Clay v. Shriver Allison Courtley, Co.

[Cite as Clay v. Shriver Allison Courtley, Co., 2021-Ohio-538.]

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY

BEVERLY ANN CLAY ET AL.,

Plaintiffs-Appellants,

v.

SHRIVER ALLISON COURTLEY, COMPANY, A.K.A SHRIVER-
ALLISON-COURTLEY-WELLER-KING FUNERAL HOME ET AL.,

Defendants-Appellees.

OPINION AND JUDGMENT ENTRY
Case No. 20 MA 0039

Civil Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2015 CV 2906

BEFORE:
David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Judges.

JUDGMENT:
Affirmed.

Atty. William McGuire, William Paul McGuire Co., L.P.A, Chase Tower, Suite 705, 106
East Market Street, P.O. Box 1234, Warren, Ohio 44482, for Plaintiffs-Appellants and

Atty. Lawrence Bach, and Atty. Tod Mazzola, Roderick Linton Belfance, LLP, 50 South
Main Street, 10th Floor, Akron, Ohio 44308, for Defendants-Appellees.
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Dated: February 24, 2021

D’Apolito, J.

{¶1} Plaintiffs-Appellants, Estate of Beverly Ann Clay (with Elmer Clay as
Administrator)(“Estate”), Mary Jane Patton, and Lily May Curtis appeal the judgment
entry of the Mahoning County Court of Common Pleas entering summary judgment in
favor of Defendant-Appellee Shriver Allison Courtley Company aka Shriver-Allison-
Courtley-Weller-King (“Shriver”) and against Patton and Curtis on the breach of contract
claim, and in favor of Shriver and against the Estate on the Estate’s request for punitive
damages.
{¶2} In their verified complaint, Appellants asserted claims for breach of contract,
intentional and negligent infliction of emotional distress, and fraud based on the alleged
conduct of Shriver’s employees during the preparation and execution of funeral services
for Appellants’ mother, Rose White. Appellants also asserted emotional distress claims
against Funeral Home Services (“FHS”), the company that transported Rose’s body from
the Cleveland Clinic to the funeral home. The trial court entered summary judgment on
all of Appellants’ claims. Relevant to this appeal, the trial court held that the breach of
contract claim was actually a negligence claim and was barred by the applicable statute
of limitations.
{¶3} Appellants appealed the entry of summary judgment on their breach of
contract and intentional infliction of emotional distress claims, and, on August 16, 2018,
we reversed the trial court’s decision solely on the breach of contract claim. Clay v.
Shriver Allison Courtley Co., 7th Dist. Mahoning No. 17 MA 0003, 2018-Ohio-3371, 118
N.E.3d 1027, ¶ 106, reconsideration denied, 7th Dist. Mahoning No. 17 MA 0003 2018-
Ohio-5406, ¶ 1, appeal not allowed sub nom. Clay v. Shriver Allison Courtly Co., 155 Ohio
St.3d 1422, 2019-Ohio-1421, 120 N.E.3d 868, ¶ 1 (2019), and appeal not allowed, 154
Ohio St.3d 1510, 2019-Ohio-601, 116 N.E.3d 1289, ¶ 1 (2019) (“Clay I”). Further,
although emotional damages are generally not recoverable in a breach of contract action,
we held that emotional damages are recoverable here, as a contract for funeral services
“is of such a kind that serious emotional disturbance was a particularly likely result.” Clay
at ¶ 61-62, citing Kishmarton v. William Bailey Contr. Inc., 93 Ohio St.3d226, 230, 754

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N.E.2d 785 (2001). We predicated our conclusion that emotional damages are
recoverable on a breach of contract claim on the Kishmarton Court’s citation to the
Restatement of Contracts, which provides that a contract for the disposition of dead
bodies is an example of a contract where recovery for serious emotional distress is
allowed. Id. Accordingly, the breach of contract claim was remanded for trial.
{¶4} On remand, Shriver filed a motion for partial summary judgment predicated
upon a judgment entry issued by the Mahoning County Court of Common Pleas in Mary
Jane Patton v. Fithian Wilbert Burial Vault Co., No 2017-CV-1793 (“Fithian case”). In the
judgment entry, the trial court dismissed a breach of contract claim based on the same
funeral services contract in this appeal, because Patton and Curtis were not signatories
to the contract.
{¶5} In the partial motion for summary judgment, Shriver argued that the
remaining breach of contract claim belonged exclusively to the Estate, because the
contract for funeral services was executed between Beverly Ann and Shriver. In other
words, Shriver argued that Patton and Curtis had no standing to assert the breach of
contract claim and were no longer parties to the lawsuit, because the intentional and
negligent infliction of emotional distress claims had been dismissed. Next, Shriver argued
that the Ohio Supreme Court in Lucarell v. Nationwide Mutual Insurance Co., 152 Ohio
St.3d 453, 2018-Ohio-15, 97 N.E.3d 457 held that punitive damages are not available in
a breach of contract claim.
{¶6} The trial court granted the partial motion for summary judgment, finding that
Patton and Curtis did not have standing to assert the breach of contract claim, and further
found that punitive damages are not recoverable on a breach of contract claim. For the
following reasons, the judgment entry of the trial court is affirmed in its entirety.

