Dula v. Cincinnati

2021 Ohio 1711

• Court: Ohio Court of Appeals
• Decided: May 19, 2021
• Docket: C-200297
• Status: Published

Opinion

[Cite as Dula v. Cincinnati, 2021-Ohio-1711.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

RONALD DULA, : APPEAL NO. C-200297 TRIAL NO. A-1906021 Plaintiff-Appellant, :

vs. : O P I N I O N. CITY OF CINCINNATI, :

NATALIA HARRIS, :

HAMILTON COUNTY BOARD OF : COMMISSIONERS,

BRIAN GILLIGAN, :

GREG VENTRE, :

THE CHRIST HOSPITAL, :

MATTHEW SCHULER, :

MARK MAGNER, M.D., :

FINNEY LAW FIRM, LLC, :

CASEY TAYLOR, :

and :

BRADLEY GIBSON, :

Defendants-Appellees. :

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 19, 2021 OHIO FIRST DISTRICT COURT OF APPEALS

Ronald E. Dula, pro se,

Andrew W. Garth, Interim City Solicitor, and Jacklyn Gonzales Martin and Marva K. Benjamin, Assistant City Solicitors, for Defendants-Appellees City of Cincinnati and Natalia Harris,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Cooper D. Bowen, Assistant Prosecuting Attorney, for Defendants-Appellees Hamilton County Board of Commissioners, Brian Gilligan, and Greg Ventre,

Rendigs, Fry, Kiely, and Dennis, L.L.P., and Jeffrey M. Hines, for Defendants- Appellees The Christ Hospital, Mark Magner, M.D., and Matthew Schuler,

Finney Law Firm, L.L.C., Bradley M. Gibson and Casey A. Taylor, for Defendants- Appellees Finney Law Firm, L.L.C., Bradley M. Gibson and Casey A. Taylor.

2 OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, Judge.

{¶1} Plaintiff-appellant Ronald Dula claims a broad conspiracy perpetrated

by the defendants-appellees to prevent him from pursuing his claims against Christ

Hospital and Dr. Mark Magner and to protect Dr. Magner from criminal prosecution.

{¶2} Dula’s causes of action arise from his medical treatment by Dr. Magner

for chronic degenerative spinal conditions. Magner performed a total of three

surgeries on Dula: one to fuse two vertebrae in his back, another to his lower

extremities, and a third as a follow-up to the fusion surgery. Dula contends that

Magner botched the surgeries and then concealed his mistakes.

{¶3} Dula contends that after meeting with attorneys Casey Taylor and

Bradley Gibson of Finney Law Firm (“Finney Law Firm defendants”) to discuss his

legal options, they conspired with Christ Hospital and its general counsel, Matthew

Schuler, Esq., to prevent Dula from pursuing his claims against Christ Hospital and

Dr. Magner (“hospital defendants”). After Finney Law Firm declined to take his case,

Dula went to the offices of the Hamilton County Clerk of Courts, the Cincinnati City

Manager, and district four of the Cincinnati Police Department in an attempt to file

criminal charges for assault against Magner. Dula claims that Natalia Harris of the

city solicitor’s office (“city defendants”), Brian Gilligan and Greg Ventre of the county

clerk’s office, and the Hamilton County Board of Commissioners (“county

defendants”) all conspired to protect Magner from criminal charges. 1

1 Pursuant to R.C. 2935.09, a private citizen with knowledge of a crime committed by another person may file an affidavit and criminal complaint against that person. The matter may then be referred to an attorney (here, Natalia Harris of the city solicitor’s office) to determine whether probable cause exists. See State ex rel. Boylen v. Harmon, 107 Ohio St.3d 370, 2006-Ohio-7, 839 N.E.2d 934, ¶ 6. It appears Dula was attempting to follow this procedure when he went to the city manager and clerk of courts in an effort to file charges against Magner.

