Estate of Aukland v. Broadview NH, L.L.C.

[Cite as Estate of Aukland v. Broadview NH, L.L.C., 2017-Ohio-5602.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Estate of Nancy L. Aukland, :

[c/o Mark Aukland, Executor],

:

Plaintiff-Appellant,

: Nos. 16AP-661

v. and 16AP-765

: (C.P.C. No. 16CV-4336)

Broadview NH, LLC et al.,

: (ACCELERATED CALENDAR)

Defendants-Appellees.

:

D E C I S I O N

Rendered on June 29, 2017

On brief: Law Offices of Stanley B. Dritz, Stanley B. Dritz

and D. Chadd McKitrick; Law Office of Thomas D. Hunter,

and Thomas D. Hunter, for appellant. Argued: Thomas D.

Hunter.

On brief: Reminger Co., L.P.A., Robert V. Kish and Melvin J.

Davis, for appellee.

APPEALS from the Franklin County Court of Common Pleas

HORTON, J.

{¶ 1} Plaintiff-appellant, the Estate of Nancy L. Aukland, appeals from the

August 24 and November 3, 2016 decisions of the Franklin County Court of Common

Pleas granting defendants-appellees', Broadview NH, LLC et al. ("appellee"), motion for

judgment on the pleadings and denying appellant's Civ.R. 60(B)(5) motion for relief from

judgment and motion for reconsideration. For the following reasons, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} This is a refiled medical malpractice action. Appellant alleges that decedent

was admitted to The Rehabilitation and Health Center of Gahanna for the periods of

Nos. 16AP-661 and 16AP-765 2

July 3 through July 8, 2013, and July 11 through August 15, 2013. (May 4, 2016 Refiled

Compl. at ¶ 14.) Appellant alleges that as a result of the appellee's negligent professional

and general care, decedent died on September 6, 2013. (Refiled Compl. at ¶ 2, 20.)

{¶ 3} The trial court noted the following procedural history and facts:

Plaintiff originally filed its complaint on August 15, 2014,

under Case No. 14CVA-8544. * * * Contemporaneously with

Plaintiff's complaint, Plaintiff filed a motion for an extension

of time to file an affidavit of merit. On August 20, 2014, the

Court granted Plaintiff a 90-day extension. On April 7, 2015,

Defendants moved to dismiss Plaintiff's complaint on the

basis that Plaintiff had failed to submit an affidavit of merit.

Plaintiff did not respond. On May 6, 2015, the Court granted

Defendants' motion and dismissed Plaintiff's complaint

without prejudice.

On May 4, 2016, contemporaneously with re-filing its

complaint * * *, Plaintiff moved for a second extension of time

to file an affidavit of merit. On May 11, 2016, Defendants filed

an objection, noting the previous extension granted by the

Court. On May 16, 2016, Plaintiff filed an affidavit of merit

from Johanna Ojeda, RN, BSN. Based upon Plaintiff's filing,

on June 6, 2016, the Court found Plaintiff's motion for an

extension to be moot.

On June 8, 2016, Defendants moved for judgment on the

pleadings. Defendants argued that Ojeda's affidavit failed to

comply with Civ. R. 10(D)(2) as a nurse is not competent to

testify to causation. On June 22, 2016, Plaintiff filed a Motion

for Extension of Time to Cure Allegedly Defective Affidavit of

Merit. Plaintiff also filed an affidavit of merit from Charles B.

[May], D.O., attempting to cure the causation deficiency in

Ojeda's affidavit. Defendants objected, arguing that Civ. R.

10(D)(2)(e) permits a plaintiff to cure an affidavit only when

filed contemporaneously with a complaint. Plaintiff countered

that Civ. R. 10(D)(2)(e) requires the Court to permit a plaintiff

to cure an affidavit of merit, regardless of whether such

affidavit was filed contemporaneously with a complaint or

pursuant to a permitted extension.

(Nov. 3, 2016 Decision and Entry at 1-2.)

