Opinion
Case No. 2018-CA-00102
03-11-2019
STEVEN A. ARMATAS, ESQ., Plaintiff - Appellant v. MARK R. HOEPRICH, M.D., Defendant - Appellee
APPEARANCES: For Plaintiff-Appellant STEVEN A. ARMATAS 7690 Bucknell Circle N.W. North Canton, Ohio 44720 For Defendant-Appellee STEPHEN W. FUNK MEGAN M. MILLICH Roetzel & Andress, LPA 222 S. Main Street, Suite 400 Akron, Ohio 44308
JUDGES: Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Canton Municipal Court, Case No. 2017-CVI-0853 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellant STEVEN A. ARMATAS
7690 Bucknell Circle N.W.
North Canton, Ohio 44720 For Defendant-Appellee STEPHEN W. FUNK
MEGAN M. MILLICH
Roetzel & Andress, LPA
222 S. Main Street, Suite 400
Akron, Ohio 44308 Baldwin, J.
{¶1} Plaintiff-appellant Steven A. Armatas, Esq. appeals from the July 6, 2019 Judgment Entry of the Canton Municipal Court.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant is the son of decedent Alexander Armatas. On February 10, 2017, appellant filed a complaint for breach of contract against appellee Dr. Mark R. Hoeprich, a physician practicing neurosurgery, in the small claims division of the Canton Municipal Court. Appellant, in his complaint, alleged that appellee breached his oral contract with appellant by failing to review Alexander's medical records and render "a full and complete advisory opinion." Appellant alleged that, as a result of this alleged breach, he had to retrieve and pay for his father's medical records "without the benefit of [appellee] rendering his full and complete advisory opinion, and by having to undergo the time, effort and expense of retaining another physician to render such opinion." Appellant sought damages in the amount of $2,500.00. Appellee filed an answer to the complaint on February 23, 2017. Appellee, in his answer, denied that a contract was ever formed and also pled the affirmative defense that the alleged oral agreement for medical services was barred by the Statute of Frauds.
{¶3} The matter proceeded to a small claims hearing on March 28, 2017 before a Magistrate. At the hearing, appellant testified that on October 11, 2014, his father Alexander had a medical emergency at home and was admitted to Aultman Hospital. On or about November 28, 2014, appellant contacted the Center for Neuro and Spine (hereinafter "CNS") asking to be referred to a neurosurgeon or neurologist so that he could obtain a second medical opinion regarding the care of his father. Shortly thereafter, appellee spoke to appellant by phone and offered to discuss Alexander's care with one of his treating physicians. Appellant claimed that he told appellee that his father had an anoxic brain injury, that he told appellee that he did not want to designate his father a DNR (do not resuscitate) and did not want to take his father off of life support and that he told appellee that it was a difficult decision for him and that he wanted to see if he had any other alternative. Appellant testified that he gave appellee the name of the ICU physician who was on call that day.
{¶4} On cross-examination, appellant testified that he was unable to recall if appellee told him that he did not have privileges to practice at Aultman Hospital and testified that he never asked appellee to examine his father, who was an in-patient at Aultman Hospital. Appellant testified that after he spoke with appellee, he did not hear from anyone and placed a call to appellee's office and was put in touch with his assistant "who indicted that [appellee] was not interested doing anything else." Transcript at 34. Neither appellant nor the estate of his father was charged by appellee or CNS.
{¶5} Appellee testified that he recalled appellant contacting him for additional advice about his father's care and did not recall discussing anything specific about Alexander's condition. He did not recall appellant mentioning that his father had an anoxic brain injury, was on life support or that doctors at Aultman had told appellant that he should take his father off of life support. Appellee testified that he recalled asking appellant for contact information and that appellant called the office and relayed such information to someone in appellee's office. Appellee testified that he briefly spoke to an intensivist at Aultman Hospital but was unable to recall the name of the doctor. The following is an excerpt from the hearing:
{¶6} Q. And Doctor, you have no recollection of my asking you to do an independent analysis or to- - or to independently look at my father's medical records?
{¶7} A: Uh, to independently review the records? I- I think- think we discussed from the get-go that we- I wouldn't be able to render an opinion, you know, a full medical opinion because that would require an examination of the patient and review of the medical records from Aultman, and I just don't have access to those things.
{¶8} Transcript at 49-50.
{¶9} Appellee testified that after speaking with the intensivist, he believed that he directed Claudia Smith from his office to contact appellant and indicate that there was nothing else that he could offer. Appellee testified that he never sent appellant a bill and that "honestly I saw this as a favor to a stranger,..." Transcript at 52. Appellee, when asked, testified that he felt that he had fulfilled the favor. Appellee further testified that he did not render second opinions for patients who are at hospitals where he does not have privileges.