STANDARD OF REVIEW

{¶7} This appeal is from a trial court judgment resolving a motion for summary
judgment. An appellate court conducts a de novo review of a trial court's decision to grant
summary judgment, using the same standards as the trial court set forth in Civ.R. 56(C).
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “Before
summary judgment can be granted, the trial court must determine that: (1) no genuine

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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 the evidence most favorably in favor of the
party against whom the motion for summary judgment is made, the conclusion is adverse
to that party.” Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267
(1977).
{¶8} "[T]he moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record which demonstrate
the absence of a genuine issue of fact on a material element of the nonmoving party's
claim." (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280, 296, 662 N.E.2d 264
(1996). If the moving party carries its burden, the nonmoving party has a reciprocal
burden of setting forth specific facts showing that there is a genuine issue for trial. Id. at
293. In other words, when presented with a properly supported motion for summary
judgment, the nonmoving party must produce some evidence to suggest that a
reasonable factfinder could rule in that party's favor. Doe v. Skaggs, 7th Dist. Belmont
No. 18 BE 0005, 2018-Ohio-5402, ¶ 11.
{¶9} The evidentiary materials to support a motion for summary judgment are
listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence, and written stipulations of fact that
have been filed in the case. In resolving the motion, the court views the evidence in a
light most favorable to the nonmoving party. Temple, 50 Ohio St.2d at 327.

FACTS AND PROCEDURAL HISTORY

{¶10} The following facts are taken from the written discovery and deposition
testimony of the parties, as well as affidavits offered in support of summary judgment.

ROSE’S DEATH

{¶11} Rose suffered a massive stroke while renewing her drivers’ license at the
Ohio Department of Motor Vehicles. She was ninety-three years old. After Rose was
pronounced brain dead at Northside Hospital in Youngstown, Ohio, Appellants had her
transferred by ambulance to the main campus of the Cleveland Clinic.

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{¶12} Appellants described their mother as a spry woman, who maintained
herself, her home, and her yard without assistance, despite her advanced age. They were
shocked by her sudden incapacitation. Physicians at the Cleveland Clinic confirmed
Northside’s prognosis, and life support was removed on July 24, 2008 at roughly 4:00
p.m.
{¶13} Within one half of an hour of her mother's death, Patton contacted Shriver
and spoke to the funeral director, David Courtley. Shriver had conducted the funeral
services for several members of Rose’s family without incident when the funeral home
was under different management.
{¶14} Patton requested that her mother’s body be retrieved from the Cleveland
Clinic and brought to the funeral home in Youngstown by Shriver. She also asked that
she and her sisters be permitted to accompany their mother’s body back to Youngstown.
She told Courtley that they were unfamiliar with the Cleveland area and needed guidance
to return to Youngstown. She did not request a hearse.

THE TRANSPORTATION SERVICES

{¶15} Courtley contacted FHS to arrange for the transportation of the body. While
the transportation services were provided by FHS, Shriver billed for the services.
{¶16} Brian Lozano, who appears to have been an independent contractor for
FHS, retrieved the body on behalf of FHS. He contacted Appellants roughly two and one-
half hours after Patton's conversation with Courtley to inform them that he was detained
because the vehicle he was driving got a flat tire. Lozano arrived in a family-style, maroon
van at approximately 9:00 p.m.
{¶17} Lozano collected Rose’s body outside of the view of Appellants and they
concede that they never saw the interior of the van. Lozano met Appellants in the parking
lot of the Cleveland Clinic, where he asked Patton if she thought she could “keep up” with
him on the way to Youngstown. He then traveled to Youngstown, in the rain, between
9:00 and 10:00 p.m. and at an alarmingly high rate of speed, in excess of 85 miles per
hour on the interstate, weaving in and out of heavy traffic.
{¶18} Lozano conceded that he expressed surprise to Appellants when they
arrived in Youngstown that Patton had been able to follow him. Patton responded that

Case No. 20 MA 0039
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Lozano had missed his calling and should have been a race car driver. According to
Patton's testimony, Lozano traveled approximately 76.6 miles in roughly fifty minutes.
{¶19} At Shriver, Lozano asked Appellants if they intended to embalm their
mother. He then engaged in a heated conversation with Patton in which he emphatically
expressed his opinion that embalming was unnecessary. Shortly afterward, Lozano told
them that state law prohibited them from entering the embalming room, so they returned
home without viewing Rose's body at the funeral home.
{¶20} Lozano testified that the van contained all of the equipment required for the
transportation of a deceased person, and that he followed all of the required protocols.
William Schaper, the owner of FHS, testified that all of the vans owned by the company
were outfitted with the required equipment for the transportation of deceased persons.
However, he testified that all four of the vans owned by FHS at the time were silver.

THE FUNERAL SERVICES

{¶21} When Appellants arrived at the funeral home to make arrangements for the
viewing hours and funeral service the following day, Kimberly Romanchuk, Courtley’s
daughter and a Shriver employee, rushed them through the decision-making process,
interjecting several times that she had a thirteen-year-old daughter who was at home
alone. When Appellants could not immediately decide on certain elements of the funeral
service, Romanchuk became belligerent. Romanchuk informed them that there would not
be sufficient time to print prayer cards. At one point, she asked why they wanted both
afternoon and evening calling hours and whether they intended to “stand around and look
at each other.” (Patton Depo., pp. 115-116.)
{¶22} When Curtis commented about their dangerous and upsetting trip home
from Cleveland, Romanchuk told her that Rose’s body had been transported in a family
van belonging to the driver’s mother-in-law because the hearse had a flat tire. However,
Romanchuk refused to identify Lozano as the driver.
{¶23} Appellants purchased a Matthews Andover maple coffin with a peach lining
and a mahogany exterior. Both the exterior color and lining were important to the family.
Romanchuk assured the family that the coffin was similar to the one that Rose selected
for their father. They chose a peach lining because Rose disliked pink.