{¶ 4} On August 24, 2016, the trial court ruled that:

The Court further agrees with Defendants that Civ.R.

10(D)(2)(e) is inapplicable in this case. Civ.R. 10(D)(2)(e)

requires a court to permit a plaintiff a reasonable period of

Nos. 16AP-661 and 16AP-765 3

time to cure a defective affidavit of merit "[i]f an affidavit of

merit as required by this rule has been filed as to any

defendant along with the complaint or amended complaint in

which claims are first asserted against that defendant."

(Emphasis added.) The staff notes to Civ.R. 10 similarly state

that "Civ.R. 10(D)(2)(e) allows a plaintiff a reasonable time

* * * to cure any defects identified by the court in any affidavit

filed with a complaint." (Emphasis added.) Here, Plaintiff did

not file an affidavit of merit with the complaint in which its

claims were first asserted against the Defendants. Plaintiff

first asserted its claims against Defendants on August 15,

2014, when it filed its original complaint in Case No. 14CVA—

8544. That case was ultimately dismissed, because Plaintiff

failed to file an affidavit of merit after being granted an

extension of time to do so. Moreover, Plaintiff did not file an

affidavit of merit when it re-filed its Complaint in this case on

May 4, 2016. Rather, Plaintiff again sought an extension of

time to file an affidavit of merit and filed Ms. Ojeda's affidavit

12 days after the re-filed complaint. As Ms. Ojeda's affidavit of

merit was not filed with the complaint in which claims were

first asserted or the complaint in which claims were re-

asserted against Defendants, Civ.R. 10(D)(2)(e) is

inapplicable.

(Aug. 24, 2016 Decision and Entry at 4.)

{¶ 5} As such, the trial court granted appellee's motion for judgment on the

pleadings and, pursuant to Civ.R. 10(D)(2)(d), noted that the "Court's dismissal operates

as a failure otherwise than on the merits." (Decision and Entry at 5.)

{¶ 6} On September 15, 2016, appellant filed a motion with the trial court to

vacate the August 24, 2016 ruling pursuant to Civ.R. 60(B)(5) and/or reconsider its

decision. On September 20, 2016, appellant filed a notice of appeal of the August 24, 2016

decision and entry, and was assigned case No. 16AP-661. On September 26, 2016,

appellant filed a motion with this court to stay all appellate proceedings and to remand

the action, on a limited basis, to the trial court for a ruling on post-judgment motions,

including the Civ.R. 60(B) motion and motion for reconsideration. On October 14, 2016,

we stayed the appellate proceedings, and remanded to the trial court "for the limited

purpose of allowing the trial court to rule upon appellant's * * * Civ.R. 60(B) motion."

(Oct. 14, 2016 Journal Entry.)

Nos. 16AP-661 and 16AP-765 4

{¶ 7} On November 3, 2016, the trial court ruled on appellant's Civ.R. 60(B)

motion for relief from judgment, and the motion to reconsider. The trial court held that:

Plaintiff has not established that it is entitled to relief under

one of the grounds stated in Civ.R. 60(B)(1) through (5), and

therefore, relief must be denied. Moore v. Emmanuel Family

Training Center, Inc., 18 Ohio St.3d 64, 67, 479 N.E.2d 879

(1985).

***

Plaintiff moves the Court to reconsider its analysis and

conclusions regarding Civ.R. 10(D)(2). For the reasons

discussed above, the Court declines to do so.

Accordingly, Plaintiff Estate of Nancy L. Aukland's Motion

Pursuant to Ohio Civ.R. 60(B)(5), for Relief From Judgment,

Motion for Reconsideration of the Court's August 24, 2016

Decision and Entry Granting Defendants' Motion for

Judgment on the Pleadings, and Request for Oral Hearing,

Pursuant to Local Rule 21.01, filed September 15, 2016, is

hereby DENIED.

(Nov. 3, 2016 Decision and Entry at 4-5.)

{¶ 8} On November 9, 2016, appellant filed a notice of appeal of the November 3,

2016 decision and entry, and was assigned case No. 16AP-765. On November 10, 2016,

this court sua sponte consolidated case Nos. 16AP-661 and 16AP-765.

