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Bernardo v. Anello12/12/1988
PRYATEL, Chief Justice.
Plaintiffs-appellants Richard R. and Victoria Bernardo appeal from summary judgments granted in favor of National City Bank ("NCB"), Joseph and Diane Anello ("the Anellos") and Nationwide Insurance Company ("Nationwide").
The relevant facts are as follows. During Richard Bernardo's visit to the home of his sister and brother-in-law, defendants Joseph and Diane Anello, he injured the tip of his finger when a piece of sandstone fell from a retaining wall. The attorney (defendant Carmen Russo), whom the plaintiff and his wife, Victoria Bernardo, hired to represent them, apparently, without authority, settled their claim against the Anellos with Nationwide for $15,000. Plaintiffs allege that attorney Russo fraudulently endorsed Richard Bernardo's signature on the settlement check and converted the proceeds to his own use by depositing the settlement check in his personal account with NCB.
On May 29, 1986, plaintiffs filed a complaint against NCB, Nationwide, the Anellos and attorney Carmen Russo. The complaint alleged personal injury and loss of consortium, companionship and services claims against the Anellos. With respect to Carmen Russo, the complaint alleged that Russo settled the claim without consent and fraudulently endorsed Richard Bernardo's signature to the settlement check from Nationwide. The complaint also alleged that Nationwide negligently entrusted the settlement check to attorney Russo. Finally, as to NCB, the complaint alleged that NCB converted the settlement check by accepting and paying the check over a forged endorsement. All defendants, with the exception of Russo, answered plaintiffs' complaint.
On July 15, 1987, Nationwide and the Anellos filed a motion for summary judgment. An affidavit from the claims representative (Stephen Kadar) for Nationwide was offered in support of the motion.On the same day, NCsfiled a separate motion for summary judgment. Attached to the motion was an affidavit from the bank's branch operations manager (John Szucs).
On September 21, 1987, the trial court granted, in separate journal entries, both motions for summary judgment. These entries were journalized on September 24, 1987. On September 22, 1987, eleven days after the court ordered deadline, plaintiffs filed their briefs in opposition to the summary judgment motions. On September 24, 1987, plaintiffs filed a motion to vacate the summary judgments. This motion was granted on November 4, 1987 and journalized on November 10, 1987.
On October 23, 1987, plaintiffs filed a notice of appeal from the orders granting summary judgment.
On October 30, 1987, the trial court entered default judgment against attorney Russo. This ruling has not been appealed.
Notwithstanding the notice of appeal filed on October 23, 1987, on November 5, 1987, the trial court reconsidered the motions for summary judgment together with plaintiffs' briefs in opposition. The court again granted defendants' motions for summary judgment. These orders were journalized on November 10, 1987. By making these rulings, the trial court fully disposed of all of plaintiffs' claims against all defendants.
Assignment of Error No. I:
"I. The trial court erred in granting summary judgment in favor of defendants, Anello and Nationwide, and against plaintiff, Victoria Bernardo, because Victoria Bernardo's name was missing from the so-called 'settlement check' thereby making it possible for reasonable minds to differ concerning the conclusion that plaintiff Victoria Bernardo's claim was settled."
Civ.R. 56(C) provides the procedure for summary judgment. The rule pro
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