Case No. 20 MA 0039
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{¶24} When the arrangements were complete, Romanchuk told Appellants that
they had only thirty minutes to return with Rose’s clothing, otherwise the doors would be
locked. She instructed certain family members to collect the clothing while the others went
to the florist shop to save time.
{¶25} Some floral deliveries were not able to be made because there was no one
at the funeral home to accept delivery. As a consequence, family and friends were forced
to bring their arrangements with them to the funeral home.
{¶26} At the viewing, Appellants were shocked at Rose’s appearance. Her hair
was fanned out six to eight inches around her head on the pillow with a thick layer of hair
spray, and there were hair clippings in the casket and on her gown. Family members
collected the cut hair and removed it from the casket. Rose had no color and her veins
were visible. They noticed visible stitching in her mouth.
{¶27} Rose was not lying flat in the casket; her head and right shoulder were
upturned to the left. She was not wearing the bra that the family brought to the funeral
home with the gown, so the outline of her breasts and nipples was visible. When
Romanchuk lifted the blanket to put booties on Rose’s feet, Appellants discovered
bruising and a bloody bandage on her right ankle.
{¶28} No funeral home employee visited them to offer support during calling
hours. That evening after the final guests had left and when the family was taking a private
moment at their mother’s side, Courtley told them that it was time to leave.
{¶29} The following day, during the minister’s eulogy at Shriver, Romanchuk
began removing the cards from the floral arrangements, which she placed in a bag. She
handed the bag and the funeral bill to Patton during the eulogy. She then began removing
the floral arrangements. Courtley appeared and could be heard telling Romanchuk,
“[d]amn it to hell, get moving, we have another funeral.” (Patton Depo., p. 131.) At the
conclusion of the eulogy, Courtley slammed the casket lid shut and said, “[c]an I get my
damn job done here?” (Patton Depo., p. 133.)
{¶30} There was no final procession before the casket for mourners. Courtley
dismissed everyone including the pall bearers to their automobiles. He and another
funeral employee put the casket on the gurney and took it to the hearse. After half-

Case No. 20 MA 0039
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heartedly attempting to organize the family vehicles he was heard to say, “[t]he hell with
it.” He stepped in the hearse and departed for the cemetery. (Patton Depo., p. 138.)
{¶31} There was no organized funeral procession to the cemetery. There were
roughly fifteen cars, but several cars were separated from the hearse due to traffic. At the
grave site, Courtley announced that he had another funeral and left before the grave-side
service was concluded. No guest registry was kept by the funeral home.

ALLEGATIONS AGAINST FHS AND SHRIVER

{¶32} Appellants asserted that their mother's body was misshapen as a result of
Lozano's failure to properly secure it in a van that was not equipped for the transportation
of a deceased person, coupled with the frantic manner in which it was transported to
Youngstown. They surmised that Rose’s body was left in the van overnight in the funeral
home parking lot, although they have offered no evidence to support that allegation. As a
consequence, Appellants argued that FHS was liable for intentional infliction of emotional
distress. Due to the behavior of Courtley and Romanchuk, as well as the sub-standard
funeral services provided by Shriver, Appellants asserted that Shriver was liable for
intentional infliction of emotional distress and breach of contract.
{¶33} The contract for funeral services was executed by Beverly Ann personally,
and signed on behalf of the funeral home by “David & Kim.” The total cost of the funeral
services was $10,633.04. The fee was due within one month following the execution of
the contract, with a 12% per annum late fee. There is a handwritten notation at the bottom
of the contract that was scratched out by Courtley. The parties stipulate that the
handwritten notation stated that the contract price would be paid after Rose's house was
sold. The bill was paid several years later after the sale of Rose’s house. With the late
fee, the bill totaled $13,326.73.

EVENTS FOLLOWING THE FUNERAL SERVICES

{¶34} After the burial service at the cemetery was complete, Appellants
complained that their mother’s plot was facing the wrong direction from the rest of the
family plots. Appellants decided to return to the burial site later to confirm that the casket
was properly repositioned. When they arrived, cemetery workers had already used a

Case No. 20 MA 0039
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backhoe to dig around the casket and turn it, instead of raising and repositioning it.
Appellants concede that Shriver was not responsible for the incorrect positioning and
repositioning of the casket at the grave site.
{¶35} In order to investigate the allegations in the original complaint, Rose’s body
was exhumed on July 14, 2014. Both Patton and Curtis were present for the disinterment.
Upon exhumation, the parties discovered that the lid had collapsed and water had filled
the casket, so it had to be drained before it was opened. The broken casket lid lay atop
Rose’s remains, which were bloated and unrecognizable because they had been
completely submerged in water.
{¶36} Due to the damage to the body caused by the water and broken casket,
Appellants’ expert, Curtis Robinson, a funeral home director and licensed mortician, was
unable to determine Appellants’ claim that the face and body had been in a skewed,
raised position, but he confirmed that the body had been embalmed. He noted that the
funeral gown was sheer and that Rose was not wearing a bra. The wire holding her mouth
closed was visible. The embalmer did not use eye caps, which was standard in the
industry. Robinson ultimately concluded that the decedent’s overall appearance for
viewing did not meet the standard of care in the funeral home industry.
{¶37} Photographs revealed that a plate on the casket read, “York Northern
Maple.” In their motion to amend and also in their opposition to Shriver's motion for
summary judgment, Appellants contend that Shriver defrauded them by replacing the
Andover Maple casket with the peach interior they had ordered and paid for with a casket
of lesser quality having a pink lining. According to Courtley's affidavit, York is a wholly-
owned subsidiary of Matthews International, the marketers of the Andover Maple casket
purchased by Beverly Ann. He attests that the casket in which Rose was buried is the
same model number as the casket identified in the contract.
{¶38} Patton and Curtis were required to re-inter Rose's body the same day it was
exhumed. Consequently, Rose was buried in a metal casket. Appellants filed the Fithian
case against the vault manufacturer and the cemetery association. The Fithian case was
settled on April 15, 2020.

