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Carter v. Pristine Senior Living and Post-Acute Care, Inc.

Court of Appeals of Ohio, Second District, Montgomery

December 6, 2019

LEWIS CARTER, et al. Plaintiff-Appellant
v.
PRISTINE SENIOR LIVING AND POST-ACUTE CARE, INC., et al. Defendant-Appellee

          Civil Appeal from Common Pleas Court Trial Court Case No. 2018-CV-2214.

          JULIUS L. CARTER, Atty. Reg. No. 0084170, Attorney for Plaintiff-Appellant.

          STEVEN J. HUPP, Atty. Reg. No. 0040639 and KATHLEEN A. STAMM, Atty. Reg. No. 0095160, Attorneys for Defendant-Appellee.

          OPINION

          HALL, J.

         {¶ 1} Plaintiffs Julius Carter and Lewis Carter appeal from the trial court's entry of summary judgment for Defendants Pristine Senior Living and Post-Acute Care and Scott Fehr on the Carters' claim for defamation. We conclude that the trial court abused its discretion by overruling the Carters' motion for an extension of time to oppose summary judgment. However, the trial court did not abuse its discretion in overruling the Carters' motion to amend their complaint. The judgment is affirmed in part, reversed in part, and remanded for further proceedings.

         I. Facts and Procedural History

         {¶ 2} On May 16, 2017, Lewis Carter was a resident at Pristine Senior Living and Post-Acute Care, a long-term care and rehabilitation facility in Englewood, Ohio. That evening, his son Julius Carter was visiting and was unhappy with the care that his father was receiving. Julius expressed his concern to Melania Flores, one of the nurses. According to Flores, Julius yelled at her and she alleged he said "I want to hit you right now." Flores reported the incident to Pristine's Assistant Director of Nursing, who in turn told Scott Fehr, Pristine's Administrator.

         {¶ 3} On May 19, Fehr had Flores write and sign a statement describing what had happened. In her description, Flores wrote that Julius told her," 'I want to hit you right now.'" According to Fehr, an employee-safety policy required him to report any threat of violence against an employee to the police. Accordingly, Fehr contacted the Englewood Police Department and reported what Flores had written in her statement. The police created an incident report and issued Julius a "Notice of Criminal Trespass" that advised him not to return to Pristine. In the notice's "narrative description" section, an officer wrote, "stated 'I want to hit you right now.' "

         {¶ 4} A year later, on May 18, 2018, the Carters filed a complaint against Pristine and Fehr, jointly and severally, claiming medical negligence and defamation. (We will refer to both defendants collectively as "Pristine.") The complaint alleged that Lewis had received "substandard care" while a resident at Pristine and that Fehr had filed a false police report against Julius. The claim for medical negligence was dismissed because the Carters failed to file an affidavit of merit. On February 21, 2019, Pristine filed a motion for summary judgment on the defamation claim. The same day, the trial court entered an order giving the Carters until March 7, to file their opposition, unless they were granted an extension. The Carters filed a motion for an extension but not until March 14. Then on March 25, they filed a motion for leave to file an amended motion for an extension instanter in which they explained that a new staff member incorrectly calendared the date for responding to Pristine's summary-judgment motion as March 14, 2019, which is why they did not file their motion for an extension until that day. The trial court overruled the Carters' motion for an extension because it was filed after the date-to-respond in the February 21, 2019 entry had passed. The court also denied them leave to file the motion instanter, saying that it did not grant ex parte instanter motions.

         {¶ 5} While the summary-judgment motion was pending, the Carters also filed a motion for leave to amend their complaint under Civ.R. 15. They sought to add Flores as a defendant and to add a claim for intentional infliction of emotional distress. The trial court overruled the motion to amend, finding that the Carters had not given an adequate reason to justify the delay of trial that the amendments would likely cause.

         {¶ 6} On April 10, the trial court sustained Pristine's motion for summary judgment on the Carters' defamation claim.

         {¶ 7} The Carters appeal.

         II. Analysis

         {¶ 8} The Carters assign three errors to the trial court. The first challenges the decision denying them an extension of time to respond to the motion for summary judgment. The second challenges the decision denying them leave to amend their complaint. The ...


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