[Cite as Elkins v. Ohio Dept. of Rehab. & Corr., 2014-Ohio-2786.]


                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Clarence Elkins, Sr.,                                :

                 Plaintiff-Appellant,                :
                                                                        No. 13AP-856
v.                                                   :               (Ct.Cl. No. 2013-00020)

Ohio Department of                                   :              (REGULAR CALENDAR)
Rehabilitation and Correction,
                                                     :
                 Defendant-Appellee.
                                                     :


                                         D E C I S I O N

                                      Rendered on June 26, 2014


                 Black, McCuskey, Souers & Arbaugh, LPA, Gordon D.
                 Woolbert, II, and Whitney L. Willits, for appellant.

                 Michael DeWine, Attorney General, Frank S. Carson and
                 Peter E. DeMarco, for appellee.

                             APPEAL from the Court of Claims of Ohio

DORRIAN, J.
        {¶ 1} Plaintiff-appellant, Clarence Elkins, Sr. ("appellant"), appeals from a
judgment of the Court of Claims of Ohio granting summary judgment in favor of
defendant-appellee, Ohio Department of Rehabilitation and Correction ("ODRC"), on
appellant's claims for unauthorized disclosure of his medical records, invasion of privacy,
and intentional infliction of emotional distress. For the following reasons, we reverse.
        {¶ 2} Appellant was convicted in 1999 on multiple felony charges and sentenced
to life imprisonment. He was subsequently exonerated and released from prison. See
Elkins v. Summit Cty, 615 F.3d 671, 673-74 (6th Cir.2010). Appellant then sought and
obtained a declaration that he was a wrongfully imprisoned individual. As a result of the
No. 13AP-856                                                                               2


wrongful imprisonment, appellant received financial settlements from the state of Ohio
and the city of Barberton, Ohio. Appellant's former wife, Melinda, and his son, Clarence
Elkins, Jr. ("Clarence Jr."), also received financial settlements arising from appellant's
wrongful imprisonment.
       {¶ 3} Prior to receiving the financial settlements, Melinda and Clarence Jr. had
filed for bankruptcy. After Melinda and Clarence Jr. received the proceeds from their
settlement with the city of Barberton, the federal government made a claim against their
bankruptcy estates for unpaid taxes on the settlement funds. As part of the bankruptcy
action, the Tax Division of the United States Department of Justice issued a subpoena to
ODRC requesting production of copies of documents related to medical treatment
appellant received while incarcerated (the "DOJ subpoena"). ODRC responded to the DOJ
subpoena by providing copies of the requested medical records.
       {¶ 4} Appellant filed a complaint against ODRC in the Court of Claims, asserting
four causes of action: (1) unauthorized disclosure of privileged records in violation of R.C.
2317.02 and 4732.19, (2) unauthorized disclosure of nonpublic medical information,
(3) invasion of privacy, and (4) intentional infliction of emotional distress. ODRC moved
for summary judgment, arguing that it was authorized to release appellant's medical
records under a provision of the Ohio Administrative Code, and that the Court of Claims
lacked jurisdiction over appellant's claim for invasion of privacy. The trial court granted
ODRC's motion for summary judgment, concluding that there were no genuine issues of
material fact and ODRC was entitled to judgment as a matter of law on all of appellant's
claims.
       {¶ 5} Appellant appeals from the trial court's judgment, assigning four errors for
this court's review:
              1. The trial court erred as a matter of law by granting
              summary judgment to Defendant-Appellee ODRC on
              Plaintiff-Appellant Elkins' First Cause of Action when ODRC
              did not address Elkins' First Cause of Action in its Motion for
              Summary Judgment.

              2. The trial court erred as a matter of law by granting
              summary judgment to ODRC on Elkins' Second Cause of
              Action on grounds not addressed by either party below and by
              wrongfully applying federal law and eviscerating Ohio's
No. 13AP-856                                                                               3


             independent tort for the wrongful disclosure of medical
             and/or mental health records.

