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Amos v. Aman

Court of Appeals of Ohio, Tenth District

December 24, 2019

Diane Amos, Plaintiff-Appellant,
v.
Scott Van Aman, M.D. et al., Defendants-Appellees.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 18CV-7648

         On brief:

          Donahey & Defossez, Mark E. Defossez and Curtis M. Fifner, for appellee.

          Poling Law, Brant E. Poling and Sabrina S. Sellers, for appellees.

         Argued:

          Curits M. Fifner.

          Sabrina S. Sellers.

          DECISION

          KLATT, P.J.

         {¶ 1} Plaintiff-appellant, Diane Amos, appeals a judgment of the Franklin County Court of Common Pleas that dismissed her complaint against defendants-appellees, Scott Van Aman, M.D., and Orthopedic One, Inc. Because we lack jurisdiction, we dismiss this appeal.

         {¶ 2} On September 12, 2018, Amos filed a complaint alleging that Van Aman performed surgery on toes on Amos' left foot without her consent. Amos further alleged that the surgery caused the affected toes to become disfigured and painful. According to Amos, by operating on her toes without consent, Van Aman committed battery. Alternatively, Amos asserted that Van Aman acted negligently by "fail[ing] to recall, prior to or during the subject surgery, that he was never given consent to perform surgery on certain of plaintiffs left toes." (Compl. at ¶ 7.) Amos sought to hold Orthopedic One vicariously liable for the torts Van Aman allegedly committed.

         {¶ 3} Defendants answered the complaint and then moved for judgment on the pleadings pursuant to Civ.R. 12(C). In their motion, defendants argued for dismissal because Amos failed to comply with Civ.R. 10(D)(2), which requires a plaintiff to file with the complaint an affidavit of merit or a motion for an extension of time in which to file an affidavit of merit in certain types of cases. Amos responded that no such affidavit was necessary. On February 21, 2019, the trial court issued a judgment and entry granting defendants' motion and dismissing Amos' complaint without prejudice.

         {¶ 4} Amos now appeals the February 21, 2019 judgment, and she assigns the following error:

The Trial Court erred when it granted Defendants-Appellees'motion [sic] for Judgment on the Pleadings when it held that an issue capable of understanding by lay persons required expert testimony.

         {¶ 5} At oral argument, appellees asserted that this court lacks subject-matter jurisdiction to hear this appeal because the February 21, 2019 judgment is not a final, appealable order. Article IV, Section 3(B)(2) of the Ohio Constitution establishes that courts of appeals "have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district." If the appealed judgment does not constitute a final, appealable order, an appellate court lacks jurisdiction to review it. Gehm v. Timberline Post & Frame,112 Ohio St.3d 514, 2007-Ohio-607, ΒΆ 14. ...


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