Leatherwood v. Medco Health Solutions of Columbus

[Cite as Leatherwood v. Medco Health Solutions of Columbus, 2013-Ohio-4780.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Jo Leatherwood, :

Plaintiff-Appellant, : No. 13AP-242

(C.P.C. No. 12CV-5958)

v. :

(ACCELERATED CALENDAR)

Medco Health Solutions of Columbus et al., :

Defendants-Appellees. :

D E C I S I O N

Rendered on October 29, 2013

Malek & Malek, and Doug Malek, for appellant.

Kegler, Brown, Hill & Ritter Co., LPA, David M. McCarty,

Randall W. Mikes, and Rebecca Roderer Price, for appellee

Medco Health Solutions of Columbus.

APPEAL from the Franklin County Court of Common Pleas

KLATT, P.J.

{¶ 1} Jo Leatherwood, plaintiff-appellant, appeals the judgment of the Franklin

County Court of Common Pleas in which the court denied appellant's motion for leave to

file an amended complaint instanter, and granted the motion for summary judgment filed

by Medco Health Solutions of Columbus ("Medco"), defendant-appellee. Because the trial

court did not abuse its discretion in denying appellant's motion to amend her complaint,

and because res judicata bars the claim asserted in her complaint, we affirm.

Facts and Procedural History

{¶ 2} Appellant is employed by Medco, a self-insured employer under the Ohio

Workers' Compensation System. On December 3, 2005, appellant was injured while at

work. Medco certified the claim for a right knee sprain, but the Industrial Commission of

No. 13AP-242 2

Ohio ("commission") determined that she was not entitled to participate in the Ohio

Workers' Compensation Fund ("the fund") for the aggravation of pre-existing

osteoarthritis to her right knee.

{¶ 3} On December 11, 2006, appellant filed a complaint in the trial court seeking

the right to participate in the fund for aggravation of pre-existing osteoarthritis of the

right knee. Appellant voluntarily dismissed this action on February 29, 2008, and re-filed

it on February 26, 2009. On March 24, 2010, a trial was held and a jury found that

appellant was not entitled to participate in the fund for aggravation of pre-existing

osteoarthritis of the right knee.

{¶ 4} On August 17, 2010, appellant filed a motion with the commission

requesting the additional allowance for aggravation of pre-existing patella subluxation of

the right knee. The commission disallowed the claim.

{¶ 5} On November 24, 2010, appellant filed a complaint in the trial court seeking

the right to participate in the fund for aggravation of pre-existing patella subluxation of

the right knee. On May 10, 2011, appellant voluntarily dismissed the action.

{¶ 6} Almost one year later, appellant filed another complaint against Medco and

Stephen Buehrer, administrator, Bureau of Workers' Compensation, defendant-appellee,

in which she indicated that the matter was a re-filed action. Appellant listed the condition

at issue as being "aggravation of pre-existing osteoarthritis, right knee."

{¶ 7} After the case had been pending for approximately eight months, Medco

filed a motion for summary judgment asserting that res judicata precluded relitgation of

appellant's claim for aggravation of pre-existing osteoarthritis of the right knee because

that claim had already been disallowed pursuant to a jury verdict. Shortly thereafter,

appellant filed a motion for leave to file amended complaint instanter alleging the right to

participate in the fund for aggravation of pre-existing patella subluxation of the right

knee. Appellant argued that she mistakenly referred to the wrong condition in her

complaint. Nevertheless, while this motion was still pending, appellant responded to a

discovery request from Medco and again identified the condition at issue as aggravation

of pre-existing osteoarthritis of the right knee.

{¶ 8} On February 27, 2013, the trial court issued a judgment in which it denied

appellant's motion for leave to file an amended complaint instanter and granted Medco's

motion for summary judgment. Noting that the discovery cutoff date had now passed and

No. 13AP-242 3

that the trial date was now less than three months away, the trial court found that

granting appellant's motion for leave to amend would cause undue delay and/or undue

prejudice to Medco. Appellant appeals the judgment of the trial court, asserting the

following assignments of error:

I. The trial court erroneously denied Plaintiff-Appellant's

Motion For Leave to Amend Complaint, Instanter because

there exists no evidence of bad faith, undue delay or prejudice

to the opposing party.

II. The trial court erroneously granted Defendant-Appellees'

Motion for Summary Judgment because genuine issues of

material fact remain which should properly be decided by a

jury.

Appellant's Motion for Leave to Amend Complaint

{¶ 9} Appellant argues in her first assignment of error that the trial court erred

when it denied her motion for leave to file an amended complaint instanter. It is well-

established that a trial court's determination whether to grant a motion for leave to

amend a complaint will not be reversed on appeal absent an abuse of discretion. Csejpes

v. Cleveland Catholic Diocese, 109 Ohio App.3d 533, 541 (8th Dist.1996), citing

Wilmington Steel Prods., Inc. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d 120 (1991). An

abuse of discretion is more than an error of law; the trial court's action must be

unreasonable, arbitrary, or unconscionable. Id.

