Day v. MacDonaldDay v. MacDonald
This is аn appeal from a judgment entered by the Scioto County Court of Common Pleas granting the
Appellants assign the following errors:
"ASSIGNMENT OF ERROR #1
THE TRIAL COURT DID NOT NECESSARILY LOSE ITS JURISDICTION OVER THE CIVIL RULE 60(B) MOTION FOR RELIEF FROM JUDGMENT WHEN APPELLANTS FILED THEIR NOTICE OF APPEAL. TO AVOID THE PATENTLY UNJUST RESULT OF THE DISMISSAL OF APPELLANTS' CLAIMS BECAUSE OF THE FRAUD AND MISREPRESENTATION OF ONE OF THE APPELLEES THE TRIAL COURT SHOULD HAVE AGREED TO HEAR THE MOTION FOR RELIEF FROM JUDGMENT WITH THE PERMISSION OF THE APPELLATE COURT. APPELLANT RESPECTFULLY REQUESTS THIS COURT TO REMAND THE CASE TO THE TRIAL COURT FOR FURTHER PROCEEDINGS.
"ASSIGNMENT OF ERROR #2
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DISMISSED THE CASE AGAINST MINOR MARK DAY, JR. FOR LACK OF JURISDICTION BECAUSE THE NOTICE OF APPELLANT'S INTENT TO FILE SUIT WAS NOT EFFECTIVELY GIVEN UNTIL ACTUALLY RECEIVED BY APPELLEES WHICH WAS AFTER THE EXPIRATION OF THE STATUTE OF LIMITATIONSREQUIREDBYR.C. 2305.11(B). R.C. 2305.11(B) IS UNCONSTITUTIONAL AS APPLIED TO MINORS.
ASSIGNMENT OF ERROR #3
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DISMISSED THE CASE AGAINST APPELLANTS FOR LACK OF JURISDICTION, FINDING THE NOTICE OF APPELLANTS' INTENT TO FILE SUIT WAS NOT GIVEN UNTIL ALLEGEDLY RECEIVED BY APPELLEES WHICH WAS AFTER THE EXPIRATION OF THE STATUTE OF LIMITATIONS REQUIRED BY R.C. 2305.11(B). INSTEAD, NOTICE IS EFFECTIVELY GIVEN WHEN MAILED, AND NOTICE WAS MAILED BEFORE THE EXPIRATION OF THE STATUTE OF LIMITATIONS." 1
On August 16, 1988, appellants filed a complaint naming appellees as defendants which averred, in pertinent part, as follows. On or about February 22, 1987, Mark Day, Jr. was born, and appellee Jack D. MacDonald, M.D., assumed the responsibility for the care and treatment of Mark Day, Jr. The treatment rendered by appellee Dr. MacDonald was conducted without the informed сonsent of Mark Day, Jr.'s parents and constituted medical negligence. Additionally, appellee U.S. Health Corporation, fka. Scioto Memorial Hospital, by and through its agent and employees failed to provide proper and adequate care for Mark Day, Jr. As a proximate result of the joint and several negligence of appellees, Mark Day, Jr. suffered pаin and disabling injuries. Appellees received notification of the claims by letter sent on February 17, 1988, in conformity with R.C. 2305.11(A). Appellant Tammy Day, as natural guardian and next of friend of Mark Day, Jr., prayed for damages on his behalf, and appellant Mark Day, Jr., prayed for damages with regard to money he expended and to be expended by him in the future as a direct and proximate result of apрellees' negligence.
On September 8, 1988, appellee U.S. Health Corporation filed a motion to dismiss appellants' complaint pursuant to
On June 7, 1989, the trial court entered a judgment granting appellees'
Appellants' first assignment of error asserts that the trial court erred in failing to rule on their
It has been held by some Ohio appellate courts that a trial court does not have jurisdiction or authority to grant relief from the judgment order under
In the case at bar, appellants urge this court to follow
Majnaric
and its progeny and confer jurisdiction upon the trial court to decide their two
However, this court does not follow either
Majnaric
or
Vavrina.
See, e.g.
Proctor v. Royal Petroleum
(Marc 22, 1989), Gallia App. No. 87 CA 28, unreported. Rather, a trial court may entertain a properly filed motion for relief from judgment during the pendency of an appeal. The filing of a notice of appeal does not divest the trial cоurt from ruling on a
"Since a Civil Rule 60(B) motion is not a substitute for an appeal, issues properly raised on appeal are not grounds for relief from judgment pursuant to Civil Rule 60(B). Likewise, a mere change of mind by the trial court cannot justify Civil Rule 60(B) relief, since, in effect, this would constitute mere reconsideration of the original judgment rather than the granting of relief from that judgment on grounds recognized by Civil Rule 60(B) and not considered in connection with the rendering of the original judgment. A motion for reconsideration of a final judgment in a trial court raises no issue in that court, and the court is without jurisdiction to grant such reconsideration, regardless of whether the motion is denominated one for reconsideration or for relief from judgment.
