007-

Ohio-1507, at ¶ 7, 18. Her failure to do so does not constitute a violation of her 

due process rights. 

{¶52} Bader’s third and second assignments of error are, therefore, 

overruled. 

Assignment of Error No. V 

The trial court erred in denying plaintiff a hearing on the 

motion for relief from judgment filed pursuant to Civ. R. 60(B). 

{¶53} In her fifth assignment of error, Bader argues that the trial court erred 

by not holding a hearing on her Civ.R. 60(B) motion. We disagree. 

{¶54} “It is an abuse of discretion for a trial court to overrule a Civ.R. 

60(B) motion for relief from judgment without holding an evidentiary hearing only 

if the motion or supportive affidavits contain allegations of operative facts which 
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would warrant relief under Civ.R. 60(B).” (Emphasis sic.) McFall v. McFall, 9th 

Dist. No. 26418, 2013-Ohio-2320, ¶ 13, quoting Aurora Loan Servs., L.L.C. v. 

Wilcox, 2d Dist. No. 2009 CA 9, 2009-Ohio-4577, ¶ 15 (internal quotation marks 

omitted). 

{¶55} We held above that the trial court properly concluded that Bader 

failed to allege sufficiently specific operative facts tending to show the existence 

of a genuine issue of material fact, or meritorious claim. Therefore, the trial court 

did not abuse its discretion in denying Bader’s Civ.R. 60(B) motion without 

holding an evidentiary hearing. 

{¶56} Bader’s fifth assignment of error is, therefore, overruled. 

{¶57} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

WILLAMOWSKI, J., concurs. 

ROGERS, J., concurs in Judgment Only as to Assignment of Error No. I 

/jlr