Summers v. Lancia Nursing Homes, Inc.Summers v. Lancia Nursing Homes, Inc.
APPEARANCES:
For Plaintiff-Appellant: Atty. Scott Blass, Atty. James Stoneking, Atty. Geoffrey Brown, Atty. Tyler Smith, Bordas & Bordas, 1357 National Road, Wheeling, WV 26003
For Defendants-Appellees: Atty. Marvin Galvin, Reminger Co., L.P.A, 101 Prospect Avenue West, Suite 1400, Cleveland, Ohio 44115; Atty. Thomas Prislipsky, Reminger Co., L.P.A, 11 Federal Plaza, Suite 1200, Youngstown, Ohio 44503; Atty. James Reuss, Atty Karen Cadieux, Carpenter Lipps & Leland LLP, 290 Plaza, Suite 1300, 280 High Street, Columbus, Ohio 43215; Atty. Patrick Casey, Atty. D. Kevin Coleman, Casey & Chapman, PLLC, 1140 Chapline Street, Wheeling. WV 26003
{¶1} Plaintiff-Appellant Karen J. Summers, Administratix of the Estate of Arla Johnson, appeals the decision of Belmont County Common Pleas Court denying her
Statement of the Case
{¶2} On February 8, 2012, Appellant filed a medical malpractice and wrongful death complaint against Defendants-Appellees Lancia Nursing Homes Inc. d/b/a Belmont Manor Inc. (Appellee Belmont Manor), Dr. Carmel C. Shaw-Nieves, and Dr. Divakar Sydney Bangera. Decedent Arla Johnson was a resident of Appellee Belmont Manor and Drs. Shaw-Nieves and Bangera were her doctors. Those doctors prescribed to her atypical antipsychotic medication during her residency at Appellee Belmont Manor and from April 26, 2011 to April 30, 2011 she fell three times. This resulted in multiple injuries and she died on May 4, 2011.
{¶3} The case proceeded through discovery. Trial occurred in April 2015. For purposes of this appeal, the relevant events that occurred during trial are trifold. First, Appellees maintained their interests were not aligned and each were granted three peremptory challenges during voir dire. Second, Appellant‘s expert witness was not permitted to offer live testimony at trial because at the time of trial he was retired and no longer devoted half of his time to clinical practice or instruction pursuant to
{¶4} Following all evidence, the jury returned a defense verdict. 4/28/15 J.E. The judgment was entered on May 28, 2015.
{¶5} Appellant did not file a notice of appeal from the jury verdict. Rather, Appellant filed a timely
{¶6} The basis for the new trial motion was the exclusion of live testimony from the expert, the number of peremptory challenges Appellees were permitted, and the trial court‘s determination that privilege was not waived when Appellees’ witnesses testified to facts that were only found in a report that was earlier deemed to be privileged and not accessible to Appellant. 6/23/15 Motion. Appellees each filed their own motion in opposition to the
{¶7} The trial court denied the motion on July 21, 2015. The judgment indicated the clerk of courts was to serve copies on all parties or their attorneys. That direction was initialed. The docket indicated on that same date, the clerk served copies by regular mail to James Reuss, Kevin Coleman, Thomas Prislipsky, and Scott Blass, the attorneys for Appellees and Appellant.
{¶8} On August 27, 2015, Appellant filed a motion to vacate based on
{¶9} Appellee Belmont Manor filed a motion in opposition to the motion to vacate. 9/2/15 Appellee Belmont Manor Motion. Appellees Dr. Bangera and Dr. Shaw-Nieves filed separate motions to join in Appellee Belmont Manor‘s motion in opposition to relief from judgment. 9/3/15 Appellee Dr. Bangera Joinder Motion; 9/10/15 Appellee Dr. Shaw-Nieves Joinder Motion.
{¶10} The trial court denied the motion to vacate. 9/2/15 J.E. Appellant timely appealed that order.
Assignment of Error
“The trial court erred in denying the plaintiff‘s motion for relief from judgment under
Civ.R. 60(B) .”
{¶11} In the trial court proceedings, Appellant sought to vacate the trial court‘s ruling on the
{¶12} The Supreme Court of Ohio held that in order to prevail on a
{¶13} A motion for relief from judgment under
{¶14} The resolution of a
{¶15} The case before us is not a typical
Specifically, the plaintiffs request an Order finding that the requirements of
Civ.R. 58(B) were not complied with, and that they were not served with a copy of the July 21 Order. Furthermore, the plaintiffs ask the court to vacate the July 21 Order and prepare a new Order, which can then be entered and served pursuant toCiv.R. 58(B) . In this way, the plaintiffs’ appeal rights will be fully protected.
8/27/15 Motion to vacate.
{¶16} Appellees assert below and on appeal that there was compliance with
{¶17} Ohio Appellate Rule 4(A) states an appeal from a final order must be filed within 30 days of the entry.
{¶18} Appellant asserts the affidavits attached to the motion to vacate indicating counsel did not receive the denial of the motion for new trial is “circumstantial proof that the clerk did not comply with its duty under
{¶19} It is undisputed that the docket contains notations compliant with
{¶20} Ohio Supreme Court case law indicates the actions taken by the clerk complied with
Fuerst [Clerk of Courts] mailed notice of the October 17, 1996 entry to Smith. Under
Civ.R. 5(B) , service was complete upon mailing. And Fuerst noted in the docket that service had been made. Therefore, Fuerst complied with his duty to serve the entry on Smith, and mandamus will not issue to compel an act that has already been performed.
Citation omitted. Id. at 457.
