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Estate of Aukland v. Broadview NH, LLC

Court of Appeals of Ohio, Tenth District

August 24, 2017

Estate of Nancy L. Aukland, [c/o Mark Aukland, Executor], Plaintiff-Appellant,
v.
Broadview NH, LLC et al., Defendants-Appellees.

         C.P.C. No. 16CV-4336

          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.PA., Robert V. Kish and Melvin J. Davis, for appellee.

          DECISION

          HORTON, J.

         ON MOTION TO CERTIFY A CONFLICT

         {¶ 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.

         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 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 ...

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