Adkinson v. Alex Bell Dental-Daniel Cobb, DDS, L.L.C.

Nov 13, 2020
28708
Versions:

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O P I N I O N

Rendered on the 13th day of November, 2020.

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DIANNE ADKINSON, 3330 Martel Drive, Dayton, Ohio 45420 Plaintiff-Appellant, Pro Se

GREGORY D. RANKIN, Atty. Reg. No. 0022061 and MONICA L. WALLER, Atty. Reg. No. 0070941, 2 Miranova Place, Suite 220, Columbus, Ohio 43215 Attorneys for Defendant-Appellee

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TUCKER, P.J.

{¶ 1} Plaintiff-appellant, Dianne Adkinson, appeals from the trial court‘s judgment of January 13, 2020, in which the court dismissed her complaint against Defendant-appellee, Alex Bell Dental—Daniel Cobb DDS, LLC (“ABD”), because she failed to submit an affidavit of merit pursuant to Civ.R. 10(D)(2). Nominally raising six assignments of error, Adkinson argues that inasmuch as she claims a right to recovery arising from ABD‘s alleged breach of a warranty, rather than a right to recovery arising from professional negligence, the provisions of Civ.R. 10(D)(2) are inapplicable to her complaint. We find that Adkinson‘s argument has merit, and the trial court‘s judgment is therefore reversed and remanded.

I. Facts and Procedural History

{¶ 2} On May 18, 2016, Dr. Cobb seated a bridge in Adkinson‘s lower left jaw, and at some point between May 2016 and October 2017, Dr. Cobb seated a bridge in Adkinson‘s lower right jaw.1 Complaint ¶ 4-5; Appellee‘s Brief 4; see also Appellant‘s Brief 5. The second bridge, unfortunately, failed to remain fixed in place, and ABD replaced it without charge on or about October 18, 2017, allegedly because Dr. Cobb had “express[ly] assur[ed] [Adkinson] that [ABD] provided a five[-]year warranty on bridgework.” Appellant‘s Brief 5; Appellee‘s Brief 4-5.

{¶ 3} Adkinson sent a letter to ABD on November 7, 2017, in which she requested “a credit on future dental work” as compensation for the “discomfort, pain, inconvenience, missed work” and lost time associated with the seating of the replacement bridge. Complaint ¶ 8. ABD responded in a letter sent to Adkinson on or about December 5, 2017, by offering to pay $230 in exchange for her agreement to “release and forever discharge [ABD], Dr. [Daniel] Cobb in his personal capacity, and all [of ABD‘s] agents, employees, heirs and assigns from any and all claims * * * arising out of the treatment provided by [ABD] from February 15[, 2017,] through October 10, 2017.” Adkinson v. Alex Bell Dental—Daniel Cobb, DDS, L.L.C., 2d Dist. Montgomery No. 28282, 2019-Ohio-2127, ¶ 4 [hereinafter Adkinson I]. The letter, which arrived with a check enclosed, advised Adkinson that by “accepting [the] check,” she would be “accepting [the] sum [of $230] IN FULL SETTLEMENT, ACCORD AND SATISFACTION.” (Capitalization sic.) Id. Adkinson deposited the check into her bank account on December 6, 2017. Id. In yet another letter, dated December 14, 2017, ABD then informed Adkinson that, “effective 30 days from [her] receipt of [the] letter,” it would no longer provide her with treatment. Complaint ¶ 13 and Ex. D.

{¶ 4} Adkinson‘s replacement bridge broke in June 2018. Id. at ¶ 14. On or about July 2, 2018, Adkinson notified ABD about the replacement bridge and requested a “refund [of her] out-of-pocket expenses,” in the amount of $2,023, “as soon as possible.” Id. at ¶ 16 and Ex. E; Appellant‘s Brief 5; Appellee‘s Brief 5. ABD denied the request, maintaining that because Adkinson had accepted its offer of an accord and satisfaction, it had no further obligation to her. Complaint ¶ 17 and Ex. F; Appellant‘s Brief 5; Appellee‘s Brief 5.

{¶ 5} On September 26, 2018, Adkinson filed a complaint against ABD in which she asserted claims for breach of contract; breach of an express warranty; breach of an implied warranty; and unjust enrichment. Complaint ¶ 18-22. ABD moved for summary judgment, and concluding that Adkinson‘s claims were precluded by the accord and satisfaction, the trial court sustained ABD‘s motion in a judgment entered on January 9, 2019.

