Estate of Nancy L. Aukland, [c/o Mark Aukland, Executor], Plaintiff-Appellant, v. Broadview NH, LLC et al., Defendants-Appellees.
Nos. 16AP-661 and 16AP-765
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
June 29, 2017
2017-Ohio-5602
(C.P.C. No. 16CV-4336) (ACCELERATED CALENDAR)
Rendered on June 29, 2017
On brief: Law Offices of Stanley B. Dritz, Stanley B. Dritz and D. Chadd McKitrick; Law Office of Thomas D. Hunter, and Thomas D. Hunter, for appellant. Argued: Thomas D. Hunter.
On brief: Reminger Co., L.P.A., Robert V. Kish and Melvin J. Davis, for appellee.
APPEALS from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Plaintiff-appellant, the Estate of Nancy L. Aukland, appeals from the August 24 and November 3, 2016 decisions of the Franklin County Court of Common Pleas granting defendants-appellees‘, Broadview NH, LLC et al. (“appellee“), motion for judgment on the pleadings and denying appellant‘s
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} This is a refiled medical malpractice action. Appellant alleges that decedent was admitted to The Rehabilitation and Health Center of Gahanna for the periods of
{¶ 3} The trial court noted the following procedural history and facts:
Plaintiff originally filed its complaint on August 15, 2014, under Case No. 14CVA-8544. * * * Contemporaneously with Plaintiff‘s complaint, Plaintiff filed a motion for an extension of time to file an affidavit of merit. On August 20, 2014, the Court granted Plaintiff a 90-day extension. On April 7, 2015, Defendants moved to dismiss Plaintiff‘s complaint on the basis that Plaintiff had failed to submit an affidavit of merit. Plaintiff did not respond. On May 6, 2015, the Court granted Defendants’ motion and dismissed Plaintiff‘s complaint without prejudice.
On May 4, 2016, contemporaneously with re-filing its complaint * * *, Plaintiff moved for a second extension of time to file an affidavit of merit. On May 11, 2016, Defendants filed an objection, noting the previous extension granted by the Court. On May 16, 2016, Plaintiff filed an affidavit of merit from Johanna Ojeda, RN, BSN. Based upon Plaintiff‘s filing, on June 6, 2016, the Court found Plaintiff‘s motion for an extension to be moot.
On June 8, 2016, Defendants moved for judgment on the pleadings. Defendants argued that Ojeda‘s affidavit failed to comply with
Civ. R. 10(D)(2) as a nurse is not competent to testify to causation. On June 22, 2016, Plaintiff filed a Motion for Extension of Time to Cure Allegedly Defective Affidavit of Merit. Plaintiff also filed an affidavit of merit from Charles B. [May], D.O., attempting to cure the causation deficiency in Ojeda‘s affidavit. Defendants objected, arguing thatCiv. R. 10(D)(2)(e) permits a plaintiff to cure an affidavit only when filed contemporaneously with a complaint. Plaintiff countered thatCiv. R. 10(D)(2)(e) requires the Court to permit a plaintiff to cure an affidavit of merit, regardless of whether such affidavit was filed contemporaneously with a complaint or pursuant to a permitted extension.
(Nov. 3, 2016 Decision and Entry at 1-2.)