"Althоugh in some cases issues on appeal could become moot because of the determination of a Civil Rule 60(B) motion, this does not interfere with the jurisdiction of the court of appeals but only obviates any possible prejudice because of intervening events.
Whether granted or denied during the pendency of an appeal, either with or without leave of the cоurt of appeals, or after final judgment on the appeal, the trial court order disposing of a Civil Rule 60(B) motion constitutes a final appealable order creating a separate and distinct appeal to be pursued in the court of appeals. Accordingly, whenever and however granted, a separate and distinct appeal may result from a detеrmination of a Civil Rule 60(B) motion by the trial court. Judicial economy would appear to be served, where possible, by both the original judgment and a granting or denying of a Civil Rule 60 (B) motion for relief from judgment being considered at the same time by the court of appeals. This can be accomplished only if the trial court exercises that jurisdiction during the pendency of the original appеal.
Additionally, a time for filing problem is created if either the Vavrina or Majnaric procedure is followed. Civil Rule 60(B) expressly provides that a motion must be made within a reasonable time which may not be more than one year after the judgment order or proceeding was entered or taken if the grounds are those specified in Civil Rule 60(B) (1), (2), or (3). If the trial court has no jurisdiction during the pendency of an apрeal from a judgment to entertain a Civil Ruel 60(B) motion, the *200 question arises as to whether the time for filing the Civil Rule 60(B) motion is tolled during the pendency of the appeal from the original judgment. If it is not so tolled, the parties could be required to file a motion during the pendency of the appeal, which the trial court has no jurisdiction to consider at that time, if the Vavrina doctrine was correct." Whitesidе, Ohio Appellate Practice (1987), T 11.03 (E), p. 52.
Accordingly, the trial court erred in failing to consider the merits of appellants'
Appellants' second assignment of error assert that the trial court erred in dismissing the minor Mark Day, Jr.'s claim against appellees in that the statute of limitations set forth in R.C. 2305.11(B) is unconstitutional as applied to minors. Although the current amended version of R.C. 2305.11 provides by subsection B the time limitation for bringing a medical malpractice action, Section 3 of H.B. 327 specifies that this amended version of R.C. 2305.11 "shall apply only to civil actions that are commenced on and after the effective date of this act and that are based upon claims for relief that arise on or after that datе, and only to conduct that occurs on or after that date." The effective date of the amendment was October 20, 1987 and, in the case at bar, the alleged conduct of appellees which is the subject of appellants' medical malpractice claims occurred prior thereto, on or about February 22, 1987. Accordingly, the amended version of R.C. 2305.11 is inapplicаble to the case at bar, and the prior version of R.C. 2305.11 is controlling. This prior version of R.C. 2305.11 provided, in pertinent part, as follows:
"(A) An action for libel, slander, malicious prosecution, false imprisonment, or malpractice, including an action for malpractice against a physician, podiatrist, hospital, or dentist, or upon a statute for a penalty or forfeiture, shall be brоught within one year after the cause thereof accrued, provided that an action by an employee for the payment of unpaid minimum wages, unpaid overtime compensation, or liquidated damages by reason of the nonpayment of minimum wages or overtime compensation, shall be brought within two years after the cause thereof accrued.
"If a written notice, prior to the expiration of time contained in this division, is given to any person in a medical claim that an individual is presently considering bringing an action against that person relating to professional servicesprovided to that individual, then an action by that individual against that person may be commenced at any time within one hundred eighty days after that notice is given.
"(B) In no event shall any medical claim against a physician, podiatrist, or a hospital or a dental claim against a dentist be brought more than four years after the act or omission constituting the alleged malpractice occurred. The limitations in this section for filing such a malpractice action against a physician, podiatrist, hospital, or dentist apply to all persons regardless of legal disаbility and notwithstanding section 2305.16 of the Revised Code, provided that a minor who has not attained his tenth birthday shall have until his fourteenth birthday in which to file an action for malpractice against a physician or hospital.
