2019 Ohio 4144
Ohio Ct. App.2019Background
- In Feb 2016 Bernard underwent urological treatment and a procedure by Dr. Wodarcyk and continued follow-up through April (appellee says April 22; appellant says May).
- Bernard sought a second opinion and later filed a medical-malpractice complaint on October 2, 2017; he simultaneously moved for an extension to file an affidavit of merit.
- An affidavit of merit from Dr. Zipkin was filed Dec 28, 2017; Wodarcyk answered Mar 22, 2018, asserting the one-year statute of limitations defense under R.C. 2305.113.
- Wodarcyk moved for summary judgment on July 5, 2018; the trial court granted the motion on July 25, 2018 after deeming it unopposed because Bernard’s opposition and exhibits were filed after the local 14-day response deadline.
- Bernard contended he delivered a 180-day notice letter on April 6, 2017 to extend the limitations period; Wodarcyk submitted an affidavit denying receipt.
- Because Bernard’s opposition was untimely, the court considered only Wodarcyk’s evidence and concluded the statute of limitations had expired, granting summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court improperly treated the summary-judgment motion as unopposed and ruled before the Civ.R. 56 response period expired | Bernard: Civ.R. 56 allows 28 days to file opposition, so his July 25 filing was timely | Wodarcyk: Local rules shorten the response period to 14 days; motion is submitted when filed | Court: Local Rule 21.01 provides a 14-day response deadline; Bernard’s filing was late and court did not err |
| Whether a genuine issue of material fact existed as to delivery of the 180-day notice that would toll/extend the limitations period | Bernard: He delivered the April 6, 2017 180-day notice, which extends the limitations period 180 days | Wodarcyk: He did not receive the notice (affidavit denying receipt); absent proof delivery, no tolling | Court: Under Edens a notice is "given" only upon receipt; Bernard’s untimely opposition meant no evidence contradicted Wodarcyk’s denial, so no genuine issue and limitations expired |
Key Cases Cited
- Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54 (2010) (summary-judgment standard and de novo appellate review)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (moving party’s initial burden to show absence of genuine issue)
- Edens v. Barberton Area Practice Ctr., 43 Ohio St.3d 176 (1989) (180-day notice is "given" only when received)
- Frysinger v. Leech, 32 Ohio St.3d 38 (1987) (medical-malpractice accrual rules: discovery or termination)
- Union Bank v. Brumbaugh, 69 Ohio St.2d 202 (1982) (courts’ authority to promulgate local rules)
- Zurz v. 770 W. Broad AGA, L.L.C., 192 Ohio App.3d 521 (2011) (appellate review of summary-judgment rulings is independent)