{¶ 4} On August 24, 2016, the trial court ruled that:
The Court further agrees with Defendants that
Civ.R. 10(D)(2)(e) is inapplicable in this case.Civ.R. 10(D)(2)(e) requires a court to permit a plaintiff a reasonable period oftime to cure a defective affidavit of merit “[i]f an affidavit of merit as required by this rule has been filed as to any defendant along with the complaint or amended complaint in which claims are first asserted against that defendant.” (Emphasis added.) The staff notes to Civ.R. 10 similarly state that ”Civ.R. 10(D)(2)(e) allows a plaintiff a reasonable time * * * to cure any defects identified by the court in any affidavit filed with a complaint.” (Emphasis added.) Here, Plaintiff did not file an affidavit of merit with the complaint in which its claims were first asserted against the Defendants. Plaintiff first asserted its claims against Defendants on August 15, 2014, when it filed its original complaint in Case No. 14CVA-8544. That case was ultimately dismissed, because Plaintiff failed to file an affidavit of merit after being granted an extension of time to do so. Moreover, Plaintiff did not file an affidavit of merit when it re-filed its Complaint in this case on May 4, 2016. Rather, Plaintiff again sought an extension of time to file an affidavit of merit and filed Ms. Ojeda‘s affidavit 12 days after the re-filed complaint. As Ms. Ojeda‘s affidavit of merit was not filed with the complaint in which claims were first asserted or the complaint in which claims were re-asserted against Defendants,Civ.R. 10(D)(2)(e) is inapplicable.
(Aug. 24, 2016 Decision and Entry at 4.)
{¶ 5} As such, the trial court granted appellee‘s motion for judgment on the pleadings and, pursuant to
{¶ 6} On September 15, 2016, appellant filed a motion with the trial court to vacate the August 24, 2016 ruling pursuant to
{¶ 7} On November 3, 2016, the trial court ruled on appellant‘s
Plaintiff has not established that it is entitled to relief under one of the grounds stated in
Civ.R. 60(B)(1) through (5), and therefore, relief must be denied. Moore v. Emmanuel Family Training Center, Inc., 18 Ohio St.3d 64, 67, 479 N.E.2d 879 (1985).* * *
Plaintiff moves the Court to reconsider its analysis and conclusions regarding
Civ.R. 10(D)(2) . For the reasons discussed above, the Court declines to do so.Accordingly, Plaintiff Estate of Nancy L. Aukland‘s Motion Pursuant to
Ohio Civ.R. 60(B)(5) , for Relief From Judgment, Motion for Reconsideration of the Court‘s August 24, 2016 Decision and Entry Granting Defendants’ Motion for Judgment on the Pleadings, and Request for Oral Hearing, Pursuant to Local Rule 21.01, filed September 15, 2016, is hereby DENIED.
(Nov. 3, 2016 Decision and Entry at 4-5.)
{¶ 8} On November 9, 2016, appellant filed a notice of appeal of the November 3, 2016 decision and entry, and was assigned case No. 16AP-765. On November 10, 2016, this court sua sponte consolidated case Nos. 16AP-661 and 16AP-765.
II. ASSIGNMENT OF ERROR
{¶ 9} Appellant assigns the following errors:
[I.] THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION, PURSUANT TO
[II.] THE TRIAL COURT ERRED BY GRANTING APPELLEES’ MOTION FOR JUDGMENT ON THE PLEADINGS.
[III.] THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTIONS, PURSUANT TO
III. DISCUSSION
{¶ 10} Appellant argues that the trial court erred (1) in denying appellant‘s motion, pursuant to
A. Assignment of Error One—Civ.R. 10(D)(2)(e) not applicable
{¶ 11} In Smith v. Ohio DOT, 10th Dist. No. 15AP-521, 2015-Ohio-5240, ¶ 6, we recently stated the standard of review for appeals of decisions involving judgment on the pleadings:
Civ.R. 12(C) states: “After the pleadings are closed but within such times as not to delay the trial, any party may move for judgment on the pleadings.” “In ruling on a motion for judgment on the pleadings, the court is permitted to consider both the complaint and answer.” Peters v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP1048, 2015-Ohio-2668, citing State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 1996 Ohio 459, 664 N.E.2d 931 (1996). When presented with such a motion, a trial court must construe all the material allegations of the complaint as true and must draw all reasonable inferences in favor of the nonmoving party. Id., citing Pontious at 570, citing Peterson v. Teodosio, 34 Ohio St.2d 161, 165, 297 N.E.2d 113 (1973); Whaley v. Franklin Cty. Bd. of Commrs., 92 Ohio St.3d 574, 581, 2001 Ohio 1287, 752 N.E.2d 267 (2001). The court will grant the motion if it finds, beyond doubt, that the plaintiff can prove no set of facts in support of the claim(s) that would entitle him or her to relief. Peters, citing Pontious at 570. A judgment on the pleadings dismissing an action is subject to a de novo standard of review in the court of appeals. Id., citing RotoSolutions, Inc. v. Crane Plastics Siding, L.L.C., 10th Dist. No. 13AP-1, 2013-Ohio-4343, ¶ 13, citing Franks v. Ohio Dep‘t of Rehab. & Corr., 195 Ohio App. 3d 114, 958 N.E.2d 1253, 2011-Ohio-2048, ¶ 5 (10th Dist.).