II. ASSIGNMENT OF ERROR

{¶ 9} Appellant assigns the following errors:

[I.] THE TRIAL COURT ERRED IN DENYING

APPELLANT'S MOTION, PURSUANT TO OHIO CIV.R.

10(D)(2)(e) FOR EXTENSION OF TIME TO CURE

ALLEGEDLY DEFECTIVE AFFIDAVIT OF MERIT.

[II.] THE TRIAL COURT ERRED BY GRANTING

APPELLEES' MOTION FOR JUDGMENT ON THE

PLEADINGS.

[III.] THE TRIAL COURT ERRED IN DENYING

APPELLANT'S MOTIONS, PURSUANT TO OHIO CIV.R.

60(B)(5), FOR RELIEF FROM JUDGMENT AND FOR

RECONSIDERATION OF AUGUST 24, 2016 DECISION AND

ENTRY.

Nos. 16AP-661 and 16AP-765 5

III. DISCUSSION

{¶ 10} Appellant argues that the trial court erred (1) in denying appellant's motion,

pursuant to Civ.R. 10(D)(2)(e), for an extension of time to cure a defective affidavit of

merit ("AOM"), (2) in granting appellee's motion for judgment on the pleadings, and

(3) in denying appellant's motions for relief from judgment and reconsideration.

A. Assignment of Error One—Civ.R. 10(D)(2)(e) not applicable

{¶ 11} In Smith v. Ohio DOT, 10th Dist. No. 15AP-521, 2015-Ohio-5240, ¶ 6, we

recently stated the standard of review for appeals of decisions involving judgment on the

pleadings:

Civ.R. 12(C) states: "After the pleadings are closed but within

such times as not to delay the trial, any party may move for

judgment on the pleadings." "In ruling on a motion for

judgment on the pleadings, the court is permitted to consider

both the complaint and answer." Peters v. Ohio Dept. of

Rehab. & Corr., 10th Dist. No. 14AP1048, 2015-Ohio-2668,

citing State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio

St.3d 565, 570, 1996 Ohio 459, 664 N.E.2d 931 (1996). When

presented with such a motion, a trial court must construe all

the material allegations of the complaint as true and must

draw all reasonable inferences in favor of the nonmoving

party. Id., citing Pontious at 570, citing Peterson v. Teodosio,

34 Ohio St.2d 161, 165, 297 N.E.2d 113 (1973); Whaley v.

Franklin Cty. Bd. of Commrs., 92 Ohio St.3d 574, 581, 2001

Ohio 1287, 752 N.E.2d 267 (2001). The court will grant the

motion if it finds, beyond doubt, that the plaintiff can prove

no set of facts in support of the claim(s) that would entitle him

or her to relief. Peters, citing Pontious at 570. A judgment on

the pleadings dismissing an action is subject to a de novo

standard of review in the court of appeals. Id., citing

RotoSolutions, Inc. v. Crane Plastics Siding, L.L.C., 10th Dist.

No. 13AP-1, 2013-Ohio-4343, ¶ 13, citing Franks v. Ohio Dep't

of Rehab. & Corr., 195 Ohio App. 3d 114, 958 N.E.2d 1253,

2011-Ohio-2048, ¶ 5 (10th Dist.).

{¶ 12} Appellant argues that there is no distinction between an affidavit of merit

("AOM") filed with a complaint, or amended complaint, and AOMs filed upon extension

of time under Civ.R. 10(D)(2)(b). Specifically, appellant argues that the trial court

erroneously designed a distinction between AOMs filed with a complaint and AOMs filed

upon extension under Civ. R. 10(D)(2)(c), stating that only AOMs filed at the exact same

time as a complaint or amended complaint are subject to the curative provisions provided

Nos. 16AP-661 and 16AP-765 6

by Civ.R. 10(D)(2)(e). Appellant cites three court of appeals decisions in support of its

argument: Jarina v. Fairview Hosp., 8th Dist. No. 91468, 2008-Ohio-6846; Chapman v.