{¶ 6} Adkinson filed a notice of appeal to this court on January 28, 2019. We affirmed the trial court in part because “Adkinson‘s claims for relief were settled by the parties’ accord and satisfaction with respect to treatment provided by ABD from February 15, 2017, to October 10, 2017,” but we reversed the trial court in part “with respect to treatment provided before February 15, 2017, or after October 10, 2017,” to which the terms of the accord and satisfaction did not apply. See Adkinson I at ¶ 17. As a result of the partial reversal, we remanded the case to the trial court for further proceedings. Id.

{¶ 7} After the remand, ABD moved to dismiss Adkinson‘s complaint. In its judgment of January 13, 2020, the trial court found that Adkinson had failed to submit an affidavit of merit as required by Civ.R. 10(D)(2), and on that basis, it dismissed the complaint with prejudice under Civ.R. 12(B)(6). Entry Dismissing Complaint 2, Jan. 13, 2020. Adkinson timely filed a notice of appeal on February 10, 2020.

II. Analysis

{¶ 8} This court entered an order on April 15, 2020, in which we indicated that because the “ ‘dismissal of a complaint for [the plaintiff‘s] failure to file [an] affidavit [of merit pursuant to] Civ.R. 10(D)(2)’ ” is an “ ‘adjudication otherwise than on the merits,’ ” we might lack jurisdiction to review the trial court‘s judgment. Show Cause Order 1, Apr. 15, 2020, quoting Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, paragraph two of the syllabus. As our order directed, the parties filed responses addressing the question of jurisdiction, and they have revisited the issue in their briefs.

{¶ 9} The trial court dismissed Adkinson‘s complaint under Civ.R. 12(B)(6), “on [the] grounds that [she] failed to comply with Civ.R. 10[(D)(2)].” Entry Dismissing Complaint 2. Although “[e]very defense, in law or fact, to a claim for relief in any pleading” must ordinarily be “asserted in [a] responsive pleading,” if a responsive pleading is required, the defense of “failure to state a claim upon which relief can be granted” may be made by motion; the party making the motion, however, must file it “before pleading.” (Emphasis added.) Civ.R. 12(B). ABD filed its answer to Adkinson‘s complaint on November 2, 2018, but it did not file its motion to dismiss until November 20, 2019. Consequently, “we must review the [trial court‘s entry] as [if it were] a[n] [order granting] judgment on the pleadings pursuant to Civ.R. 12(C),” because ABD‘s “motion to dismiss was filed after the pleadings had closed.” Tennant v. Huntington Natl. Bank, 8th Dist. Cuyahoga No. 108993, 2020-Ohio-4063, ¶ 8, citing State ex rel. Mancino v. Tuscarawas Cty. Court of Common Pleas, 151 Ohio St.3d 35, 2017-Ohio-7528, 85 N.E.3d 713, ¶ 8, fn. 2. Given that an order granting judgment under Civ.R. 12(C) operates as an adjudication on the merits, we hold that we have jurisdiction to review the trial court‘s judgment entry of January 13, 2020. White v. Cent. Ohio Gaming Ventures, LLC, 10th Dist. Franklin No. 18AP-780, 2019-Ohio-1078, ¶ 22; see also Sherrod v. Haller, 2017-Ohio-5614, 94 N.E.3d 148, ¶ 14, fn. 2 (2d Dist.) (Froelich, J., dissenting), citing Dragon v. Henderson, 8th Dist. Cuyahoga No. 104021, 2016-Ohio-7305, ¶ 3, fn. 1.

{¶ 10} Dismissal under Civ.R. 12(C) is appropriate where a court construes the material allegations in a complaint to be true, and drawing all reasonable inferences in favor of the nonmoving party, finds beyond doubt that the nonmoving party could prove no set of facts in support of its claim or claims that would entitle it to relief. State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996); State ex rel. Vandenbos v. City of Xenia, 2d Dist. Greene No. 14-CA-14, 2015-Ohio-35, ¶ 11. The record for purposes of a motion under Civ.R. 12(C) “ ‘is restricted solely to the allegations in the pleadings and any [attached] writings.’ ” Civ.R. 10(C); Portfolio Recovery Assocs., LLC v. VanLeeuwen, 2d Dist. Montgomery No. 26692, 2016-Ohio-2962, ¶ 7, quoting Offill v. State Farm Fire & Cas. Co., 2d Dist. Montgomery No. 25079, 2012-Ohio-6225, ¶ 14. Thus, “ ‘Civ.R. 12(C) requires a determination that no material factual issues exist and [an assessment] that the movant is entitled to judgment as a matter of law.’ ” Vandenbos at ¶ 11, quoting Midwest Pride IV at 570. The appellate “ ‘standard of review is de novo.’ ” See Portfolio Recovery Assocs. at ¶ 5, quoting Inskeep v. Burton, 2d Dist. Champaign No. 2007-CA-11, 2008-Ohio-1982, ¶ 7.