{¶ 12} Appellant argues that there is no distinction between an affidavit of merit (“AOM“) filed with a complaint, or amended complaint, and AOMs filed upon extension of time under
{¶ 13} Appellee argues that appellant was not permitted to cure the defective AOM because
{¶ 14}
(a) [A] complaint that contains a medical 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. Affidavits of merit shall be provided by an expert witness meeting the requirements of Evid.R. 702 and, if applicable, also meeting the requirements of Evid.R. 601(D). Affidavits of merit shall include all of the following:
* * *
(iii) The opinion of the affiant that the standard of care was breached by one or more of the defendants to the action and that the breach caused injury to the plaintiff.
(b) The plaintiff may file a motion to extend the period of time to file an affidavit of merit. The motion shall be filed by the plaintiff with the complaint. For good cause shown and in accordance with division (c) of this rule, the court shall grant the plaintiff a reasonable period of time to file an affidavit of merit, not to exceed ninety days, except the time may be extended beyond ninety days if the court determines that a defendant or non-party has failed to cooperate with discovery or that other circumstances warrant extension.
* * *
(d) An affidavit of merit is required to establish the adequacy of the complaint and shall not otherwise be admissible as evidence or used for purposes of
impeachment. Any dismissal for the failure to comply with this rule shall operate as a failure otherwise than on the merits. (e) If an affidavit of merit as required by this rule has been filed as to any defendant along with the complaint or amended complaint in which claims are first asserted against that defendant, and the affidavit of merit is determined by the court to be defective pursuant to the provisions of division (D)(2)(a) of this rule, the court shall grant the plaintiff a reasonable time, not to exceed sixty days, to file an affidavit of merit intended to cure the defect.
{¶ 15} In this case, appellee filed a motion for extension of time to file an AOM along with the refiled complaint. When appellant finally filed an AOM, it was executed by a registered nurse. The affidavit, however, was insufficient because registered nurses are not qualified under
{¶ 16} The court of appeals cases cited by appellant do, in varying degrees, support its argument. In all three cases an AOM was not filed with the refiled complaint and a defective AOM was filed after requesting an extension. In Jarina, the appeal dealt with the trial court having granted defendant‘s motion for judgment on the pleadings and dismissing the case with prejudice. The Eighth District Court of Appeals stated “[t]he only issue in the instant appeal is the propriety of the trial court‘s dismissal of the complaint.” Id. at ¶ 24. Ultimately, the court reversed “the trial court and vacate[d] the dismissal with prejudice” based on
{¶ 17} In Wick, the Ninth District Court of Appeals cites Jarina for the proposition that once the trial court found Wick‘s affidavits deficient, it was “required to grant Wick a
The Lorain Manor Defendants argue that
Civ.R. 10(D)(2)(e) does not apply because the affidavits of merit filed by Wick were not filed “along with the complaint.” Instead, they argue, the affidavits were filed after numerous extensions. In essence, the Lorain Manor Defendants argue thatCiv.R. 10(D)(2)(e) does not apply because Wick had already been granted extensions underCiv.R. 10(D)(2)(b) . We find their argument unpersuasive.If the plaintiff does not file an affidavit of merit with the complaint, the plaintiff must file a motion for an extension of time. See
Civ.R. 10(D)(2)(b) . Only if the court determines that the plaintiff has shown good cause for the extension, will the court grant the plaintiff a reasonable period of time to file an affidavit. Once an affidavit is filed, the court may determine that it does not meet the requirements ofCiv.R. 10(D)(2)(a) . In that circumstance, the court must grant the plaintiff a reasonable time to cure the defect. SeeCiv.R. 10(D)(2)(e) .