             3. The trial court erred as a matter of law by granting
             summary judgment to ODRC on Elkins' Third Cause of Action
             on grounds not addressed by either party below and by
             incorrectly characterizing the cause of action as one solely
             based on the public disclosure tort for invasion of privacy.

             4. The trial court erred as a matter of law by granting
             summary judgment to ODRC on Elkins' Fourth Cause of
             Action, as the determination of the Fourth Cause of Action is
             inextricably linked to the trial court's errors in deciding
             Elkins's First and Second Causes of Action.

      {¶ 6} We review a grant of summary judgment de novo. Capella III, L.L.C. v.
Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746, ¶ 16 (10th Dist.), citing Andersen v.
Highland House Co., 93 Ohio St.3d 547, 548 (2001). "De novo appellate review means
that the court of appeals independently reviews the record and affords no deference to the
trial court's decision." Holt v. State, 10th Dist. No. 10AP-214, 2010-Ohio-6529, ¶ 9
(internal citations omitted). Summary judgment is appropriate where "the moving party
demonstrates that (1) there is no genuine issue of material fact, (2) the moving party is
entitled to judgment as a matter of law, and (3) reasonable minds can come to but one
conclusion, and that conclusion is adverse to the party against whom the motion for
summary judgment is made." Capella III at ¶ 16, citing Gilbert v. Summit Cty., 104 Ohio
St.3d 660, 2004-Ohio-7108, ¶ 6. In ruling on a motion for summary judgment, the court
must resolve all doubts and construe the evidence in favor of the nonmoving party. Pilz v.
Ohio Dept. of Rehab. & Corr., 10th Dist. No. 04AP-240, 2004-Ohio-4040, ¶ 8. Therefore,
we undertake an independent review to determine whether ODRC was entitled to
judgment as a matter of law on appellant's claims.
      {¶ 7} In his first assignment of error, appellant asserts that the trial court erred by
granting summary judgment on his claim for unauthorized disclosure of privileged
records in violation of R.C. 2317.02 and 4732.19. The trial court concluded that the
statutes appellant cited created evidentiary privileges, not a statutory remedy giving rise
to a claim for monetary damages. The court further concluded that, because ODRC
produced appellant's medical records in the course of a bankruptcy proceeding in federal
No. 13AP-856                                                                               4


court, federal law governed the relevant evidentiary privileges. Appellant claims that the
trial court erred by granting summary judgment on these grounds because ODRC did not
assert them in its motion for summary judgment.
       {¶ 8} "A party seeking summary judgment must specifically delineate the basis
upon which summary judgment is sought in order to allow the opposing party a
meaningful opportunity to respond." Mitseff v. Wheeler, 38 Ohio St.3d 112 (1988),
syllabus. The Supreme Court of Ohio has held that granting summary judgment based on
an argument not raised in the motion for summary judgment constitutes reversible error
because the court has denied the opposing party a meaningful opportunity to respond.
State ex rel. Sawicki v. Ct. of Common Pleas of Lucas Cty., 121 Ohio St.3d 507, 2009-
Ohio-1523, ¶ 27. Consistent with this reasoning, we have previously reversed summary
judgment decisions based on arguments not asserted by the moving party. See Carter v.
Vivyan, 10th Dist. No. 11AP-1037, 2012-Ohio-3652, ¶ 25 ("By raising for the first time in
their reply memorandum the argument about expert testimony to establish the standard
of care, defendants did not afford plaintiff a meaningful opportunity to respond to their
standard of care argument."); Functional Furnishings, Inc. v. White, 10th Dist. No. 06AP-
614, 2007-Ohio-3284, ¶ 13 (concluding that trial court erred by granting summary
judgment based on theories of mutual or unilateral mistake because they were not raised
in the motion for summary judgment, nor addressed by parties in supporting briefs and
materials). Compare Daily Servs., L.L.C. v. Ohio Bur. of Workers' Comp., 10th Dist. No.
13AP-509, 2013-Ohio-5716, ¶ 16 (concluding that trial court granted summary judgment
based on grounds argued by the moving party despite the fact that it was not explicitly
argued in the motion for summary judgment because the argument was raised in other
summary judgment memoranda and the nonmoving party addressed it in its reply
memorandum).
       {¶ 9} In its brief on appeal, ODRC argues that any statutory claim asserted in
appellant's first cause of action is subsumed within the independent tort claim of
unauthorized disclosure of nonpublic medical information recognized by the Supreme
Court of Ohio in Biddle v. Warren Gen. Hosp., 86 Ohio St.3d 395 (1999). ODRC argues
that, therefore, by addressing appellant's second cause of action, which asserted a claim
for unauthorized disclosure under Biddle, it effectively addressed the first cause of action.
No. 13AP-856                                                                                 5