{¶10} Claudia Smith testified that she had no recollection of appellee asking her to call appellant and convey information to him and had no recollection of ever speaking to appellant. She testified that she called appellant and left a voice mail message stating that they had no record of a patient by the name of Armatas and that she did not get a response. She further testified that she had no recollection of speaking with appellee regarding the matter.
{¶11} After Smith testified, appellee moved for a directed verdict, which the trial court overruled. Appellee then took the stand in his own defense. He testified that he was a neurosurgeon and did not have privileges at Aultman Hospital and could not render medical care to any patient at Aultman Hospital. Appellee testified that he told appellant that he could not give a medical opinion for his father for such reason, but "thinking I was doing a favor for somebody, just if- if he wanted to give us the information of whom to speak to, I could certainly reach out to his attending physician and, you know, listen to the story and - see if there were any suggestions or, you know, anything I could think of." Transcript at 86. He testified that he never told appellant to send him any of Alexander's medical records and did not receive any records. The following testimony was adduced when appellee was asked what he did next:
A: I believe we waited until Mr. Armatas [appellant] got back to us with a phone number of a physician. Uh, again I don't recall who it was. I do remember calling from the office, the physician, and speaking to somebody who I- I do remember identifying themselves as an attending physician for his father. Uh, we had a fairly brief conversation as I recall regarding, as I stated earlier, just his current condition and how he presented and the- the amount of time elapsed. Um, and that- and then my- my impression to him that it was clearly beyond any ability or- or rather his- his condition was clearly beyond anything from a neurosurgical perspective that could be done to help him. Uh, and then we hung up and at that point I- I believe I asked Ms. Smith to follow up with Mr. Armatas [appellant] and just convey the message that, you know, I spoke to his father's physician and we unfortunately had nothing additional to offer.
{¶12} Transcript at 87. He testified that appellant was never sent a bill or charged and that neither Alexander nor his estate was ever charged a bill for his time. Appellee testified that he did not recall any other incidents where he gave Claudia Smith directions to convey information regarding a medical matter that she did not follow through on.
{¶13} The Magistrate, in a report filed on August 17, 2017, granted appellee's Motion for a Directed Verdict pursuant to Civ.R. 50(A)(4). The Magistrate found that there was not meeting of the minds as to the formation of the alleged contract and that the essential elements for formation of a contract were not established.
{¶14} On August 23, 2017, appellant field a Motion to Correct Errors and Formal Request for Findings of Fact and Conclusions of Law. Appellant filed a reply brief in support of his motion and preliminary objections to the Magistrate's Report on August 30, 2017. Appellee, on September 1, 2017, filed a memorandum in opposition to appellant's August 23, 2017 motion. On September 11, 2017, appellee filed a memorandum in opposition to appellant's preliminary objections. Appellant, on September 15, 2017, filed a Motion to Strike appellee's memorandum in opposition to the preliminary objections and appellee filed a memorandum in opposition to the Motion to Strike on September 22, 2017. Appellant filed a reply brief in support of the Motion to Strike on September 26, 2017.
{¶15} As memorialized in a Judgment Entry filed on October 4, 2017, the parties were ordered to file their Proposed Findings of Fact and Conclusions of Law on or before October 17, 2017. Appellee filed Proposed Findings of Fact and Conclusions of Law on October 13, 2017 and appellant filed his on October 16, 2017. The Magistrate filed his Findings of Fact and Conclusions of Law on April 19, 2018.
{¶16} The trial court, pursuant to a Judgment Entry filed on May 15, 2018, approved and adopted the Magistrate's April 19, 2018 Findings of Fact and Conclusions of Law and the August 17, 2017 Magistrate's Report.
{¶17} On May 21, 2018, appellant filed a Motion for Relief from Judgment Pursuant to Civ.R. 60(B)(1), on the basis that the Clerk's Office had failed to notify him of the Magistrate's April 19, 2018 Findings of Fact and Conclusions of Law, causing appellant to miss the deadline for filing objections. Via a Judgment Entry filed on June 6, 2018, the trial court granted the motion and vacated its May 15, 2018 Judgment Entry.
{¶18} On June 14, 2018, appellant filed his objections to the Magistrate's April 19, 2018 Findings of Fact and Conclusions of Law. The trial court, as memorialized in a Judgment Entry filed on July 6, 2019, approved and adopted the Magistrate's Findings of Fact and Conclusions of Law and the August 17, 2017 Magistrate's Report "with the Court's additional conclusion that [appellant] had failed to overcome the statute of frauds or the general bar to enforcement on an alleged oral contract of the type and amount alleged." The trial court terminated the case.
