Rose v. ZyniewiczRose v. Zyniewicz
Rendered on July 28, 2011
Leigh-Ann M. Sims, for appellants.
Freund, Freeze & Arnold, W. Frederick Fifner, and Jennifer L. Hill, for appellees.
APPEAL from the Franklin County Court of Common Pleas.
BRYANT, P.J.
{¶1} Plaintiffs-appellants, Sue Ann Rose and her husband James Richardson, appeal from a judgment of the Franklin County Court of Common Pleas denying their “Motion to Vacate and Motion to Stay.” Because the trial court properly denied plaintiffs’ motion, we affirm.
{¶2} On August 31, 2009, plaintiff filed a medical malpractice action against defendants-appellees, Dr. Kelly Zyniewicz and Central Ohio Skin and Cancer, Inc., as well as several unnamed corporations, physicians, and nurses. According to the complaint, in September 2006 defendants negligently cared for and treated plaintiff in failing to diagnose a mole on plaintiff‘s lower right leg, a mole Dr. Zyniewicz excised in plaintiff‘s August 2007 visit and diagnosed as Stage III melanoma. Defendants responded with an answer on September 14, 2009, denying the substantive allegations of plaintiffs’ complaint and asserting affirmative defenses, including plaintiffs’ failure to file their complaint within the applicable statute of limitations.
{¶3} After taking Rose‘s deposition, defendants filed a motion for summary judgment based on plaintiffs’ failure to file their complaint within the one-year statute of limitations set forth in
{¶4} In responding to defendants’ motion, plaintiffs noted the dual premises for determining when a medical malpractice action accrues. Acknowledging the discovery rule and its negative implications for the timeliness of their complaint, plaintiffs also noted the alternative basis for accrual of a medical malpractice case that hinges on the date the physician-patient relationship terminated. To support their claim that the termination rule
{¶5} Defendants’ reply memorandum pointed to some of Rose‘s deposition responses, including her testimony that, following the August 2007 appointment where the mole was excised for biopsy, she never returned to see Dr. Zyniewicz and did not intend to see her again. Defendants further argued Rose‘s affidavit was ineffective, as it contradicted her earlier deposition testimony and thus could not be properly considered in determining when Rose‘s physician-patient relationship with Dr. Zyniewicz ended.
{¶6} On June 14, 2010, the trial court issued its decision and entry resolving defendants’ summary judgment motion (“original judgment“). The court concluded plaintiffs’ complaint was untimely under the discovery rule, since plaintiffs discovered the alleged malpractice in August 2007 but did not file their complaint until August 2009. The court, however, determined issues of fact remained concerning the date Rose‘s physician-patient relationship with Dr. Zyniewicz terminated. Despite the substance of its decision, the trial court determined “plaintiffs have failed to timely file their action within the applicable statute of limitations in this case. * * * Accordingly, this Court finds the defendants’ motion for summary judgment well-taken, and it is hereby GRANTED.” (June 14, 2010 Decision and Entry, 6.)
{¶7} In response, plaintiffs filed a “Motion to Vacate and Motion to Stay” on July 12, 2010. In their motion, plaintiffs pointed to the discrepancy in the trial court‘s
{¶8} Treating plaintiffs’ motion as a motion for reconsideration, the court reconsidered its ruling under the termination rule and noted Rose‘s affidavit contradicted her earlier deposition testimony. The court ultimately concluded Rose‘s deposition testimony was “the only proper evidence before this Court as to the ‘termination rule’ issue and, therefore, the plaintiffs failed to file their claim within the one-year statute of limitations set forth in
{¶9} The court also rejected plaintiffs’ contention that the four-year statute of limitations governed Richardson‘s claim for loss of consortium. The court determined
{¶10} On that basis, the court denied plaintiffs’ motion for reconsideration, modified its original judgment to reflect not only that no genuine issues of material fact remained regarding the termination rule but that the one-year statute of limitations applied
II. Assignments of Error
{¶11} Plaintiffs appeal, assigning two errors:
Assignment of Error #1
The trial court commits reversible error when it fails to conform its earlier decision to conform to a specific pronouncement of law by the Supreme Court of Ohio, when afforded an opportunity to do so by a motion to vacate, therefore the judgment of the lower court must be reversed. [sic]
Assignment of Error #2
The trial court commits reversible error when it grants summary judgment under the termination rule when the Plaintiffs’ [sic] present genuine issues of material facts as to the termination of the physician-patient relationship, therefore the judgment of the lower court must be reversed. [sic]
Plaintiffs’ assignments of error raise both a procedural issue and a substantive issue.
