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

[Cite as Estate of Aukland v. Broadview NH, L.L.C., 2017-Ohio-7332.]

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 August 24, 2017

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.

Reminger Co., L.P.A., Robert V. Kish and Melvin J. Davis, for

appellee.

ON MOTION TO CERTIFY A CONFLICT

HORTON, J.

{¶ 1} Plaintiff-appellant, Estate of Nancy L. Aukland ("appellant"), has filed a

motion for an order certifying a conflict between our decision in Estate of Aukland v.

Broadview NH, LLC, 10th Dist. No. 16AP-661, 2017-Ohio-5602, and opinions issued by

the Eighth District Court of Appeals in Jarina v. Fairview Hosp., 8th Dist. No. 91468,

2008-Ohio-6846, and Chapman v. S. Pointe Hosp., 8th Dist. No. 92610, 2010-Ohio-152;

and the Ninth District Court of Appeals in Wick v. Lorain Manor, Inc., 9th Dist. No. 12

CA 10324, 2014-Ohio-4329. Defendant-appellee, Broadview NH, LLC et al. ("appellee"),

opposes the motion. For the reasons that follow, we grant appellant's motion to certify.

No. 16AP-661 and 16AP-765 2

I. THE ESTATE OF AUKLAND DECISION

{¶ 2} The background of this case is fully set forth in the Estate of Aukland

decision. However, the following facts are pertinent to appellant's motion to certify.

Appellant originally filed this medical malpractice and wrongful death action on

August 15, 2014. Contemporaneously with the complaint appellant filed a motion for an

extension of time to file an affidavit of merit ("AOM"), which was granted. On April 7,

2015, appellee moved to dismiss the complaint on the basis that appellant had failed to

submit an AOM. Appellant did not respond. On May 6, 2015, the trial court granted

appellee's motion and dismissed appellant's complaint without prejudice.

{¶ 3} On May 4, 2016, contemporaneously with refiling its complaint, appellant

moved for a second extension of time to file an AOM. On May 16, 2016, appellant filed an

AOM from nurse Johanna Ojeda, and the trial court subsequently found appellant's

motion for an extension to be moot.

{¶ 4} On June 8, 2016, appellee moved for judgment on the pleadings, arguing

that Ojeda's affidavit failed to comply with Civ.R. 10(D)(2), as a nurse is not competent to

testify as to causation. On June 22, 2016, appellant filed a motion for extension of time to

cure an allegedly defective AOM pursuant to Civ.R. 10(D)(2)(e). Appellee objected,

arguing that Civ.R. 10(D)(2)(e) permits a plaintiff to cure an AOM only when filed

contemporaneously with a complaint. Appellant countered that Civ.R. 10(D)(2)(e)

requires the trial court to permit a plaintiff to cure an AOM, regardless of whether such

affidavit was filed contemporaneously with a complaint or pursuant to a permitted

extension.

{¶ 5} On August 24, 2016, the trial court ruled that Civ.R. 10(D)(2)(e) was

inapplicable in this case because the rule requires a court to permit a plaintiff a reasonable

period of time to cure a defective AOM if an AOM, as required by this rule, has been filed

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

that defendant. The court noted that appellant did not file an AOM with the complaint in

which its claims were first asserted against the appellee, and did not file an AOM when it

refiled its complaint. 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

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operates as a failure otherwise than on the merits." (Aug. 24, 2016 Decision and Entry at

5.)

{¶ 6} In Estate of Aukland, we agreed with the trial court. We noted that

Civ.R. 10(D)(2)(e) clearly and unambiguously provides:

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.) We stated that 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."

{¶ 7} As such, we agreed with the trial court that Civ.R. 10(D)(2)(e) was

inapplicable in this case. Consequently, appellant was not permitted to take advantage of

Civ.R. 10(D)(2)(e) to cure the defective affidavit.

II. APPELLANT'S MOTION TO CERTIFY CONFLICT

{¶ 8} The Ohio Constitution, Article IV, Section 3(B)(4), governs motions seeking

an order to certify a conflict, providing as follows:

Whenever the judges of a court of appeals find that a

judgment upon which they have agreed is in conflict with a

judgment pronounced upon the same question by any other

court of appeals of the state, the judges shall certify the record

of the case to the supreme court for review and final

determination.

