COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70442 MARGARET J. RITZ, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION MUSCA & MIRALIA, ET AL., : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 12, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 281279 JUDGMENT : AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Thomas J. Lobe 925 Euclid Avenue Suite 1995 Cleveland, Ohio 44115-1407 For defendants-appellees: John F. Norton 1202 Bond Court Building 1300 East Ninth Street Cleveland, Ohio 44114 -2- NAHRA, J.: Appellant, Margaret J. Ritz ("Ritz"), appeals from the trial court's grant of summary judgment in favor of appellees, Musca & Miralia ("M&M") and Anthony Musca ("Musca"). For the following reasons we affirm in part and reverse in part. Appellant is the surviving spouse and duly qualified executrix of the estate of Michael L. Ritz ("Michael"). Pursuant to an oral employment agreement, M&M hired Michael, an attorney, from 1983 until Michael's death in August, 1993. The evidence before the court on motion for summary judgment demonstrated that Michael practiced law both in association with M&M and in a private practice. The evidence also indicated that he had but one professional office. This office was located within M&M's law firm. On August 11, 1993, Michael died. M&M personnel removed all the client files from his office. Ritz, both individually and as executrix of Michael's estate, subsequently brought suit against appellees and asserted three causes of action. Count one alleged that the appellees failed to compensate Michael for one year's salary. In count three, Ritz alleged that the appellees converted the files of Michael's private practice clients. Count two was voluntarily dismissed by Ritz. Pursuant to Civ.R. 56, appellees moved the trial court for summary judgment. The trial court granted the motion without comment. Ritz appeals and asserts two assignments of error. -3- I. Appellant's first assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY GRANTING APPELLEES' MOTION FOR SUMMARY JUDGMENT ON COUNT ONE OF THE APPELLANT'S AMENDED COMPLAINT AS GENUINE ISSUES OF MATERIAL FACT EXIST, NEITHER APPELLEE IS ENTITLED TO JUDGMENT AS A MATTER OF LAW, AND REASONABLE MINDS CANNOT COME TO BUT ONE CONCLUSION WHICH IS ADVERSE TO THE APPELLANT. This court reviews de novo a trial court's grant of summary judgment. Palmieri v. Deaconess Hospital (June 13, 1996), Cuyahoga App. No. 70067, unreported. Civ.R. 56(C) provides that a summary judgment may be granted only after the trial court determines: 1) no genuine issues as to any material fact remains to be litigated; 2) the moving party is entitled to judgment as a matter of law; and 3) it appears from the evidence that reasonable minds can come but to one conclusion and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. [Citations omitted.] LaCava v. Walton (June 13, 1996), Cuyahoga App. No. 69190, unreported. The movant must demonstrate that no genuine issue of material fact remains requiring trial. Palmieri, supra. Doubts must be resolved in favor of the nonmoving party. Id. The nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111, 570 N.E.2d 1095. "[A] nonmovant may not rest on the mere allegations or denials of his pleading but must set forth specific facts showing there is a genuine issue for trial." Id., quoting, Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421. Further, to survive summary judgment, a plaintiff -4- must produce more than a scintilla of evidence in support of her position. Redd v. Springfield Twp. School District (1993), 91 Ohio App.3d 88, 92, 631 N.E.2d 1076. We note initially that Ritz cannot maintain a breach of contract claim in her individual capacity. It is fundamental that a contract "is binding only upon the parties to the contract and those in privity with them and that an action for breach of contract can only be maintained by the parties to the contract or those deriving rights from the contracting parties." Am. Rock Mechanics, Inc. v. Thermex Energy Corp. (1992), 80 Ohio App.3d 53, 58, 608 N.E.2d 830. Ritz is neither a party to the agreement nor does she derive any rights therefrom. Accordingly, summary judgment was proper with respect to her individual claim. Michael's cause of action survived his death and was properly brought by his estate. Bowman v. Parma Bd. of Edn. (1988), 44 Ohio App.3d 169, 177, 542 N.E.2d 663. Appellant's claim alleges that M&M was obligated to compensate Michael through July, 1994, for services he performed in 1992 and the first seven months of 1993. Essentially appellant's claim is that Ritz was paid one year in arrears. Appellant cites a letter written by Musca to support its interpretation of the compensation