III. Applicable Law—Summary Judgment
{¶12} An appellate court‘s review of summary judgment is conducted under a de novo standard. Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 41; Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588. Summary judgment is proper only when the parties moving for summary judgment demonstrate: (1) no genuine issue of material fact exists, (2) the moving parties are entitled to judgment as a matter of law, and (3) reasonable minds could 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
IV. First Assignment of Error – Procedural Issues
{¶13} The facts and procedural history of this case present a procedural quagmire. Plaintiffs’ first assignment of error addresses their complexities and essentially asserts the trial court, when presented with plaintiffs’ motion to vacate, was required to amend its original decision to make it internally consistent and, as a result, deny defendants’ summary judgment motion.
{¶14} The trial court‘s original judgment granted defendants’ summary judgment motion and concluded plaintiffs’ claims were untimely. In concluding plaintiffs could not proceed because they did not comply with
{¶15} Moreover, because the trial court‘s original judgment was a final judgment, it was not subject to reconsideration. Pitts v. Ohio Dept. of Transp. (1981), 67 Ohio St.2d 378. As a final judgment, it properly was subject to a
{¶16} As a result, the trial court should have addressed plaintiffs’ motion as it was filed; by converting it to a motion for reconsideration, the court violated Pitts, which declared a motion for reconsideration to be a nullity following final judgment. Id. at 380. We ordinarily would remand the matter to the trial court to consider plaintiffs’ motion as a
{¶17}
{¶18} Plaintiffs’
{¶19} Moreover, whether or not plaintiffs’ contentions may have had merit on appeal, plaintiffs may not use their
{¶20} In the end, plaintiffs’
{¶22} Had the trial court not modified its original judgment, plaintiffs would be required to address that judgment and its alleged errors. To the extent plaintiffs attempted in the current appeal to address the trial court‘s original judgment, we would lack jurisdiction to correct the error since plaintiffs did not timely appeal from the original judgment. Rather, the only judgment plaintiffs timely appealed was the motion judgment. Plaintiffs, however, cannot demonstrate error in the court‘s decision refusing to vacate its original judgment: because plaintiffs used their
{¶23} Accordingly, plaintiffs’ first assignment of error is overruled.
V. Second Assignment of Error – Substantive Issue
{¶24} If, however, the trial court‘s decision to modify its original judgment is allowed to stand, even though the court denied plaintiffs’
{¶25} For medical claims, the applicable statute of limitations, set out in
{¶26} Little dispute surrounds the trial court‘s determination that plaintiffs discovered Dr. Zyniewicz‘s allegedly negligent care and treatment when, in August 2007, the changed mole was excised, biopsied, and determined to be a malignant melanoma. Accordingly, under the discovery rule, plaintiffs had one year from August 2007 to file their complaint. Because plaintiffs failed to do so, the complaint is untimely under the discovery rule as it relates to
{¶27} Plaintiffs’ motion addressed whether the complaint was timely under the termination rule. Although Rose‘s affidavit, submitted in connection with plaintiffs’ response to defendants’ summary judgment motion, asserted she continued to consider
{¶28} “[A]n affidavit of a party opposing summary judgment that contradicts former deposition testimony of that party may not, without sufficient explanation, create a genuine issue of material fact to defeat a motion for summary judgment.” Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, paragraph three of the syllabus. Rose‘s affidavit directly contradicts her earlier deposition testimony, and Rose posits no explanation for the discrepancy. The trial court properly concluded the affidavit could not undermine her deposition testimony that demonstrated the physician-patient relationship terminated in August 2007. As a result, the complaint is untimely under the discovery rule. Even if the trial court could modify its original judgment by means of a denied
VI. Disposition
{¶29} In the final analysis, the trial court‘s original judgment was final and was not appealed. Although the trial court erred in treating plaintiffs’ motion to vacate as a motion for reconsideration, plaintiffs suffered no prejudice, as their motion to vacate lacked merit both procedurally and substantively. Having overruled plaintiffs’ two assignments of error, we affirm the judgment of the trial court.
Judgment affirmed.
KLATT and SADLER, JJ., concur.
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