{¶ 11} Adkinson nominally raises six assignments of error, though her challenge to the trial court‘s judgment is predicated on three propositions of law: first, that the trial court erred by holding that her claims against ABD were “[d]ental claim[s]” under R.C. 2305.113(E)(6); second, that the trial court erred by holding that Civ.R. 10(D)(2) applied to the complaint; and third, assuming in the alternative that Civ.R. 10(D)(2) did apply to the complaint, that the trial court erred by dismissing her claims with prejudice, rather than entering an order under Civ.R. 10(D)(2)(e) directing her to submit an affidavit of merit within 60 days. See Appellant‘s Brief 3-4. After addressing Adkinson‘s first assignment of error, which relates to the first of the foregoing propositions, we address her second and fifth assignments of error, which relate to the second of the propositions, along with her sixth assignment of error, which relates to the third of the propositions. Last, we address her third and fourth assignments of error.

{¶ 12} For her first assignment of error, Adkinson contends that:

ONE. THIS IS NOT A MALPRACTICE CASE[.]

{¶ 13} Adkinson argues that the trial court erred by holding that her claims against ABD fit the definition of the term “dental claim” established by R.C. 2305.113. See Appellant‘s Brief 3 and 11-13. According to Adkinson, R.C. 2305.113 is inapplicable to her claims against ABD because “[t]he case at bar does not ‘arise out’ of a dental operation,” but instead “arises out of the express warranty provided by ABD[,] as well as the financial agreement between the parties.”2 Appellant‘s Brief 11. ABD argues that regardless of “[w]hether [Adkinson] calls [her claims] breach of contract, breach of warranty or negligence,” they “arise out of dental treatment,” making them “ ‘dental claims’ ” pursuant to R.C. 2305.113. Appellee‘s Brief 11.

{¶ 14} Under R.C. 2305.113(E)(6), the term “[d]ental claim” is defined as

any claim that is asserted in any civil action against a dentist, or against any employee or agent of a dentist, and that arises out of a dental operation or the dental diagnosis, care, or treatment of any person[,] includ[ing] derivative claims for relief that arise from a dental operation or the dental diagnosis, care, or treatment of a person.

(Emphasis added.) R.C. 2305.113(E)(6). Adkinson attempts to avoid the application of

the statute by arguing that she filed her complaint only “against the dental LLC, with wh[ich] [she] contracted” and “from wh[ich] the [alleged] warranty flows,” and she emphasizes that she has not asserted a claim for professional negligence against Dr. Cobb himself. Appellant‘s Brief 12. Yet, even accepting for the sake of analysis that the meaning of the term “dental operation,” which is left undefined by the statute, does not include bridgework, we find that the broader terms “dental care” and “dental treatment,” which are also left undefined by the statute, do include bridgework. Thus, regardless of whether Adkinson‘s claims against ABD are predicated on professional negligence on the part of Dr. Cobb, the claims nevertheless arise from Adkinson‘s receipt of dental care and treatment.

{¶ 15} Given the breadth of the definition of the term “[d]ental claim” in R.C. 2305.113(E)(6), we conclude that the legislature intended the term to include an action, like the instant action, in which the claim or claims for relief arise from “a dental operation or the dental diagnosis, care, or treatment of any person,” but are not based on the alleged professional negligence of any individual dentist, or agent or employee of a dentist.3 We hold accordingly that Adkinson‘s complaint is a “dental claim” for purposes of R.C. 2305.115. Adkinson‘s first assignment of error is overruled.

{¶ 16} For her second assignment of error, Adkinson contends that:

TWO. COURTS SHOULD ENFORCE AN EXPRESS WARRANTY[.]

For her fifth assignment of error, Adkinson contends that:

FIVE. COMMON KNOWLEDGE EXCEPTION[.]

And for her sixth assignment of error, Adkinson contends that:

SIX. NOTICE OF INTENT TO DISMISS AND EXTENSION OF TIME TO FILE THE AFFIDAVIT OF MERIT[.]

{¶ 17} In these assignments of error, Adkinson argues that the trial court erred by determining that she was required to submit an affidavit of merit pursuant to Civ.R. 10(D)(2), and in the alternative, by dismissing her complaint with prejudice for failing to submit an affidavit, as opposed to ordering her to rectify the omission within a specified time. See Appellant‘s Brief 13-14 and 19-26. The rule states, in relevant part, that a complaint which sets forth a dental claim

shall be accompanied by one or more affidavits of merit relative to each defendant named in the complaint for whom expert testimony is necessary to establish liability.