{¶19} Appellant now raises the following assignments of error on appeal:
{¶20} "I. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO ADDRESS PLAINTIFF'S SPECIFIC OBJECTIONS TO THE MAGISTRATE'S FINDINGS OF FACT AND IN ADOPTING SEVERAL FACTUAL FINDINGS WHICH WERE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE."
{¶21} "II. THE TRIAL COURT COMMITTED ERROR BY FAILING TO ADDRESS PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE'S CONCLUSIONS OF LAW AND IN MISINTERPRETING THE 'MEETING OF THE MINDS' ELEMENT OF CONTRACT FORMATION."
{¶22} "III. THE TRIAL COURT COMMITTED ERROR BY SUA SPONTE RAISING AND RELYING ON AN AFFIRMATIVE DEFENSE THAT HAD BEEN WAIVED BY THE DEFENDANT."
I
{¶23} Appellant, in his first assignment of error, argues that the trial court erred by failing to address and respond to each of the specific objections raised by appellant regarding the Magistrate's Findings of Fact.
{¶24} Civ. R. 53(D)(4)(d) provides that in ruling on objections to a magistrate's decision, the court shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law. Williams v. Tumblin, 5th Dist. Coshocton No.2014CA0013, 2014-Ohio-4365, ¶ 35. "A presumption of regularity attaches to all judicial proceedings." State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684, ¶ 19. Appellate courts thus presume that a trial court conducted an independent analysis in reviewing a magistrate's decision in accordance with Civ.R. 53(D)(4)(d) and the party claiming that the trial court did not do so bears the burden of rebutting the presumption. Faulks v. Flynn, 4th Dist. Scioto App. No. 13CA3568, 2014-Ohio-1610, ¶ 27. This burden requires more than a mere inference, and simply because a trial court adopted a magistrate's decision does not mean that the court failed to exercise independent judgment. Id.
{¶25} The trial court overruled appellant's objections to the Magistrate's Report on July 6, 2019. In its Judgment Entry, the trial court stated that it had reviewed the objections and legal argument as well as the April 19, 2018 Findings of Fact and Conclusions of Law and the August 17, 2017 Magistrate's Report along with the transcript and the parties' Proposed Findings of Fact and Conclusions of Law. The trial court, in its Entry, stated, in relevant part, as follows:
While the Plaintiff takes issue with the variety of facts argued to be controlling in this matter, the Court finds those to be disputes with the exercise of discretion to the evidence presented. Upon review of the
transcript and the objections of Plaintiff, no reason is found to issue different conclusions. The Court confirms and approves the Findings of Fact of the Magistrate.
{¶26} Appellant's argument is that the trial court failed to exercise independent judgment rests on the fact that the court failed to specifically address all of his arguments in support of his objections to the Magistrate's Report. The trial court's failure to agree with appellant or to specifically discuss every factor weighing into the decision does not rebut the presumption that the trial court conducted an independent analysis in accordance with Civ. R. 53(D)(4)(d). Williams v. Tumblin, 2014-Ohio-4365, ¶ 37.
{¶27} Upon review, we find appellant has not met his burden of affirmatively demonstrating that the trial court failed to perform an independent analysis and find the trial court conducted a de novo, independent review.
{¶28} Appellant also argues that the trial court erred in adopting several factual findings which, he alleges were against the manifest weight of the evidence. However, this Court cannot disturb a trial court's decision as being against the manifest weight of the evidence if the decision is supported by some competent and credible evidence. C.E. Morris Company v. Foley Construction Company, 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). As noted by the court in Sexton v. Haines, 5th Dist Delaware App. No. 2010-CA-090067, 2011 -Ohio- 3531 at paragraph 13:
[W]e must be guided by the presumption that the trial court is best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and to use these observations in weighing the credibility of the proffered testimony. Seasons Coal Company, Inc. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273. We must defer to the factual findings
of the judge regarding the credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, syllabus by the court, paragraph one. We may not substitute our judgment for that of the trier of fact. Pons v. Ohio State Medical Board (1993), 66 Ohio St.3d 619, 621, 614 N.E.2d 748. A fact finder is to free to believe all, part, or none of the testimony of each witness. Hill v. Briggs (1996), 111 Ohio App.3d 405, 412, 676 N.E.2d 547.
{¶29} Appellant specifically takes issue with the following findings made by the Magistrate:
{¶30} 9. Dr. Hoeprich did not view this interaction as a contract to provide a second opinion.
{¶31} 17. Dr. Hoeprich determined he could not offer a second opinion.