S. Pointe Hosp., 186 Ohio App.3d 430, 2010-Ohio-152 (8th Dist.); and Wick v. Lorain

Manor, Inc., 9th Dist. No. 12CA010324, 2014-Ohio-4329.

{¶ 13} Appellee argues that appellant was not permitted to cure the defective AOM

because Civ.R. 10(D)(2)(e) only permits a curative affidavit if an affidavit was filed with a

complaint or amended complaint. Appellee urges this court to follow the strict language

of Civ.R. 10(D)(2)(e), and hold that appellant was not permitted to cure the later filed

defective AOM since an affidavit was not filed with a complaint.

{¶ 14} Civ.R. 10 governs the forms of pleadings. Pertinent to this case, Civ.R.

10(D)(2) addresses the requirements for attachments to pleadings in a medical claim:

(a) [A] complaint that contains a medical claim * * * shall be

accompanied by one or more affidavits of merit relative to

each defendant named in the complaint for whom expert

testimony is necessary to establish liability. Affidavits of merit

shall be provided by an expert witness meeting the

requirements of Evid.R. 702 and, if applicable, also meeting

the requirements of Evid.R. 601(D). Affidavits of merit shall

include all of the following:

***

(iii) The opinion of the affiant that the standard of care was

breached by one or more of the defendants to the action and

that the breach caused injury to the plaintiff.

(b) The plaintiff may file a motion to extend the period of

time to file an affidavit of merit. The motion shall be filed by

the plaintiff with the complaint. For good cause shown and in

accordance with division (c) of this rule, the court shall grant

the plaintiff a reasonable period of time to file an affidavit of

merit, not to exceed ninety days, except the time may be

extended beyond ninety days if the court determines that a

defendant or non-party has failed to cooperate with discovery

or that other circumstances warrant extension.

***

(d) An affidavit of merit is required to establish the

adequacy of the complaint and shall not otherwise be

admissible as evidence or used for purposes of

Nos. 16AP-661 and 16AP-765 7

impeachment. Any dismissal for the failure to comply with

this rule shall operate as a failure otherwise than on the

merits.

(e) If an affidavit of merit as required by this rule has been

filed as to any defendant along with the complaint or

amended complaint in which claims are first asserted

against that defendant, and the affidavit of merit is

determined by the court to be defective pursuant to the

provisions of division (D)(2)(a) of this rule, the court shall

grant the plaintiff a reasonable time, not to exceed sixty

days, to file an affidavit of merit intended to cure the defect.

{¶ 15} In this case, appellee filed a motion for extension of time to file an AOM

along with the refiled complaint. When appellant finally filed an AOM, it was executed by

a registered nurse. The affidavit, however, was insufficient because registered nurses are

not qualified under Evid.R. 601(D) to execute AOMs in medical claims. See Frost v.

Cleveland Rehab. & Special Care Ctr., Inc., 8th Dist. No. 89694, 2008-Ohio-1718, ¶ 19;

Robertson v. Mount Carmel East Hosp., 10th Dist. No. 09AP-931, 2011-Ohio-2043, ¶ 30.

Appellant did not dispute the defective nature of the AOM at the trial court level.

{¶ 16} The court of appeals cases cited by appellant do, in varying degrees, support

its argument. In all three cases an AOM was not filed with the refiled complaint and a

defective AOM was filed after requesting an extension. In Jarina, the appeal dealt with

the trial court having granted defendant's motion for judgment on the pleadings and

dismissing the case with prejudice. The Eighth District Court of Appeals stated "[t]he only

issue in the instant appeal is the propriety of the trial court's dismissal of the complaint."