However, ODRC did not assert this argument in its motion for summary judgment filed
below. In fact, ODRC's motion for summary judgment does not contain any direct
reference to either of the two statutory provisions asserted as the basis for appellant's first
cause of action. Further, although ODRC generally asserted in its answer to the complaint
that appellant failed to state a claim upon which relief could be granted, it did not move to
dismiss appellant's first cause of action on this basis. ODRC also did not argue in its
motion for summary judgment that federal law or the federal rules of evidence authorized
the release of appellant's medical records.
       {¶ 10} The trial court did not conclude that any statutory claim was subsumed
within an unauthorized disclosure claim under Biddle. Rather, the trial court held that the
statutes appellant relied on did not create a cause of action for relief and that federal law
governed any issues of evidentiary privilege. Because these arguments were not asserted
in ODRC's motion for summary judgment, appellant was denied a meaningful
opportunity to respond to them. See Sawicki at ¶ 27. Therefore, the trial court erred by
granting summary judgment on the first cause of action on these grounds.
       {¶ 11} Accordingly, we sustain the first assignment of error.
       {¶ 12} In his second assignment of error, appellant asserts that the trial court erred
by granting summary judgment on his claim for unauthorized disclosure of medical
records by improperly applying federal law. Similar to its reasoning with respect to the
first cause of action, the trial court concluded that, because the disclosure of appellant's
medical records occurred within the context of a bankruptcy proceeding in federal court,
federal rules of evidence applied. The court held that federal law authorized the release of
appellant's medical records. As explained above, ODRC did not argue in its motion for
summary judgment that federal law or the federal rules of evidence permitted the release
of appellant's medical records. By relying on an argument not asserted in ODRC's motion
for summary judgment, the trial court denied appellant a meaningful opportunity to
respond. See Sawicki at ¶ 27.
       {¶ 13} In addition to holding that the disclosure was authorized under federal law,
the trial court further concluded that ODRC's release of appellant's medical records was
authorized under a provision of the Ohio Administrative Code. In Biddle, the Supreme
Court of Ohio held that there is an independent tort for the "unauthorized, unprivileged
No. 13AP-856                                                                                6


disclosure to a third party of nonpublic medical information that a physician or hospital
has learned within a physician-patient relationship." Biddle at paragraph one of the
syllabus. The court further held that, absent prior authorization, "a physician or hospital
is privileged to disclose otherwise confidential medical information in those special
situations where disclosure is made in accordance with a statutory mandate or common-
law duty, or where disclosure is necessary to protect or further a countervailing interest
that outweighs the patient's interest in confidentiality." Id. at paragraph two of the
syllabus. Citing this court's decisions in Wilson v. Ohio Dept. of Rehab. & Corr., 73 Ohio
App.3d 496 (10th Dist.1991), and Hunt v. Ohio Dept. of Rehab. & Corr., 77 Ohio App.3d
804 (10th Dist.1991), the trial court held that Ohio Adm.Code 5120-9-49(F) authorized
disclosure of appellant's records in response to the DOJ subpoena.
         {¶ 14} Ohio Adm.Code 5120-9-49 governs the records created and kept by ODRC.
The rule specifies that certain records created or kept by ODRC are not public records,
including "[m]edical records that pertain to the medical history, diagnosis, prognosis, or
medical condition of an inmate and that is generated and maintained in the process of
medical treatment." Ohio Adm.Code 5120-9-49(B)(2). The rule further provides that
"[n]on-public records of [ODRC] may, in the sole discretion of the director, or designee,
be made available to counsel of record of an inmate or releasee, researchers, law
enforcement agencies, or other persons with a need for access to such documents, subject
to other restrictions on such access as may be provided by law." Ohio Adm.Code 5120-9-
49(F).
         {¶ 15} In Wilson, the plaintiff filed suit in federal court alleging civil rights and
constitutional violations against ODRC. As part of that litigation, ODRC obtained and
submitted to the federal court summaries of the plaintiff's inmate medical records that
related specifically to the allegations asserted in his federal lawsuit. Wilson at 497. The
plaintiff then filed suit in the Court of Claims against ODRC, alleging invasion of privacy
based on the release of his medical records. The Court of Claims granted summary
judgment in favor of ODRC. Id. at 498. On appeal, this court affirmed the summary
judgment decision, citing Ohio Adm.Code 5120-9-49(F) and concluding that "the
disclosure of medical information may be protected by a qualified privilege predicated
upon a 'need to know' or 'need for access' basis." Id. at 500. Because the plaintiff had
No. 13AP-856                                                                              7