Case No. 20 MA 0039
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APPELLANTS' EVIDENCE OF SERIOUS EMOTIONAL DISTRESS

{¶39} Beverly Ann died on February 26, 2012, roughly three and one-half years
after her mother’s death and five months before depositions were taken in the original
case. Curtis and Patton both testified that the circumstances surrounding their mother’s
funeral haunted Beverly Ann for the remainder of her life and hastened her death at the
age of 64.
{¶40} Beverly Ann had promised her mother that she would oversee the funeral,
and she was plagued with guilt over the manner in which her mother’s remains were
handled. After the funeral, she could hardly function and no longer prepared meals or
performed any housekeeping chores. She frequently wept over the fear that she had
disappointed Rose. The night before Beverly Ann died, she cried about Rose’s funeral.
(Curtis Depo., pp. 137-138.)
{¶41} Medical records from Beverly Ann’s primary physician, M.C. Dougherty,
M.D. were offered to oppose summary judgment. Notes dated November 31, 2008
indicate that she contacted Dr. Dougherty’s office due to health problems following her
mother's death and she was told to take Xanax twice a day, which had been previously
prescribed. Notes dated October 9, 2009 indicate that Beverly Ann exhibited stress
following the deaths of her mother the previous summer and her brother within the
previous year. Notes captioned “History of Present Illness” from her visit to Dr. Dougherty
on July 27, 2011 read, in pertinent part:

The patient comes in today for follow-up. She has [sic] under a lot of stress.
Her mother and brother died and her son committed suicide. She and her
husband are raising their 12-year-old grandson. Overall she has been doing
okay. She denies chest pain or shortness of breath. She has no medical
insurance at this point. Her husband was recently called back to work. She
sleeps okay at night. She doesn't know if [prescribed heart medication] is
making her tired.

(Opposition Brf. to Shriver Mot. For S.J., Exh. 3.) The notes indicate that she was
prescribed Xanax for situational stress.

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{¶42} Elmer Clay, Beverly Ann’s husband, testified that she cried on a daily basis,
had difficulty performing household chores, would rarely dress for the day, and that she
was treated for heart problems, hypertension, anxiety, and depression. However, he
conceded that Beverly Ann never sought psychiatric treatment for her emotional
problems.
{¶43} Curtis testified at her deposition on July 16, 2012 that she was hospitalized
after her mother's death due to uncontrollable blood pressure spikes. She was prescribed
medication to treat hypertension and anxiety. Curtis testified that she struggles with
sleeplessness and lack of concentration, which she attributes to daily triggers that remind
her of her mother’s funeral. She no longer listens to music because it frequently makes
her cry and she no longer wants to have a funeral when she dies. (Curtis Depo., pp. 67-
70, 126-133.)
{¶44} Patton testified at her deposition on July 17, 2012 that she suffers from
numbness in her face, which was attributed to nervousness and anxiety in 2011. She
experiences anxiety, depression, nervousness, sleeplessness, and stress, for which she
was prescribed an anti-anxiety medication.
{¶45} Both Patton and Curtis sought psychiatric treatment in April and May of
2015, respectively, roughly nine months after their mother’s disinterment. They treated
with Jessica Hart, Ph.D., who diagnosed them with posttraumatic stress disorder and
depressive disorder. Dr. Hart characterized their symptoms as moderately impairing their
daily functioning. Medical records reflect that both sisters saw Dr. Hart weekly or bi-
weekly for roughly five months.
{¶46} Patton and Curtis described depressed moods, crying spells, feelings of
anger, guilt, and loss, racing thoughts, anxiety, and difficulty sleeping after their mother's
funeral, as well as an inability to stop the reoccurring image of their mother's remains
following her disinterment. Dr. Hart noted that both women were tearful and emotional in
recounting the funeral experience, despite the fact that seven years had passed.
{¶47} Dr. Hart attributed the sisters’ PTSD and depression to “the events and
experiences in the aftermath of [their] mother's passing, specifically how the family was
treated by the funeral home and cemetery workers, the moving of [their] mother's body
after it was placed improperly, the disinterment, and conditions of [their] mother’s body

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due to the hole in the vault.” (Emphasis deleted.) (12/13/16 J.E. (FHS), p. 6.) Dr. Hart
observed that neither woman could overcome the feelings of guilt and anger stemming
from their mother's funeral, or erase their final image of Rose’s remains.