Id. at ¶ 24. Ultimately, the court reversed "the trial court and vacate[d] the dismissal with

prejudice" based on Civ.R. 10(D)(2)(d) and "reinstate[d] the instant case and grant

[appellants] a reasonable time, not to exceed sixty days, to file an affidavit of merit to cure

the defect in same as found by the trial court in the entry." Id. at ¶ 28. In Chapman, the

Eighth District essentially followed its prior decision in Jarina. In neither case did the

court address the issue of whether or not the defective AOM was required to be filed with

the complaint, or amended complaint, in order for Civ.R. 10(D)(2)(e) to be applicable.

{¶ 17} In Wick, the Ninth District Court of Appeals cites Jarina for the proposition

that once the trial court found Wick's affidavits deficient, it was "required to grant Wick a

Nos. 16AP-661 and 16AP-765 8

reasonable time to cure the defect." Id. at ¶ 32. In addition, in contrast to the trial court in

this action, the Ninth District specifically stated:

The Lorain Manor Defendants argue that Civ.R. 10(D)(2)(e)

does not apply because the affidavits of merit filed by Wick

were not filed "along with the complaint." Instead, they argue,

the affidavits were filed after numerous extensions. In

essence, the Lorain Manor Defendants argue that Civ.R.

10(D)(2)(e) does not apply because Wick had already been

granted extensions under Civ.R. 10(D)(2)(b). We find their

argument unpersuasive.

If the plaintiff does not file an affidavit of merit with the

complaint, the plaintiff must file a motion for an extension of

time. See Civ.R. 10(D)(2)(b). Only if the court determines that

the plaintiff has shown good cause for the extension, will the

court grant the plaintiff a reasonable period of time to file an

affidavit. Once an affidavit is filed, the court may determine

that it does not meet the requirements of Civ.R. 10(D)(2)(a).

In that circumstance, the court must grant the plaintiff a

reasonable time to cure the defect. See Civ.R. 10(D)(2)(e).

Id. at ¶ 29-30.

{¶ 18} In our review of this issue, we acknowledge that the Supreme Court of Ohio

has established that "[w]here the language of a statute is plain and unambiguous and

conveys a clear and definite meaning, there is no occasion for resorting to the rules of

statutory interpretation. An unambiguous statute is to be applied, not interpreted." Sears

v. Weimer, 143 Ohio St. 312, 316 (1944), paragraph five of the syllabus; see Broadmoor

Ctr., LLC v. Dallin, 10th Dist. No. 16AP-428, 2016-Ohio-8541, ¶ 19. The reasoning behind

this rule of statutory construction applies equally to the interpretation of the civil rules of

procedure. Gill v. Grafton Corr. Ins., 10th Dist. No. 10AP-1094, 2011-Ohio-4251, ¶ 15. "If

a rule of civil procedure is unambiguous, a court applies it as written." Id., citing Erwin v.

Bryan, 125 Ohio St.3d 519, 2010-Ohio-2202, ¶ 22. A court cannot " ' "ignore the plain

language of a rule in order to assist a party who has failed to comply with a rule's specific

requirements." ' " Id., quoting Gumins v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.

10AP-941, 2011-Ohio-3314, ¶ 14, quoting LaNeve v. Atlas Recycling, Inc., 119 Ohio St.3d

324, 2008-Ohio-3921, ¶ 23.

{¶ 19} The civil rule at issue in this case, Civ.R. 10(D)(2)(e), clearly and

unambiguously provides:

Nos. 16AP-661 and 16AP-765 9

If an affidavit of merit as required by this rule has been filed

as to any defendant along with the complaint or

amended complaint in which claims are first

asserted against that defendant, and the affidavit of

merit is determined by the court to be defective pursuant to

the provisions of division (D)(2)(a) of this rule, the court shall

grant the plaintiff a reasonable time, not to exceed sixty days,

to file an affidavit of merit intended to cure the defect.

(Emphasis added). The staff notes to Civ.R. 10 likewise state that "Civ.R. 10(D)(2)(e)

allows a plaintiff a reasonable time * * * to cure any defects identified by the court in any

affidavit filed with a complaint." (Emphasis added). Thus, the plain language of Civ.R.