R.C. 2305.16 provides, in pertinent part, as follows:
"Unless otherwise specially provided in section 2305.04 to 2305.14, inclusive, and sections 1302.98 and 1304.29 of the Revised Code, if a person entitled to bring any action mentioned in such sections, unless for penalty or forfeiture, is, at the time the cause of action accrues, within the age of minority, of unsound mind, or imprisoned, such рerson may bring it within the respective times limited by such sections, after such disability is removed. (emphasis added)
If not for the language of R.C. 2305.11(B), the limitations periods specified in R.C. 2305.11(A) and (B) would not apply to minors pursuant to R.C. 2305.16. However, the Ohio Supreme Court has held that such prior version of R.C. 2305.11(B) is unconstitutional as applied to minors under the due course of law provisions of the Ohio Constitution.
Mominee v. Scherbarth
(1986),
"The practical effect of our holding will restore the 'disabilities' tolling statute, R.C. 2305.16, for minors with malpractice claims. Minors whose causes of action accrued before their majority have until their nineteenth birthday to commence suit. Minors who have not discovered the alleged malpractice by their eighteenth birthday have one year from the date of discovery of the malpractice or their twenty-second birthday, whichever comes first, to commence an action." Mominee, supra at 277.
*201 In the case at bar, there were essentially two claims: (1) the claim of appellant Tammy Day, as natural guardian and next of friend of Mark Day, Jr., for damages as a result of the injuries to the minor child and (2) he claim of Mark Day, Sr., the minor child's father, for medical expenses incurred by him as a result of appellees' allowed medical malpractice. Appellee U.S. Health Corporation of Southern Ohio asserts that since neither of these claims were the claims of the minor, Mark Day, Jr., the Mominee holding is inapplicable and the limitations period of R.C. 2305.11(A) barred appellants' claims.
With respect to the claim of appellant Tammy Day, it is apparent that her claim was effectively that of the minor Mark Day, Jr. A minor has no standing to sue before he or she reaches the age of majority and therefore, a minor must sue by a guardian or other like fiduciary or by a next friend.
Mominee, supra
at 275;
Therefore, the lower court herein erred in dismissing appellant Tammy Day's claim for relief, which was brought on behalf of the minor child.
However, the claim of appellant Mark Day, Sr. for medical expenses made by him on behalf of his minor son could properly be barred by the time limitations specified in R.C. 2305.11 since an action by a parent for loss of services or medical expenses caused by injury to his child from the negligent act of another party is a necessary and independent cause of action apart from that cause of action by the injured сhild for bodily harm, and hence the running of the statute of limitations for the claim is not tolled by R.C. 2305.16. See, e.g.
Osborn v. Savage Arms Corp.
(C.P. 1980),
Appellants' third assignment of error asserts that the trial court erred in dismissing the complaint where notice рursuant to R.C. 2305.11 of appellants' intention to file suit was mailed prior to the expiration of the limitations period but received after the expiration of the limitations period. Under the prior version of R.C. 2305.11(A) and the current version of R.C. 2305.11(B), medical malpractice claimants are afforded an additional one hundred eighty days after notice of intention to file suit is given to potential defendants as long as this written notice is given within one year after the action accrued. Neither of these statutory versions of R.C. 2305.11 specified whether this written notice would be deemed to have been given when mailed by the claimants or when received by potential defendants.
In the case at bar, appellants' cause of action accrued on February 22, 1987, notice of thеir intention to sue appellees was mailed on February 19, 1987 (within the one year period), and the trial court determined that this written notice was not received by appellees until February 23, 1987 (outside the one year period). The trial court determined that where R.C. 2305.11 was silent on when notice was effective, the date written notice was received by appellees was the effеctive date. See, e.g.
Lambert v. Sang Woo Ha
(App. 1979), 16 O.O.
Johnson v. St Lukes's Hospital
(1981),
On June 14, 1989, the Supreme Court of Ohio expressly decided this issue by holding that where a statute such as R.C. 2305.11(B) is silent as to how notice is to be effectuated, written notice will bе deemed to have been given when received.
Edens v. Barberton Area Family Practice Ctr.
(1989),
Accordingly, for the foregoing reasons, in that we have sustained appellants' first assignment of error as well as that part of *202 aрpellants' second assignment of error relating to appellant Tammy Day's claim on behalf of the minor child, the judgment of the court below is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. 3
Judgment affirmed in part and reversed in part
Notes
Appellants' reply brief raises as a fourth assignment of error that the trial court erred in not holding an oral hearing on appellees'
Although the Edens decision was rendered several months prior to the filing of the appellate briefs herein, none of the parties cited or distinguished this decision.
The trial court statеd in its June 7, 1989 entry granting appellees'
Although it is the general rule that in deciding a
However, in that appellants herein neither assigned this as error nor argued the foregoing in the context of the instant appeal and further did not raise the issue prior to the entry of judgment below, we need not reverse the judgment on this basis.