Howard v. Szozda

224 N.E.3d 1259

2023-Ohio-3407

Linda L. HOWARD, ADMINISTRATOR OF THE ESTATE OF SEAN DAVID HOWARD, SR., et al., Appellants

v.Michelle SZOZDA, et al., Appellees

Court of Appeals No. L-22-1297

Court of Appeals of Ohio, Sixth District, Lucas County.

Decided: September 22, 2023

Trial Court No. C10202003524.

Edwin A. Coy, Toledo, for appellants.

Paul R. Morway, Cleveland, for appellee Kevin Vasquez.

DECISION AND JUDGMENT

MAYLE, J.

{¶ 1} Plaintiffs-appellants, Linda L. Howard, Administrator of the Estate of Sean David Howard, Sr., and Steven Howard, Legal Custodian, appeal the November 21, 2022 judgment of the Lucas County Court of Common Pleas, granting summary judgment in favor of defendants-appellees, Kevin Vasquez and Kellsie Cousino. Vasquez has filed a brief on appeal; Cousino has not. For the following reasons, we affirm the trial court judgment.

I. Background

{¶ 2} On October 6, 2019, a group of women attended a bridal shower for a co- worker. At some point,' the shower transitioned into a party, and male co-workers arrived. Michelle Szozda, Kevin Vasquez, Kellsie Cousino, and Kirk Mills, were among those present. Seven attendees, including Szozda, Vasquez, Cousino, and Mills, consumed alcohol and cocaine, but ran out of cocaine and decided to obtain more. They pooled their money—$20 each—and after deeming that Szozda was the least impaired among them, designated her to drive Mills to make the purchase. Szozda and Mills additional cocaine, but on the way back to the party, Szozda caused a two-car motor vehicle accident that resulted in the death of Sean Howard, Sr., the driver of the other vehicle, and injuries to his passenger, his two-year-old daughter.

{¶ 8} Szozda was charged criminally. The administrator of Howard’s estate and his daughter’s legal guardian, then sued Szozda and multiple others civilly for wrongful death, negligence, and punitive damages. Although they recognized that Szozda owned and was operating the vehicle, the Howards sought to hold liable all seven people who consumed and contributed to the purchase of the cocaine. Their theory was that by pooling their money and designating Szozda to drive and Mills to purchase the drugs, the seven partygoers formed a joint venture, pursuant to which Szozda’s negligence could be imputed to all venturers. Vasquez and Cousino, neither of whom were in the vehicle when the collision occurred, moved for summary judgment on the Howards’ claims.

{¶ 4} Vasquez and Cousino argued that a joint venture requires (1) a joint contract; (2) intention, (8) community of interest and joint control, and (4) profit and loss. They claimed that all elements were missing here. They further argued that even if a joint venture was formed, they could not be liable for Szozda’s negligence because they had no joint operation or control of the movements of the vehicle.

{¶ 5} The trial court agreed that the element of "joint control" was lacking, and deeming it unnecessary to consider the other three elements, it granted summary judgment in favor of Vasquez and Cousino. It reasoned that "[n]ot only were Defendants herein not driving the vehicle at the time of the crash which killed/injured Plaintiffs, Defendants were not passengers in the vehicle; they were at a different location entirely from that of the crash." Moreover, the court found, even if all the elements of a joint venture were satisfied, "any input Defendants had into the operation of the vehicle was too far removed to find they had joint control at the time of the crash."

{¶ 6} The Howards appealed. They assign the following error for our review:

The trial court erred in granting summary judgment to Appellees Vasquez and Cousino by ruling there is no genuine issue of material fact with respect to the community of interest and joint control element of the joint venture Appellants Howard allege existed among Appellees Vasquez and Cousino and the other defendants below at the time of the crash.

II. Summary Judgment Standard

{¶ 7} Appellate review of a summary judgment is de novo, Grafton ?. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same standard as trial courts. Lorain Natl. Bank ?. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is demonstrated:

(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless ?, Willis Day Warehousing Co, 54 Ohio St.2d 64, 67, 375 N.E.2d 46 (1978), Civ.R. 56(C).

