Estate of Aukland v. Broadview NH, L.L.C.
2017 Ohio 5602
| Ohio Ct. App. | 2017Background
- Estate of Nancy L. Aukland sued Broadview NH, LLC for alleged negligence during two nursing-facility admissions in July–August 2013; decedent died September 6, 2013.
- Plaintiff originally filed in August 2014 and obtained a 90-day extension to file an affidavit of merit (AOM); the case was later dismissed without prejudice for failure to timely file an AOM.
- Plaintiff refiled on May 4, 2016 and requested another extension to file an AOM; 12 days after refiling it submitted an AOM executed by a registered nurse (not qualified under Evid.R. 601(D) to opine on causation).
- Defendants moved for judgment on the pleadings, arguing Civ.R. 10(D)(2)(e)’s curative provision applies only when an AOM was filed with the complaint or amended complaint in which claims against that defendant were first asserted.
- The trial court dismissed the refiling under Civ.R. 10(D)(2)(d) (failure otherwise than on the merits), and denied plaintiff’s Civ.R. 60(B)(5) motion for relief and motion for reconsideration.
- The Tenth District Court of Appeals affirmed, holding Civ.R. 10(D)(2)(e) is inapplicable because no AOM was filed with the complaint in which claims against defendants were first asserted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Civ.R. 10(D)(2)(e) curative period | Civ.R. 10(D)(2)(e) allows curing a defective AOM regardless of whether the AOM was filed with the complaint or pursuant to an allowed extension | Civ.R. 10(D)(2)(e) applies only if an AOM was filed with the complaint or amended complaint where claims were first asserted | Court held Civ.R. 10(D)(2)(e) unambiguously requires the AOM to have been filed with the complaint; inapplicable here |
| Proper procedural vehicle (12(B)(6) vs. 12(C)) | Dismissal should be treated under Civ.R. 12(B)(6); judgment on the pleadings improperly granted | After an answer was filed (because plaintiff sought an extension), a motion under Civ.R. 12(C) is appropriate | Court held 12(C) was proper here because an answer had been filed before the AOM was submitted |
| Ability to cure a defective AOM filed after refiling | Plaintiff urged courts that allowed cure should control (citing sister decisions) | Defendant urged strict application of Civ.R. 10 and that plaintiff failed to comply | Court declined to follow out-of-district decisions and applied the plain text of the rule; no cure allowed |
| Relief under Civ.R. 60(B)(5) / reconsideration | Plaintiff sought relief as "other reason" and urged inconsistent treatment by other courts | Defendant argued plaintiff merely disagreed with the court’s legal ruling and provided no new grounds | Court found no abuse of discretion; Civ.R. 60(B) standards unmet and motion for reconsideration was improper after final judgment |
Key Cases Cited
- Pontious v. Noetzel, 75 Ohio St.3d 565 (explains review scope when considering pleadings and motions on the pleadings)
- Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167 (Ohio 2008) (proper response to missing AOM is Civ.R. 12(B)(6) when no answer has been filed)
- Erwin v. Bryan, 125 Ohio St.3d 519 (2010) (if a civil rule is unambiguous, apply it as written)
- GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146 (tests for Civ.R. 60(B) relief)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (abuse of discretion standard explanation)
- Sears v. Weimer, 143 Ohio St. 312 (statutory interpretation principle: apply plain language when unambiguous)