         [Cite as Roy v. Durrani, 2015-Ohio-11.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




JEFF ROY,                                          :   APPEAL NO. C-140181
                                                       TRIAL NO. A-1108652
DEBBIE ROY,                                        :
                                                          O P I N I O N.
  and                                              :

JOSHUA ROY,                                        :

        Plaintiffs-Appellants,                     :

  vs.                                              :

ABUBAKAR ATIQ DURRANI, M.D.,                       :

 and                                               :

CENTER FOR ADVANCED SPINE :
TECHNOLOGIES, INC.,
                          :
    Defendants-Appellees,
                          :
 and
                          :
CINCINNATI CHILDREN’S
HOSPITAL MEDICAL CENTER,  :

    Defendant.                                     :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: January 7, 2015
                     OHIO FIRST DISTRICT COURT OF APPEALS


Stephanie Collins and K. Joshua Waters, for Plaintiffs-Appellants,

Lindhorst & Dreidame, Michael F. Lyon, James F. Brockman and Bradley McPeek,
for Defendants-Appellees,

Dinsmore & Shohl LLP, J. David Brittingham and Thomas P. Kemp, Jr., for
Defendant Cincinnati Children’s Hospital Medical Center.




Please note: this case has been removed from the accelerated calendar.



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                      OHIO FIRST DISTRICT COURT OF APPEALS




Per Curiam.

       {¶1}   Plaintiffs-appellants Jeff, Debbie, and Joshua Roy (“the Roys”) have

appealed from the trial court’s grant of summary judgment to defendants-appellees

Abubakar Atiq Durrani, M.D., and Center for Advanced Spine Technologies, Inc.,

(“CAST”) in this medical-malpractice action. Because the Roys had released all

claims against Dr. Durrani in a settlement agreement reached with defendant

Cincinnati Children’s Hospital Medical Center (“CHMC”), and because no genuine

issues of material fact exist with respect to the Roys’ claims against CAST, we affirm

the trial court’s grant of summary judgment to Dr. Durrani and CAST.

                        Factual and Procedural Background


       {¶2}   Joshua Roy was diagnosed shortly after birth with agenesis of the

corpus collosum, a brain disorder. This condition caused Joshua to suffer numerous

physical disabilities, including curvature of his spine. Joshua was referred to CHMC

in April of 2007 for treatment of his spinal curvature, and he was treated by Dr.

Durrani, who was an employee of CHMC at that time. Dr. Durrani diagnosed Joshua

with kyphosis and recommended that Joshua’s curving spine be treated with a brace.

The brace was not able to correct the spinal curvature and it diminished Joshua’s

quality of life. Because the brace had been unsuccessful, Dr. Durrani performed

surgery on Joshua in November of 2008 to fix the curvature of his spine. The

surgery involved insertion of a metal growth rod in Joshua’s back. Joshua suffered

extensively following the surgery. His parents noticed extreme protrusions along his

spine and felt that the rod was impairing his physical abilities.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶3}   The Roys had one follow-up visit with Dr. Durrani at CHMC. During

that visit, Dr. Durrani assured the Roys that the protrusions were caused by normal

post-surgery swelling. Dr. Durrani left his employment with CHMC in January of

2009, and shortly thereafter opened CAST. Joshua saw Dr. Durrani for one visit at

CAST in April of 2009. Joshua still had protrusions on his back at that time. Dr.

Durrani allegedly conveyed that a complication had occurred with the growth rods

and that they were “rolling.” But he felt that it was not necessary to perform surgery

to fix the rods. On the advice of Joshua’s pediatrician, who was concerned about the

protrusions in Joshua’s spine, the Roys sought a second opinion with Dr. Steve

Agabegi. Dr. Agabegi informed the Roys that several screws were coming out of

Joshua’s spine, and he performed surgery to remove the rods in October of 2009.

According to Dr. Agabegi, the surgery that Dr. Durrani had performed on Joshua was

designed for a person suffering from scoliosis, not kyphosis.

       {¶4}   The Roys filed a medical-malpractice complaint against Dr. Durrani,

CAST, and CHMC, raising claims related to Joshua’s surgery and treatment. They

entered into a confidential settlement agreement with CHMC in December of 2012

and, on January 31, 2013, filed an entry that dismissed CHMC from the action with

prejudice. After the settlement was reached, Dr. Durrani and CAST filed a motion to

compel production of the settlement agreement. The trial court granted the motion

and ordered the settlement agreement to be filed under seal.