Civ.R. 10(D)(2)(a).

{¶ 18} Adkinson maintains that she “does not allege professional misconduct” on the part of Dr. Cobb, but instead, that she seeks to recover on a claim of breach of warranty because her replacement bridge “inexplicably broke” in June 2018. See Appellant‘s Brief 12-13. She argues that, as a result, the “common knowledge exception” applies to her complaint, thereby relieving her of the obligation to file an affidavit of merit. Id. at 24.

{¶ 19} Generally, the “standard of care and skill” expected of a dentist must “be determined from the testimony of [dental] experts,” but “where the nature of the case is such” that the cause of the plaintiff‘s injury “is so apparent as to be within the comprehension of lay[persons] and requires only common knowledge and experience to understand,” expert testimony “is not necessary.” Bruni v. Tatsumi, 46 Ohio St.2d 127, 130, 346 N.E.2d 673 (1976); see also Dickerson Internationale, Inc. v. Kockner, 139 Ohio App.3d 371, 743 N.E.2d 984 (2000). ABD insists that “expert testimony would be particularly necessary in this case” because Adkinson can recover only “if she can show that [dental care or treatment she received before February 15, 2017, or after October 10, 2017,] fell below the standard of care.” See Appellee‘s Brief 13. Adkinson, on the other hand, denies that she seeks to recover on the basis of professional negligence, and observing that her replacement bridge “could [have failed as a result of a] latent [manufacturing] defect,” she argues that she seeks to recover only for ABD‘s alleged breach of an unconditional warranty. Appellant‘s Brief 12-14.

{¶ 20} Inasmuch as Adkinson seeks to recover exclusively for ABD‘s alleged breach of warranty, we hold that the trial court erred by determining that she was required to file an affidavit of merit pursuant to Civ.R. 10(D)(2), because laypersons could readily comprehend the fact that the bridge broke, even in the absence of expert testimony. Assuming further for the sake of analysis that Adkinson could prove that ABD warranted the bridge unconditionally, she would presumably not have to prove that Dr. Cobb or any agent or employee of ABD was negligent in order to establish her right to recovery.

{¶ 21} Strictly for the foregoing reasons, Adkinson‘s second, fifth and sixth assignments of error are sustained. The trial court‘s judgment of January 13, 2020, is consequently reversed, and this case is remanded for further proceedings.

{¶ 22} For her third assignment of error, Adkinson contends that:

THREE. COURTS HAVE A DUTY TO ENFORCE THE RIGHT OF PRIVATE CONTRACT[.]

And for her fourth assignment of error, Adkinson contends that:

FOUR. STATUTE OF LIMITATIONS[.]

{¶ 23} In these assignments, Adkinson does not argue that the trial court committed any error. We find accordingly that we need not address Adkinson‘s third and fourth assignments of error.

III. Conclusion

{¶ 24} The trial court erred by dismissing Adkinson‘s complaint pursuant to Civ.R. 10(D)(2) and 12(B)(6), not only because the pleadings had closed before ABD filed its motion to dismiss, but also because Adkinson‘s claim or claims for relief are not predicated on professional negligence on the part of Dr. Cobb or any agent or employee of ABD. Therefore, the trial court‘s judgment of January 13, 2020, is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion. Additionally, we note that we take no position on the merits of Adkinson‘s claim or claims for relief, or on the merits of any defenses offered by ABD, including the applicability and enforceability of the accord and satisfaction.

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HALL, J. and WELBAUM, J., concur.

Copies sent to:

Dianne Adkinson

Gregory D. Rankin

Monica L. Waller

Hon. James F. Long

Notes

1
Neither Adkinson nor ABD has specified the date on which Dr. Cobb seated the second bridge. Complaint ¶ 5; Appellant‘s Brief 5; Appellee‘s Brief 4. In her brief, Adkinson refers only to a single bridge—the bridge installed on May 18, 2016—which directly contradicts the allegations she offered in her complaint. Compare Complaint ¶ 5, with Appellant‘s Brief 5.
2
Adkinson fails to identify “the financial agreement between the parties” to which she refers. Appellant‘s Brief 11.
3
We take no position on whether Dr. Cobb is a necessary party. In a typical case involving professional negligence, a limited liability corporation may not be sued directly for the professional negligence of one of its members, nor may it be found vicariously liable for the professional negligence of one its members, unless the allegedly negligent member is first found to be liable. See, e.g., Cope v. Miami Valley Hosp., 195 Ohio App.3d 513, 2011-Ohio-4869, 195 N.E.2d 1034, ¶ 17-18. Adkinson, by contrast, does not claim a right to recovery based on any alleged negligence on the part of Dr. Cobb.