Frazier v. Fairfield Med. Ctr.Frazier v. Fairfield Med. Ctr.
For Plaintiff-Appellant
RAYMOND DELEVIE
81 S. 4th Street, #310
Columbus, OH 43215
For Defendant-Appellee
RICHARD LOVERING
BOBBIE SPRADER
ERIC BRAVO
100 South Third Street
Columbus, OH 43215
Gwin, P.J.
{¶1} Plaintiff-appellant Teresa Frazier, Administrator of the Estate of her husband, Robert Frazier, deceased, appeals a summary judgment of the Court of Common Pleas of Fairfield County, Ohio, which held her complaint against defendant-appellee Fairfield Medical Center was barred by statute of limitations. Appellant assigns three errors to the trial court:
{¶2} “I. THE GRANTING OF SUMMARY JUDGMENT IS REVERSIBLE ERROR BECAUSE THE TRIAL COURT FAILED TO DETERMINE WHETHER AN OBVIOUS ISSUE OF FACT, REVEALED BY TWO OPPOSING AFFIDAVITS, WAS ‘MATERIAL‘.
{¶3} “II. THE GRANTING OF SUMMARY JUDGMENT IS REVERSIBLE ERROR, BECAUSE THE TRIAL COURT FAILED TO ADDRESS PLAINTIFF-APPELLANT‘S ARGUMENT AS TO ESTOPPEL AND THE SAVINGS STATUE; THUS, THE TRIAL COURT FAILED TO DETERMINE WHETHER APPELLANT WAS ENTITLED TO JUDGMENT AS A MATTER OF LAW.
{¶4} “III. THE GRANTING OF SUMMARY JUDGMENT IS REVERSIBLE ERROR BECAUSE THE TRIAL COURT‘S JUDGMENT ENTRY DOES NOT DISTINGUISH BETWEEN (1) INVOLUNTARY AND UNILATERAL DISMISSALS, AND (2) STIPULATION AGREEMENTS UNDER
{¶5} The record indicates appellant‘s decedent died at Hocking Valley Community Hospital on May 7, 2002. Hours earlier, he had been sent home from appellee Fairfield Medical Center where he had sought medical care for chest discomfort.
{¶7} On March 17, 2006, appellant re-filed her complaint, designated Case No. 2006CV00285. On September 25, 2007, appellant dismissed the case, hereinafter referred to as Frazier II, by means of a
{¶8} On September 12, 2008, appellant re-filed her case as Case No. 2008CV1124. On October 7, 2008, appellee Medical Center moved for summary judgment alleging Frazier III was untimely based on the statute of limitations, and appellant could not use the savings statute,
{¶9} The trial court held Frazier III was barred by the statute of limitations and appellant had already once used the savings statute, but the court did not address the issue raised by the two affidavits.
{¶11}
{¶12} “Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party‘s favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.”
{¶13} A trial court should not enter a summary judgment if it appears a material fact is genuinely disputed, nor if, construing the allegations most favorably towards the non-moving party, reasonable minds could draw different conclusions from the undisputed facts, Houndshell v. American States Insurance Company (1981), 67 Ohio St. 2d 427. The court may not resolve ambiguities in the evidence presented, Inland Refuse Transfer Company v. Browning-Ferris Industries of Ohio, Inc. (1984), 15 Ohio St. 3d 321. A fact is material if it affects the outcome of the case under the applicable substantive law, Russell v. Interim Personnel, Inc. (1999), 135 Ohio App. 3d 301.
{¶15} The party moving for summary judgment bears the initial burden of informing the trial court of the basis of the motion and identifying the portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the non-moving party‘s claim, Dresher v. Burt (1996), 75 Ohio St. 3d 280. Once the moving party meets its initial burden, the burden shifts to the non-moving party to set forth specific facts demonstrating a genuine issue of material fact does exist, Id. The non-moving party may not rest upon the allegations and denials in the pleadings, but instead must submit some evidentiary material showing a genuine dispute over material facts, Henkle v. Henkle (1991), 75 Ohio App. 3d 732.