       {¶5}   After reviewing the settlement agreement, Dr. Durrani and CAST

moved for summary judgment.          They argued that the plain language of the

settlement agreement, which released all claims against CHMC and defined CHMC

to include its employees, had also released all claims against Dr. Durrani because he




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                     OHIO FIRST DISTRICT COURT OF APPEALS



had been an employee of CHMC at the time that he had performed surgery on

Joshua.   With respect to CAST, the motion for summary judgment argued that no

claims asserted against CAST would survive following Dr. Durrani’s release. The

trial court found the motion to be well-taken and awarded summary judgment to Dr.

Durrani and CAST.

                     Summary Judgment Standard of Review


       {¶6}   The Roys have appealed from the trial court’s entry granting summary

judgment to Dr. Durrani and CAST. In one assignment of error, they argue that the

trial court’s grant of summary judgment was in error.

       {¶7}   We review a trial court’s grant of summary judgment de novo. See

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

Summary judgment is appropriately granted when there exist no genuine issues of

material fact, the party moving for summary judgment is entitled to judgment as a

matter of law, and the evidence, when viewed in favor of the nonmoving party,

permits only one reasonable conclusion that is adverse to that party. See State ex rel.

Howard v. Ferreri, 70 Ohio St.3d 587, 589, 639 N.E.2d 1189 (1994).

                               Settlement Agreement


       {¶8}   The Roys first argue that the language of the settlement agreement

reached with CHMC did not also release Dr. Durrani and CAST from liability.

       {¶9}   The settlement agreement clearly identified the parties to whom it

applied. It provided that the settlement agreement was being entered into by the

Roys, collectively referred to as “PLAINTIFFS,” and




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                    OHIO FIRST DISTRICT COURT OF APPEALS



      CINCINNATI       CHILDREN’S      HOSPITAL       MEDICAL       CENTER,

      including its predecessors, successors, members, affiliates, officers,

      directors, agents, consultants, servants, representatives, underwriters,

      distributors, attorneys, employees, insurers, reinsurers, assigns and

      each of them (collectively “DEFENDANTS”).

      {¶10} The agreement stated in pertinent part that:

      In consideration of the payment by DEFENDANTS to PLAINTIFFS of

      * * * PLAINTIFFS hereby fully and completely settle, release, remise,

      quitclaim, acquit, forever discharge and hold DEFENDANTS harmless

      from any and all past, present and future claims * * * incurred or to be

      incurred, related to any and all matters arising out of or in any way

      connected to the facts as set out in the case captioned Jeff, Debbie and

      Joshua Roy v. Abubakar Atiq Durrani, M.D., et al., Court of Common

      Pleas, Hamilton County, Ohio, Case No. A1108652. * * * PLAINTIFFS

      hereby fully and completely covenant that they will not bring,

      commence, prosecute, or cause or permit to be brought, commenced,

      or prosecuted, either directly or indirectly, any suit or action against

      DEFENDANTS related to DEFENDANTS’ care and treatment of

      JOSHUA ROY before the execution of this release * * *.

      {¶11} The Roys contend that the plain language of this agreement did not

expressly bar bringing claims against all other individual defendants, and that the

parties had only intended to release CHMC from liability. We considered this exact

argument in Wilson v. Durrani, 1st Dist. Hamilton No. C-130234, 2014-Ohio-1023.

Wilson involved a different medical-malpractice action that had been filed against




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                      OHIO FIRST DISTRICT COURT OF APPEALS



Dr. Durrani, CAST, and CHMC, and it followed a similar procedural posture to the

case at hand. See id. at ¶ 3-8. The plaintiff in Wilson had also entered into a

confidential settlement agreement with CHMC. After the trial court ordered the

settlement agreement to be produced, Dr. Durrani and CAST moved for summary

judgment on the basis that the settlement agreement had also released all claims

against Dr. Durrani and that no independent claims against CAST existed. Id. The

trial court granted the motion for summary judgment, and its decision was affirmed

by this court on appeal. We held in Wilson that “the plain language of the settlement

agreement released Wilson’s claims against Dr. Durrani and therefore his vicarious-

liability claim against CAST.” Id. at ¶ 15.

