Diane Higgins v. Daniel McDonnell

• Decision Date: 15 May 1997
• Docket Number: 97-LW-2739,71341
• Parties: DIANE HIGGINS, ET AL., Plaintiffs-appellants v. DANIEL MCDONNELL, Defendant-appellee CASE
• Court: Ohio Court of Appeals

DIANE HIGGINS, ET AL., Plaintiffs-appellants v. DANIEL MCDONNELL, Defendant-appellee

No. 71341.

97-LW-2739 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

May 15, 1997

Civil appeal from Court of Common Pleas Case No. CP-CV-168180.

For Plaintiffs-Appellants: BRUCE P. BOGART, ESQ., 3659 Green Road, #104, Cleveland, Ohio 44122.

For Defendant-Appellee: JAMES MCDONNELL, ESQ., 936 Terminal Tower, Cleveland, Ohio 44113.

OPINION

DYKE J.

Plaintiffs, Diane Higgins, Administratrix of the Estate of Anthony L. Higgins, Diane Higgins individually, and Ollice Higgins appeal from the judgment of the trial court rendered in favor of defendant Daniel P. McDonnell in plaintiffs' action for legal malpractice. For the reasons set forth below, we affirm.

The record reflects that following a motor vehicle accident. It is undisputed that Anthony's eyes or corneas were removed without prior approval from his surviving family members. In addition, plaintiffs subsequently formed the belief that the removal was conducted approximately five hours before Anthony was pronounced dead at Fairview General Hospital. They then retained defendant to file a medical malpractice action against Fairview General Hospital, and other defendants.

On July 1, 1987, defendant filed a medical malpractice action against Fairview General Hospital and other defendants on behalf of plaintiffs. The record further reflects that all of the defendants named in the medical malpractice action moved for summary judgment. Among the documentary evidence submitted in connection with the motions for summary judgment is an affidavit from Elizabeth K. Balraj, Coroner of Cuyahoga County which provided in relevant part as follows:

2. On the 9th day of August, 1986, the body of a 28-year-old white male, identified as Anthony Lee Higgins, was delivered to the office of the County Coroner, from Fairview General Hospital.

3. History of the case and the autopsy performed by the office of the County Coroner indicated that Anthony Lee Higgins had died as a result of injuries sustained in a motorcycle - auto - parked unattended auto - fixed object accident, and that his death was accidental in nature.

4. Pursuant to Ohio Revised Code Section 2108.60 (B) a county coroner who performs an autopsy pursuant to Sec. 313.13 may remove one or both corneas of a decedent under applicable circumstances.

5. The corneas of Anthony Lee Higgins were removed in the Coroner's office by representatives of the Cleveland Eye Bank, a local, charitable organization which assists in the pursuit of obtaining eyes or corneas of dying or deceased individuals for the purpose of transplanting them to persons who are suffering visual impairment.

6. At no time was I or any representative, employee or agent of the County Coroner's office apprised of, aware of, or did anyone possess knowledge of an objection to the removal ***.

In addition, documents maintained by the Cleveland Eye Bank also indicate that the decedent Is corneas were removed and that the procedure was conducted upon the decedent at the coroner's office on the day after he died.

It is undisputed that defendant McDonnell did not file evidentiary material or a brief in opposition to these motions for summary judgment in the medical malpractice action. Judgment was rendered in favor of the defendants in the underlying action in September 1988.

The record next reveals that plaintiffs sent McDonnell a letter discharging him on November 28, 1988.

On April 18, 1989, plaintiffs filed the instant action against McDonnell alleging that he "failed to prosecute the matter in a skillful and diligent manner and was negligent * * *." On February 161 1994, plaintiffs moved for partial summary judgment. On May 25,1994, defendant filed a brief in opposition and alternative motion for summary judgment. On June 9, 1994, the trial court granted defendant's motion for summary judgment. This court subsequently reversed and remanded, holding that the trial court failed to afford plaintiffs thirty days within which to respond to defendant's motion for summary judgment in violation of Loc. R. 11(I) of the Court of Common Pleas of Cuyahoga County, General Division. See Higgins v. McDonnell (June 29, 1995), Cuyahoga App No. 67547, unreported. Thereafter, on August 30, 1996, the trial court again entered summary judgment for defendant. Plaintiffs now appeal and assign a single error for our review.

Plaintiffs' assignment of error states:

THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFFS BY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT.

Within this assignment of error, plaintiffs maintain that there were genuine issues of material fact which precluded the entry of summary judgment for defendant.

With regard to procedure, Civ.R. 56(C) provides that summary judgment is proper if the trial court determines that:

(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Turner v. Turner (1993), 67 Ohio St.3d 337, 340, citing Temple v. Wean, Inc. (1977), 50 Ohio St.2d 317, 327.

Once summary judgment proceedings have been properly initiated the responding party must set forth specific facts demonstrating triable issues on all essential matters for which he bears the initial burden of proof. Mere reliance upon the pleadings is insufficient. See Civ.R. 56(E); Celotex Corp. v. Catrett (1986), 477 U.S. 317, 322-323; Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. See, also, State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 449, wherein the Supreme Court stated:

Summary judgment is appropriate where the nonmoving party does not produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus; State ex rel. Morley v. Lordi (1995), 72 Ohio St.3d 510, 513, 651 N.E.2d 937, 940. When a motion for summary judgment is made and supported as provided in Civ.R. 56, the nonmoving party may not rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing that there is a genuine triable issue. Civ.R. 56(E); Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St. 2d 48, 52, 567 N.E.2d 1027, 1031.

In addition, Civ.R. 56(C) sets forth the following types of evidence which may be considered in connection with a motion for summary judgment:

"* * * the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action * * *."

With regard to the substantive law, the essential elements of a claim of legal malpractice are (1) an attorney-client relationship giving rise to a duty; (2) breach of that duty; and (3) damages proximately caused by the breach. David v. Schwarzwald, Robiner, Wolf & Rock (1992), 79 Ohio App.3d 786, 798.

In this instance, defendant McDonnell supported his motion for summary judgment with documentary evidence from Dr. Balraj and the Cleveland Eye Bank. This evidence demonstrated that the retrieval done in Anthony's case was performed at the coroner's office by representatives of the Cleveland Eye Bank on the day after Anthony was pronounced dead at the hospital, and not at the hospital prior to the official pronouncement of death. In addition, defendant presented evidence that the Cleveland Eye Bank certified to the coroner that the corneas were to be used for a transplant or medical research and that they were removed in good faith and without knowledge of objection from a family member. Thus, defendant asserted that the removal was not actionable pursuant to the law as it then existed under R.C....