SUMMARY JUDGMENT

{¶48} The trial court granted summary judgment in favor of Shriver and FHS on
all of Appellants’ claims. With respect to Appellants’ claims for intentional infliction of
emotional distress, the trial court found as a matter of law that the allegations against
FHS and Shriver did not constitute extreme or outrageous conduct. The trial court
characterized the actions of Lozano and Shriver’s employees as rude and unprofessional,
rather than outrageous and extreme.
{¶49} The trial court further concluded that Appellants failed to demonstrate any
genuine issue of material fact regarding the element of serious emotional distress.
Because Patton and Curtis did not seek mental health treatment until several years after
the funeral and Beverly Ann never sought treatment, the trial court found that they did not
suffer serious emotional distress.
{¶50} The trial court held that Appellants had failed to establish a genuine issue
of material fact regarding the element of causation, because Dr. Hart attributed the mental
conditions suffered by Patton and Curtis to the circumstances surrounding not only
Rose’s funeral but also her disinterment. The trial court reasoned that the same was true
for Beverly Ann. The medical notes attributed her stress to the loss of her mother, the
loss of her brother, her son’s suicide, and the pressure of raising his young son.
{¶51} The trial court determined that the decision by Patton and Curtis to view
their mother's disinterred remains was not the natural or probable consequence of any of
the alleged conduct of the employees of FHS or Shriver. The court stated that “[i]t defies
logic that [Appellants], who claim to be so deeply affected by what they claim to be an
unprofessional presentation of their mother for viewing at the funeral, would expose
themselves to the predictably unpleasant experience of her exhumation.” (12/13/16 J.E.
(Shriver), p. 30.)
{¶52} The court also held that Appellants' claims for negligent infliction of
emotional distress and breach of contract claims were barred by the two-year statute of

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limitations for negligence claims in Ohio. Whether the non-intentional acts were alleged
in the context of a claim of infliction of emotional distress or a claim for breach of contract,
the court determined that the actual nature of the allegations sounded in negligence.
{¶53} Assuming arguendo that the breach of contract claims against Shriver were
timely filed, the trial court held that the handwritten clause on the contract (which read
that the bill would be paid after Rose’s house was sold) would not have prevented the
penalty provision from taking effect had it not been obliterated. The plain language of the
clause established only that the bill would not be paid until after the sale of Rose’s house,
not that the penalty provision would be suspended until the house was sold. Also,
because the contract did not specify the color of the lining of the casket, the trial court
concluded that no breach had occurred in that regard. Finally, the trial court held that
Appellants’ breach of oral contract claim against FHS failed as a matter of law because
there was no evidence of an offer by FHS, acceptance by Appellants, or consideration
exchanged between the parties.

CLAY I

{¶54} After reviewing the record, we affirmed the entry of summary judgment by
the trial court on Appellants’ intentional infliction of emotional distress claims. While we
agreed that the conduct alleged by Appellants was rude and thoughtless, we opined that
it was not “unendurable.” Clay, supra, ¶ 79. We further found that Appellants’ evidence
did not establish that the conduct of Shriver and FHS was the proximate cause of
Appellants’ emotional distress, because we could not parse from the record which of the
parties, Shriver, FHS, or the company employed for Rose’s interment, was responsible.
{¶55} In its original motion for summary judgment, Shriver argued that the breach
of contract claim was, in actuality, a claim for negligence, and was barred by the statute
of limitations governing negligence claims. With respect to the breach of contract claim,
we opined:

The statute of limitations that applies in a particular case does not depend
on the form of the pleadings or the headings in the complaint, but on the
actual nature of the subject matter of the complaint. Shorter v. Neapolitan,

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179 Ohio App.3d 608, 2008-Ohio-6597, 902 N.E.2d 1061, ¶ 17 (7th Dist.),
citing Hunter v. Shenango Furnace Co., 38 Ohio St.3d 235, 237, 527 N.E.2d
871 (3d Dist.1988). “[W]hether a suit is brought in contract or tort, when the
‘essence’ of an action is wrongful harm to person or personal property, the
R.C. 2305.10 statute of limitations is the appropriate one to apply.” Shorter
at ¶ 19, quoting Ressallat v. Burglar & Fire Alarms, Inc., 79 Ohio App.3d 43,
49, 606 N.E.2d 1001 (1992).

Shriver contends that this case is on all fours with JRC Holdings, Inc. v.
Samsel Servs. Co., 166 Ohio App.3d 328, 2006-Ohio-2148, 850 N.E.2d 773
(11th Dist.). JRC, a rubber parts manufacturer, contracted with Samsel, an
environmental remediation firm, to determine the extent of pollution
resulting from JRC's use of trichloroethylene (“TCE”), an industrial
degreaser, and to formulate a remediation plan acceptable to the Ohio EPA.
Samsel submitted recommendations for certain measures, by letter or
report, and JRC issued its standard purchase orders in reply. Samsel would
then submit its standard invoice form and receive checks in payment.

Samsel drilled several wells for the purpose of monitoring ground water
contamination. In this process, it contaminated deep water on JRC's
property. JRC filed an action for negligence, breach of contract, and breach
of warranty based on the chemical contamination of the deep water zone.
The Eleventh District held that JRC's claims were barred by the two-year
statute of limitations for property damage:

[T]he damages allegedly suffered by JRC are not contractual: they
do not depend upon the loss of the benefit of JRC's bargain with
Samsel, whatever that bargain included. A finding that this action
sounds in contract would not entitle JRC to different damages than it
might recover in tort. Such a finding would only extend the limitations
period for bringing the action. All of JRC's causes of action allege
exactly the same thing: that Samsel damaged JRC's real property by

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introducing TCE contamination into the deep-water zone through its
drilling processes.

Id. at ¶ 20.