{¶ 10} Civ.R. 15(A) allows for amendment of pleadings by leave of court or by

written consent of the other party after a responsive pleading has been made. Civ.R. 15(A)

expressly provides, "[l]eave of court shall be freely given when justice so requires." The

Supreme Court of Ohio has held that "[t]he language of Civ.R. 15(A) favors a liberal

amendment policy and a motion for leave to amend should be granted absent a finding of

bad faith, undue delay or undue prejudice to the opposing party." Hoover v. Sumlin, 12

Ohio St.3d 1, 6 (1984).

{¶ 11} In this case, appellant sought to amend her complaint after Medco filed its

motion for summary judgment. The proposed amended complaint changed the condition

at issue from aggravation of pre-existing osteoarthritis of the right knee to aggravation of

pre-existing patella subluxation of the right knee. In its motion for leave to amend the

complaint, appellant argued that the condition indicated in the original complaint was

No. 13AP-242 4

obviously a mistake; Medco was on notice of the correct condition because appellant

indicated the case was a re-filed case; the record of proceedings attached to the complaint

pertained to the correct condition; and Medco would suffer no prejudice by the

amendment.

{¶ 12} The trial court denied appellant's motion to amend her complaint, finding

that allowing the amendment would cause undue delay and undue prejudice based upon:

(1) appellant filed her motion to amend only after Medco filed its motion for summary

judgment; (2) appellant filed her motion nearly nine months after the complaint was

filed; (3) the discovery cutoff date had passed and the trial date was less than three

months away; and (4) discovery responses completed by appellant after she filed her

motion to amend again indicated that the condition at issue was aggravation of pre-

existing osteoarthritis of the right knee.

{¶ 13} As previously noted, this court reviews a trial court's denial of a motion for

leave to amend a complaint under an abuse of discretion standard. Given the trial court's

findings, we cannot conclude that the trial court abused its discretion by denying

appellant's motion to amend. For the reasons cited by the trial court, finding undue delay

and/or undue prejudice under these circumstances is not unreasonable, arbitrary, or

unconscionable. Although this court may have decided the motion differently, we

nevertheless conclude that the trial court did not abuse its discretion. Therefore, we

overrule appellant's first assignment of error.

Trial Court's Grant of Medco's Motion for Summary Judgment

{¶ 14} Appellant argues in her second assignment of error that the trial court erred

when it granted summary judgment to Medco. Pursuant to Civ.R. 56(C), summary

judgment is proper if: (1) no genuine issue as to any material fact remains to be

litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it

appears from the evidence that reasonable minds can come to but one conclusion, and

viewing such evidence most strongly in favor of the party against whom the motion for

summary judgment is made, that conclusion is adverse to that party. Temple v. Wean

United, Inc., 50 Ohio St.2d 317, 327 (1977). Appellate review of a lower court's entry of

summary judgment is de novo, applying the same standard used by the trial court. McKay

v. Cutlip, 80 Ohio App.3d 487, 491 (9th Dist.1992). The party seeking summary judgment

initially bears the burden of informing the trial court of the basis for the motion and

No. 13AP-242 5

identifying portions of the record that demonstrate an absence of genuine issues of

material fact as to the essential elements of the non-moving party's claims. Dresher v.

Burt, 75 Ohio St.3d 280, 293 (1996). The movant must point to some evidence in the

record of the type listed in Civ.R. 56(C) in support of the motion. Id. Once this burden is

satisfied, the non-moving party has the burden, as set forth in Civ.R. 56(E), to offer

specific facts showing a genuine issue for trial. Id. The non-moving party may not rest

upon the allegations or denials in the pleadings, but must affirmatively demonstrate the

existence of a genuine issue of material fact to prevent the granting of a motion for

summary judgment. Civ.R. 56(C); Mitseff v. Wheeler, 38 Ohio St.3d 112, 115 (1988).

{¶ 15} Here, the trial court found that appellant's claim for relief based upon the

condition of aggravation of pre-existing osteoarthritis of the right knee was res judicata

because Medco already had a judgment in its favor on that claim pursuant to a jury trial.

Appellant's argument that the trial court erred when it granted summary judgment to

Medco is premised solely upon the contention that the trial court erred when it denied her

motion to amend her complaint. As we have found the trial court did not abuse its

discretion when it denied her motion to amend her complaint, we find the trial court did

not err when it granted summary judgment. Therefore, appellant's second assignment of

error is overruled.

{¶ 16} Accordingly, appellant's two assignments of error are overruled, and the

judgment of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed.

T. BRYANT, J., concurs.

BROWN, J., dissents.

T. BRYANT, J., retired of the Third Appellate District,

assigned to active duty under authority of the Ohio

Constitution, Article IV, Section 6(C).

BROWN, J., dissenting.

{¶ 17} I respectfully dissent.

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