       {¶12} As in this case, the settlement agreement in Wilson clearly defined the

parties to the agreement.      It provided that the defendants being released were

CHMC, including, among other entities, its employees. Id. at ¶ 14. Based on the

clear and unambiguous language of the settlement agreement in this case, and

relying on the precedent set in Wilson, we determine that the settlement agreement

released the Roys’ claims against Dr. Durrani, who was an employee of CHMC at the

time that he performed surgery on Joshua.          The trial court properly granted

summary judgment to Dr. Durrani on all of the Roys’ claims.

       {¶13} The Roys’ claims against CAST were not similarly released by the

settlement agreement, but we nonetheless hold that the trial court’s grant of

summary judgment to CAST was proper. The Roys failed to come forth with any

evidence in response to the motion for summary judgment that created a genuine

issue of material fact on any claims against CAST. See id. at ¶ 17. In the absence of a

genuine issue of material fact, CAST was entitled to summary judgment.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


                        Evidentiary Hearing Not Required


       {¶14} The Roys next argue that the trial court should have held an

evidentiary hearing to determine whether there was a binding settlement agreement.

They contend that the trial court should have considered parol evidence to prove that

there had been no meeting of the minds between the parties and to determine the

parties’ intent. We are not persuaded.

       {¶15} We stated in Wilson that “[b]ecause the settlement agreement is

unambiguous on its face, we need not resort to parol evidence * * * to uncover the

signatories’ intent.” Wilson, 1st Dist. Hamilton No. C-130234, 2014-Ohio-1023, at ¶

16. The settlement agreement executed between the Roys and CHMC was clear and

unambiguous on its face.      Because the contract was unambiguous, its express

language releasing Dr. Durrani from liability controlled and parol evidence was

inadmissible to prove a contrary intention. See Consolo v. Menter, 9th Dist. Summit

No. 25394, 2011-Ohio-6241, ¶ 19, citing Aultman Hosp. Assn. v. Community Mut.

Ins. Co., 46 Ohio St.3d 51, 53, 544 N.E.2d 920 (1989). The trial court did not err in

failing to conduct an evidentiary hearing concerning the settlement agreement.

                                No Mistake of Fact


       {¶16} The Roys next argue that the settlement agreement should be

rescinded because either a unilateral or a mutual mistake of fact occurred in the

formation of the contract. But this court, when reviewing the trial court’s ruling on

the motion for summary judgment, cannot rescind the settlement agreement as a

remedy. The only remedy that this court could grant would be to vacate the trial

court’s grant of summary judgment if we found that a genuine issue of material fact




                                             8
                     OHIO FIRST DISTRICT COURT OF APPEALS



existed regarding whether a mistake of fact had occurred in the formation of the

settlement agreement.

       {¶17} In certain circumstances, a contract may be voidable when one of the

parties to the contract makes a mistake. The Restatement of the Law on contracts

provides that:

       Where a mistake of one party at the time a contract was made as to a

       basic assumption on which he made the contract has a material effect

       on the agreed exchange of performances that is adverse to him, the

       contract is voidable by him if he does not bear the risk of the mistake

       under the rule stated in § 154, and (a) the effect of the mistake is such

       that enforcement of the contract would be unconscionable, or (b) the

       other party had reason to know of the mistake or his fault caused the

       mistake.

1 Restatement of the Law 2d, Contracts, Section 153 (1981).

       {¶18} The Roys contend that a unilateral mistake occurred in the formation

of the contract because it was their intent and understanding that the settlement

agreement would not release Dr. Durrani in his individual capacity. They do not take

issue with the actual language used in the settlement agreement.          Rather, they

challenge the legal interpretation of those words as inconsistent with the parties’ true

intentions.

       {¶19} The Fourth Appellate District considered a similar argument in

Selvage v. Emnett, 181 Ohio App.3d 371, 2009-Ohio-940, 909 N.E.2d 143 (4th

Dist.). In that case, appellant Selvage had purchased a parcel of land from Howard

and Penny Emnett. Selvage filed a complaint against the Emnetts and several other




                                               9
                      OHIO FIRST DISTRICT COURT OF APPEALS



defendants alleging that their actions had breached his warranty of title, had

disrupted the quiet enjoyment of his property, and had diminished the value of his

land. Id. at ¶ 3-4. Selvage entered into an oral settlement agreement in which he

agreed to dismiss his action in return for various considerations. Id. at ¶ 5. Selvage

later attempted to prevent the trial court from enforcing that settlement agreement

by asserting that a unilateral mistake had occurred because he did not understand

that the agreement included the dismissal of his claims against all defendants and

not solely the Emnetts. Id. at ¶ 14. In rejecting his argument, the Fourth District

stated that

       Appellant’s alleged unilateral mistake was that he purportedly did not

       understand that ‘this action’ meant the entire case, not just his claims

       against appellees. This ‘mistake’ is not sufficient to rescind the

       contract, however. We find no evidence that either appellees or

       McDermott ‘had reason to know of the mistake or [that their] fault

       caused the mistake.’ Moreover, appellant’s ignorance of the meaning

       of ‘this action’ does not constitute a sufficient mistake.