{¶ 9} In Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594 (1993), the Supreme

Court of Ohio held that "there must be an actual conflict between appellate judicial

districts on a rule of law before certification of a case to the Supreme Court for review and

No. 16AP-661 and 16AP-765 4

final determination is proper." Id. at paragraph one of the syllabus. The court further

stated:

[A]t least three conditions must be met before and during the

certification of a case to this court * * *. First, the certifying

court must find that its judgment is in conflict with the

judgment of a court of appeals of another district and the

asserted conflict must be "upon the same question." Second,

the alleged conflict must be on a rule of law -- not facts. Third,

the journal entry or opinion of the certifying court must

clearly set forth that rule of law which the certifying court

contends is in conflict with the judgment on the same

question by other district courts of appeals.

Id. at 596.

{¶ 10} Further, factual distinctions between cases are not a basis upon which to

certify a conflict. Semenchuk v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 10AP-19,

2010-Ohio-6394, ¶ 4, citing Whitelock at 599. " 'For a court of appeals to certify a case as

being in conflict with another case, it is not enough that the reasoning expressed in the

opinions of the two courts of appeals be inconsistent; the judgments of the two courts

must be in conflict.' " Semenchuk at ¶ 4, quoting State v. Hankerson, 52 Ohio App.3d 73

(2d Dist.1989).

{¶ 11} We first note that a complaint that contains a "medical claim" must include

"one or more affidavits of merit relative to each defendant named in the complaint for

whom expert testimony is necessary to establish liability." Civ.R. 10(D)(2)(a). This

heightened pleading requirement is to "deter the filing of frivolous medical-malpractice

claims. The rule is designed to ease the burden on the dockets of Ohio's courts and to

ensure that only those plaintiffs truly aggrieved at the hands of the medical profession

have their day in court." Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-

Ohio-5379, ¶ 10.

{¶ 12} Appellant states that in Estate of Aukland, we "held there is a distinction

between affidavits of merit filed with a complaint and affidavits of merit filed upon

extension under Rule 10(D)(2)(b), stating that only affidavits of merit filed at the exact

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

provided by Rule 10(D)(2)(e)." (Mot. to Certify Conflict at 3.) Appellant also argues that

we acknowledged in Estate of Aukland that our "ruling is in direct conflict with" Jarina,

No. 16AP-661 and 16AP-765 5

Chapman, and Wick by stating at ¶ 16 of our opinion that "[t]he court of appeals cases

cited by appellant do, in varying degrees, support its argument." Id.

{¶ 13} Appellee responds that, "[r]egarding Chapman and Jarina, this Court

properly recognized that neither case addressed the issue of whether or not the defective

AOM was required to be filed with the complaint or amended complaint. Furthermore,

while the court in Wick held that the plaintiff, in that case, was permitted to file a curative

affidavit although an affidavit was not filed with the complaint, the court's decision did

not contain any analysis of Civ.R. 10(D)(2)(e). * * * As such, this Court's decision contains

a legal analysis that was not present in the cases cited by Appellant. And because this

Court's decision does not directly conflict with any of the cases cited by Appellant, the

request to certify a conflict must be denied." (Memo Contra at 2-3.)

III. DISCUSSION

{¶ 14} Estate of Aukland and the three cases cited by appellant are essentially

medical malpractice cases. In all of the cases the action was initiated and then, either

voluntarily or involuntarily, dismissed. The cases were then refiled without an AOM

being filed along with the complaint. After requesting an extension in which to file the

AOM, appellants then filed, or attempted to file, a defective AOM. In determining

whether or not to grant appellant's motion to certify a conflict, we will review the facts,

holdings, and judgments, as relevant to this motion, of Jarina, Chapman, and Wick.

A. Jarina

{¶ 15} In Jarina, the appellants refiled their case without an AOM, but with a

motion for extension of time to file an AOM. Later, appellants filed an AOM from a nurse.

Appellee Fairview Hospital renewed its motion for judgment on the pleadings. The

motion challenged the AOM on the grounds that it failed to identify a qualified expert as

defined by Evid.R. 601(D) and 702, and that the affidavit failed to contain opinions that

the standard of care was breached and that the breach caused appellant's injury. Jarina at

¶ 8. The trial court granted appellee's motion for judgment on the pleadings because

appellant's AOM was insufficient. Jarina at ¶ 11.

