Hrina v. KLS Martin, L.P.

• Court: Ohio Court of Appeals
• Decided: April 9, 2026
• Docket: 115222
• Status: Published

Opinion

[Cite as Hrina v. KLS Martin, L.P., 2026-Ohio-1276.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

DAVID HRINA, INDIVIDUALLY AND : AS ADMINISTRATOR OF THE ESTATE OF PAMELA HRINA, ET AL., :

Plaintiffs-Appellants, : No. 115222 v. :

KLS MARTIN, L.P., ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 9, 2026

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-23-989264

Appearances:

Bashein & Bashein Co., L.P.A. and W. Craig Bashein; Flowers & Grube, Michael J. Factor, Louis E. Grube, and Paul W. Flowers, for appellants.

UB Greensfelder LLP, and Dolores Garcia, for appellee.

EILEEN T. GALLAGHER, J.:

Plaintiffs-appellants David Hrina, individually and as administrator of

the estate of Pamela Hrina, and Claire Elise Hrina and Jack Dylan Hrina, minor

children of David Hrina (collectively “appellants”), appeal an order dismissing their complaint against defendant-appellee Dr. Faisal Quereshy (“Dr. Quereshy”).

Appellants claim the following error:

The trial court erred by granting the Civ.R. 12(B)(6) motion to dismiss submitted by defendant Dr. Faisel Quereshy M.D.

We find that the trial court properly dismissed appellants’ refiled

complaint because they failed to timely file an affidavit of merit to support their

medical claims as required by Civ.R. 10(D)(2). Accordingly, we affirm the trial

court’s judgment.

I. Facts and Procedural History

On November 5, 2020, Pamela Hrina (“Pamela”) underwent surgery at

University Hospitals Medical Center (“UH”) to insert a mandibular reconstruction

plate. Shortly thereafter, Pamela experienced pain in her jaw, and subsequent

diagnostic testing showed that the plate was broken and required removal. A second

surgery was performed on November 25, 2020, to remove the plate.

On May 20, 2022, appellants filed suit, alleging products-liability

claims against the manufacturers and distributors of the mandibular plate and

medical-malpractice claims against Dr. Quereshy and UH.1 Simultaneously with the

filing of their complaint, appellants sought and obtained an extension of time to file

their affidavit of merit in accordance with Civ.R. 10(D)(2)(b). On July 12, 2023, over

1 “An appellate court is permitted to take judicial notice of publicly accessible online court dockets.” State v. Wagner, 2023-Ohio-1215, ¶ 64 (8th Dist.). Accordingly, we take judicial notice of the docket in the appellants’ previously filed medical malpractice case against Dr. Quereshy that was commenced with the filing of appellants’ original complaint on May 20, 2022. a year after the complaint was filed, the trial court granted a motion to dismiss, filed

by UH, to dismiss appellants’ claims against it because they had not filed an affidavit

of merit in support of their medical-malpractice claims as required by

Civ.R. 10(D)(2). In accordance with Civ.R. 10(D)(2), the trial court dismissed all of

appellants’ medical claims without prejudice. Thereafter, appellants dismissed the

remaining products-liability claims without prejudice pursuant to Civ.R. 41(A).

Appellants refiled their complaint on November 29, 2023, alleging the

same claims against the same parties as before. Simultaneously with the refiling of

their complaint, appellants again requested an additional 90 days to submit their

affidavit of merit. The trial court granted the request and provided a new deadline

of February 27, 2024.

On March 13, 2024, when no affidavit of merit had been filed, UH once

again moved to dismiss appellants’ medical claims. On March 26, 2024, appellants

filed a motion for leave to file their affidavit of merit, but it was too late. The trial

court granted UH’s motion to dismiss, denied appellants’ motion for leave to file

their affidavit of merit, and dismissed UH from the case. The trial court had

previously dismissed the products-liability claims for reasons unrelated to the

affidavit of merit, leaving Dr. Quereshy as the sole remaining defendant.

Dr. Quereshy did not file a motion to dismiss the medical claims against

him at the same time as UH. His then counsel had discovered a conflict of interest

regarding his representation, filed a motion to withdraw, and requested an

extension of time to respond to appellants’ complaint. (See Apr. 23, 2024, motion to withdraw and for extension of time.) Dr. Quereshy’s newly retained lawyer filed

a motion to dismiss the medical claims because of appellants’ failure to timely file

an affidavit of merit on May 17, 2024. Shortly thereafter, appellants appealed the

dismissal of their medical claims against UH, and the appeal stayed any further

action on Dr. Quereshy’s pending motion.

This court affirmed the dismissal of appellants’ medical claims against

UH for failure to comply with Civ.R. 10(D)(2), and it remanded the case to the trial

court for further proceedings on the remaining claims. Hrina v. Martin, L.P., 2025-

Ohio-549 (8th Dist.) (“Hrina I”). On remand, on April 7, 2025, appellants filed an

amended refiled complaint, alleging medical claims solely against Dr. Quereshy.