I, II, & III
{¶16} The case requires interpretation of two separate provisions,
{¶17}
{¶18} “(A) Voluntary dismissal: effect thereof
{¶19} “(1) By plaintiff; by stipulation. Subject to the provisions of
{¶21} “(b) filing a stipulation of dismissal signed by all parties who have appeared in the action.
{¶22} “Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits of any claim that the plaintiff has once dismissed in any court.
{¶23} “(2) By order of court. Except as provided in division (A)(1) of this rule, a claim shall not be dismissed at the plaintiff‘s instance except upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon that defendant of the plaintiff‘s motion to dismiss, a claim shall not be dismissed against the defendant‘s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under division (A)(2) of this rule is without prejudice.”
{¶24} In Olynyk v. Scoles, 114 Ohio St. 3d 56, 2007-Ohio-2878, 868 N.E. 254, the Ohio Supreme Court explained the operation of
{¶25} A notice of dismissal pursuant to
{¶26} The other two avenues for dismissal without prejudice under
{¶27} Applying the above to the case at bar, the stipulated dismissal of Frazier I was not a unilateral dismissal. This means appellant still had the option to use her one-time
{¶28} We conclude the two-dismissal rule did not bar the filing of Frazier III.
{¶29} However, the double-dismissal rule is only one half of the equation here. Appellant is still faced with the statute of limitations. A dismissal without prejudice means the dismissal has no res judicata effect, but it does not toll the statute of limitations or otherwise extend the time for refilling. Wolfe v. Priano, Perry App. No.
{¶30}
{¶31} After voluntarily dismissing Frazier II on September 25, 2007, appellant filed Frazier III on September 12, 2008. Appellant‘s decedent had been dead over six years, and the statute of limitations had expired over four years previously.
{¶32} The savings statute,
{¶33} “In an action commenced, or attempted to be commenced, if in due time a judgment for the plaintiff is reversed, or if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff, or, if he dies and the cause of action survives, his representatives may commence a new action within one year after such date.” * * *
{¶34} Appellant argues the affidavit of counsel she submitted in response to the Medical Center‘s motion for summary judgment stated the parties had agreed as part of the stipulated dismissal in Frazier I that appellant would be going back to “square one“, and both parties would be in the same position as if there had never been any litigation. Appellant argues she relied on the agreement, and the Medical Center should be estopped from now arguing there was no such agreement. Appellant argues based on this agreement the savings statute is available for Frazier III.
{¶36} Thus, the savings statute can be used only once to re-file a case. Thomas v. Freeman, 79 Ohio St. 3d 221, 197-Ohio-395.
{¶37} The stipulated dismissal from Frazier I stated it was “without prejudice to re-filing within one year of the date of this Notice“. It does not state the parties agreed Frazier I somehow had no significance, and the parties intended to be left as though no action had ever been filed. Appellant argues the language is ambiguous, but we find it is not.
{¶38} A party cannot create an ambiguity in a written document by submitting an affidavit regarding the parties’ intent in drafting the document. Covington v. Lucia, 151 Ohio App. 3d 409, 2003-Ohio-346, 784 N.E. 2d 186, at paragraph 19. A court may not use extrinsic evidence to create an ambiguity, but rather, the ambiguity must be apparent on the face of the writing, Id. at paragraph 14, citing Schachner v. Blue Cross & Blue Shield of Ohio (C.A. 6 1996), 77 F. 3d 889, 893.
{¶40} We find the trial court did not err in determining reasonable minds could not differ on the issue of whether the statute of limitations barred appellant‘s re-filing of her case for the third time.
{¶41} Each of appellant‘s assignments is overruled.
{¶42} For the foregoing reasons, the judgment of the Court of Common Pleas of Fairfield County, Ohio, is affirmed.
By Gwin, P.J.,
Hofffman, J., and
Edwards, J., concur
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
HON. JULIE A. EDWARDS
WSG:clw 0820
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Fairfield County, Ohio, is affirmed. Costs to appellant.
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
HON. JULIE A. EDWARDS