{¶ 16} The appeals court held that "[a]s the trial court determined the affidavit of

merit filed by [appellants] was defective under Civ.R. 10(D)(2)(a), according to the

specific language of Civ.R. 10(D)(2)(e), the trial court must grant [appellants] 'a

No. 16AP-661 and 16AP-765 6

reasonable time, not to exceed sixty days, to file an affidavit of merit intended to cure the

defect.' " Jarina at ¶ 27.

{¶ 17} It appears that the issue of whether Civ.R. 10(D)(2)(e) was applicable, since

appellant's had not filed an AOM "along with the complaint or amended complaint in

which the claims are first asserted," was never raised in this action. In any event, there

was no analysis from the court regarding this issue.

B. Chapman

{¶ 18} Appellant Chapman refiled this wrongful death and medical malpractice

action without an AOM and requested an enlargement of time to file an AOM under

Civ.R. 10. The trial court granted appellant several extensions. Appellee, South Pointe

Hospital, filed a motion to dismiss. Chapman at ¶ 5.

{¶ 19} Appellant was granted until November 14, 2008 to respond to appellee's

motion to dismiss. On November 12, 2008, appellant filed a motion for leave to file an

amended complaint instanter; attached to the amended complaint was an AOM executed

by a nurse. Appellee opposed the affidavit as not satisfying the requirement of Civ.R.

10(D)(2) on the ground that a nurse is not qualified to express an opinion on proximate

cause in a medical malpractice action. On December 2, 2008, the court granted

appellant's leave to file her complaint instanter. On the same date, the court also granted

appellee's motion to dismiss. Id. at ¶ 6.

{¶ 20} On appeal, appellant's argued that the Eighth District's prior case of Jarina

was authority for reversing the trial court, pursuant to Civ.R. 10(D)(2)(e), and remanding

the case with orders to the trial court to grant the plaintiffs a reasonable period of time,

not to exceed 60 days, to file an AOM to cure the defect in the original affidavit. Id. at

¶ 23-24.

{¶ 21} The appeals court summarized appellee's argument, and the court's

response:

The hospital contends that Civ.R. 10(D)(2)(e) does not apply

to this case because the proposed amended complaint was not

the pleading "in which the claims [were] first asserted against

[it]." (Emphasis added.) Id. Specifically, the hospital notes

that no affidavit of merit was filed in the first case of April

2006 or this case. In regard to the hospital's citation to the

first case, this court held in Jarina that because the plaintiffs

voluntarily dismissed their case without prejudice, "such a

No. 16AP-661 and 16AP-765 7

dismissal causes all proceedings in that case to be treated as a

nullity, as if the case had never been filed." (Citations

omitted.) Id. at P18. See, also, Stafford v. Hetman (June 4,

1998), Cuyahoga App. No. 72825, 1998 Ohio App. LEXIS

2402 ("A dismissal without prejudice relieves the court of all

jurisdiction over the matter, and the action is treated as

though it had never been commenced.") The first filing of this

case was similarly dismissed without prejudice and, thus,

citation to that first case in this context is not proper.

Chapman at ¶ 26.

{¶ 22} The Eighth District then reasoned and held that:

In regard to Chapman's failure to submit an affidavit with this

case in May 2007 when she re-filed her action, the same

situation essentially existed in Jarina. The only difference

between Jarina and this case is that the plaintiffs in Jarina

did not file an amended complaint with their affidavit. Here,

the affidavit submitted by Chapman was an exhibit to her

proposed amended complaint. But the proposed amended

complaint was substantively the same complaint as the May

2007 complaint. Thus, this court in Jarina found that Civ.R.

10(D)(2)(e) applied in a situation essentially the same as here.

Moreover, we are unable to find any other authority

supporting the hospital's position.

In light of the above, although the affidavit in this case was

deficient under the requirements of Civ.R. 10(D), Chapman

should have been granted an extension of time, not to exceed

60 days, to cure the defect.

Id. at ¶ 27-28.

{¶ 23} In Chapman, the appeals court followed its own prior case of Jarina in

reaching its decision. Again, there was no analysis of the wording in Civ.R. 10(D)(2)(e).

