[Cite as McDonald v. Corning, 2014-Ohio-1614.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BARBARA MCDONALD : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellant : Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
THE VILLAGE OF CORNING : Case No. 13-CA-00011
:
:
Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Perry County Court
of Common Pleas, Case No.
10-CV-00136
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: April 15, 2014
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
SHAWN J. ORGAN MICHAEL J. VALENTINE
ERIK J. CLARK Reminger & Co., LPA
Organ, Cole & Stock, LLP 65 East State Street, 4th Fl.
1335 Dublin Road, Suite 104D Columbus, OH 43215
Columbus, OH 43215
Perry County, Case No. 13-CA-00011 2
Baldwin, J.
{¶1} Appellant Barbara McDonald appeals a summary judgment of the Perry
County Common Pleas Court dismissing her complaint for vandalism, desecration,
negligence, intentional infliction of emotional distress, negligent infliction of emotional
distress, outrage and conversion against appellee The Village of Corning.
STATEMENT OF FACTS AND CASE
{¶2} On February 24, 1957, appellant gave birth to a son named Michael at the
Ball Clinic in New Lexington, Ohio. Michael was immediately transferred by ambulance
to Mount St. Mary’s hospital in Nelsonville, where he died the next day.
{¶3} Carl Hermey of the Carl Hermey Funeral Home handled the
arrangements. According to the death certificate and newspaper report, a graveside
service was conducted on February 26, 1957, at the Millertown Cemetery; now known
as Oakwood Cemetery, in Corning, Ohio. Appellant’s husband Glen attended the
service, along with appellant’s parents, the funeral director, and the minister. Appellant
was still bed-ridden following the birth and was unable to attend; however, Mr. Hermey
brought the baby in a silver casket to her bedside at her parents’ home before the
service.
{¶4} Several days later, appellant and Glenn visited Michael’s grave. They
could not afford a headstone, but the grave was marked with a metal stake bearing
Michael’s name. On March 15, 1957, appellant received an invoice from the funeral
home for the casket, service, burial box, car service, and the grave site. She paid the
invoice to the funeral home.
Perry County, Case No. 13-CA-00011 3
{¶5} Through the years, appellant, her husband, and later their children would
visit the grave site. At some point in the 1980’s, the metal stake was removed, but they
returned to the same spot.
{¶6} In 2009, appellant wished to place a headstone on Michael’s grave. She
noticed that there were tombstones near the spot she remembered as Michael’s grave;
however, the area where she believed him to be buried was still an open area.
{¶7} To confirm the location in which to place the headstone, appellant
contacted Sherri Weiner, appellee’s Fiscal Officer, Water Clerk, and Mayor’s Court
Clerk. As part of her job duties, Weiner maintains the deed book for the cemetery lots
and a map of the cemetery. Weiner was unable to locate any record of Michael’s burial
in the cemetery. She was aware that every deed is not on the map, and there are some
recordings on the map for which appellee does not have a deed. Weiner referred
appellant to two members of the cemetery committee, John Hashman and Ruth
Ferguson.
{¶8} Appellant met Hashman and Ferguson at the cemetery in the summer of
2009. Appellant showed them the spot where she believed Michael was buried. The
maps in the possession of Hashman and Ferguson did not reflect the location of
Michael’s burial. Further, all the lots in that area had been sold to others, except for Lot
13.
{¶9} Appellant met with Hashman and Ferguson a second time in the summer
of 2009. She asked if Lot 13 was available for her to purchase to place Michael’s
headstone until Michael’s body could be found. She was informed that it was available,
but she would have to pay $500.00 for the lot. Appellant did not wish to purchase this
Perry County, Case No. 13-CA-00011 4
lot for $500.00, because she believed she had paid for a lot in 1957. According to
appellant, Hashman told her that bodies had been buried on top of bodies in the
cemetery, and appellant became concerned that Michael had been buried over with
another body.