{¶ 18} In our review of this issue, we acknowledge that the Supreme Court of Ohio has established that “[w]here the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation. An unambiguous statute is to be applied, not interpreted.” Sears v. Weimer, 143 Ohio St. 312, 316 (1944), paragraph five of the syllabus; see Broadmoor Ctr., LLC v. Dallin, 10th Dist. No. 16AP-428, 2016-Ohio-8541, ¶ 19. The reasoning behind this rule of statutory construction applies equally to the interpretation of the civil rules of procedure. Gill v. Grafton Corr. Ins., 10th Dist. No. 10AP-1094, 2011-Ohio-4251, ¶ 15. “If a rule of civil procedure is unambiguous, a court applies it as written.” Id., citing Erwin v. Bryan, 125 Ohio St.3d 519, 2010-Ohio-2202, ¶ 22. A court cannot “‘ignore the plain language of a rule in order to assist a party who has failed to comply with a rule‘s specific requirements.‘” Id., quoting Gumins v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 10AP-941, 2011-Ohio-3314, ¶ 14, quoting LaNeve v. Atlas Recycling, Inc., 119 Ohio St.3d 324, 2008-Ohio-3921, ¶ 23.
{¶ 19} The civil rule at issue in this case,
If an affidavit of merit as required by this rule has been filed as to any defendant along with the complaint or amended complaint in which claims are first asserted against that defendant, and the affidavit of merit is determined by the court to be defective pursuant to the provisions of division (D)(2)(a) of this rule, the court shall grant the plaintiff a reasonable time, not to exceed sixty days, to file an affidavit of merit intended to cure the defect.
(Emphasis added). The staff notes to
{¶ 20} The trial court distinguished the cases cited by appellant by noting that in all three cases the plaintiff had voluntarily dismissed its case prior to refiling the action, wherein the present case appellant‘s initial complaint had been involuntarily dismissed by the trial court prior to refiling. Appellant has vigorously objected to the trial court‘s reliance on this distinction. The trial court also ruled based on the plain language of
{¶ 21} We first note that the Jarina and Chapman cases cited by appellant simply allowed the plaintiffs in those cases to file curative affidavits without analyzing the requirements of
{¶ 22} As such, we agree with the trial court that
{¶ 23} The trial court correctly interpreted
B. Assignment of Error Two—Appellee‘s Motion for Judgment on the Pleadings was proper
{¶ 24} Appellant argues that the proper remedy for a claim concerning an AOM is a
{¶ 25} Appellee argues that courts have consistently recognized that a motion for judgment on the pleadings is akin to a belated
{¶ 26} In regards to this argument, the trial court stated:
Finally, Plaintiffs argument that Defendants improperly filed this request as a motion for judgment on the pleadings instead of as a motion to dismiss is without merit. At the time Plaintiff refiled its complaint, it filed a motion for an extension of time to file an affidavit of merit. Therefore, Defendants were required to file an answer to the complaint prior to Plaintiffs filing of the affidavit of merit. Once the answer was filed, the motion for judgment on the pleadings was the proper vehicle to raise the issue with the Court.
(Aug. 24, 2016 Decision and Entry at 5.)