Appellants included an affidavit of merit with the amended refiled complaint. Dr.

Quereshy filed a motion to dismiss the amended refiled complaint, arguing that

because appellants failed to file their affidavit of merit by the court’s extended

deadline, the complaint should be dismissed. The trial court agreed and dismissed

the complaint. This appeal followed.

II. Law and Analysis

In the sole assignment of error, appellants argue the trial court erred in

granting Dr. Quereshy’s motion to dismiss.

Dr. Quereshy filed his motion to dismiss pursuant to Civ.R. 12(B)(6)

and Civ.R. 10(D)(2). A trial court’s review of a Civ.R. 12(B)(6) motion to dismiss is

limited to the four corners of the complaint along with any documents properly

attached to, or incorporated within, the complaint. Glazer v. Chase Home Fin. L.L.C., 2013-Ohio-5589, ¶ 38 (8th Dist.). In our review of a Civ.R. 12(B)(6) motion

to dismiss, we must accept the material allegations of the complaint as true and

make all reasonable inferences in favor of the plaintiff. Jenkins v. Cleveland, 2017-

Ohio-1054, ¶ 8 (8th Dist.), citing Johnson v. Microsoft Corp., 2005-Ohio-4985, ¶ 6.

For a party to ultimately prevail on the motion, it must appear from the face of the

complaint that the plaintiff can prove no set of facts that would justify a trial court

granting relief. Id., citing O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio

St.2d 242, 245 (1975).

It is undisputed that appellants’ amended refiled complaint alleges

medical claims against Dr. Quereshy that require an affidavit of merit. (See

plaintiffs’ memorandum in opposition to defendant Dr. Faisal Quereshy’s second

motion to dismiss p. 6-7.) Pursuant to Civ.R. 10(D)(2)(a), a complaint alleging a

medical claim must be accompanied by an affidavit of merit, unless the court grants

an extension pursuant to Civ.R. 10(D)(2)(b).

Civ.R. 10(D)(2)(b) governs the extension of time to file an affidavit of

merit and provides:

The plaintiff may file a motion to extend the period of time to file an affidavit of merit. The motion shall be filed by the plaintiff with the complaint. For good cause shown and in accordance with division (c) of this rule, the court shall grant the plaintiff a reasonable period of time to file an affidavit of merit, not to exceed ninety days, except the time may be extended beyond ninety days if the court determines that a defendant or nonparty has failed to cooperate with discovery or that other circumstances warrant extension.

(Emphasis added.) The staff notes to Civ.R. 10(D) further state, in relevant part: Division (D)(2)(b) of the rule sets an outside limit of 90 days to extend the time for the filing of an affidavit of merit, unless the court determines that the defendant or a nonparty in possession of the records has failed to cooperate with discovery, and in that circumstance the court may grant an extension beyond 90 days. This division also vests the trial court with the discretion to determine whether any other circumstances justify granting an extension beyond the 90 days.

The rule is intended to make clear that the affidavit is necessary to establish the sufficiency of the complaint. The failure to comply with the rule can result in the dismissal of the complaint, and this dismissal is considered to be a dismissal otherwise than upon the merits pursuant to Civ.R. 10(D)(2)(d).

(Emphasis added.)

Failure to timely file an affidavit of merit is grounds for dismissal of

the complaint. Fletcher v. Univ. Hosps. of Cleveland, 2008-Ohio-5379, ¶ 3 and 13,

citing State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548

(1992) (“Because the heightened standard imposed by the explicit text of Civ.R.

10(D)(2)(c), now (d), goes directly to the sufficiency of the complaint, a motion to

dismiss for failure to state a claim upon which relief can be granted is the proper

remedy when the plaintiff fails to include an affidavit of merit.”).

In this refiled action, appellants were granted a 90-day extension of

time to file an affidavit of merit. They did not file the affidavit of merit within that

90-day period even though the medical claims alleged in the refiled complaint filed

on November 29, 2023, were identical to those originally alleged in the complaint

filed in May 2022. In Hrina I, we noted:

It was not until after [UH] had moved to dismiss the complaint on March 13, 2024, for appellants’ failure to submit an affidavit of merit, and nearly a month after the extension deadline, that appellants requested leave to file an affidavit of merit. Appellants explained that Dr. Dagostino, who is a dentist, “only completed his review of Pamela Hrina’s medical records and made an affidavit of merit available on March 25, 2024. While [the trial court] previously granted an additional ninety days until February 27, 2024 to acquire an affidavit of merit, counsel was just able to acquire one through reasonable diligence this week.” No additional details were provided. In opposing the request for leave, UH argued in part that this was “the second iteration of this case, and the second time that Plaintiffs have failed to comply with a 90-day extension of time to submit an affidavit of merit,” and that they had not identified any extenuating circumstances to explain the delay or demonstrated “good cause” for the tardy affidavit of merit. The trial court did not find the circumstances of this case justified an extension beyond the 90 days for filing the affidavit of merit.

