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Dycoco v. Guernsey Memorial Hospital5/15/2000
lves around the agreement, the denial of parol evidence and the lack of a business relationship with Hospital. All these issues had been briefed, discovered and exhausted in the first appeal involving Hospital and the subsequent motion for summary judgment filed by appellees. Upon review, we find no abuse of discretion by the trial court in denying the request for a stay for further discovery. Assignment of Error VII is denied. The judgment of the Court of Common Pleas of Guernsey County, Ohio is hereby affirmed.
By Farmer, J. Hoffman, P.J. and Edwards, J. both concur in part and dissent in part.
Hoffman, P.J., concurring in part and dissenting in part I concur in Judge
Farmer's analysis and disposition of appellant's first, second, and fourth assignments of error. With respect to appellant's third assignment of error, I agree a claim for defamation would abate upon the death of Dr. Dycoco.
However, I find appellant's cause of action for wrongful death based thereon does not likewise abate pursuant to the language in R.C. 2125.01(A)(1).
Accordingly, I concur with Judge Edwards appellant's third assignment of error should be sustained. As to appellant's fifth and sixth assignments of error, I concur with Judge Edwards such assignments should be sustained. Judge Edwards would limit appellant's wrongful death claim based solely on defamation. I find such limitation overly restrictive. Though the representation made by appellees concerning appellant's due process protections in the March 26, 1993 cover letter may be insufficient to support appellant's causes of action for breach of contract, tortuous interference with a business relationship, and intentional infliction of emotional distress; I believe reasonable minds could conclude appellees committed a wrongful act, not only by alleging appellant was incompetent, but also by terminating him without a due process hearing as promised in the letter.
EDWARDS, J. CONCURRING AND DISSENTING OPINION
I concur with Judge Farmer's analysis and disposition of appellant's first, second, fourth and seventh assignments of error. I also concur with Judge Farmer's analysis and disposition of appellant's fifth and sixth assignments of error but only to the extent that those assignments address wrongful death claims based on breach of contract, tortious interference with a business relationship, and intentional infliction of emotional distress. I respectfully dissent from Judge Farmer's disposition and analysis of appellant's third assignment of error and with the portions of the analysis and disposition of the appellant's fifth and six assignments of error to the extent that those assignments address a wrongful death claim based on defamation. Judge Farmer concludes that a wrongful death claim must fail in the case sub judice because Dr. Dycoco's defamation action abated upon his death. I reach a different conclusion based on the plain language of the wrongful death statutes and upon the philosophy behind the wrongful death statutes. The plain language of R. C. 2125.01(A)(1) reads in part: "Except as provided in division (B) of this section, if the death of a person is caused by wrongful act, neglect or default that would have entitled the injured person to maintain a civil action and recover damages if death had not ensued, the person who would have been liable if death had not ensued ... is liable in damages in an action for wrongful death under this chapter, notwithstanding the death of the injured person ..." (Emphasis added.)
Defamation is a civil action that Dr. Dycoco could have maintained had death not ensued. It abates on his death but if he had not died, he could have main
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