{¶ 27} We agree with the trial court. In Fletcher, appellant did not file an AOM with the refiled action, and also did not request an extension of time in which to do so. It appears that appellee filed a
The issue before us in this case is one of first impression, wherein we must decide the appropriate procedural steps a defendant must undertake when a plaintiff who brings a medical claim fails to attach an affidavit of merit to the complaint as required by
Civ.R. 10(D)(2) .Plaintiff-appellee, Monica Fletcher, would have us find that appellants in this matter should have filed a motion for more definite statement under
Civ.R. 12(E) . Conversely, defendants-appellants University Hospitals of Cleveland and Dr. Raymond Onders argue that a motion for failure to state a claim upon which relief can be granted, filed underCiv.R. 12(B)(6) , is the correct response.For the following reasons, we hold that the proper response to the failure to file the affidavit required by
Civ.R. 10(D)(2) is a motion to dismiss filed underCiv.R. 12(B)(6) . We further hold
that a dismissal of a complaint for failure to file the affidavit required by
Civ.R. 10(D)(2) is an adjudication otherwise than on the merits. The dismissal, therefore, is without prejudice. Accordingly, we reverse the judgment of the court of appeals.
Fletcher at ¶ 1-3. As such, the issue in Fletcher was whether a motion to dismiss or a motion for a more definite statement, was the proper response when a plaintiff fails to attach an AOM to its complaint. The proper response after an answer is filed was not at issue.
{¶ 28} In the present case, because appellant moved for an extension of time to file an AOM, appellee was required to file an answer prior to appellant filing its AOM. As such, a motion for judgment on the pleadings was proper. In addition, appellant‘s claim that appellee obtained a “judgment” on the merits of appellant‘s action is contradicted by the trial court dismissing this action, pursuant to
C. Assignment of Error Three—No Abuse of Discretion
{¶ 29} A motion for relief from judgment is addressed to the sound discretion of the trial court, and a ruling will not be disturbed absent an abuse of discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77 (1987). “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 30} Appellant argues that it should be granted relief from judgment pursuant to
{¶ 31} Appellee argues that appellant‘s sole basis for seeking relief is based on a disagreement with the trial court‘s decision, and appellant does not assert any arguments that could not be raised on appeal.
{¶ 32}
{¶ 33} In order for a party to obtain relief pursuant to a
{¶ 34} In regards to appellant‘s motion to reconsider, we stated in Yavitch & Palmer Co., L.P.A. v. U.S. Four, Inc., 10th Dist. No. 05AP-294, 2005-Ohio-5800, ¶ 10, that:
Final orders are not subject to motions for reconsideration. Pitts v. Ohio Dept. of Transp. (1981), 67 Ohio St. 2d 378, 423 N.E.2d 1105, at fn. 1. Indeed,
Civ.R. 60(B) provides that “the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules.” Thus, the only motions a trial court may consider and grant to relieve a party from a final order are motions pursuant toCiv.R. 50(B) (motion notwithstanding the verdict),Civ.R. 59 (motion for new trial), andCiv.R. 60(B) (motion for relief from judgment). Pitts, at 380. Notably, this list does not include motions for reconsideration.
In addition, “a motion for reconsideration filed after final judgment is a nullity.” Perritt v. Nationwide Mut. Ins. Co., 10th Dist. No. 03AP-1008, 2004-Ohio-4706, ¶ 12.1
{¶ 35} Appellant‘s motion for relief was properly denied, and even if appellant‘s motion to reconsider were not a nullity, there was no reason for the trial court to reconsider its decision. The trial court correctly applied the plain language of
IV. DISPOSITION
{¶ 36} Having overruled appellant‘s three assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER, J., concurs.
DORRIAN, J., concurs separately.
DORRIAN, J., concurring separately.
{¶ 37} Because I agree the trial court‘s decision should be affirmed, I concur with the majority. However, I would affirm on the facts of this case only taking into consideration that (1) the original complaint was previously involuntarily dismissed for lack of an affidavit of merit after the court had granted a continuance of 90 days to submit such affidavit, and (2) appellant failed to file an affidavit of merit with the complaint before us which was refiled one year after dismissal of the original complaint