Bernard v. WodarcykBernard v. Wodarcyk
On brief: Poling Law, Brant E. Poling, and Sabrina S. Sellers, for appellee. Argued: Jennifer Myers.
ON APPEAL from the Franklin County Court of Common Pleas
McGRATH, J.
{¶ 1} Plaintiff-appellant, Harry Bernard, appeals from a judgment of the Franklin County Court of Common Pleas granting the summary judgment motion of defendant-appellee, Michael A. Wodarcyk, M.D., finding the statute of limitations had expired. For the following reasons, we affirm the trial court‘s judgment.
I. Facts and Procedural History
{¶ 2} In February 2016, appellant sought treatment from appellee for a urological condition, which resulted in appellee performing a surgical procedure to remove a kidney stone. Appellant continued to experience difficulties and appellee treated him until April
{¶ 3} On December 28, 2017, appellant filed an affidavit of merit from Dr. Zipkin. On March 22, 2018, appellee filed an answer, asserting the statute of limitations as a defense, among others. On July 5, 2018, appellee filed a motion for summary judgment which the trial court granted on July 25, 2018.
II. Assignment of Error
{¶ 4} Appellant appeals and assigns the following assignment of error for our review:
THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF IN GRANTING DEFENDANT‘S MOTION FOR SUMMARY JUDGMENT UNDER THE FACTS AND CIRCUMSTANCES IN THIS ACTION, BY RULING AS A MATTER OF LAW THAT THE STATUTE OF LIMITATIONS FOR MEDICAL CLAIMS SET FORTH IN
R.C. §2305.113 HAD EXPIRED, IGNORING THE FACT THAT OF A NOTICE OF CLAIM LETTER HAD BEEN HAND DELIVERED TO SAID DEFENDANT PURSUANT TOR.C. §2305.113(B)(1) .
III. Analysis
{¶ 5} In his assignment of error, appellant argues the trial court erred in granting appellee‘s summary judgment motion. A trial court properly grants a summary judgment motion pursuant to
{¶ 6} In Dresher v. Burt, 75 Ohio St.3d 280 (1996), the Supreme Court of Ohio stated that the moving party, on the ground that the nonmoving party cannot prove its case, has the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential elements of the nonmoving party‘s claim. Once the moving party satisfies this initial burden, the nonmoving party has a reciprocal burden to set forth specific facts showing there is a genuine issue for trial.
{¶ 7} As mentioned, the motion for summary judgment was filed on July 5, 2018. The trial court ruled on appellee‘s motion for summary judgment on July 25, 2018 at 3:26 p.m., finding the motion was unopposed. Appellant filed his memorandum in opposition to the motion for summary judgment on July 25, 2018 at 11:41 a.m.
{¶ 8} Appellant argues that pursuant to
{¶ 9} Loc.R. 57.02 provides: “All affidavits, depositions, and other evidentiary material permitted by
{¶ 10} Courts in Ohio possess the authority to enact local rules. Union Bank v. Brumbaugh, 69 Ohio St.2d 202, 205 (1982). The local rules provide that the response to the summary judgment motion and any supporting evidentiary materials must be filed within 14 days after the date of service and a motion for summary judgment is submitted to the judge when filed.
{¶ 11} In this case, appellee filed the motion for summary judgment on July 5, 2018. Any response and evidentiary materials were due 14 days later or by July 19, 2018. On July 25, 2018, the trial court issued its ruling. Appellant argues he filed his response and supporting evidentiary materials earlier in the day on July 25; however, these materials were filed outside of the deadline. Appellant did not seek an extension of time to respond to the motion for summary judgment. The trial court ruled on the motion after the time expired for appellant‘s response and thus, did not err by ruling on the motion for summary judgment before 28 days expired.
{¶ 12} Appellant further argues that a genuine issue of material fact exists as to whether the statute of limitations was extended. The applicable statute of limitations for medical claims, as set forth in
{¶ 13} Appellee contends that the physician-patient relationship ended on April 22, 2016. Appellant filed his complaint on October 2, 2017, after the statute of limitations expired. Appellant contends he delivered a 180-day letter to appellee on April 6, 2017, thus extending the statute of limitations for 180 days.
{¶ 14} Appellee contends he did not receive the letter. In his affidavit, appellee denied signing the certified return delivery receipt. Appellee states in his affidavit that he did not receive the 180-day letter prior to appellant‘s commencement of this action.
{¶ 15} In Edens v. Barberton Area Practice Ctr., 43 Ohio St.3d 176 (1989), the Supreme Court of Ohio held that a 180-day letter is “given” once it is received. Given that appellant‘s memorandum in opposition to summary judgment and exhibits were not timely filed, the only evidence properly before the trial court was appellee‘s evidence, including his affidavit in which he stated he did not receive the written notice before appellant commenced this action. In the absence of evidence to demonstrate the existence of a genuine issue of material fact, the trial court did not err in granting appellee‘s motion for summary judgment. Appellant‘s assignment of error is overruled.
{¶ 16} For the foregoing reasons, appellant‘s assignment of error4 is overruled and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BROWN and DORRIAN, JJ., concur.
McGRATH, J., retired, of the Tenth Appellate District, assigned to active duty under the authority of the Ohio Constitution, Article IV, Section 6(C).