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

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

JEFF ROY, 

DEBBIE ROY, 

 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. 

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APPEAL NO. C-140181 

TRIAL NO. A-1108652 

 O P I N I O N.

 

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 

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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.
OHIO FIRST DISTRICT COURT OF APPEALS 

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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. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 vicariousliability 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. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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.