Appellants similarly did not attempt to present a “good cause”

argument to justify their tardy filing of an affidavit of merit in response to Dr.

Quereshy’s motion to dismiss. They argued instead that the court should have

treated their filing of the affidavit of merit as timely because they filed it with an

amended complaint and that, pursuant to Civ.R. 15(C), it related back to the original

refiled complaint since no new defendants were added. Civ.R. 15(C) governs the

relation back of amendments and states, in relevant part:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.

However, as previously stated, Civ.R. 10(D)(2)(b) governs the

extension of time to file an affidavit of merit and it permits an extension of no more

than 90 days, with certain limited exceptions and with “good cause” shown.

Appellants have made no attempt to demonstrate “good cause.” If a motion to

dismiss for failure to comply with the extensions provisions in Civ.R. 10(D)(2)(b) could be defeated by simply filing an amended complaint that included an affidavit

of merit, Civ.R. 10(D)(2)(b)’s limitation on extensions would be rendered

meaningless. This cannot be the intent of those who drafted Civ.R. 10(D)(2)(b).

Civ.R. 1(B) states that the Ohio Civil Rules “shall be construed and

applied to effect just results by eliminating delay, unnecessary expense and all other

impediments to the expeditious administration of justice.” This language is

consistent with Civ.R. 10(D)(2)’s strict limit of a 90 day-extension, especially when

considered with the purpose of Civ.R. 10(D)(2), which is “‘to deter the filing of

frivolous medical-malpractice claims’ and ‘to place a heightened pleading

requirement on parties bringing medical claims.’” Hrina I, 2025-Ohio-549, at ¶ 16

(8th Dist.), quoting Fletcher, 2008-Ohio-5379, at ¶ 10 and 12.

The Ohio Supreme Court has held that “[t]he primary purpose of

Civ.R. 15(C) is to preserve actions which, through mistaken identity or misnomer,

have been filed against the wrong person.” Littleton v. Good Samaritan Hosp. &

Health Ctr., 39 Ohio St.3d 86, 101 (1988). We have similarly held that Civ.R. 15(C)

is intended “to correct a misnomer or to resolve minor errors.” Estate of Finley v.

Cleveland Metroparks, 2010-Ohio-4013, ¶ 19 (8th Dist.), citing State Farm Mut.

Auto. Ins. Co. v. Sandhu Auto Mechanic, Inc., 1986 Ohio App. LEXIS 8741 (8th Dist.

Oct. 16, 1986). See also Askew v. Summit Cty., 2024-Ohio-2151, ¶ 12 (9th Dist.),

quoting Estate of Finley at ¶ 19 (“Civ.R. 15(C) allows the substitution of a party ‘to

correct a misnomer or to resolve minor errors.’”). When we consider Civ.R. 15(C) in conjunction with the plain language

of Civ.R. 10(D)(2) and Civ.R. 1(B) and the case law defining the limited purpose of

Civ.R. 15(C), we can only conclude that Civ.R. 15(C) permits the correction of minor

pleading errors but is not intended to allow plaintiffs to circumvent the limitations

period provided in Civ.R. 10(D)(2)(b) by simply filing an amended complaint.

Moreover, we previously held in this case that the trial court did not

abuse its discretion in either setting the deadline for filing the affidavit of merit or

in dismissing appellants’ complaint for failure to meet that deadline. Hrina I at ¶ 23.

We, therefore, find no abuse of discretion in the trial court’s refusal to allow

appellants’ untimely submission of an affidavit of merit now to cure the deficiency

in appellants’ complaint.

Appellants nevertheless complain that the trial court treated them

unfairly because it granted Dr. Quereshy leave to file a responsive pleading after the

response deadline had passed. We find no unfairness. Appellants originally filed

their complaint on May 20, 2022, and the trial court granted them a 90-day

extension to file the required affidavit of merit. The original complaint was

dismissed over a year later because appellants failed to file the required affidavit of

merit. Appellants refiled the complaint on November 29, 2023, but still did not have

the required affidavit of merit. The trial court gave them another 90-day extension

of time to file the affidavit of merit, and they missed that deadline. The court gave

extensions to both sides, but appellants failed to file the affidavit of merit after

receiving two 90-day extensions and after refiling the complaint. Moreover, Civ.R. 10(D)(2) provides a strict 90-day limitation period. We, therefore, find no

abuse of discretion in the court’s decision to dismiss the complaint against Dr.

Quereshy as a result of appellants’ failure to timely file an affidavit of merit as

required by Civ.R. 10(D)(2).

The sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellants 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

common pleas 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 T. GALLAGHER, JUDGE

LISA B. FORBES, P.J., and SEAN C. GALLAGHER, J., CONCUR