[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.
