ALBERTA CAROLINE VAUGHT, ET AL. v. MICHAEL POLLACK, M.D., ET AL.
No. 103819
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 14, 2016
[Cite as Vaught v. Pollack, 2016-Ohio-4963.]
PLAINTIFFS-APPELLANTS
vs.
DEFENDANTS-APPELLEES
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-848306
BEFORE: Blackmon, J., Boyle, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: July 14, 2016
For Alberta Vaught
Jeffrey R. Wahl
Jeffrey R. Wahl Co., L.P.A.
30799 Pinetree Rd., #241
Cleveland, Ohio 44124
For Lawrence Vaught
Eric H. Zagrans
Zagrans Law Firm, L.L.C.
6100 Oak Tree Boulevard
Suite 200
Cleveland, Ohio 44131
ATTORNEYS FOR APPELLEES
Thomas B. Kilbane
Martin T. Galvin
Reminger & Reminger Co., L.P.A.
1400 Midland Building
101 Prospect Ave. West
Cleveland, Ohio 44115
{1} Alberta Caroline Vaught (“Vaught“) and her husband (collectively “Plaintiffs“) appeal from the trial court‘s granting summary judgment to Dr. Michael Pollack (“Dr. Pollack“) and Consultants in Gastroenterology, Inc., (collectively “Defendants“) in this medical malpractice case. Plaintiffs assign the following error for our review:
I. The trial court committed reversible error as a matter of law by granting summary judgment in favor of Dr. Pollack on the basis of the statute of limitations and the statute of repose.
{2} Having reviewed the record and pertinent law, we affirm the trial court‘s decision. The apposite facts follow.
{3} On February 2, 2009, Dr. Pollack performed a medical procеdure called an endoscopic retrograde cholangiopancreatography (“ERCP“) on Vaught. Complications allegedly arose, and Plaintiffs filed a medical malpractice case against Defendants on August 17, 2010. On November 19, 2013, the trial court dismissed the case without prejudice under
{4} As of April 3, 2014, the case had not been reinstated, and Plaintiffs filed a second complaint against Defendants. The parties agree that this refiled complaint was timely under
{5} On July 15, 2015, Plaintiffs filed a third complaint against Defendants. On October 29, 2015, the trial court granted Defendants’ summary judgment motion, finding the following in pertinent part:
Ohio case law prohibits use of the savings statute a second time and therefore, * * * the complaint in the рresent action was filed outside the statute of limitations * * *. [Plaintiffs’ attempt] to show the court incorrectly dismissed [the] complaint * * * in 2013. The legal analysis under the statute of limitations does not include whether a case was or was not properly dismissed. [Plaintiffs‘] required course in the face of incorrect court action dismissing the first complaint * * * in 2013 was to file a
Civ.R. 60(B) motion in the trial court or appeal the judgment to reverse the dismissal. * * * Under the Ohio Rules of Civil Procedure, court action is prompted by motions not by phone calls or emails. Had the evidence [Plaintiffs bring] forth now in order to defeat * * * summary judgment * * * been properly presented to the court by motion in a timely fashion * * * perhaps the trial court would have vacated the dismissal underCiv.R. 60(B) . * * * The sаme analysis applies to [Plaintiffs‘] argument that the court incorrectly dismissed the second complaint in July 2014. * * * Basedon the undisputed evidence the trier of fact can come to but one conclusion and that conclusion is that [Plaintiffs‘] third complaint in this action was filed after the expiration of the statute of limitations [and] outside the statute of [repose] under R.C. 2305.113 .
{6} It is from this order that Plaintiffs appeal.