10(D)(2)(e) unequivocally provides that a plaintiff may cure a defective AOM if an

affidavit was filed with a complaint. To interpret Civ.R. 10(D)(2)(e) as appellant argues,

would effectively remove the bold-faced words above from the rule, i.e.,

Civ.R. 10(D)(2)(e) would read: "If an affidavit of merit as required by this rule has been

filed as to any defendant, and the affidavit of merit is determined by the court to be

defective pursuant to the provisions of division (D)(2)(a) of this rule, the court shall grant

the plaintiff a reasonable time, not to exceed sixty days, to file an affidavit of merit

intended to cure the defect."

{¶ 20} The trial court distinguished the cases cited by appellant by noting that in

all three cases the plaintiff had voluntarily dismissed its case prior to refiling the action,

wherein the present case appellant's initial complaint had been involuntarily dismissed by

the trial court prior to refiling. Appellant has vigorously objected to the trial court's

reliance on this distinction. The trial court also ruled based on the plain language of

Civ.R. 10(D)(2)(e), and stated that "adopting Plaintiffs interpretation of Civ.R. 10(D)(2)(e)

would render the rule a meaningless formality." (Nov. 3, 2016 Decision and Entry at 4.)

Upon review, we do not find the distinction between voluntarily and involuntarily

dismissed cases to be relevant to our analysis.

{¶ 21} We first note that the Jarina and Chapman cases cited by appellant simply

allowed the plaintiffs in those cases to file curative affidavits without analyzing the

requirements of Civ.R. 10(D)(2)(e). Wick is, at best, persuasive authority. "We are bound

by the decisions of the Supreme Court of Ohio and generally, by past precedent produced

by our own district. Decisions from our sister districts, while assistive and many times

Nos. 16AP-661 and 16AP-765 10

highly persuasive, neither bind this court nor the various trial court's within its

jurisdiction." Keytack v. Warren, 11th Dist. No. 2005-T-0152, 2006-Ohio-5179, ¶ 51.

Lastly, regardless of any decision reached by other courts, this court must follow the plain

language of Civ.R. 10(D)(2)(e), which unambiguously requires an AOM to be attached to a

complaint before it can be cured.

{¶ 22} As such, we agree with the trial court that Civ.R. 10(D)(2)(e) is inapplicable

in this case. Here, appellant did not file an AOM when it refiled its complaint. Rather,

appellant again sought an extension of time to file an AOM and filed Ms. Ojeda's affidavit

12 days after the refiled complaint. As Ms. Ojeda's AOM was not filed with the refiled

complaint in which claims were re-asserted against appellee, Civ.R. 10(D)(2)(e) is

inapplicable. The language of Civ.R. 10(D)(2)(e) is plain and unambiguous: a defective

AOM may be cured "[i]f an affidavit of merit * * * has been filed as to any defendant along

with the complaint or amended complaint in which claims are first asserted against that

defendant." In this case, appellant failed to file an AOM along with a refiled complaint.

Consequently, appellant was not permitted to take advantage of Civ.R. 10(D)(2)(e) to

replace the defective affidavit.

{¶ 23} The trial court correctly interpreted Civ.R. 10(D)(2)(e), and did not err in

granting appellee's motion for judgment on the pleadings, and in denying appellant's

motion for an extension of time to cure a defective AOM. As such, appellant's first

assignment of error is overruled.

B. Assignment of Error Two—Appellee's Motion for Judgment on the

Pleadings was proper

{¶ 24} Appellant argues that the proper remedy for a claim concerning an AOM is

a Civ.R. 12(B) motion to dismiss for the failure to state a claim, and not a Civ.R. 12(C)

motion for judgment on the pleadings (citing Fletcher v. Univ. Hosps. of Cleveland, 120

Ohio St.3d 167, 2008-Ohio-5379, ¶ 13). Here, appellant argues that appellee filed its

motion for judgment on the pleadings, pursuant to Civ.R. 12(C), and the trial court

erroneously granted the same. Appellant argues that the court must recognize the

importance of the relief obtained by appellee and why it was improper. Appellee obtained

a judgment on the pleadings, pursuant to Civ.R. 12(C). Appellant alleges that a

"judgment" on the pleadings is a matter of law, and therefore this acts as a "judgment" on

Nos. 16AP-661 and 16AP-765 11

the merits of appellant's action, and not a dismissal based on the sufficiency of the

complaint itself.