{¶10} On February 19, 2010, appellant asked the village to perform ground
penetrating radar (GPR) to attempt to locate Michael. Counsel for the village responded
that the village did not have funds to do so. Counsel later told counsel for appellant that
the insurance carrier for the village would not cover the GPR because there were no
current claims seeking damages.
{¶11} On March 26, 2010, appellant filed the instant case against the village.
Appellant paid for a GPR scan to be conducted on August 17, 2010. The scan revealed
evidence of an anomaly under the grave of Edna Fenneken in the area where appellant
believed Michael was buried. On September 28, 2011, appellant paid an excavation
company to dig in the vicinity of Edna Fenneken’s grave. The excavation revealed that
the anomaly below Fenneken’s casket was a flat rock formation.
{¶12} Appellee filed a motion for summary judgment. The court granted the
motion on the basis that appellant had presented no evidence that the village was paid
for a lot, and that the village therefore owed no duty to appellant regarding the remains
of Michael.
{¶13} Appellant assigns two errors on appeal:
{¶14} “I. THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY
JUDGMENT ON ALL OF PLAINTIFF BARBARA MCDONALD’S CLAIMS ON THE
GROUND THAT MCDONALD HAD NO EVIDENCE TO SUPPORT THE BASIC AND
Perry County, Case No. 13-CA-00011 5
NON-CONTROVERSIAL FACTS THAT DEFENDANT THE VILLAGE OF CORNING
BURIED MCDONALD’S INFANT SON IN ITS CEMETERY AND THAT CORNING
RECEIVED PAYMENT FOR THE BURIAL PLOT.
{¶15} “II. THE TRIAL COURT ERRED WHEN IT FOUND THAT DEFENDANT
THE VILLAGE OF CORNING OWED NO DUTY WHATSOEVER TO PLAINTIFF
BARBARA MCDONALD REGARDING THE PROPER MAINTENANCE OF RECORDS
AND PROPER PRESERVATION OF THE REMAINS OF MCDONALD’S INFANT
SON.”
{¶16} Both assignments of error allege that the court erred in granting appellee’s
motion for summary judgment.
{¶17} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36 (1987). As such, we must
refer to Civ. R. 56(C) which provides in pertinent part: “Summary Judgment shall be
rendered forthwith if the pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any,
timely filed in the action, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law. No evidence or
stipulation may be considered except as stated in this rule. A summary judgment shall
not be rendered unless it appears from the evidence or stipulation, and only from the
evidence or stipulation, 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
Perry County, Case No. 13-CA-00011 6
made, that party being entitled to have the evidence or stipulation construed most
strongly in the party’s favor.”
{¶18} Pursuant to the above rule, a trial court may not enter summary judgment
if it appears a material fact is genuinely disputed. The party moving for summary
judgment bears the initial burden of informing the trial court of the basis for its motion
and identifying those portions of the record that demonstrate the absence of a genuine
issue of material fact. The moving party may not make a conclusory assertion that the
non-moving party has no evidence to prove its case. The moving party must specifically
point to some evidence which demonstrates that the moving party cannot support its
claim. If the moving party satisfies this requirement, the burden shifts to the non-moving
party to set forth specific facts demonstrating that there is a genuine issue of material
fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v.
Burt, 75 Ohio St.3d 280, 1996-Ohio-107.
I.
{¶19} In her first assignment of error, appellant argues that the court erred in
finding that there was no evidence that the village was paid for a plot for appellant’s
child and no evidence that Michael was buried in the village cemetery.
{¶20} In her deposition, appellant testified that she paid the funeral director for
services rendered in connection with Michael’s burial. The bill from the funeral home
reflects that she was charged for a grave space and for the opening and closing of the
grave. Both the death certificate and the newspaper obituary reflect that Michael was
buried in the Millertown cemetery, which is now known as the Oakwood Cemetery.
