Joy L. Maxwell, Individually and as Administrator of the Estate of Robert P. Maxwell, Deceased v. Adolph V. Lombardi, Jr., M.D. et al.
No. 21AP-556
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
May 19, 2022
[Cite as Maxwell v. Lombardi, 2022-Ohio-1686.]
MENTEL, J.
C.P.C. No. 19CV-352; (REGULAR CALENDAR)
Rendered on May 19, 2022
On brief: Elk & Elk Co., Ltd., and R. Craig McLaughlin, for appellant Joy L. Maxwell, individually and as administrator of the estate of Robert P. Maxwell, deceased. Argued: R. Craig McLaughlin
On brief: Poling Law, Brant E. Poling, and Sabrina S. Sellers, for appellees Adolph V. Lombardi, Jr., M.D. and Joint Implant Surgeons, Inc. Argued: Brant E. Poling
APPEAL from the Franklin County Court of Common Pleas
{1} Plaintiff-appellant, Joy L. Maxwell, individually and as administrator of the estate of Robert P. Maxwell, appeals from the July 27, 2021 entry granting leave for defendants-appellees, Adolph V. Lombardi, Jr., M.D. and Joint Implant Surgeons, Inc., to file a motion for summary judgment and the October 1, 2021 decision and entry granting the motion for summary judgment of appellees. For the reasons that follow, we affirm, in part, and reverse, in part.
{2} On January 30, 2015, appellant filed her initial complaint. Maxwell et al. v. Lombardi et al., Franklin C.P. No. 15CV-892. Pursuant to
{3} According to appellant‘s complaint, on August 21, 2013, Dr. Lombardi performed a total hip replacement surgery on the decedent, Mr. Maxwell. Following the procedure, Mr. Maxwell was sent home that same day. On September 2, 2013, approximately two weeks after the procedure, Mr. Maxwell died from a pulmonary embolism. Appellant provided an affidavit of merit by Dr. Steven Graboff with her complaint. Relevant to the instant case, Dr. Graboff, a board-certified physician in orthopedic surgery, wrote, after reviewing the available medical records and documents in the case, he believed, to a reasonable degree of medical certainty, Dr. Lombardi and Joint Implant Surgeons, Inc., breached the standard of care by causing unnecessary injuries and damage to the decedent, which ultimately led to his death on September 2, 2013. (Jan. 14, 2019 Compl.; Aff. of Merit, ¶ 4-6.) The initial dispositive motion deadline in this case was set for June 5, 2020. The deadline passed and this case was set for trial on September 21, 2020. The trial was subsequently continued and reset for October 18, 2021. (Feb. 2, 2021 Mag. Sched. Notice.)
{4} On December 23, 2020, the Supreme Court of Ohio released its decision in Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827. On April 28, 2021, appellees filed a motion for leave to file a motion for summary judgment instanter. Appellees argued that based on the recent ruling in Wilson, they should be permitted leave to file a motion for summary judgment as appellant failed to file her amended complaint within the statute of repose for medical claims as set forth in
{5} On July 27, 2021, the trial court granted appellees’ motion for leave to file their motion for summary judgment instanter and deemed the motion filed as of the date
{6} On October 1, 2021, the trial court granted appellees’ motion for summary judgment in its entirety. The trial court found that the statute of repose for medical malpractice claims,
{7} Appellant filed a timely appeal.
II. ASSIGNMENTS OF ERROR
{8} Appellant assigns the following as trial court error:
[1] The Trial Court Erred in Granting Leave for Appellees to File a Motion for Summary Judgment.
[2] The Trial Court Erred in Granting Summary Judgment in Favor of Appellees.
III. LEGAL ANALYSIS
A. Appellant‘s First Assignment of Error
{9} In appellant‘s first assignment of error, she argues that the trial court erred in granting appellees’ motion for leave to file a motion for summary judgment.
{10} It is well-established law that the trial court has broad discretion regarding procedural matters. Jackson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 20AP-233, 2021-Ohio-1642, ¶ 22, citing Williams v. Am. Homes 4 Rent Mgmt. Holdings, LLC, 10th Dist. No. 18AP-627, 2019-Ohio-3740, ¶ 27, citing State ex rel. Lindenschmidt v. Bd. of Commrs., 72 Ohio St.3d 464, 465 (1995).