invoked the jurisdiction of the federal court by filing a lawsuit against ODRC and placed
his medical history at issue, the federal court "had a compelling need to know, or need for
access to" information contained in his medical records. Id. Therefore, ODRC's limited
disclosure of summaries of the plaintiff's medical records did not constitute an invasion of
his privacy. Id.
       {¶ 16} Similarly, in Hunt, the plaintiff sued ODRC in the Court of Claims, asserting
that his medical records were improperly used as part of a summary judgment motion
filed in federal court. The plaintiff claimed that a healthcare administrator at an ODRC
facility and an assistant attorney general improperly invaded his privacy by accessing his
medical records. Hunt at 805. ODRC filed affidavits asserting that, in order to analyze the
plaintiff's claim in the federal litigation and prepare a motion for summary judgment, it
was necessary for the healthcare administrator to provide a summary of the plaintiff's
medical records to the assistant attorney general representing ODRC. Id. at 805-06. The
Court of Claims granted summary judgment in favor of ODRC. On appeal, this court
affirmed. Once again citing Ohio Adm.Code 5120-9-49(F), this court determined that the
affidavits filed by ODRC demonstrated that the healthcare administrator had a valid
reason to believe that the assistant attorney general had a need to know about the
plaintiff's medical records in order to evaluate his claims. Id. at 807.
       {¶ 17} The present case is distinguishable from Wilson and Hunt. Unlike those
cases, here appellant did not invoke the jurisdiction of the federal bankruptcy court.
Rather, the bankruptcy action was initiated by appellant's ex-wife and son. Appellant
asserts that he was not aware of the DOJ subpoena until after ODRC produced his
medical records in response to the subpoena. Thus, this was not a case where appellant
placed his medical records at issue by seeking to recover compensation from ODRC.
       {¶ 18} Moreover, as the party seeking summary judgment, ODRC bears the burden
of demonstrating that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law. It is undisputed that appellant did not authorize the release
of his medical records. Therefore, ODRC must demonstrate it was privileged to release
those records under a statutory mandate or common law duty or that the disclosure was
necessary to protect a countervailing interest that outweighed appellant's interest in
confidentiality. Biddle at paragraph two of the syllabus.
No. 13AP-856                                                                                8