Although appellant did not attend the graveside ceremony, she testified that she visited
Perry County, Case No. 13-CA-00011 7
the grave with her husband several days after the service and continued to visit the
grave off and on through the years. She further testified that until the 1980’s, a metal
stake with Michael’s name on it marked the gravesite. Although the evidence reflects
that appellant dealt only with the funeral home and not directly with appellee regarding
Michael’s burial, there is sufficient evidence, when construed most strongly in
appellant’s favor, from which reasonable minds could conclude that Michael was in fact
buried in the cemetery and that the funeral home handled the payment to appellee for
the grave on her behalf.
{¶21} The first assignment of error is sustained.
II.
{¶22} In her second assignment of error, appellant argues that the court erred in
finding that the village owed no legal duty to her because she dealt solely with the
funeral home and not with the village.
{¶23} The court’s finding that the cemetery owed appellant no duty with regards
to Michael’s remains is based on the court’s finding, discussed in the first assignment of
error, that appellant did not present evidence that she paid appellee for a grave or that
Michael was actually buried in the cemetery. For the reasons stated in the first
assignment of error, reasonable minds could conclude that appellant paid the funeral
home for a grave in the Millertown cemetery, the funeral home handled the purchase of
the grave on her behalf, and Michael was buried in the cemetery on February 26, 1957.
Therefore, the court erred in finding that reasonable minds could only conclude that the
village owed appellant no legal duty.
{¶24} The second assignment of error is sustained.
Perry County, Case No. 13-CA-00011 8
{¶25} Appellee argues that the summary judgment should be affirmed on the
following alternative grounds: appellee is immune from liability pursuant to the doctrine
of sovereign immunity, the action was filed outside the applicable statute of limitations,
appellant presented no evidence of serious emotional distress, appellant presented no
evidence of intent or of extreme and outrageous conduct, appellant cannot maintain an
action for conversion, and appellant is precluded from recovering punitive damages and
attorney fees.
{¶26} We decline to consider alternate grounds in support of the motion for
summary judgment for the first time on appeal where the trial court has not engaged in
a review of the issue in the first instance. See Schmucker v. Kurzenberger, 9th Dist.
Wayne App. No. 10CA0045, 2011-Ohio-3741, ¶14; Orvets v. Natl. City Bank, Northeast,
131 Ohio App. 3d 180, 194, 722 N.E.2d 114 (1999); Lang v. Holly Hill Motel, Inc., 4th
Dist. Jackson No. 05CA6, 2005-Ohio-6766, ¶2-23. The trial court did not consider
appellant’s claims that summary judgment is appropriate because the action was filed
outside the applicable statute of limitations, appellant presented no evidence of serious
emotional distress, appellant presented no evidence of intent or of extreme and
outrageous conduct, appellant cannot maintain an action for conversion, and appellant
is precluded from recovering punitive damages and attorney fees. We decline to
consider these claims for the first time on appeal.
{¶27} The trial court found that appellee was not immune from the instant action
based on the doctrine of sovereign immunity. Appellee has not challenged this finding
by way of cross assignment of error or cross appeal. App. R. 3(C)(1) provides, “A
person who intends to defend a judgment or order against an appeal taken by an
Perry County, Case No. 13-CA-00011 9
appellant and who also seeks to change the judgment or order or, in the event the
judgment or order may be reversed or modified, an interlocutory ruling merged into the
judgment or order, shall file a notice of cross appeal within the time allowed by App.R.
4.” Although appellee is defending the order of the court, appellee seeks to change the
ruling of the court on the issue of sovereign immunity in the event we reverse the
summary judgment of the court on the issue of existence of a legal duty. Because
appellee has not challenged this finding by way of cross appeal or cross assignment of
error, we decline to consider this argument. See Ware v. King, 187 Ohio App. 3d 291,
931 N.E. 2d 1138, 2010-Ohio-1637, ¶19.
{¶28} The summary judgment of the Perry County Common Pleas Court is
reversed. This cause is remanded to that court for further proceedings according to law
and consistent with this opinion. Costs are assessed to appellee.
By: Baldwin, J.
Hoffman, P.J. and
Farmer, J. concur.
McDonald v. Corning
Combined Opinion