When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order,
or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.
{11} When resolving whether neglect is excusable, “all the surrounding facts and circumstances must be taken into consideration.” Davis v. Immediate Med. Servs., Inc., 80 Ohio St.3d 10, 14 (1997). “Neglect under
{12} Accordingly, we review whether the trial court erred in granting leave to file a motion for summary judgment under an abuse of discretion analysis. Jackson at ¶ 22. Abuse of discretion is a determination by the trial court that is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). The Supreme Court has recently clarified this standard, however, noting that all “courts lack the discretion to make errors of law, particularly when the trial court‘s decision goes against the plain language of a statute or rule.” Johnson v. Abdullah, Slip. Opinion No. 2021-Ohio-3304, ¶ 39, _Ohio St.3d_.
{13} In the case sub judice, the initial dispositive motion deadline was set for June 5, 2020. The deadline passed and this matter was scheduled for trial on September 21, 2020. The trial was subsequently continued and reset for October 18, 2021. (Feb. 2, 2021 Mag. Sched. Notice.) On December 23, 2020, the Supreme Court released its decision in Wilson. On April 28, 2021, appellees filed a motion for leave to file a motion for summary judgment citing the recent release of the Wilson decision. On July 27, 2021, the trial court granted the motion writing that “[g]iven the circumstances presented in [appellees‘] request, [appellees] have sufficiently shown excusable neglect; therefore, the Court finds [appellees‘] motion for leave well taken.” (Jul. 27, 2021 Entry.) Upon review, as the trial court is given broad discretion under
{14} Accordingly, we overrule appellant‘s first assignment of error.
B. Appellant‘s Second Assignment of Error
{15} In appellant‘s second assignment of error, she argues that the trial court erred in granting appellees’ motion for summary judgment.1
{16} Summary judgment is appropriate if ” ‘the moving party demonstrates that: (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) 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.’ ” 2454 Cleveland, LLC v. TWA, LLC, 10th Dist. No. 19AP-157, 2020-Ohio-362, ¶ 8, quoting Capella III, LLC v. Wilcox, 10th Dist. No. 10AP-206, 2010-Ohio-4746, ¶ 16, citing Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, ¶ 6. When considering on a motion for summary judgment, the court is required to resolve all questions and construe the evidence in favor of the nonmoving party. 2454 Cleveland, LLC at ¶ 8, citing Pilz v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 04AP-240, 2004-Ohio-4040, ¶ 8. Pursuant to
{17} A reviewing court considers a trial court‘s grant of a motion for summary judgment under a de novo standard of review. DN Reynoldsburg at ¶ 16, citing Capella III, at ¶ 16, citing Andersen v. Highland House Co., 93 Ohio St.3d 547, 548, 2001-Ohio-1607. ” ‘[D]e novo appellate review means that the court of appeals independently reviews the record and affords no deference to the trial court‘s decision.’ ” (Internal quotations and citations omitted.) 2454 Cleveland, LLC at ¶ 8, quoting Holt v. State, 10th Dist. No. 10AP-214, 2010-Ohio-6529, ¶ 9.
{18} This matter concerns the application of the medical malpractice statute of repose,
{19} In the case sub judice, appellees have presented the same arguments addressed extensively in our prior decisions. Accordingly, on the authority of Everhart and McCarthy, we find the trial court erred in its October 1, 2021 decision and entry granting appellees’ motion for summary judgment that found appellant‘s statutory wrongful death claim was barred under the medical malpractice statute of repose set forth in
{20} Accordingly, we sustain appellant‘s second assignment of error.
IV. CONCLUSION
{21} Having overruled appellant‘s first assignment of error and sustained appellant‘s second assignment of error, we reverse and remand this matter to the Franklin County Court of Common Pleas for proceedings consistent with law and this decision.
Judgment affirmed in part; reversed in part; and cause remanded.
KLATT, and BEATTY BLUNT, JJ., concur.