{¶21} Although Appellant may not have received the mailing, that does not provide proof the clerk did not comply with
{¶22} Appellant also cites this court to DeFini v. Broadview Hts. for the proposition that the affidavits from Appellant‘s counsel demonstrate the clerk did not comply with
{¶23} The appellate court in DeFini discussed
I escorted Mr. Heffernan [counsel for appellant] to the first floor Clerk‘s Office to determine whether or not a post card notice had been issued on that ruling.
* * *
4. After having checked the computer entries, the microfiche records pertaining to post card mailing notices, and the civil post card proof sheet, an official record of the Common Pleas Court of Cuyahoga County, I determined that no mail service had been issued on that ruling.
{¶25} In the instant case, there is no affidavit from the clerk indicating notice was not sent. The docket here indicates notice was sent. Appellant‘s affidavits do not refute the docket like the clerk‘s affidavit in DeFini did. As explained above, the clerk‘s job is completed when the notice is mailed and such mailing is noted on the docket. The clerk does not ensure actually delivery.
{¶26} Despite those distinctions and language in
{¶27} Consequently, a party claiming it did not receive notice of the judgment, even though there was compliance with
{¶28} Since
{¶29} The third requirement, time, is easily met here. The trial court denied the motion for new trial on July 21, 2015. Appellant‘s time to appeal that judgment and the jury verdict began to run at that point in time. Thus, Appellant‘s notice of appeal was required to be filed by August 20, 2015. Counsel for Appellant avers he did not find out about the trial court‘s order until the online docket was checked on August 24, 2015. The motion to vacate was filed three days later on August 27, 2015. Thus, the motion was timely.
{¶30} The first requirement of
{¶31} Here, the motion to vacate asserted the same three arguments set forth in the new trial motion - the exclusion of live testimony from the expert, the number of peremptory challenges Appellees were permitted, and the trial court‘s determination that privilege was not waived when Appellees’ witnesses testified to facts that were only found in a report that was earlier deemed to be privileged and not accessible to Appellant. Appellees claim there is no merit with these arguments.
{¶32} Under
{¶33} Furthermore, whether Appellant will prevail on those arguments on appeal is secondary to whether Appellant will be able to exercise the right to appeal. This is a right that cannot be deprived without due process and may constitute part of the meritorious defense. The Ohio Supreme Court has explained:
The hypothesis underlying any requirement of reasonable notice is that the right to appeal is a property interest that cannot be denied without due process of law. While the United States Supreme Court has long held that a “right” to appeal is not found in the Constitution, McKane v. Durston (1894), 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867, the court has also held that where a state provides a process of appellate review, the procedures used must comply with constitutional dictates of due process and equal protection. Griffin v. Illinois (1956), 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891.
The Ohio Constitution does not specifically provide for a “right” to appeal. Section 3(B)(1)(f), Article IV of the Constitution provides, however, for the establishment of an appellate court system with jurisdiction “[i]n any cause on review as may be necessary to its complete determination.” Further,
R.C. 2505.03 , at the time relevant herein, provided that “[e]very final order, judgment,or decree of a court may be reviewed * * * unless otherwise provided by law * * * ” In addition, Ohio has adopted Appellate Rules that make every litigant entitled to “[a]n appeal as of right * * * by filing a notice of appeal * * * within the time allowed * * *.” App.R. 3(A) .By developing a process of appellate review, states provide litigants with a property interest in the right to appeal. Clearly litigants cannot be deprived of this right without being granted due process of law.
Atkinson v. Grumman Ohio Corp., 37 Ohio St.3d 80, 84-85, 523 N.E.2d 851 (1988). In that opinion, the Court promulgated the following rules:
- Within three days of the entry of any final appealable judgment or order, the clerk of courts shall serve a notice of the entry in any manner provided in
Civ.R. 5 , upon every party who is not in default for failure to appear. - The clerk shall make a notation in the case docket indicating that the required service has been made.
- Once the clerk has served notice of the entry and entered the appropriate notation in the docket, the notice shall be deemed to have been served. The failure of any party to receive such notice shall not affect the validity of the judgment or the running of the time for appeal.
{¶34} Although there was compliance with these rules,
{¶35} The second prong of GTE is one of the grounds stated in
{¶36} It is noted, “[t]here is no bright line test for determining whether a party‘s reasons for failure to enter an appearance constitute mistake, inadvertence, or excusable neglect.” LaSalle Natl. Bank v. Mesas, 9th Dist. No. 02CA008028, 2002–Ohio-6117, ¶ 13. Inadvertence means “[a]n accidental oversight; a result of carelessness.” Black‘s Law Dictionary (9th ed.2009). There is no definitive definition of excusable neglect. However, it has been described in the negative; “the inaction of a defendant is not ‘excusable neglect’ if it can be labeled as a ‘complete disregard for the judicial system.‘” Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665 N.E.2d 1102 (1996), quoting GTE Automatic Elec., Inc., 47 Ohio St.2d at 153. The determination of whether neglect is excusable or inexcusable takes into consideration all the surrounding facts and circumstances, and courts should be mindful that cases should be decided on their merits, rather than procedural grounds. Griffey, 33 Ohio St.3d at 79-81.
{¶37} In this instance, part of the mistake, inadvertence or excusable neglect that Appellant claims occurred was by the clerk of courts. She is asserting the notice was not mailed (despite the notation indicating otherwise). The mistake, inadvertence or excusable neglect contemplated by
{¶38} The facts of this case could be deemed comparable to those situations. In filing the motion for
{¶39} Given the facts of this case, the first and third prongs of the GTE test were clearly met. However, the trial court should have held an evidentiary hearing to determine whether
{¶40} Therefore, for all of the reasons expressed above, the sole assignment of
Waite, J., concurs.
DeGenaro, J., concurs.