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{¶4} Over the years, Dula has filed a total of three lawsuits, all containing

substantially similar claims. First, he filed suit in Federal District court for the

Southern District of Ohio in Dula v. Hamilton County Prosecutor’s Office, S.D.Ohio

No. 1:18-cv-620 (Oct. 24, 2018) (“Dula I”). That case was dismissed with prejudice

in September 2018 pursuant to Fed.R.Civ.P. 12(b)(1) and (6) for failure to state a

claim upon which relief could be granted. Next, he filed suit in the Hamilton County

Court of Common Pleas in November 2018 in Dula v. Hamilton County Prosecutor’s

Office, Hamilton C.P. No. A1806009 (Jun. 20, 2019) (“Dula II”). He claimed

obstruction of justice, conspiracy, failure to prosecute, assault, violations of his civil

rights, and violations of his equal-protection and due-process rights pursuant to the

Fourteenth Amendment to the United States Constitution. The case was dismissed

with prejudice in June 2019. Dula did not appeal. Instead, Dula filed another lawsuit

in the Hamilton County Court of Common Pleas on December 30, 2019, which is the

subject of this appeal. He has claimed breach of fiduciary duty through civil

conspiracy, fraudulent concealment, fraud and obstruction of justice, battery,

assault, and a violation of his civil rights under the Civil Rights Act of 1871 based on

the same facts and allegations in his first two lawsuits.

{¶5} In January 2020, the city and county defendants filed motions to

dismiss for failure to state a claim upon which relief could be granted and based

upon res judicata due to the dismissals of Dula I and II. The hospital defendants

filed a motion for summary judgment on February 21, 2020, in which they argued

that summary judgment was proper because res judicata prevented relitigation of

Dula’s claims and any medical claims against Dr. Magner and Christ Hospital were

barred by the one-year medical-malpractice statute of limitations.

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{¶6} On February 4, 2020, Dula filed a motion for a default judgment

against the Finney Law Firm defendants. On February 21, 2020, the Finney Law

Firm defendants filed a motion in opposition and a motion to dismiss for failure to

state a claim upon which relief could be granted.

{¶7} After oral argument, the trial court denied Dula’s motion for a default

judgment and granted the defendants’ motions. Dula has appealed, arguing in three

assignments of error that the trial court erred (1) in characterizing his case as a

medical-malpractice case, (2) in dismissing his claims against the county

commissioners, and (3) in failing to issue a default judgment against Finney Law

Firm. We overrule all three assignments of error and affirm the judgment of the trial

court.

First Assignment of Error

{¶8} In his first assignment of error, Dula contends that the trial court erred

in characterizing his case as a medical-malpractice case. He contends that his case is

“based on Tort Law, Fraudulent Conspiracy, Civil Conspiracy.”

{¶9} While Dula’s complaint is difficult to discern, it is clear that all of the

allegations in the complaint stem from the surgeries performed by Dr. Magner. Some

of the causes of action against Dr. Magner and Christ Hospital, for example fraud

and breach of fiduciary duty, are directly based on the medical care provided by Dr.

Magner. Specifically, the complaint alleges:

Dr. Mark Magner operated on me again in 2016 which constitutes a

fraudulent act * * * while gaining payment, knowingly causing harm to

my lower extremities and having knowledge that additional surgeries will

be needed and that my condition would worsen over time * * * This is a

5 OHIO FIRST DISTRICT COURT OF APPEALS

breach of his fiduciary duty with intentional tort and failure to disclose

material information which by not making me aware I was not fused and

would need additional surgery was a breach of duty and loyalty which is

also intentional tort which is not negligence it is purposeful which has a 2

year statute of limitations which I am within.

{¶10} Clever pleadings do not transform medical claims into nonmedical

claims. Freeman v. Durrani, 2019-Ohio-3643, 144 N.E.3d 1067, ¶ 24 (1st Dist.).

“Medical claim” is defined broadly.

“Medical claim” means any claim that is asserted in any civil action

against a physician, podiatrist, hospital, home, or residential facility,

against any employee or agent of a physician, podiatrist, hospital, home,

or residential facility, * * * and that arises out of the medical diagnosis,

care, or treatment of any person.

R.C. 2305.113(E)(3).

{¶11} In Freeman, the plaintiff attempted to distinguish her fraud claims

from medical claims. Freeman at ¶ 18. This court stated that Freeman’s fraud

allegations “echo[ed]” the statutory definition of “medical claim.” Id. “By alleging an

independent fraud claim, Freeman is simply attempting to recast her medical-

malpractice claims.” Id. Therefore, Freeman’s fraud claims constituted medical

claims for purposes of the statute of repose. Id.

{¶12} We find that Dula is attempting to circumvent the one-year statute of

limitations for medical claims set forth in R.C. 2305.113(A). Many of Dula’s claims

arise out of the medical diagnosis, care, or treatment by Dr. Magner. Therefore, they

were properly characterized by the trial court as “medical malpractice” claims. The

6 OHIO FIRST DISTRICT COURT OF APPEALS

trial court did not err in granting the hospital defendants’ motion for summary

judgment on that basis. The first assignment of error is overruled.

Second Assignment of Error

{¶13} In his second assignment of error, Dula contends that the trial court

erred in dismissing his claims against the county commissioners. His argument

focuses on the commissioners’ qualified immunity and completely fails to address

the basis of the trial court’s decision—res judicata, more precisely “claim preclusion.”

Therefore, we may decline to consider his argument. See State v. Harris, 2017-Ohio-

5594, 92 N.E.3d 1283, ¶ 43 (1st Dist.) (“to receive consideration on appeal, trial court

errors must be raised by assignment of error and must be argued and supported by

legal authority and citation to the record”). Nevertheless, even considering Dula’s

argument on the merits, it is clear that the trial court did not err in dismissing his

claims against the county commissioners.

{¶14} Claim preclusion prevents a subsequent action by the same parties

based upon any claim arising out of the transaction that was the subject of a previous

action. Wright v. Heller, 2018-Ohio-149, 102 N.E.3d 1285, ¶ 21 (1st Dist.).

Claim preclusion requires proof of the following four elements: (1) there

was a prior valid judgment on the merits; (2) the second action involved

the same parties or their privies as the first action; (3) the present action

raises claims that were or could have been litigated in the prior action;

and (4) both actions arise out of the same transaction or occurrence.

Id. at ¶ 22.

{¶15} The trial court reached a final judgment on the merits in Dula II when

it dismissed the case with prejudice, the county commissioners were defendants in

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Dula II, and Dula’s current claims arise out of the same events and transactions as

his claims in Dula II and either were or could have been presented in Dula II. Dula

slightly changed his claims and allegations in the present case, but that does not

allow him to escape the doctrine of claim preclusion. See Stand Energy Corp. v.

Ruyan, 1st Dist. Hamilton No. C-050004, 2005-Ohio-4846, ¶ 12 (claim preclusion is

conclusive as to all claims which were or might have been litigated in a first lawsuit).

(Emphasis in original.)

{¶16} Dula has failed to show that the trial court erred in applying claim

preclusion to his causes of action against the county commissioners. The second

assignment of error is overruled.

Third Assignment of Error

{¶17} In his third assignment of error, Dula contends that the trial court

erred in failing to issue a default judgment against the Finney Law Firm defendants.

{¶18} Civ.R. 55(A) authorizes the trial court to enter a default judgment

“[w]hen a party against whom a judgment for affirmative relief is sought has failed to

plead or otherwise defend as provided by these rules.” A defendant has 28 days after

service of summons and complaint to submit an answer. Civ.R. 12(A)(1). Depending

on the circumstances, service may be accomplished by the sheriff’s department,

bailiff of the court, or “any person not less than eighteen years of age, who is not a

party and who has been designated by order of the court to make personal service of

process under this division.” (Emphasis added.) Civ.R. 4.1(B).

{¶19} “The attorney of record or the serving party shall be responsible for

determining if service has been made and shall timely file written instructions with

the clerk regarding completion of service notwithstanding the provisions in Civ.R. 4.1

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through 4.6 which instruct a clerk to notify the attorney of record or the serving party

of failure of service of process.” Civ.R. 4.6(E).

{¶20} Dula attempted to serve the Finney Law Firm defendants by mail and

by personally going to one of their offices. Pursuant to Civ.R. 4.1(B), the attempt at

personal service was improper. Dula’s attempt at service by mail was returned

“unclaimed.” Therefore, Dula did not perfect service upon the Finney Law Firm

defendants. The 28-day period for Finney Law Firm to respond to Dula’s complaint

never began to accrue. The trial court did not err in denying Dula’s motion for a

default judgment. The third assignment of error is overruled.

Conclusion

{¶21} All three assignments of error are overruled and the judgment of the

trial court is affirmed.

Judgment affirmed.

MYERS, P.J., and BERGERON, J., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.