       {¶ 19} ODRC asserted that appellant's medical records were released pursuant to
its discretionary authority under Ohio Adm.Code 5120-9-49(F). In support of its motion
for summary judgment, ODRC presented an affidavit from T. Clark ("Clark"), a staff
counsel for ODRC. In the affidavit, Clark attested that ODRC "appropriately reasoned that
the United States Department of Justice needed access [to appellant's] medical records
because it issued a subpoena requesting those records." (Clark Affidavit, 1.) In effect,
Clark's affidavit asserts that ODRC determined that the DOJ had a need for access to
appellant's medical records simply because it requested them. There was no additional
evidence regarding ODRC's decision to produce appellant's medical records. Although it is
clear that Ohio Adm.Code 5120-9-49(F) grants the director of ODRC discretionary
authority to release nonpublic records, including inmate medical records, such authority
must be appropriately exercised. The conclusory statement contained in Clark's affidavit
is insufficient to demonstrate that there is no genuine issue of material fact as to the legal
question of whether ODRC properly exercised its discretionary authority under Ohio
Adm.Code 5120-9-49(F). See, e.g., McGraw v. Pilot Travel Ctrs., L.L.C., 10th Dist. No.
11AP-699, 2012-Ohio-1076, ¶ 24 (concluding that conclusory statements made in an
affidavit failed to establish that an individual was the affiant's employment supervisor
without corresponding evidence as to how he controlled her conditions of employment).
Construing the evidence in appellant's favor, we cannot conclude that reasonable minds
can only come to the conclusion that ODRC appropriately exercised its discretion by
producing appellant's medical records. Therefore, ODRC was not entitled to summary
judgment on appellant's claim for unauthorized disclosure of his nonpublic medical
information.
       {¶ 20} Accordingly, we sustain appellant's second assignment of error.
       {¶ 21} Appellant's third assignment of error asserts that the trial court erred by
granting summary judgment on his claim for invasion of privacy. The trial court
concluded that ODRC was entitled to summary judgment because appellant failed to
allege or provide evidence of publication of his private affairs to the public at large or
publication substantially certain to become public knowledge. However, in its motion for
summary judgment, ODRC only argued that the Court of Claims lacked jurisdiction over
the invasion of privacy claim because it was a constitutional claim. Thus, once again, the
No. 13AP-856                                                                               9


trial court granted summary judgment on a basis not asserted by ODRC in its motion for
summary judgment. Tellingly, in its brief on appeal, ODRC continues to press the lack of
jurisdiction argument and does not address the merits of the court's summary judgment
decision as to this claim. ODRC did not raise the issue of failure to demonstrate
publication of appellant's private affairs in its motion for summary judgment; therefore,
appellant was not put on notice of the need to address this issue in his response, and the
trial court denied him an opportunity to respond by relying on it as the basis for summary
judgment. See Sawicki at ¶ 27.
       {¶ 22} Further, assuming for purposes of analysis that ODRC was correct that the
Court of Claims lacked jurisdiction over appellant's invasion of privacy claim, the proper
remedy would have been for the court to dismiss that claim, not to grant summary
judgment in favor of ODRC. By granting summary judgment on appellant's third cause of
action, the trial court effectively exercised jurisdiction over the claim, which is
inconsistent with ODRC's argument that the court lacked jurisdiction. See Scott v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 12AP-755, 2013-Ohio-4383, ¶ 22 ("Because a grant
of summary judgment is a disposition on the merits, it is inconsistent with a lack of
jurisdiction in the court issuing such a judgment. * * * Once it decided that it lacked
jurisdiction over this aspect of the inmates' complaints, the only course open to the Court
of Claims was to dismiss these claims without prejudice.").
       {¶ 23} Accordingly, we sustain appellant's third assignment of error.
       {¶ 24} In his fourth assignment of error, appellant asserts that the trial court erred
by granting summary judgment on his claim for intentional infliction of emotional
distress. The trial court concluded that ODRC could not be held liable for intentional
infliction of emotional distress because it was entitled to produce appellant's medical
records under Ohio Adm.Code 5120-9-49(F). As explained above, however, we conclude
that ODRC failed to demonstrate that there was no genuine issue of material fact as to
whether it properly exercised its discretionary authority by producing appellant's medical
records. Therefore, the trial court erred by granting summary judgment on appellant's
fourth cause of action.
       {¶ 25} Accordingly, we sustain appellant's fourth assignment of error.
No. 13AP-856                                                                          10


      {¶ 26} For the foregoing reasons, we sustain appellant's four assignments of error,
reverse the judgment of the Court of Claims of Ohio, and remand the matter to that court
for further proceedings in accordance with law and consistent with this decision.
                                                    Judgment reversed; cause remanded.
                           BROWN and O'GRADY, JJ., concur.
                                  _______________