{¶32} 18. Dr. Hoeprich directed his office staff, likely his office manager, Claudia Smith, to inform plaintiff that he could not offer any additional advice, treatment, alternatives or guidance to Plaintiff.
{¶33} 19. Plaintiff called CNS and was told by the office staff that Dr. Hoerprich could not offer any additional advice, treatment, alternatives or guidance to Plaintiff.
{¶34} However, we find that there is competent and credible evidence supporting the Magistrate's above findings and that the trial court did not err in adopting them. Dr. Hoeprich testified that he viewed his interaction with appellant as "doing a favor for a stranger" and that he made it clear to appellant that he was unable to provide a second opinion because he did not have privileges at Aultman Hospital. He never physically examined Alexander or reviewed his medical records. Appellee further testified that he asked his office to follow up with appellant and tell appellant that he had spoken with his father's' physician and unfortunately "had nothing additional to offer." Transcript at 87. As noted by appellee, although Claudia Smith, appellee's office manager does not recall this call, she does not dispute that it occurred. Appellant himself admitted to speaking with someone at appellee's office who told him that appellee "was not interested in doing anything else." Transcript at 34. The Magistrate, as trier of fact, was in the best position to access the credibility of the witnesses. We find that there was competent credible evidence supporting the findings.
{¶35} Appellant's first assignment of error is, therefore, denied.
II
{¶36} Appellant, in his second assignment of error, contends again that the trial court erred by failing to address and respond to each of the specific objections raised by appellant regarding the Magistrate's Findings of Fact. Since we have addressed such argument in our discussion of appellant's first assignment of error, we shall not -address it further.
{¶37} Appellant, in his second assignment of error, also argues that the trial court misinterpreted contract law in finding that there was no "meeting of the minds" and, therefore, no contract between the parties.
{¶38} In Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, paragraph 16 the Ohio Supreme Court described the requirements for formation of a contract:
A contract is generally defined as a promise, or a set of promises, actionable upon breach. Essential elements of a contract include an offer, acceptance, contractual capacity, consideration (the bargained for legal benefit and/or detriment), a manifestation of mutual assent and legality of object and of consideration.
{¶39} The Supreme Court has further explained that "[a] meeting of the minds as to the essential terms of the contract is a requirement to enforcing the contract." Id., citing Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations, 61 Ohio St.3d 366, 369, 575 N.E.2d 134 (1991). And to be enforceable, "the contract must be definite and certain." Episcopal Retirement Homes , supra at 369, citing James Ward & Co. v. Wick Bros. & Co., 17 Ohio St. 159 (1867). The essential terms of a contract have been identified as 'the identity of the parties to be bound, the subject matter of the contract, consideration, a quantity term and a price term.' " Fairfax Homes, Inc. v. Blue Belle, Inc., 5th Dist. Licking App. No.2007CA00077, 2008-Ohio-2400, ¶ 19, citing Alligood v. Proctor & Gamble Co. , 72 Ohio App.3d 309, 594 N.E.2d 668 (1991).
{¶40} The Magistrate, in his Report that was approved and adopted by the trial court, specifically found that appellee did not believe that he was entering into an oral contract with appellant to provide a second opinion and that appellant and appellee did not have a meeting of the minds as to the formation of a contract. We find that the record contains competent credible evidence supporting such findings. As noted by appellee, the "essential term of exactly what service [appellant] was asking [appellee] to provide was never definite or clear. There was testimony from appellee that he told appellant that he could not give medical advice for an in-patient when he, as here, did not have privileges at a hospital where the in-patient was admitted. The two never discussed appellee's compensation/ consideration for the alleged services and appellee testified that he never sent appellant a bill because he believed that he was doing a "favor" for appellant. Neither appellee nor CNS billed appellant for any services. We find, therefore, that there was competent credible evidence supporting the trial court's finding that there was no contract between the parties.
{¶41} Based on the foregoing, appellant's second assignment of error is denied.
III
{¶42} Appellant, in his third assignment of error, maintains that the trial court erred by sua sponte raising and relying on an affirmative defense that had been waived by appellee. Appellant specifically takes issue with the trial court's conclusion that "[appellant] failed to overcome the statute of frauds or the general bar to enforcement on an alleged oral contract of the type and amount alleged." Appellant argues that appellee never advanced the statute of frauds argument and that it was err for the trial court to raise and rely on the same.
{¶43} However, based on our disposition of appellant's second assignment of error finding that there was no contract between the parties, we find that appellant's third assignment of error is moot.
{¶44} Appellant's third assignment of error is, therefore, denied.
{¶45} Accordingly, the judgment of the Canton Municipal Court is affirmed. By: Baldwin, J. Gwin, P.J. and Delaney, J. concur.