Davis v. Bernhart

8 Ohio App. Unrep. 339

• Court: Ohio Court of Appeals
• Decided: November 21, 1990
• Docket: Case No. 57454
• Status: Published

Opinions

NAHRA, J.

This is an appeal of the court of common pleas of Cuyahoga County"s ruling on motion for a change of venue.

On April 18, 1986, Marcia Davis, plaintiff-appellant, brought a claim in the Belmont County Court of Common Pleas based on the alleged negligent medical treatment of appellant's decedent, Virginia Thompson, at the East Ohio Regional Hospital, which is located in Belmont County. The cause was submitted to arbitration in Belmont County, Ohio. The Belmont County Court of Common Pleas adopted the arbitration decision which deemed William Bernhart, M.D., appellee herein, not liable.

On December 3, 1987, Davis dismissed her complaint voluntarily in Belmont County pursuant to Ohio Civ. R. 41. Davis refiled the action in the Cuyahoga County Court of Common Pleas upon learning that Bernhart had moved and resided in Cuyahoga County where he was practicing medicine. Bernhart filed a motion for change of venue back to Belmont County which was granted by the Cuyahoga County Common Pleas Court. At the time of the transfer, Davis attempted to appeal the decision on the change of venue. However, this court denied the appeal insofar as a decision with respect to venue is interlocutory in nature and not a final appealable order. Davis reached a settlement with all defendants other than Bernhart prior to trial. On February 24, 1989, the Belmont County Court of Common Pleas granted summary judgment in favor of Bernhart. The Belmont County Court of Appeals affirmed the lower court's decision with respect to summary judgment.¹

Davis brings this appeal with respect to the Cuyahoga County Court of Common Pleas' ruling transferring the venue of this case to Belmont County.

Appellant's sole assignment of error states:

"THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT BY GRANTING DEFENDANTAPPELLEE'S MOTION FOR CHANGE OF VENUE."

The court to which venue is transferred retains jurisdiction concerning all aspects of the cause of action brought in that court. Heckler Co. v. Napoleon (1937), 56 Ohio App. 110, 10 N.E.2d 32, dismissed for want of a debatable constitutional question (1937), 132 Ohio St. 528, 9 N.E. 2d 287; see State of Ohio, ex rel. Starner, v. Dehoff (1985), 18 Ohio St. 3d 163, 480 N.E. 2d 449. Therefore, any alleged error brought on appeal by Davis should have been raised during her appeal before the Belmont County Court of Appeals. Accordingly, we lack jurisdiction to review this matter.

Bernhart asserts that Davis' appeal is frivolous and that unnecessary attorney's fees and expenses have been incurred. We disagree. Civ. R. 3(G) provides that a party has a right to appeal an issue of venue. Our review of the record does not reveal that the appeal was brought frivolously, or in bad faith with a purpose of harassment. Therefore, we do not believe that an award of attorney's fees is warranted. App. R. 23.

Appellant's assignment of error is overruled. Accordingly, we affirm the judgment of the trial court.

PARRINO, J., concurs. KRUPANSKY, P.J., concurs in judgment only.

Sitting by assignment, Judge Thomas J. Parrino, Retired, Eighth District Court of Appeals.

1 Marcia Davis, etc. v. William Bernhart M.D. (Dec. 29, 1989), Belmont App. No. 89-B-7, unreported.