Despite Shriver’s contention to the contrary, the same is not true here. In
addition to the emotional distress suffered by Appellants, the Appellants
allege contractual damages for the loss of the benefit of Beverly Ann's
bargain with Shriver for the provision of funeral services. The itemized
contract contains charges for services of the funeral home director and staff
in the amount of $1,825.00, plus charges for use of the facilities and
merchandise. Like JRC, where the damages remain the same whether the
action is contractual or tortious, the damages claimed by Appellants for
emotional distress are an unintended consequence of the negligent
performance of a contractual service. Unlike JRC, where the damages were
in no way tied to the “benefit of the bargain” between JRC and Samsel,
Appellants seek damages independent of the emotional damages suffered
as a result of the Shriver employees' performance under the contract.

Despite our conclusion that Appellants' breach of contract claim is not
based on negligence and is not subject to the statute of limitations for
tortious conduct, we nonetheless conclude that the Estate may attempt to
additionally prove emotional damages that logically arose from this breach
of contract claim. Although the Ohio Supreme Court has recognized that
emotional damages flowing from a breach of contract are difficult to prove,
even when foreseeable, they are available when the contract or the breach
is of such a kind that serious emotional disturbance was a particularly likely
result. Kishmarton, supra. Further, unlike the burden of proof for intentional
infliction of emotional distress claims, the emotional damages resulting from
a breach of contract need not be severe.

Accordingly, this record reflects that the Estate's breach of contract claim is
not grounded in tort. Hence, this claim is not barred by the statute of

Case No. 20 MA 0039
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limitations found in R.C. 2305.10. This record also reflects that genuine
issues of material fact exist with respect to the breach of contract claim. As
earlier discussed, Appellants have alleged a plethora of facts that, if true,
tend to show that they did not receive the benefit of their bargain and did
not receive the goods or services for which they contracted. While the trial
court ruled otherwise, it appears that the exhumation, done in preparation
for suit, also revealed facts pertinent to the breach of contract claims.
Further, the loss of their contractual bargain and the ensuing preparation
for lawsuit may have consequently caused serious emotional disturbance,
and the standard for proving this emotional damage is lower than that
utilized in reviewing Appellants' intentional infliction of emotional distress
claims. Therefore, summary judgment on this claim should not have been
entered.

Clay I, supra, at ¶ 101-106. Accordingly, we remanded the breach of contract claim for
trial.

THE JUDGMENT ENTRY ON APPEAL

{¶56} On remand, Shriver filed a four-page motion for partial summary judgment
based on a judgment entry issued in the Fithian case. In the judgment entry in the Fithian
case, the trial court opined that Patton and Curtis did not have standing to sue for breach
of the funeral purchase agreement, the same contract at issue in this appeal.
{¶57} In the partial motion for summary judgment, Shriver argued that the Estate
was the only plaintiff with standing to assert the breach of contract claim because Beverly
Ann was the only plaintiff who was a party to the contract. Shriver further argued that
Lucarell, supra, prohibited any award of punitive damages for breach of contract.
{¶58} The trial court opined that Patton and Curtis’s standing to assert the breach
of contract claim was not raised in Shriver’s original summary judgment motion, and,
therefore, was not a matter addressed by this Court in Clay I. The trial court further found
that neither Patton nor Curtis was a third-party beneficiary of the contract, because the
face of contract did not establish that Patton and Curtis were intended beneficiaries. The

Case No. 20 MA 0039
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trial court expressly stated that it did not rely on the judgment entry in the Fithian case.
Finally, the trial court found that the Ohio Supreme Court’s decision in Lucarell, supra,
prohibited an award of punitive damages on the breach of contract claim. This timely
appeal followed.

ANALYSIS

{¶59} Because Appellants’ arguments with respect to both of the trial court’s
findings are predicated upon the same theories of law, they are addressed together for
the purpose of judicial economy.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
ITS REFUSAL TO APPLY THE DOCTRINE OF “LAW-OF-THE-
CASE”/“MANDATE” AND THE FACTS AND CONCLUSIONS OF LAW
FOUND IN CLAY I AS REQUIRED BY NOLAN V. NOLAN (1984) 11 OHIO
ST.3D 1.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT REFUSED TO FOLLOW THE LAW OF THE CASE
DOCTRINE AND ERRED IN GRANTING SUMMARY JUDGMENT TO
DEFENDANT ON THE ISSUE OF PLAINTIFF MARY JANE PATTON AND
LILY MAY CURTIS’ STANDING TO SUE DEFENDANT UNDER THE
FUNERAL PURCHASE AGREEMENT.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO
DEFENDANT ON ISSUES THAT DEFENDANT DID NOT RAISE THAT
COULD HAVE BEEN RAISED BY THE DEFENDANT (A) IN ITS MOTION
FOR RECONSIDERATION, OR (B) MOTION TO CERTIFY CONFLICT,
OR (C) ON DIRECT APPEAL TO THE OHIO SUPREME COURT.