{¶ 25} Appellee argues that courts have consistently recognized that a motion for

judgment on the pleadings is akin to a belated Civ.R. 12(B)(6) motion to dismiss for

failure to state a claim. Substantively, there is no distinction between the two motions,

except that a motion for judgment on the pleadings may be filed after a complaint has

been answered.

{¶ 26} In regards to this argument, the trial court stated:

Finally, Plaintiffs argument that Defendants improperly filed

this request as a motion for judgment on the pleadings instead

of as a motion to dismiss is without merit. At the time Plaintiff

refiled its complaint, it filed a motion for an extension of time

to file an affidavit of merit. Therefore, Defendants were

required to file an answer to the complaint prior to Plaintiffs

filing of the affidavit of merit. Once the answer was filed, the

motion for judgment on the pleadings was the proper vehicle

to raise the issue with the Court.

(Aug. 24, 2016 Decision and Entry at 5.)

{¶ 27} We agree with the trial court. In Fletcher, appellant did not file an AOM

with the refiled action, and also did not request an extension of time in which to do so. It

appears that appellee filed a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim

prior to any answer being filed. The Supreme Court stated the issues involved:

The issue before us in this case is one of first impression,

wherein we must decide the appropriate procedural steps a

defendant must undertake when a plaintiff who brings a

medical claim fails to attach an affidavit of merit to the

complaint as required by Civ.R. 10(D)(2).

Plaintiff-appellee, Monica Fletcher, would have us find that

appellants in this matter should have filed a motion for more

definite statement under Civ.R. 12(E). Conversely,

defendants-appellants University Hospitals of Cleveland and

Dr. Raymond Onders argue that a motion for failure to state a

claim upon which relief can be granted, filed under Civ.R.

12(B)(6), is the correct response.

For the following reasons, we hold that the proper response to

the failure to file the affidavit required by Civ.R. 10(D)(2) is a

motion to dismiss filed under Civ.R. 12(B)(6). We further hold

Nos. 16AP-661 and 16AP-765 12

that a dismissal of a complaint for failure to file the affidavit

required by Civ.R. 10(D)(2) is an adjudication otherwise than

on the merits. The dismissal, therefore, is without prejudice.

Accordingly, we reverse the judgment of the court of appeals.

Fletcher at ¶ 1-3. As such, the issue in Fletcher was whether a motion to dismiss or a

motion for a more definite statement, was the proper response when a plaintiff fails to

attach an AOM to its complaint. The proper response after an answer is filed was not at

issue.

{¶ 28} In the present case, because appellant moved for an extension of time to file

an AOM, appellee was required to file an answer prior to appellant filing its AOM. As

such, a motion for judgment on the pleadings was proper. In addition, appellant's claim

that appellee obtained a "judgment" on the merits of appellant's action is contradicted by

the trial court dismissing this action, pursuant to Civ.R. 10(D)(2)(d), "as a failure

otherwise than on the merits." (Aug. 24, 2016 Decision and Entry at 5.) The trial court did

not err in granting appellee's motion for judgment on the pleadings. Appellant's second

assignment of error is overruled.

C. Assignment of Error Three—No Abuse of Discretion

{¶ 29} A motion for relief from judgment is addressed to the sound discretion of

the trial court, and a ruling will not be disturbed absent an abuse of discretion. Griffey v.