Summary Judgment
{7} Appellate review of granting summary judgment is de novo. Pursuant to
Time Limitations in Medical Malpractice Claims
{8} Pursuant to
{9} Pursuant to
{10} Statutes of repose werе first enacted by the legislature in the late 1950s and early 1960s in response to “architects and builders [who] were increasingly subjected to suits brought by third parties long after work on a building had been completed.” Groch v. GMC, 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 337, ¶ 112. Over time, the legislature enacted statutes of repose in other areas of the law. In 1987, the Ohio Supreme Court found that the statute of repose that applied to medical malpractice claims at the time, former
{11} The legislature enacted another statute of repose that applied to medical malpractice claims, and in 2012, the Ohio Supreme Court overruled Hardy and found that
{12} This court has held that “[i]n certain instances, Ohio‘s savings statute,
{13} A party can use the savings statute to refile a case one time only. “Indeed, ’
Analysis
{14} In the instant case, Plaintiffs argue that the
{15} Plaintiffs further argue that the trial court‘s dismissal of the second complaint on July 16, 2014 was “unjust and unreasonable,” because the “trial court knew
{16} Defendants, on the оther hand, argue that, regardless of the nature of the dismissal that prompts the refiling, Ohio‘s savings statute may only be utilized once. Defendants explain that “[t]he logic of permitting a plaintiff to invoke a savings statute only once prevents a plaintiff from refiling her lawsuit repeatedly, which would effectively nullify the statute of limitations.”
{17} Defendants further argue that, even if the saving statute did apply to the third filing, it would relate “back to the filing date for the preceding action for limitations purposes.” Frysinger v. Leech, 32 Ohio St.3d 38, 42, 512 N.E.2d 337 (1987). Plaintiffs filed their second complaint on April 3, 2014. Therefore, if Plaintiffs were to use the savings statute a second time, the third complaint would be “saved” back to April 3, 2014, which is outside the one-year statute of limitations for a medical malpractice claim that allegedly occurred in February 2009.
{18} Upon review, we find that the holding in Gamble v. Patterson, 155 Ohio App.3d 320, 2003-Ohio-6276, 801 N.E.2d 465 (7th Dist.) applies to the case at hand. In Gamble, the trial court granted summary judgment to the defendant after the plaintiff filed her complaint for the third time, finding that the statute of limitations had expired. The plaintiff in Gamble argued that the trial court should not have dismissed the second complaint for lack of timely service when the defendant moved out of state. Id. at ¶
{19} “If the refiled complaint is еrroneously dismissed by the trial court, the plaintiff must successfully challenge that dismissal either through an appropriate post-trial motion (such as a motion to vacate) or through a direct appeal.” Gamble at ¶ 19.
{20} In the case at hand, Plaintiffs could havе appealed the dismissals to the extent they were final appealable orders. “Ordinarily, a dismissal ‘otherwise than on the merits’ does not prevent a party from refiling and, therefore, ordinarily, such a dismissal is not a final, appealable order.” Natl. City Commercial Capital Corp. v. AAAA at Your Serv., Inc., 114 Ohio St.3d 82, 2007-Ohio-2942, ¶ 8. However, when a dismissal precludes a party from refiling its case, “[i]n essence, a final judgment has been rendered * * * because the cause has been disposed of and there is nothing left for the determination of the trial court.” Id.
{21} The Ohio Supreme Court has stated that “[a]lthough it is not common for us to review cases that have been dismissed other than on the merits, we have done so when — as in this case — justice so requires.” Id. at ¶ 11. Ohio courts further explain this concept:
[G]enerally an involuntary dismissal without prejudice is not a final appealable order. * * * Courts hold as such because a dismissal without prejudice leaves the parties in the same position they were in prior to the action being filed; the action is treated as thоugh it had never been commenced. * * * However, in some instances refiling is not an option because the statute of limitations has already run and the savings statute,
R.C. 2305.19 , had been previously invoked. In those instances, even a dismissal without prejudice may be a final appealable order.
{22} Additionally, Plaintiffs could have filed a motion for relief from judgment pursuant to
{23} Accordingly, we hold that the savings statute does not apply to Plaintiffs’ third complaint, which was filed on July 15, 2015, well beyond the statute of limitations, as well as the statute of repose, in this case. Therefore, Defendants are entitled to judgment as a matter of law, and the court did not err in granting summary judgment. Plaintiffs’ sole assigned error is overruled, and the decision of the trial court is affirmed.
It is ordered that аppellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Common Pleas Court to сarry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
MARY J. BOYLE, P.J., and ANITA LASTER MAYS, J., CONCUR