Case No. 20 MA 0039
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{¶60} Patton and Curtis do not argue that they are third-party beneficiaries of the
funeral contract in this appeal, but, instead, that the trial court was prohibited from
revisiting the issue of standing based on the law of the case doctrine. They argue in the
alternative that they have standing to assert the breach of contract claim based on the
rule of law announced by the Eighth District in Biro v. Hartman Funeral Home, 107 Ohio
App.3d 508, 669 N.E.2d 65 (8th Dist.1995).
{¶61} Pursuant to the law of the case doctrine, “the decision of a reviewing court
in a case remains the law of that case on the legal questions involved for all subsequent
proceedings in the case at both the trial and reviewing levels.” Nolan v. Nolan, 11 Ohio
St.3d 1, 3, 462 N.E.2d 410 (1984). That doctrine precludes a litigant from attempting to
rely on arguments that were fully pursued in a prior proceeding. Hubbard ex rel. Creed
v. Sauline, 74 Ohio St.3d 402, 404-405, 659 N.E.2d 781 (1996). “The doctrine of law of
the case comes into play only with respect to issues previously determined.” Quern v.
Jordan, 440 U.S. 332, 347, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979), fn. 18, citing In re
Sanford Fork & Tool Co., 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414 (1895).
{¶62} On remand, “a trial court * * * confronted with substantially the same facts
and issues as were involved in the prior appeal * * * is bound to adhere to the appellate
court's determination of the applicable law,” Nolan at 3, but that court “may consider and
decide any matters left open by the mandate of [the appellate] court.” Quern at 347, fn.18,
quoting Sanford Fork & Tool at 256. The law of the case doctrine “is considered to be a
rule of practice rather than a binding rule of substantive law and will not be applied so as
to achieve unjust results.” Nolan, supra, at 3.
{¶63} Appellants contend that we held that Patton and Curtis have standing to
assert the breach of contract claim based on references in the memorandum opinion to
“Appellants’ breach of contract claim.” In their verified complaint, Appellants do not state
specific causes of action, but, instead, generally seek recovery for breach of contract, and
intentional infliction of emotional distress, as well as emotional damages, for the first time
in their prayer for relief. In other words, Appellants asserted the breach of contract claim
as a group, and we referred to the breach of contract claim as being asserted by all three
of the Appellants in Clay I.

Case No. 20 MA 0039
 – 19 –

{¶64} Shriver did not challenge Patton and Curtis’s standing to assert the breach
of contract claim in the original motion for summary judgment. Shriver argued that the
breach of contract claim was actually a claim for negligence, and, as a consequence, it
was barred by the applicable statute of limitations. We found that the breach of contract
claim was not a negligence claim. However, we made no finding regarding Patton and
Curtis’s standing to assert the breach of contract claim. Patton and Curtis’s standing were
not before us in Clay I. Therefore, we find that the law of the case doctrine does not apply
to the issue of Patton and Curtis’s standing to assert the breach of contract claim.
{¶65} We further find that Shriver had no obligation to challenge Patton and
Curtis’s standing in its motion for reconsideration, or its appeal to the Ohio Supreme
Court. “It is axiomatic that a party cannot raise issues for the first time on appeal that
were not raised below.” Home Savings & Loan Co. v. Captiva Hong Kong Ltd., 7th Dist.
Mahoning No. 03 MA 167, 2004-Ohio-6375, ¶ 32, citing Stores Realty Co. v. Cleveland,
41 Ohio St.2d 41, 43, 322 N.E.2d 629 (1975). Because the sole argument advanced by
Shriver in the original summary judgment motion in Clay I was based on the applicable
statute of limitations, Shriver was prohibited from asserting the standing argument for the
first time before this Court or the Ohio Supreme Court on appeal.
{¶66} In the alternative, Patton and Curtis argue that they have standing to assert
the breach of contract claim based on the rule of law announced by the Eighth District
Court of Appeals in Biro, supra. In that case, the Eighth District held children have legal
standing to maintain an action in tort for desecration of their parent’s remains. Id., citing
Carney v. Knollwood Cemetery Assn., 33 Ohio App.3d 31, 37, 514 N.E.2d 430, 435-436
(1986) (outrageous disturbance of remains). However, the only claim that remains in this
case is a breach of contract claim, not a tort claim, therefore, Biro is inapposite.
{¶67} Insofar as Shriver did not challenge the standing of Patton and Curtis to
assert the breach of contract claim in Clay I, we affirm the decision of the trial court
declining to apply the law of the case doctrine. We further find that Shriver could not raise
the issue of standing in a motion for reconsideration or in its direct appeal to the Ohio
Supreme Court, but, instead, was required to raise it first to the trial court on remand.
Finally, we find that Patton and Curtis do not have standing to assert the breach of

Case No. 20 MA 0039
 – 20 –

contract claim because only Beverly Ann was a party to the contract. Accordingly,
Appellants’ first three assignments of error are not well taken.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO
DEFENDANT ON THE ISSUE OF PUNITIVE DAMAGES. R.C. § 2315.21,
AS THE COURT OF APPEALS OPINION AND JUDGMENT ENTRY OF
8-16-2020 [SIC] CONTAINS FINDINGS OF FACT AND CONCLUSIONS
OF LAW CONSISTENT TO APPLY LUCARELL V. NATIONWIDE MUT.
INS. CO. 152 OHIO ST.3d 453 TO THIS CASE.