[1] {¶ 8} When seeking summary judgment, a party must specifically delineate the basis upon which the motion , is brought, Mitseff ?. Wheeler, 38 Ohio St.3d 112, 526 N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate the absence of a genuine issue of material fact. Dresher ?. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is made, an adverse party may not rest on mere allegations or denials in the pleadings, but must respond with specific facts showing that there is a genuine issue of material fact. Civ.R. 56(E); Riley ?. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A "material" fact is one which would affect the outcome of the suit under the applicable substantive law. Russell ?. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733 N.E.2d 1186 (6th Dist.1999); Needham ?. Provident Bank, 110 Ohio App.3d 817, 826, 675 N.E.2d 514 - (8th Dist.1996), citing Anderson ?. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505. 91 L.Ed.2d 202 (1986).

III. Law and Analysis

[2] {¶ 9} In Ohio, the negligence of one person will not be imputed to another unless an exception applies. Bloom ?. Leech, 120 Ohio St. 239, 166 N.E. 137 (1929). Joint enterprise—or "joint venture"—is one such exception. Id. See Vonderheide v. Comerford, 113 Ohio App. 284, 286, 177 N.E.2d 793 (1st Dist.1961) (Ohio courts use the terms "joint venture," "joint enterprise," and "joint adventure" interchangeably); Cassity ?. Oren Fab & Supply, Inc., 2d Dist. Montgomery No. 13185, 1993 WL 112536, *2 (Apr. 12, 1993) ("[J]oint venture [is] also referred to as joint adventure or joint enterprise [J").¹ In their sole assignment of error, the Howards claim that genuine issues of material fact exist as to whether the seven named defendants formed a joint venture, pursuant to which liability may be imputed to Vasquez and Cousino for Szozda’s negligence. They insist that these issues of fact precluded the trial court from granting summary judgment in favor of Vasquez and Cousino.

[3–6] {¶ 10} Formation of a joint venture requires four elements: (1) a joint contract, either express or implied, to engage in a specific business enterprise; (2) an intention to associate as joint venturers; (3) a community of interest and joint control; and (4) an agreement to share jointly and severally in profits and losses. Ford ?. McCue, 163 Ohio St. 498, 502-03, 127 N.E.2d 209 (1955). The parties must intend to associate themselves as joint venturers, as determined using the ordinary rules for interpreting and construing contracts. Id. They will not be found to have formed a joint venture for purposes of imputing negligence unless there is "a community of interest in the purpose of the undertaking, and equal authority or right to direct and govern the movements and conduct of each other in connection therewith." Id. Ohio courts recognize that "the person alleging joint enterprise for the purpose of imputing negligence has a heavy burden of proof since the courts do not favor the doctrine." Weinstein ?. Anselmo's Landscape & Design, 8th Dist. Cuyahoga No. 70643, 1996 WL 674004, *3 (Nov. 21, 1996), citing O'Donnell ?. Korosec, Geauga App. No. 91-G-1659, 1992 WL 361434 (Nov. 27, 1992), citing, Lester ?. John R. Jurgensen Co., 400 F.2d 393, 396 (6th Cir. 1968).

{¶ 11} Szozda was deposed in this matter. The Howards claim that Szozda’s deposition testimony—where she testified to the facts summarized above—provided evidence of each element required for formation of a joint venture.

{¶ 12} As to the first element, a joint contract, the Howards claim that a joint venture requires an agreement to undertake a specific enterprise or purpose. They insist that here, the seven named defendants agreed they wanted to buy cocaine, they each contributed $20 to fund the purchase, each participated in the decision to designate Szozda the driver and Mills the buyer, and each agreed that Szozda and Mills would return to distribute the cocaine to be consumed by all. They maintain that there was a meeting of the minds as to the purpose of the venture, shared financial contribution, and agreed planning for carrying out and sharing the purchase.

{¶ 13} As to the second element, intention, the Howards claim that the seven named defendants were the only people at the party consuming cocaine, all seven snorted the initial supply until it was gone, and all seven wanted more, so they combined funds, selected the least impaired driver, and appointed a buyer who had a connection. The Howards insist that these facts evidence an intention to associate themselves with one another.

{¶ 14} As to the third element, community of interest and joint control, the Howards argue that members of a joint venture may delegate joint control and need not participate equally in every aspect of the venture. They emphasize that the group specifically considered—and with cause and reason—appointed Szozda the driver and Mills the buyer because they were deemed the best suited to accomplish the venture; they specifically selected Szozda because she was the least impaired. Although the Howards acknowledge that Vasquez and Cousino did not ride...