Court of Appeals of Ohio, Second District, Montgomery
LEWIS CARTER, et al. Plaintiff-Appellant
PRISTINE SENIOR LIVING AND POST-ACUTE CARE, INC., et al. Defendant-Appellee
Appeal from Common Pleas Court Trial Court Case No.
L. CARTER, Atty. Reg. No. 0084170, Attorney for
J. HUPP, Atty. Reg. No. 0040639 and KATHLEEN A. STAMM, Atty.
Reg. No. 0095160, Attorneys for Defendant-Appellee.
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.
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
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
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.
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 ...