C. Wick

{¶ 24} In Wick, no AOM was filed with the refiled case, however, on the same day

appellant filed a motion for an extension of time to file the required AOM. The court

granted appellant's motion for an extension of time and ordered that an affidavit be filed

on or before September 22, 2011. Id. at ¶ 3.

{¶ 25} On September 22, 2011, appellant filed an AOM from a nurse and requested

an additional 30-day extension to file an affidavit of merit from an out-of-state physician.

While the court did not explicitly rule on his motion, appellant filed an affidavit of a

No. 16AP-661 and 16AP-765 8

medical doctor on September 26, 2011, and the court considered the affidavit in its later

ruling. Id. at ¶ 4.

{¶ 26} Appellees all filed motions to dismiss pursuant to Civ.R. 12(B)(6) for failure

to state a claim upon which relief may be granted. In their various motions, appellees

argued, as relevant here, that the AOMs were insufficient to meet the heightened pleading

standard of Civ.R. 10. The court granted appellees' motions to dismiss finding that the

two AOMs filed did not meet the pleading requirements of Civ.R. 10(D)(2)(a). Id. at ¶ 5.

{¶ 27} On appeal, appellant argued that if the AOMs are deficient, the court erred

in failing to grant him time to cure any defect pursuant to Civ.R. 10(D)(2)(e). Id. at ¶ 27.

Appellees argued that Civ.R. 10(D)(2)(e) did not apply because the AOMs filed by

appellant were not filed "along with the complaint." Instead, they argued, the AOMs were

filed after numerous extensions. The appeals court found appellees' argument

"unpersuasive." Id. at ¶ 29.

{¶ 28} The Ninth District reasoned and held as follows:

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).

Civ.R. 10(D)(2)(b) and Civ.R. 10(D)(2)(e) provide two

different types of extensions. Civ.R. 10(D)(2)(b) only gives the

plaintiff more time to file an initial affidavit of merit upon the

showing of good cause. Civ.R. 10(D)(2)(e), on the other hand,

requires the court to grant the plaintiff time to correct a defect

in an already filed affidavit if the court determines that the

filed affidavit does not meet the requirements of the rule.

Under Civ.R. 10(D)(2)(e) the court must grant the plaintiff a

reasonable time to cure the defect; what is a reasonable time

to cure, however, is discretionary.

On November 8, 2012, the court found that Wick's affidavits

of merit were deficient pursuant to Civ.R. 10(D)(2)(a). At that

time, the court was required to grant Wick a reasonable time

to cure the defect. See Jarina v. Fairview Hosp., 8th Dist.

Cuyahoga No. 91468, 2008-Ohio-6846 (court required to

No. 16AP-661 and 16AP-765 9

grant extension to cure defect in affidavits of merit even when

affidavits are filed subsequent to the complaint and pursuant

to an extension granted under Civ.R. 10(D)(2)(b)). Therefore,

we conclude that the trial court erred in granting Appellees'

motions to dismiss without first granting Wick a reasonable

opportunity to refile affidavits of merit in compliance with

Civ.R. 10(D)(2)(a).

Id. at ¶ 30-32.

{¶ 29} In Wick, the Ninth District followed the Eighth District's Jarina case.

IV. CONCLUSION

{¶ 30} As opposed to Estate of Aukland, in all three cases cited by appellant the

appeals court reversed the trial court and remanded the action to allow appellant's to cure

defective affidavits, pursuant to Civ.R. 10(D)(2)(e), that were not filed contemporaneously

or along with the complaint or refiled complaint. The decisions in Jarina, Chapman, and

Wick are in direct conflict with our holding in Estate of Aukland, wherein we held that

Civ.R. 10(D)(2)(e) is inapplicable because the defective AOM was not filed "along with the

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

defendant." As such, we conclude that appellant's motion to certify satisfies the Whitelock,

supra, test, in that the judgments conflict upon the same question and on a rule of law.

{¶ 31} Therefore, we certify the following rule of law:

Does a right to "cure" an affidavit of merit under Ohio Civ.R.

10(D)(2)(e) exist only for affidavits that are filed with a

complaint or amended complaint or for all affidavits of merit,

including those filed by extension under Ohio Civ.R.

10(D)(2)(b)?

V. DISPOSITION

{¶ 32} Based on the foregoing, appellant's motion to certify a conflict is granted.

Motion to certify a conflict granted.

SADLER and DORRIAN, JJ., concur.

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