arrangement governing Michael's employment. The relevant part of the letter states: The income [Michael] receives is based on legal fees generated from cases he handles for me the previous year. Thus, the legal fees on cases handled by [Michael] in 1985 have earned him a gross income of $90,000.00 in -5- 1986 to be paid in twelve (12) equal payments of $7,5000.00 on the last day of each month. Ritz contends that this establishes that Michael was entitled to be paid in 1993 for services performed in 1992. We do not agree. This letter establishes only that Michael's pay was "based on" his performance the previous year. It does not establish that Michael was compensated in 1993 for services rendered in 1992. The remaining evidence cited by appellant does not support any other conclusion. Appellant's cite Musca's statements during deposition, plaintiff's counsel's letters to Musca, and Musca's replies to the letters to support their conclusion. However, it is clear from the record that Michael renewed his employment on a yearly basis and that his compensation was "based on" his previous year's performance. Appellant produced no evidence demonstrating otherwise, and no evidence to contradict M&M's evidence that Ritz was paid for every month he worked commencing in mid-February, 1983. Appellant's first assignment of error is without merit. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY GRANTING APPELLEES' MOTION FOR SUMMARY JUDGMENT ON COUNT THREE OF THE APPELLANT'S AMENDED COMPLAINT AS GENUINE ISSUES OF MATERIAL FACT EXIST, NEITHER APPELLEE IS ENTITLED TO JUDGMENT AS A MATTER OF LAW, AND REASONABLE MINDS CANNOT COME TO BUT ONE CONCLUSION WHICH IS ADVERSE TO THE APPELLANT. Appellant's conversion claim alleges that M&M converted Michael's private case files. -6- Conversion is the wrongful control or exercise of dominion over property belonging to another inconsistent with or in denial of the rights of the owner. Tabar v. Charlie's Towing Service, Inc. (1994), 97 Ohio App.3d 423, 427, 646 N.E.2d 1132. It is axiomatic that a plaintiff must demonstrate a right or interest in the property allegedly converted. Id. Ritz has not demonstrated any interest supporting her personal capacity claim. Accordingly, summary judgment with respect to her claim was proper. As to the estate's claim, the trial court improperly granted summary judgment with respect to three of the identified files. It is apparent from the substantial evidence produced by appellees, that nearly all of the case files removed from Michael's office, which numbered well over 100, were indeed the firm's clients. The record supports only the conclusion that these clients were assigned by M&M to Michael for purposes of representation. This assignment did not divest M&M of its possessory interest in its client's files. Appellant presented no evidence establishing its own interest or refuting M&M's interest in these files. No claim in conversion lies for these files. However, genuine issues of fact remain with respect to three of the files identified by appellant. The evidence demonstrates that Michael maintained a private practice. Further, confronted with the motion for summary judgment, appellant produced notes which were from both Michael's trial calendar and his settlement log. By comparing these notes with M&M's list of cases assigned to -7- Michael at the time of his death, appellant identified twenty-two clients which she contends were not assigned to Michael by M&M. Appellees, in turn, produced evidence which demonstrated that nineteen of these clients were M&M's clients. As to the remaining three clients, Janice Cox, Kim Edwards and Carol Smith, et al., appellees failed to produce sufficient indicia of ownership and therefore failed to sustain their burden on motion for summary judgment. As a result, material issues of fact remain regarding: 1) whether those three clients were the personal clients of Ritz, 2) whether those client's files were in Michael's office at the time of his death; and 3) whether those client's files were taken by M&M or are otherwise in its possession. Accordingly, the grant of summary judgment with respect to these three files was improper. The grant of summary judgment on count one is affirmed. The grant of summary judgment, with respect to the alleged conversion of the files of Janice Cox, Kim Edwards, and Carol Smith, et al., is reversed and remanded for proceedings consistent with this opinion. -8- This cause is affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion. Costs to be divided between plaintiff-appellant and defendants-appellees. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J., and PATTON, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .