[Cite as Horn v. Cherian, 2023-Ohio-931.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
TRAVIS HORN, :
Plaintiff-Appellant, : No. 111821 v. :
NEIL CHERIAN, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED RELEASED AND JOURNALIZED: March 23, 2023
Civil Appeal from the Lyndhurst Municipal Court Case No. 22-CVI-00997
Appearances:
Travis Horn, pro se.
Bonezzi Switzer Polito & Hupp Co. L.P.A., Brian F. Lange and Bret C. Perry, for appellee.
EILEEN A. GALLAGHER, J.:
Plaintiff-appellant Travis Horn appeals the dismissal of his small
claims complaint against defendant-appellee Dr. Neil Cherian. The trial court
dismissed the complaint with prejudice under Civ.R. 12(B)(6) for lack of standing,
lack of an affidavit of merit and for seeking nonrecoverable damages. For the reasons that follow, we affirm the dismissal in part, reverse in part and remand the
matter to the trial court.
We affirm the dismissal to the extent the complaint asserts that Horn
has an independent claim for malpractice and prays for damages attributable to
legal expenses and court costs Horn allegedly incurred in a related lawsuit Horn
initiated against Dr. Cherian’s employer and others in the Cuyahoga County Court
of Common Pleas. We reverse the dismissal as to Horn’s derivative claims for loss
of consortium and expenditures, but only to the extent that the trial court dismissed
the complaint with prejudice.
I. Factual Background and Procedural History
Travis Horn is married to Mary La Riccia (“La Riccia”), who was
formerly a patient of Dr. Neil Cherian at the Cleveland Clinic.
On May 17, 2022, Horn filed a small claims complaint in Lyndhurst
Municipal Court — on a form provided by the municipal court — seeking $6,000 in
damages from Dr. Cherian and alleging as follows:
Dr. Cherian’s negligent actions caused my wife to be removed from his care by third parties. As Dr. Cherian is the only practitioner of his medical subspecialty available to us, my wife has been left completely without medical care, which has forced us to endure a lengthy legal battle to cease this unlawful denial of care, thereby, incurring substantial undue cost and severe mental anguish.
Dr. Cherian filed a motion to dismiss the complaint under Civ.R. 10(D)
and 12(B)(6). Dr. Cherian argued that the complaint was subject to dismissal
without prejudice because (1) Horn lacked standing, (2) Horn’s complaint did not
include an affidavit of merit and (3) to the extent Horn was requesting attorney fees and litigation expenses from a previous case, the complaint failed to state a claim.
Dr. Cherian attached several exhibits to the motion, those being court documents
from a case Horn had previously filed against the Cleveland Clinic and others in the
Cuyahoga County Court of Common Pleas.1
Horn filed an opposition to the motion, in which he described his claim
against Dr. Cherian in more detail, as follows:
Dr. Cherian, in his role as the fiduciary in the [doctor-patient] relationship [between Dr. Cherian and La Riccia], directed and encouraged the communications that caused my wife to be removed from his care, and, therefore, bears responsibility for the content that
1 Cuyahoga C.P. No. CV-20-941722. We note that the trial court did not indicate, in its opinion, whether it considered or excluded the court documents attached to and referenced in Dr. Cherian’s motion to dismiss. “When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court,” the Civil Rules provide that “the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56.” Civ.R. 12(B). A trial court’s failure to notify the parties that it is converting a motion to dismiss into a motion for summary judgment is reversible error. E.g., State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d 94, 96, 647 N.E.2d 788 (1995). “Whether or not the trial court expressly states in its decision, when a court considers matters outside the pleadings, it is converting a Civ.R. 12(B)(6) motion to dismiss to a Civ.R. 56 motion for summary judgment and must notify the parties.” Highfield v. Pietrykowski, 6th Dist. Ottawa No. OT-16-008, 2016-Ohio-5695, ¶ 6 (Celebrezze, Keough, S. Gallagher, JJ., sitting by assignment). The trial court’s reasoning here does not necessarily lead to the conclusion that it considered the documents attached to Dr. Cherian’s complaint, because Horn specifically referred to his “lengthy legal battle” in the complaint. Moreover, a court can take judicial notice of appropriate matters in determining a Civ.R. 12(B)(6) motion without converting it to a motion for summary judgment. State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516, ¶ 10, citing State ex rel. Scott v. Cleveland, 112 Ohio St.3d 324, 2006-Ohio- 6573, 859 N.E.2d 923, ¶ 26. In any event, we need not dwell on this issue because neither party argues on appeal that the trial court failed to comply with the requirements of Civ.R. 56. Instead, both parties contested the merits of the arguments presented by Dr. Cherian and the trial court’s reasoning in dismissing the complaint for failure to state a claim. Therefore, the parties have waived any argument that the trial court improperly converted Dr. Cherian’s motion to dismiss into a motion for summary judgment and we consider the merits of the appeal. See Highfield at ¶ 10. was found to be objectionable, and, subsequently, for the financial burden I have had to endure to attempt to rectify the situation. * * *
Any layman would know that psychotherapeutic conversations should not be conducted over an unsecured medium, and that the fiduciary in a relationship bears the responsibility, particularly for actions they directed.
The briefing makes clear that Horn is alleging that Dr. Cherian and La
Riccia communicated with each other during the course of La Riccia’s treatment
through electronic messages exchanged over MyChart, a Cleveland Clinic online
health management system. Horn alleges that the Cleveland Clinic found certain
messages exchanged between Dr. Cherian and La Riccia to be inappropriate and
terminated the doctor-patient relationship between them. Horn alleges that Dr.
Cherian is ultimately responsible for that action and that Horn and La Riccia were
damaged as a result.
On July 15, 2022, the municipal court dismissed the complaint with
prejudice “for failure to state a claim upon which relief can be granted based on the
Plaintiff’s lack of standing, the failure to submit an Affidavit of Merit, and the pursuit
of unrecoverable damages.” The court found that Horn’s complaint “is alleging
negligent actions of Dr. Cherian in the context of his relationship” with La Riccia,
“seeks damages associated with other legal actions pursued by the Plaintiff to
include court costs and potential legal fees” and “also appears to be pursuing mental
distress damages.” The court found that any actionable claim that may exist
regarding any negligence of Dr. Cherian in his communications with La Riccia would
belong to La Riccia only. Moreover, the court found that even if La Riccia had asserted the claim, the complaint would be subject to dismissal for failure to include
an affidavit of merit. Finally, the trial court held that “Plaintiff’s pursuit of emotional
distress or mental anguish damages is not within the jurisdiction of this Court” and
“Ohio law does not allow for the pursuit of attorney fees and legal costs from other
actions without any statutory or contractual mandate to support same.”
Horn then filed a document styled as an “objection to the court’s
decision,” in which he asked the municipal court to reverse its decision dismissing
his complaint. The trial court denied the request as moot.
Horn appealed and raises the following assignments of error for
review:
Assignment of Error 1:
The trial court’s first error is holding that an affidavit of merit is required to validate my claim, which I maintain is more personal injury than a medical claim.
Assignment of Error 2:
Operating under the premise that my claim is medical, the trial court is also in error in its assertion that I do not have a claim because I did not have a relationship with Dr. Cherian.
Assignment of Error 3:
The trial court made a third error in determining that I can not file a claim for emotional damage.
Assignment of Error 4:
The trial court’s fourth error is in determining that I can’t recover my legal expenses “without any statutory or contractual mandate[,”] citing Franklin v. Neighbors Org. for Action in Hous., 8th Dist. [Cuyahoga] No. 68966, 1996 Ohio App. LEXIS 1575 [(Apr. 18, 1996)]. Assignment of Error 5:
The trial court has further erred in dismissing my complaint with prejudice.
Assignment of Error 6:
The trial court also erred by denying my objection as moot.
II. Law and Analysis
A. Standard of Review
We review rulings on Civ.R. 12(B)(6) motions to dismiss under a de
novo standard. “A motion to dismiss for failure to state a claim upon which relief
can be granted is procedural and tests the sufficiency of the complaint. Under a de
novo analysis, we must accept all factual allegations of the complaint as true and all
reasonable inferences must be drawn in favor of the nonmoving party.” (Citation
omitted.) NorthPoint Properties, Inc. v. Petticord, 179 Ohio App.3d 342, 2008-
Ohio-5996, 901 N.E.2d 869, ¶ 11 (8th Dist.). “For a trial court to grant a motion to
dismiss for failure to state a claim upon which relief can be granted, it must appear
‘beyond doubt from the complaint that the plaintiff can prove no set of facts entitling
[the plaintiff] to relief.’” Graham v. Lakewood, 2018-Ohio-1850, 113 N.E.3d 44,
¶ 47 (8th Dist.), quoting Grey v. Walgreen Co., 197 Ohio App.3d 418, 2011-Ohio-
6167, 967 N.E.2d 1249, ¶ 3 (8th Dist.). A court’s factual review is generally confined
to the four corners of the complaint. See, e.g., Dabney v. Metro Appraisal Group,
Inc., 8th Dist. Cuyahoga No. 106917, 2018-Ohio-4601, ¶ 15.
This is the standard of review applicable to Civ.R. 12(B)(6) motions
targeting small claims complaints — e.g., Sweeney v. Pfan, 5th Dist. Delaware No. 19 CAG 04 0030, 2019-Ohio-4605, ¶ 12; Larson v. Canton City Util., 5th Dist. Stark
No. 2019CA00041, 2019-Ohio-5400, ¶ 16–17 — even though small claims are
required to be presented in a “concise, nontechnical form.” R.C. 1925.04(B). “The
legislative intent in establishing the small claims court division was clearly not to
require plaintiffs to file complaints similar to those filed by licensed attorneys.”
Wagner v. Dambrosio, 8th Dist. Cuyahoga No. 52142, 1986 Ohio App. LEXIS 8976,
3 (Nov. 6, 1986). Moreover, one of the goals of the small claims division is “to
provide for the efficient, informal and inexpensive adjudication of small claims,” and
thus “pleadings are kept to a minimum.” See Akaki Tikaradze v. Kenwood Gardens
Apts., 6th Dist. Lucas No. L-11-1217, 2012-Ohio-3735, ¶ 5. For example, the small-
claims-complaint form that the Lyndhurst Municipal Court offers to litigants on its
website provides only four lines for a plaintiff’s use in describing their claims.2
In practice, then, a Civ.R. 12(B)(6) motion to dismiss a small claims
complaint often asks a trial court to conclude, based only on a short paragraph, that
it is “beyond doubt” the plaintiff can prove “no set of facts” entitling them to relief.
This is a high bar, for “‘[a]s long as there is a set of facts, consistent with the plaintiff’s
complaint, which would allow the plaintiff to recover, the court may not grant a
defendant’s motion to dismiss.’” Woods v. Sharkin, 2022-Ohio-1949, 192 N.E.3d
1174, ¶ 29 (8th Dist.), quoting York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143,
2 Lyndhurst Municipal Court, Filing Your Claim, navigate to https://www.lyndhurstmunicipalcourt.org/about/how-to-sue/ and click “Fill out the form carefully and completely and file it with the Clerk of Court.” (accessed Feb. 27, 2023). 145, 573 N.E.2d 1063 (1991). A court “may not dismiss a complaint under Civ.R.
12(B)(6) merely because it doubts the plaintiff will prevail.” Woods at ¶ 28, citing
Bono v. McCutcheon, 159 Ohio App.3d 571, 2005-Ohio-299, 824 N.E.2d 1013, ¶ 8
(2d Dist.).
While the bar is high, it is not insurmountable. Courts have held that
the application of Civ.R. 12(B)(6) to small claims complaints is consistent with R.C.
Chapter 1925 and have affirmed or ordered the dismissal of small claims complaints
under certain circumstances. See Fleming v. Whitaker, 5th Dist. Knox No. 12-CA-
19, 2013-Ohio-2418 (affirming dismissal of small claims complaint where the
injured plaintiff sued the tortfeasor’s liability insurer in violation of the “direct
action” rule); Poole v. Lenzly, 1st Dist. Hamilton No. C-130141, 2013-Ohio-4148, ¶ 7
(affirming dismissal where the complaint alleged claims against a nonparty without
mentioning how the plaintiffs were entitled to relief against the defendants); Larson
at ¶ 21 (ordering dismissal where the plaintiff sued an entity that was not capable of
being sued; the defendant was not sui juris); Folck v. Khanzada, 2d Dist. Clark No.
2012-CA-18, 2012-Ohio-4971, ¶ 8, fn.1 (“Applying Civ.R. 12(B)(6) * * * to small-
claims matters is not inconsistent with R.C. Chapter 1925.”); cf. Tennant v.
Huntington Natl. Bank, 8th Dist. Cuyahoga No. 108993, 2020-Ohio-4063, ¶ 12
(finding the application of Civ.R. 12(C) to be consistent with R.C. Chapter 1925).
The ultimate question presented by this appeal is whether there is a
set of facts consistent with Horn’s complaint that would allow him to recover the damages he seeks. In answering that question, we address Horn’s assignments of
error in a different order than he presented them.
B. Standing
We begin with Horn’s second assignment of error, which challenges
the trial court’s finding that Horn lacked standing to assert the claims in his
complaint. “It is well established that before an Ohio court can consider the merits
of a legal claim, the person seeking relief must establish standing to sue.” State ex
rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 469, 715 N.E.2d
1062 (1999). “An action brought by a party that lacks standing will be dismissed.”
State ex rel. Ohio Stands Up!, Inc. v. DeWine, 167 Ohio St.3d 248, 2021-Ohio-4382,
192 N.E.3d 371, ¶ 5. To establish standing, a plaintiff must have suffered “(1) an
injury that is (2) fairly traceable to the appellee’s allegedly unlawful conduct, and
(3) likely to be redressed by the requested relief.” Torrance v. Rom, 2020-Ohio-
3971, 157 N.E.3d 172, ¶ 24 (8th Dist.).
Horn alleges that Dr. Cherian had a physician-patient relationship
with La Riccia and negligently allowed and encouraged inappropriate
communications over MyChart that caused the Cleveland Clinic to remove La Riccia
as a patient of Dr. Cherian. The complaint alleges that this decision caused La Riccia
to go without needed medical care and forced Horn and La Riccia to file lawsuits to
attempt to undo the Clinic’s decision.
The trial court found that “any actionable claim” that may lie against
Dr. Cherian would belong to La Riccia, not Horn. Dr. Cherian defends this holding, arguing that Horn “is attempting to assert the potential claims of his wife, an
unnamed third-party.” Horn responds by arguing that the trial court did not
consider that he suffered a loss of consortium, has had to take on additional care
responsibilities and bought a significant number of nutritional supplements to
attempt to care for his wife’s condition at home.
The thrust of Horn’s one-paragraph complaint certainly focuses on
the harm suffered by La Riccia, alleging that Dr. Cherian “caused my wife to be
removed from his care,” leaving her “completely without medical care.” To the
extent the complaint specifically references harm suffered by Horn, it is limited to
his having “to endure a lengthy legal battle * * * thereby, incurring substantial undue
cost and severe mental anguish.”
We agree with the trial court that Horn’s complaint attempts to assert
an independent malpractice claim and that Horn lacks standing to assert a
malpractice claim against Dr. Cherian. See State ex rel. Tubbs Jones v. Suster, 84
Ohio St.3d 70, 77, 701 N.E.2d 1002 (1998) (“[I]f a claim is asserted by one who is
not the real party in interest, then the party lacks standing to prosecute the action.”).
However, while “perhaps inartfully expressed” — Dambrosio, 8th
Dist. Cuyahoga No. 52142, 1986 Ohio App. LEXIS 8976, at 3 — we find that Horn’s
complaint also states derivative claims for loss of consortium and spousal
expenditures for medical care or treatment. See R.C. 2305.113(E)(7). Drawing all
reasonable inferences in Horn’s favor and considering the concise, nontechnical
nature of small claims complaints, we find that these claims are adequately pleaded and are not inconsistent with Horn’s statement that La Riccia was left “completely
without needed medical care,” causing him “undue cost” and “mental anguish.” We
cannot say, based only the complaint, that it is beyond dispute at this point that
Horn can prove no set of facts entitling him to damages.
Dr. Cherian concedes in his appellee brief that “[a]ppellant asserts a
prayer for loss of consortium and expenditures.” Nevertheless, he argues that these
derivative claims cannot be pursued independently because the fact that La Riccia
is not a party to this lawsuit makes “proving the validity of [the underlying
malpractice claim] impossible.” That is not so.
While a loss-of-consortium claim is a derivative claim, it “belongs not
to the person suffering a physical injury but to another”; it is “independent.”
Fehrenbach v. O’Malley, 113 Ohio St.3d 18, 2007-Ohio-971, 862 N.E.2d 489, ¶ 11.
Thus, even where an injured person completely releases a tortfeasor from liability,
a claim for loss of consortium may still exist in the injured person’s spouse. See
Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 92–93, 585 N.E.2d 384 (1992).3
It is, of course, Horn’s burden, ultimately, to meet his burden of proof
on the claims. But the fact that La Riccia is not a party to the case does not divest
Horn of standing to pursue these claims. We, therefore, find some merit to Horn’s
second assignment of error. We express no opinion on the ultimate merits of Horn’s
3 We note that our discussion relates to whether Horn has standing to bring a derivative medical claim even if his wife is not a party to the lawsuit. Dr. Cherian raised no arguments before the trial court based on Civ.R. 19 and makes no joinder argument on appeal. derivative claims, including but not limited to, whether there was a legally
cognizable tort in the first place and whether Horn has suffered cognizable loss-of-
consortium or expenditure damages as a result. Horn does, however, have standing
to assert those claims and, therefore, his complaint cannot be dismissed for lack of
standing.
We do affirm the dismissal of Horn’s claim for malpractice against
Dr. Cherian. Because Horn was not Dr. Cherian’s patient, he does not have standing
to assert that claim.4
Having found that Horn had standing to assert derivative claims for
loss of consortium and expenditures, derivative of alleged malpractice that injured
La Riccia, we turn to the question of whether Horn was required to file an affidavit
of merit with his complaint under Civ.R. 10(D).
C. Affidavit of Merit
Horn’s first assignment of error addresses the trial court’s dismissal
of Horn’s complaint for failure to include an affidavit of merit. The trial court was
correct in finding Horn’s claims to be medical claims requiring an affidavit of merit
under Civ.R. 1o(D) and Horn waived any argument that no affidavit of merit is
required to support a small claims complaint.
Civ.R. 10(D) provides as follows:
[A] complaint that contains a medical claim * * *, as defined in R.C. 2305.113, shall be accompanied by one or more affidavits of merit
4 We do not consider or address La Riccia’s ability to assert a malpractice claim herself. relative to each defendant named in the complaint for whom expert testimony is necessary to establish liability. Affidavits of merit shall be provided by an expert witness meeting the requirements of Evid.R. 702 and, if applicable, also meeting the requirements of Evid.R. 601(D). Affidavits of merit shall include all of the following:
(i) A statement that the affiant has reviewed all medical records reasonably available to the plaintiff concerning the allegations contained in the complaint;
(ii) A statement that the affiant is familiar with the applicable standard of care;
(iii) The opinion of the affiant that the standard of care was breached by one or more of the defendants to the action and that the breach caused injury to the plaintiff.
Civ.R. 10(D)(2)(a).
The rule states that an “affidavit is necessary in order to ‘establish the
adequacy of the complaint.’” Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d
167, 2008-Ohio-5379, 897 N.E.2d 147, ¶ 10, quoting Civ.R. 10(D)(2)(d). Therefore,
“the proper response to the failure to file the affidavit required by Civ.R. 10(D)(2) is
a motion to dismiss filed under Civ.R. 12(B)(6).” Fletcher at ¶ 3.
This requirement is designed to “prevent[] the filing of medical
claims that are not supported by an expert’s opinion” and “deter[] filing actions
against all medical providers who cared for a patient.” Erwin v. Bryan, 125 Ohio
St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, ¶ 19; see also Fletcher at ¶ 10 (“The
rule is designed to ease the burden on the dockets of Ohio’s courts and to ensure that
only those plaintiffs truly aggrieved at the hands of the medical profession have their
day in court.”). Horn contends that his claim is not a “medical claim” to which this
requirement applies because (1) the negligence related to a “non-medical decision”
and (2) the breach of the standard of care here was so obvious that no expert
testimony was required to establish it. We disagree.
A “medical claim” includes “any claim that is asserted in any civil
action against a physician * * * that arises out of the medical diagnosis, care, or
treatment of any person.” R.C. 2305.113(E)(3). Derivative claims like those for loss
of consortium and expenditures that “arise from the medical diagnosis, care, or
treatment of a person,” are also “medical claims.” Id.
Horn’s derivative claims are clearly medical claims; indeed, he
invokes the definition of a medical derivative claim in R.C. 2305.113(E)(7) in his
appellate brief when arguing that he has standing to assert these claims. Horn may
not be claiming that Dr. Cherian failed to diagnose a disease or left a surgical sponge
behind after a surgery, but his claim that Dr. Cherian’s use of MyChart was
unreasonable still sounds in malpractice. “‘[M]alpractice consists of ‘the
professional misconduct of members of the medical profession * * *.’” Muir v.
Hadler Real Estate Mgt. Co., 4 Ohio App.3d 89, 90, 446 N.E.2d 820 (10th
Dist.1982), quoting Richardson v. Doe, 176 Ohio St. 370, 372, 199 N.E.2d 878
(1964); see also Halter v. Dagostino, 8th Dist. Cuyahoga No. 110717, 2022-Ohio-
1069, ¶ 12 (“[A] claim against a professional is always governed by the law of
malpractice.”). Horn’s derivative claim against Dr. Cherian is focused on a decision allegedly made by Dr. Cherian’s employer as a result of alleged improper
communications exchanged during La Riccia’s treatment; it is a medical claim.
The Ohio Supreme Court explained a plaintiff’s burden on a medical-
malpractice claim in Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673 (1976), as
follows:
Under Ohio law, as it has developed, in order to establish medical malpractice, it must be shown by a preponderance of the evidence that the injury complained of was caused by the doing of some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or circumstances, or by the failure or omission to do some particular thing or things that such a physician or surgeon would have done under like or similar conditions and circumstances, and that the injury complained of was the direct result of such doing or failing to do some one or more of such particular things.
Bruni at 131.
“Expert testimony is necessary to prove the elements of medical
malpractice ‘whenever those elements are beyond the common knowledge and
understanding of the jury.’” Adams v. Kurz, 10th Dist. Franklin No. 09AP-1081,
2010-Ohio-2776, ¶ 11, quoting Williams v. Lo, 10th Dist. Franklin No. 07AP-949,
2008-Ohio-2804, ¶ 11; see also Higgins v. Ranasinghe, 8th Dist. Cuyahoga No.
100722, 2014-Ohio-4674, ¶ 24.
Horn’s argument is that the elements of negligence and causation are
not beyond the common knowledge and understanding of the jury here. This
argument attempts to shoehorn his claims into the “common knowledge exception,”
an exception to the requirement of expert testimony that “has a limited scope in a world of increasing medical complexity.” Cunningham v. Children’s Hosp., 10th
Dist. Franklin No. 05AP-69, 2005-Ohio-4284, ¶ 20.
As an initial matter, it is not settled that the common-knowledge
exception applies to obviate the requirement for an affidavit of merit. The plain
language of the rule would seem to only require an affidavit to support the adequacy
of claims against defendants “for whom expert testimony is necessary to establish
liability.” Civ.R. 10(D)(2)(a). But the Supreme Court has read the rule to “prevent[]
the filing of medical claims that are not supported by an expert’s opinion.” Erwin,
125 Ohio St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019, at ¶ 19. Horn directs us to
an opinion from the Tenth Appellate District that recognized that “a body of cases
has developed where the appellate courts have not required an affidavit of merit but
have held that common knowledge is sufficient * * *.” Wallace v. OhioHealth Corp.,
10th Dist. Franklin No. 18AP-279, 2018-Ohio-4293, ¶ 6.
We need not answer that question on this appeal, though, because
even if the exception applies to Civ.R. 10(D), it clearly does not apply to Horn’s
claims. “‘[R]elatively few courts in Ohio have found the common knowledge
exception applicable so as to obviate the need for expert witness testimony * * *.”’
Cunningham at ¶ 20, quoting Buerger v. Ohio Dept. of Rehab. & Corr., 64 Ohio
App.3d 394, 399, 581 N.E.2d 1114 (10th Dist.1989). Most of the cases in which
courts have found the exception to apply involve falls in a medical facility. See
Wallace at ¶ 6, Cunningham at ¶ 21; but see Schraffenberger v. Persinger, Malik &
Haaf, M.D.s, Inc., 114 Ohio App.3d 263, 267, 683 N.E.2d 60 (1st Dist.1996) (doctor negligently and erroneously told a patient that the patient was sterile after a
vasectomy).
Horn alleges that Dr. Cherian — who Horn says is the only
practitioner of his medical subspecialty in this part of Ohio — communicated with
his patient, during treatment for “a rare otoneurological * * * condition,” in an
unreasonable way over an unreasonable medium. This is a claim beyond the
common knowledge of the jury. That Horn and Dr. Cherian’s counsel had vastly
different notions at oral argument about how physicians generally use MyChart to
communicate with their patients makes that plain enough, even before
considerations of damage and causation.
Having found that expert testimony is required to establish Dr.
Cherian’s liability for Horn’s derivative medical claims for loss of consortium and
expenditures, we conclude that Civ.R. 10(D) would require an affidavit of merit to
support the adequacy of Horn’s complaint.
We end our inquiry here, but we note that no party offered us a
citation to a case in which a court considered whether Civ.R. 10(D) applies to small
claims matters in the first place. “[P]roceedings in the small claims division of a
municipal court are subject to the Rules of Civil Procedure” except where the Civil
Rules are inconsistent with the procedures set forth in Chapter 1925 of the Revised
Code or with “rules of court adopted in furtherance of the purposes of this chapter.”
R.C. 1925.16. Where the Civil Rules are inconsistent with Chapter 1925 or the rules
of court, the Civil Rules give way. See Civ.R. 1(C) (“These rules, to the extent that they would by their nature be clearly inapplicable, shall not apply to procedure * * *
in small claims matters * * *.”). It is not immediately clear to us that Civ.R. 10(D)(2)
is consistent with R.C. Chapter 1925 and the procedures in small claims court,5 but
Horn waived any argument about that question by not arguing the inapplicability of
Civ.R. 10(D)(2) before the municipal court or on appeal. We, therefore, leave
consideration of this question to a future case where the issue is properly before us
and sufficiently briefed.
Because Horn implicitly conceded that Civ.R. 10(D)(2) applies to
small claims proceedings and because Horn’s derivative claims are medical claims
for which expert evidence is required to establish liability, we agree with the
municipal court that Horn’s derivative claims failed under Civ.R. 12(B)(6) because
they were not supported by an affidavit of merit.
D. The Effect of the Dismissal
In his fifth assignment of error, Horn contends that the trial court
erred by dismissing his complaint with prejudice. We agree, in part, because Horn’s
derivative claims for loss of consortium and expenditures should have been
dismissed without prejudice. We disagree as to Horn’s malpractice claim and claim
seeking legal expenses related to other cases he filed related to Dr. Cherian’s
treatment of La Riccia, which were appropriately dismissed with prejudice.
5 The Supreme Court has said that “Civ.R. 10(D)(2) requires that every complaint containing a medical claim * * * must include an affidavit of merit from an expert witness,” but this statement was made outside of the small claims context. See Troyer v. Janis, 132 Ohio St.3d 229, 2012-Ohio-2406, 971 N.E.2d 862, ¶ 7. “A dismissal with prejudice operates as an adjudication on the merits.
It is axiomatic, then, that a dismissal otherwise than on the merits should be without
prejudice.” (Citation omitted.) Fletcher, 120 Ohio St.3d 167, 2008-Ohio-5379, 897
N.E.2d 147, at ¶ 16, citing Thomas v. Freeman, 79 Ohio St.3d 221, 225, 680 N.E.2d
997 (1997), fn.2.
A Civ.R. 12(B)(6) motion to dismiss “is a procedural tool testing the
sufficiency of the complaint.” Fletcher at ¶ 17. “[A] dismissal for failure to state a
claim is without prejudice except in those cases where the claim cannot be pleaded
in any other way.” Id., citing Collins v. Natl. City Bank, 2d Dist. Montgomery No.
19884, 2003-Ohio-6893, ¶ 51 (“An order of dismissal entered pursuant to Civ.R.
12(B)(6) is an adjudication on the merits of the issue the rule presents, which is
whether a pleading put before the court states a claim for relief. It does not
adjudicate the merits of the claim itself, unless it can be pleaded in no other way.”);
but see State ex rel. Arcadia Acres v. Ohio Dept. of Job & Family Servs., 123 Ohio
St.3d 54, 2009-Ohio-4176, 914 N.E.2d 170, ¶ 15.
Horn’s claim for malpractice cannot be pleaded in any other way,
because he was not Dr. Cherian’s patient. For the reasons discussed in the next
section, we also find that Horn’s claim for legal expenses related to other lawsuits he
filed as a result of Dr. Cherian’s treatment of La Riccia cannot be pleaded in any
other way. Therefore, it was proper for the trial court to dismiss those claims with
prejudice. The same cannot be said for Horn’s derivative medical claims,
though. A dismissal for failure to attach an affidavit of merit “shall operate as a
failure otherwise than on the merits.” Civ.R. 10(D)(2)(d); see also Fletcher at ¶ 18–
19. Because we find that the only basis justifying the dismissal of Horn’s derivative
claims was the failure to attach an affidavit of merit, it was error for the trial court
to dismiss those claims with prejudice. See Fletcher at ¶ 19 (“[W]hen a medical
claim is dismissed for want of an affidavit of merit, that problem could be rectified
in a refiling simply by including the requisite affidavit.”).
E. Prayer for Legal Expenses
In his fourth assignment of error, Horn claims that the trial court
erred by dismissing his prayer for damages he says are attributable to legal expenses
and court costs he incurred in collateral litigation over Dr. Cherian’s treatment of La
Riccia. Horn says that Dr. Cherian was not a party to that litigation; he argues that
Dr. Cherian’s negligence “has forced me into litigation against third parties” and that
Dr. Cherian “should be responsible for the costs incurred as a result of that
litigation.” Dr. Cherian argues that attorney fees and court costs are prohibited by
the American rule and are not among those expenditures contemplated by R.C.
2305.113(E)(7)(b) (defining the derivative claim for relief related to spousal
expenditures). We agree that Horn cannot recover these alleged damages.
“‘Ohio has long adhered to the “American rule” with respect to
recovery of attorney fees: a prevailing party in a civil action may not recover attorney
fees as a part of the costs of litigation.’” Cruz v. English Nanny & Governess School, Slip Opinion No. 2022-Ohio-3586, ¶ 35, quoting Wilborn v. Bank One Corp., 121
Ohio St.3d 546, 2009-Ohio-306, 906 N.E.2d 396, ¶ 7. There are three “well-
established exceptions” to this rule: “(1) when a statute creates a duty to pay
attorney fees, (2) when the losing party acted in bad faith, and (3) when the parties
contracted to shift the fees.” Cruz at ¶ 36. None of these well-established exceptions
apply here. Horn’s argument is that we should find that this case fits within another
recognized exception to the American rule, “‘where the wrongful act of the defendant
has involved the plaintiff in litigation with others or placed him in such relation with
others as makes it necessary to incur expense to protect his interest.’” S & D
Mechanical Contrs. v. Enting Water Conditioning Sys., Inc., 71 Ohio App.3d 228,
241, 593 N.E.2d 354 (2d Dist.1991). In that situation, attorney fees “should be
treated as the legal consequences of the original wrongful act and may be recovered
as damages.” Id.
Ohio courts have considered attorney fees to be appropriate
compensatory damages under certain circumstances. Horn cites to no Ohio case
holding as much,6 but we are aware of such cases in certain contexts.
6 Horn directs us to a Maryland case in support of his argument. Nova Research, Inc. v. Penske Truck Leasing Co., 405 Md. 435, 445, 952 A.2d 275 (2008) (recognizing an exception to the American rule when “the wrongful conduct of a defendant forces a plaintiff into litigation with a third party”). The case is not binding precedent but we discuss that state’s application of the exception below in fn. 7. Attorney fees have been approved as consequential damages for some
real-estate claims, for example.7 In Columbus Invests. Group, the Tenth District
approved an award of attorney fees against a defendant who served as a witness to
a fraudulent warranty deed. Columbus Invests. Group, 10th Dist. Franklin Nos.
02AP-271 and 02AP-418, 2002-Ohio-5968, ¶ 31. The court reasoned that the
damage caused by the defendant — a cloud on the plaintiff’s title to real property —
“had to be remedied by the provision of legal services and, therefore, the attorney
fees are compensatory damages.” Id. at ¶ 33. Our court has also held that
“[r]easonable attorney fees are allowable as part of compensatory damages in an
action for breach of covenant of quiet enjoyment of a leasehold * * *.” Jean-Gil, Inc.
v. Babin, 8th Dist. Cuyahoga No. 39178, 1980 Ohio App. LEXIS 12543, 8 (Sept. 25,
1980). Horn’s claim is not a real-estate claim, of course.
7 The line of Maryland cases developing the exception stated in Nova Research, see above at fn. 6, frequently involved real-estate claims as well. See McGaw v. Acker, Merrall & Condit Co., 111 Md. 153, 160–161, 73 A. 731 (1909) (holding that a defendant who wrongfully renewed a lease in his own name was responsible for the plaintiff’s attorney fees and costs incurred in securing the new lease in its name, reasoning that “it was about to lose possession of the premises by the wrongful act of the defendant, and it was obliged to employ professional aid and incur expense to retain possession of the premises * * * and the necessary expenses it incurred to regain the possession is an element of the injury”); E. Shore Title Co. v. Ochse, 453 Md. 303, 331, 160 A.3d 1238 (2017) (negligent title company was responsible for attorney fees incurred by the plaintiffs in separate litigation with a third-party property owner to resolve a title dispute that resulted from the title company’s negligence); Montgomery Village Assocs. v. Mark, 95 Md.App. 337, 342–344, 620 A.2d 975 (1993) (plaintiffs could recover fees incurred in connection with a bankruptcy proceeding where the defendants’ failure to perform under a repurchase agreement for a condominium unit forced the plaintiffs to seek bankruptcy protection to avoid foreclosure with a third-party lender). For the exception to apply in Maryland, the expenses from the collateral litigation must be “the natural and proximate consequence of the injury complained of, * * * incurred necessarily and in good faith, and * * * a reasonable amount.” Ochse at 331. Courts have also “long recognized” that “a plaintiff may recover
attorney fees expended in an action brought by a third party as compensatory
damages where the defendant’s breach of contract caused the plaintiff to engage in
the litigation with the third party.” Rayco Mfg., Inc. v. Murphy, Rogers, Sloss &
Gambel, 2019-Ohio-3756, 142 N.E.3d 1267, ¶ 14 (8th Dist.). Our court has also held
that “attorney fees can be awarded as compensatory damages to the prevailing party
on a motion to enforce a settlement agreement when the fees are incurred as a direct
result of a breach of the settlement agreement.” Id. at ¶ 11. Horn’s claim is not a
contract claim and does not arise out of the breach of a settlement agreement.
In legal-malpractice actions attorney fees that are “incurred to rectify,
or to attempt to rectify, the malpractice are recoverable as indirect, or consequential,
damages” when “the factfinder is persuaded that the fees and expenses of the
successor attorney were causally related to an established cause of action for
malpractice.” E.g., Green v. Bailey, 1st Dist. Hamilton No. C-070221, 2008-Ohio-
3569, ¶ 17. Horn’s claim is not a legal-malpractice claim, either.
Horn says he was “forced” to file suit against the Cleveland Clinic and
others to attempt to undo the care decision the Clinic made with respect to La
Riccia’s treatment with Dr. Cherian. Horn says the lawsuit would not have been
necessary except that Dr. Cherian was negligent in his treatment of La Riccia, which
Horn says caused the Clinic to remove La Riccia as a patient of Dr. Cherian. In this
separate small claims suit, Horn seeks to recover the litigation expenses incurred in
that legal campaign. Horn directs us to no authority allowing the recovery of attorney fees in the context of a medical claim and we do not read any of the
authorities discussed above to authorize the recovery of attorney fees or other
litigation expenses under the circumstances presented in this case. The alleged
negligence did not “involve[] the plaintiff in litigation with others.” S & D
Mechanical Contrs., 71 Ohio App.3d at 241, 593 N.E.2d 354. Nor did the alleged
negligence “place[] him in such relation with others as makes it necessary to incur
expense to protect his interest.” Id. To extend the exception to encompass the
circumstances of this case would allow the exception to swallow the rule.
The trial court was, therefore, correct in dismissing Horn’s prayer for
legal expenses related to the collateral litigation Horn filed against Dr. Cherian’s
employer in the common pleas court. Because there was no other way for Horn to
plead this request for relief, and as discussed further above, the trial court correctly
dismissed the claim for this relief with prejudice.
F. Prayer for Mental Anguish Damages
Horn’s third assignment of error challenges the trial court’s holding
that the “pursuit of emotional distress or mental anguish damages is not within the
jurisdiction of this Court” pursuant to R.C. 1925.02(A)(2)(a). That section states
that “[a] small claims division does not have jurisdiction in any of the following:
(i) [l]ibel, slander, replevin, malicious prosecution, and abuse of process actions; (ii)
[a]ctions on any claim brought by an assignee or agent, except [in certain
enumerated circumstances]; (iii) [a]ctions for the recovery of punitive or exemplary damages.” R.C. 1925.02(A)(2)(a). Horn argues that his claim is not among those
excluded from the municipal court’s small claims jurisdiction. We agree.
Small claims courts have passed on claims of damages related to
mental and emotional damages. E.g., Marsh v. Lansing Gardens Apts., 7th Dist.
Belmont No. 07-BE-32, 2008-Ohio-3404, ¶ 22 (affirming municipal court’s award
of damages in part because “there was evidence that [the plaintiff] suffered damages
as a result of the emotional toll the problems with her apartment took on her.”)
Horn presents derivative medical claims for loss of consortium and
expenditures; these causes of action are not among those specifically excluded from
the municipal court’s small claims jurisdiction. Therefore, it was error for the trial
court to dismiss Horn’s claims for lack of subject-matter jurisdiction. Our holding
does not speak to the merits of Horn’s claim that he suffered cognizable damages for
loss of consortium or expenditures. But the municipal court has jurisdiction to hear
those claims.
G. The Motion to Reconsider
In his sixth assignment of error, Horn contends that the trial court
should not have denied the document he filed that was styled as an “objection” to
the court’s dismissal order. It seems that Horn erroneously believed he was filing
an objection to a magistrate’s decision. The dismissal was ordered by the trial judge
and it was a final order; it disposed of all the claims between all the parties, leaving
nothing else to be determined. See Udelson v. Udelson, 8th Dist. Cuyahoga No.
92717, 2009-Ohio-6462, ¶ 14–15. In his “objection,” Horn simply argued that the trial court should not
have dismissed his complaint. In other words, the “objection” was nothing more
than a motion to reconsider the trial court’s judgment.
As our court said in Udelson,
[t]he Ohio Rules of Civil Procedure limit relief from judgments to motions expressly provided for in the rules. The rules allow for relief from final judgments by means of Civ.R. 50(B) (motion notwithstanding the verdict), Civ.R. 59 (motion for a new trial), and Civ.R. 60(B) (motion for relief from judgment). The rules do not, however, prescribe motions for reconsideration after a final judgment in the trial court. Accordingly, motions for reconsideration of a final judgment in the trial court are a nullity and trial courts do not have jurisdiction to address them.
(Citations omitted.) Udelson at ¶ 16.
While trial courts have some discretion to treat a motion for
reconsideration as a motion to vacate under Civ.R. 60(B) — see id. at ¶ 17 (collecting
cases) — the trial court did not do so here and Horn’s “objection” does not attempt
to state a case for relief from judgment under Civ.R. 60(B). Because Horn’s
“objection” to the trial court’s dismissal order was nothing more than a motion to
reconsider the final judgment, the trial court did not err in denying it.8
8 In his reply brief, Horn argues for the first time that it was “procedurally improper” for the trial judge to grant Dr. Cherian’s motion to dismiss in the absence of a magistrate’s decision and recommendation on the issue. Horn cites no authority supporting the argument. Moreover, an appellate court will generally not address an argument raised for the first time in a reply brief. See, e.g., Raudins v. Hobbs, 2018-Ohio- 2309, 104 N.E.3d 1040, ¶ 54, fn. 10 (8th Dist.), citing Bank of N.Y. Mellon Trust Co., N.A. v. Unger, 8th Dist. Cuyahoga No. 101598, 2015-Ohio-769, ¶ 7, fn. 1 (appellate courts “cannot accept arguments raised for the first time in the reply brief on appeal”); Hadden Co., L.P.A. v. Zweier, 10th Dist. Franklin No. 15AP-210, 2016-Ohio-2733, ¶ 15. Because the argument was raised in the reply brief and is unsupported by any citations to legal authority, we will not address it. We, therefore, overrule Horn’s sixth assignment of error.
III. Conclusion
For the reasons stated above, we affirm the judgment of the
municipal court, in part, and we reverse it, in part.
We reverse the dismissal of Horn’s derivative claims for loss of
consortium and expenditures, but only to the extent that the claims were dismissed
with prejudice. We remand this matter with instructions for the trial court to
dismiss those claims without prejudice for failure to attach an affidavit of merit to
the complaint.
We affirm the dismissal, with prejudice, of Horn’s independent claim
of malpractice against Dr. Cherian arising out of the doctor-patient relationship
between La Riccia and Dr. Cherian. We also affirm the dismissal, with prejudice, of
Horn’s prayer for legal expenses and court costs related to the litigation Horn filed
in the Cuyahoga County Court of Common Pleas related to Dr. Cherian’s treatment
of La Riccia.
It is ordered that the appellant and the appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Lyndhurst Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________ EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and LISA B. FORBES, J., CONCUR