Rajan, 33 Ohio St.3d 75, 77 (1987). "The term 'abuse of discretion' connotes more than an

error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or

unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶ 30} Appellant argues that it should be granted relief from judgment pursuant to

Civ.R. 60(B)(5), and the trial court should reconsider its decision, because the trial court

arbitrarily created an unjust distinction between this case and other similarly reported

cases. Appellant's motions are based on the Jarina, Chapman, and Wick cases which

appellant argues "mandates trial courts to allow plaintiffs sufficient time in which to cure

allegedly defective affidavits of merit under Rule 10(D)(2)(e)." (Appellant's Brief at 28-

29.) Appellant alleges that "[i]nstead of recognizing the clear and established procedure

regarding Rule 10(D)(2) and affidavits of merit, the trial court abused its discretion by

engaging in an attitude towards Appellant that was unreasonable, arbitrary, and

unconscionable." (Appellant's Brief at 29.)

Nos. 16AP-661 and 16AP-765 13

{¶ 31} Appellee argues that appellant's sole basis for seeking relief is based on a

disagreement with the trial court's decision, and appellant does not assert any arguments

that could not be raised on appeal.

{¶ 32} Civ.R. 60(B)(5) states that a trial court may relieve a party from a final

judgment under different grounds including "any other reason justifying relief from the

judgment." The Staff Notes to Civ.R. 60(B) expressly state this ground "is intended as a

catch-all provision" reflecting "the inherent power of a court to relieve a person from the

unjust operation of a judgment."

{¶ 33} In order for a party to obtain relief pursuant to a Civ.R. 60(B) motion, that

party must demonstrate: (1) the party has a meritorious defense or claim to present if

relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R.

60(B)(1) through (5); and (3) the motion is made within a reasonable time. GTE

Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 150-51 (1976).

{¶ 34} In regards to appellant's motion to reconsider, we stated in Yavitch &

Palmer Co., L.P.A. v. U.S. Four, Inc., 10th Dist. No. 05AP-294, 2005-Ohio-5800, ¶ 10,

that:

Final orders are not subject to motions for reconsideration.

Pitts v. Ohio Dept. of Transp. (1981), 67 Ohio St. 2d 378, 423

N.E.2d 1105, at fn. 1. Indeed, Civ.R. 60(B) provides that "the

procedure for obtaining any relief from a judgment shall be by

motion as prescribed in these rules." Thus, the only motions a

trial court may consider and grant to relieve a party from a

final order are motions pursuant to Civ.R. 50(B) (motion

notwithstanding the verdict), Civ.R. 59 (motion for new trial),

and Civ.R. 60(B) (motion for relief from judgment). Pitts, at

380. Notably, this list does not include motions for

reconsideration.

In addition, "a motion for reconsideration filed after final judgment is a nullity." Perritt v.

Nationwide Mut. Ins. Co., 10th Dist. No. 03AP-1008, 2004-Ohio-4706, ¶ 12.1

{¶ 35} Appellant's motion for relief was properly denied, and even if appellant's

motion to reconsider were not a nullity, there was no reason for the trial court to

reconsider its decision. The trial court correctly applied the plain language of Civ.R.

1 This court has recently reaffirmed that "a motion for reconsideration of a final order in a civil case is a

nullity and all judgments or final orders from said motion are also a nullity." McCualsky v. Appalachian

Behavioral Healthcare, 10th Dist. No. 16AP-442, 2017-Ohio-1064, ¶ 13.

Nos. 16AP-661 and 16AP-765 14

10(D)(2)(e) when it dismissed appellant's refiled complaint. The trial court did not abuse

its discretion in overruling appellant's Civ.R. 60(B)(5) motion for relief from judgment

and for reconsideration. Appellant's third assignment of error is overruled.

IV. DISPOSITION

{¶ 36} Having overruled appellant's three assignments of error, we affirm the

judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

SADLER, J., concurs.

DORRIAN, J., concurs separately.

DORRIAN, J., concurring separately.

{¶ 37} Because I agree the trial court's decision should be affirmed, I concur with

the majority. However, I would affirm on the facts of this case only taking into

consideration that (1) the original complaint was previously involuntarily dismissed for

lack of an affidavit of merit after the court had granted a continuance of 90 days to submit

such affidavit, and (2) appellant failed to file an affidavit of merit with the complaint

before us which was refiled one year after dismissal of the original complaint

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