(Internal quotations omitted.) Id. at ¶ 15.

       {¶20} We likewise determine that the Roys’ alleged unilateral mistake that

they did not understand that all claims were released against Dr. Durrani in his

individual capacity was not a sufficient mistake to create a genuine issue of material

fact as to whether the settlement agreement was voidable. The language used in the

settlement agreement was unambiguous and clearly released all claims against Dr.

Durrani. The settlement agreement contained a clause stating that “PLAINTIFFS

agree that they have read this AGREEMENT carefully; that they know and




                                               10
                     OHIO FIRST DISTRICT COURT OF APPEALS



understand its contents and its legal binding effect.”    A careful reading of the

settlement agreement conveys that all claims were being released against Dr.

Durrani, an employee of CHMC. The Roys’ lack of knowledge about the effect of the

words that had been used in the settlement agreement, with their approval, cannot

constitute a sufficient mistake to rescind the settlement agreement. Further, the

Roys were represented by experienced counsel throughout the settlement process,

and the release itself contains cautionary language in bold type directly above the

signature lines advising all parties to read the agreement carefully before signing.

The Roys’ argument concerning a unilateral mistake additionally fails because the

record contains no evidence that CHMC, the other party to the settlement

agreement, had reason to know of the mistake.

       {¶21} We further determine that the record contains no evidence to create a

genuine issue of material fact as to whether a mutual mistake of fact occurred in the

formation of the contract. The Restatement of the Law on Contracts provides that a

mistake by both parties at the time that a contract was made may make a contract

voidable in certain circumstances. See 1 Restatement of the Law 2d, Contracts,

Section 152 (1981). But the record here contains no evidence that any mistake was

mutual or that CHMC made a mistake when entering into the settlement agreement.

                                  Wisconsin Law


       {¶22} The Roys last argue that this court should apply Wisconsin law to

determine whether the trial court should have conducted an evidentiary hearing and

whether a mistake of fact occurred in the formation of the contract. They contend

that Wisconsin law is applicable because a Wisconsin court approved the settlement

agreement reached by the Roys and CHMC. But the plain language of the settlement


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                       OHIO FIRST DISTRICT COURT OF APPEALS



agreement belies the Roys’ argument. Paragraph nine of the settlement agreement

provides that “[i]t is further understood and agreed that this AGREEMENT shall be

subject to and governed by the laws of the State of Ohio * * *.”

       {¶23} The parties agreed prior to executing the settlement agreement that

Ohio law would govern any disputes arising from the agreement. Citing Restatement

of the Law 2d, Conflict of Laws, Section 187 (1971), the Ohio Supreme Court has held

that such choice of law provisions should be respected unless:

            (a) the chosen state has no substantial relationship to the parties or

            the transaction and there is no other reasonable basis for the

            parties’ choice, or (b) application of the law of the chosen state

            would be contrary to a fundamental policy of a state which has a

            materially greater interest than the chosen state in the

            determination of the particular issue and which, under the rule of §

            188, would be the state of the applicable law in the absence of an

            effective choice of law by the parties.

Schulke Radio Prod., Ltd. v. Midwestern Broadcasting Co., 6 Ohio St.3d 436,

438-439, 453 N.E.2d 683 (1983).

       {¶24} Neither of the above exceptions are present in this case, and the

parties’ choice of law specified in the settlement agreement governs any arising

disputes.

                                       Conclusion


       {¶25} Because the settlement agreement released all claims against Dr.

Durrani in his individual capacity, the trial court’s grant of summary judgment to Dr.

Durrani was not in error. And the trial court’s grant of summary judgment to CAST


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                      OHIO FIRST DISTRICT COURT OF APPEALS



was proper because the Roys presented no evidence to create a genuine issue of

material fact on any claims against CAST.            The Roys’ assignment of error is

overruled, and the judgment of the trial court is affirmed.

                                                                      Judgment affirmed.



HILDEBRANDT, P.J., HENDON and FISCHER, JJ.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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