{¶68} Lucarell sued Nationwide for breach of contract, fraudulent
misrepresentation, invasion of privacy, retaliation, and constructive discharge, asserting
it had fraudulently and in bad faith induced her to open a new insurance agency when it
intended to terminate her after she generated a profitable book of business.
{¶69} The case proceeded to trial, and at the close of her case-in-chief, the court
directed a verdict in favor of Nationwide on the fraud claim. The jury returned verdicts in
favor of Lucarell in excess of $42 million in compensatory and punitive damages, finding
that Nationwide had breached the contracts, invaded Lucarell’s privacy, retaliated against
her, and constructively discharged her. The trial court, applying statutory caps on
damages, entered judgment against Nationwide for more than $14 million in
compensatory and punitive damages. Both parties appealed.
{¶70} We affirmed the breach of contract judgment, affirmed the invasion of
privacy judgment in part, reversed the retaliation and constructive discharge judgments,
and reinstated and remanded the fraud claim for a new trial. We opined that punitive
damages could be awarded for breach of contract if Lucarell proved her fraud claim.
{¶71} However, the Ohio Supreme Court held that punitive damages may not be
awarded for breach of contract, no matter how willful the breach. Lucarell, supra at ¶ 35.
The Ohio Supreme Court reasoned:

Case No. 20 MA 0039
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This court articulated this rule almost a century ago in Ketcham v. Miller,
104 Ohio St. 372, 136 N.E. 145 (1922), paragraph two of the syllabus:
“Punitive damages are not recoverable in an action for breach of contract.”

Nonetheless, Ohio appellate courts, including the Seventh District Court of
Appeals in this case, have suggested that there is an “exception” to the
common law rule and that punitive damages may be awarded if a breach of
contract is accompanied by a connected but independent tort. See, e.g.,
2015-Ohio-5286, 44 N.E.3d 319, at ¶ 177; Meisel v. Buildt, 8th Dist.
Cuyahoga No. 70168, 1996 WL 596451, *6 (Oct. 17, 1996); Goldfarb v.
Robb Report, Inc., 101 Ohio App.3d 134, 140, 655 N.E.2d 211 (10th
Dist.1995).

However, this court has never recognized an exception to the common law
rule precluding the award of punitive damages for breach of contract.
Although we have noted that the conduct constituting a breach of contract
can also constitute a tort, we have made clear that punitive damages are
available only when the claimant “suffered a harm distinct from the breach
of contract action and attributable solely to the alleged tortious conduct.”
Shimola v. Nationwide Ins. Co., 25 Ohio St.3d 84, 86, 495 N.E.2d 391
(1986). Thus, punitive damages “ ‘are recoverable for a tort committed in
connection with, but independently of, the breach of contract, where the
essentials of an award of such damages are otherwise present, the
allowance of such damages being for the tort and not for the breach of
contract.’ ” Saberton v. Greenwald, 146 Ohio St. 414, 426, 66 N.E.2d 224
(1946), quoting 25 Corpus Juris Secundum, Damages, Section 120, at 716.

We recently applied this principle in Sivit v. Village Green of Beachwood,
L.P., 143 Ohio St.3d 168, 2015-Ohio-1193, 35 N.E.3d 508. In that case, a
fire caused by negligent construction and maintenance destroyed an
apartment building; the jury awarded the tenants punitive damages, and the
trial court declined to apply the statutory cap on punitive damages provided

Case No. 20 MA 0039
 – 22 –

by R.C. 2315.21. Sivit v. Village Green of Beachwood, L.P., 8th Dist.
Cuyahoga No. 98401, 2013-Ohio-103, 2013 WL 177465, ¶ 66. The court of
appeals affirmed, explaining that the statutory cap applies only to a “tort
action,” which pursuant to R.C. 2315.21(A)(1), “does not include a civil
action for damages for a breach of contract or another agreement between
persons.” The appellate court reasoned that the cap did not apply to the
tenants' award, because “Landlord-Tenant agreements are contractual in
nature and injurious conduct arising out of the contract is not a tort action.”
Id. at ¶ 59.

We reversed that determination and explained that although the tenants'
claims sounded both in contract and in tort, punitive damages could be
awarded only for the tortious conduct, not for the breach of contract. Sivit,
143 Ohio St.3d 168, 2015-Ohio-1193, 35 N.E.3d 508, at ¶ 5. Thus, when a
breach of contract involves conduct that also constitutes a tort, punitive
damages may be awarded only for the tort, not for the breach, Saberton at
426, 66 N.E.2d 224, and any punitive damages awarded are subject to
statutory limitations on punitive damages imposed in R.C. 2315.21, Sivit,
143 Ohio St.3d 168, 2015-Ohio-1193, 35 N.E.3d 508, at ¶ 5.

Accordingly, punitive damages are not recoverable for the breach of
contract claims Lucarell alleged in her amended complaint, including her
claim that Nationwide breached its implied contractual duty of good faith
and fair dealing.

Id. at ¶ 35-40.

{¶72} Appellants contend that they may recover punitive damages based on a
separate tort claim. However, no tort claim remains. They originally asserted a negligent
infliction of emotional distress claim, but conceded in Clay I that it was barred by the
applicable statute of limitations. Further, we affirmed the dismissal of their intentional
infliction of emotional distress claims in Clay I. Emotional damages are recoverable in
this case based on a narrow exception to the general rule prohibiting recovery of

Case No. 20 MA 0039
 – 23 –

emotional damages on a breach of contract claim, not any remaining, independent tort
claim. Insofar as the breach of contract claim is the only claim that remains, we find that
punitive damages are not recoverable in this case.

CONCLUSION

{¶73} For the foregoing reasons, we find that Patton and Curtis do not have
standing to assert the breach of contract claim, and that the Estate may not recover
punitive damages based on the breach of contract claim. Accordingly, the judgment entry
of the trial court is affirmed in its entirety.

Donofrio, P.J., concurs.

Robb, J., concurs.

Case No. 20 MA 0039
[Cite as Clay v. Shriver Allison Courtley, Co., 2021-Ohio-538.]

For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed
against the Appellants.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.