L.W. Shoemaker, M.D., Inc. v. Connor

612 N.E.2d 369, 81 Ohio App. 3d 748, 1992 Ohio App. LEXIS 3790

• Court: Ohio Court of Appeals
• Decided: July 14, 1992
• Docket: No. 91AP-1270.
• Status: Published

Opinions

Deshler, Judge.

This is an appeal by plaintiff, L.W. Shoemaker, M.D., Inc., from a judgment of the Franklin County Municipal Court, dismissing plaintiffs action against defendant, Terry Connor.

On June 7, 1991, plaintiff filed a complaint against defendant, alleging that defendant owed plaintiff $665. The complaint arose from alleged medical services rendered by plaintiff to defendant’s daughter from August 21, through August 31, 1990, at Riverside Hospital.

On July 23,1991, defendant filed an “answer,” pro se, asserting in part that plaintiff had failed to provide evidence that he had rendered services to defendant’s daughter. Defendant also asserted that plaintiff could not have rendered services to defendant’s daughter from August 27 through August 31, 1990 because, it was alleged, plaintiff was not present in the hospital at that time.

On July 25, 1991, the trial court filed an entry striking from the record the “answer” of defendant filed on July 23, 1991. The entry of the court stated that the paper filed by defendant “does not qualify as a pleading under Rules of Civil Procedure.” On July 31, 1991, defendant filed an amended answer with the trial court.

A bench trial was held on October 1, 1991. Eva Hignite was called as a witness on behalf of plaintiff. Hignite testified that she was the office manager in charge of bookkeeping for plaintiff. Hignite identified plaintiff’s Exhibit No. 1 as a billing statement she had typed for services rendered by plaintiff in the treatment of defendant’s daughter at Riverside Hospital. Hignite testified that the billing record was made at or near the time it was given to her by plaintiff, and that the record was kept in the regular course of business activity.

Following the direct examination of Hignite, the witness was cross-examined by defendant, who represented himself at trial. Defendant asked Hignite if she knew on what days plaintiff had been on vacation in 1990. Hignite responded that she could not recall plaintiffs vacation dates.

At the close of cross-examination, counsel for plaintiff moved for admission of plaintiffs Exhibit No. 1. The exhibit was admitted by the trial court without objection.

Following the close of plaintiff’s case, the following exchange occurred between the court, defendant, and counsel for plaintiff, James R. Leickly:

“MR. CONNER [sic throughout]: At this time, Your Honor, I’d like to call myself as a witness.

“THE COURT: Mr. Conner, I realize that you’re not an attorney. And I assume you’re not familiar with the Rules of Civil Procedure. Is that right?

“MR. CONNER: No, Your Honor, I’m not.

“THE COURT: Well, you see, if you were an attorney, once the plaintiff has rested, you make a motion for what we call the Rule 29 motion for a judgment in your favor.

“MR. CONNER: Okay, Your Honor. Then, it is my testimony as to the circumstances of the case, that I don’t think these billings were properly—

“THE COURT: If I overrule the motion, you’d be entitled to testify.

“MR. CONNER: Okay, Your Honor. Then I would make a motion that plaintiff has not presented evidence that, in fact, these bills are justified. And I would move that the Court render a judgment in my favor and dismiss the motion.

“MR. LEICKLY: If I may respond, Your Honor?

“THE COURT: Yes, you may.

“MR. LEICKLY: We have, in fact, brought someone who is the custodian of the records to indicate that this was a business record kept in the ordinary course of business; based on the records made at or about the time that the services were performed; it was billed to Mr. Conner — Mr. Conner doesn’t deny that — and that it is still, in fact, due and owing. So I believe we have put on our prima facie case put forward on this account, on this $700 account, Your Honor.

“THE COURT: In this case, Mr. Conner has placed at issue whether Dr. Shoemaker had performed the services that are the basis of this action from the very time — in his first pleading that I ordered struck because it was not a legal pleading; but every other paper he’s filed and his opening statement, he placed at issue the fact that he didn’t feel that Dr. Shoemaker had performed the services that were the basis of this action.

“The only thing that the plaintiff has offered in proof of its claim is Plaintiff’s Exhibit 1, which is not proof that the services were performed. Miss Hignite couldn’t even testify that Dr. Shoemaker was not on vacation during the time the services were alleged to have been performed. The plaintiff, in fact, has offered nothing to support his claim.

“The defendant’s motion for judgment will be sustained. The complaint will be dismissed at plaintiff’s costs.”

On October 4, 1991, the trial court filed a judgment entry, which stated in pertinent part, “Motion to Dismiss at end of Plaintiff’s case sustained.” On October 7, 1991, plaintiff filed a motion, pursuant to Civ.R. 52, requesting the trial court to state in writing its findings of fact and conclusions of law. By entry filed November 1, 1991, the trial court overruled plaintiff’s motion on the basis that the court had stated its reasons for dismissal on the record at the conclusion of plaintiff’s case.

On appeal, plaintiff sets forth the following assignments of error for review:

“I. The Court erred by ruling as a matter of law that Plaintiff had offered no evidence to support his claim.

“II. The Court erred in that its dismissal of Plaintiff-Appellant’s claim was clearly against the manifest weight of the evidence.

“III. The Court erred in that it admitted Plaintiff-Appellant’s Exhibit 1 but nonetheless ruled that Plaintiff-Appellant had presented no evidence to support his claim.

“IV. The Court erred in considering a responsive pleading, opening statement and cross-examination questions to be testimony.

“V. The Court erred in that its ruling pursuant to ‘Rule 29,’ Ohio Rules of Civil Procedure was an abuse of discretion.”

Plaintiff’s five assignments of error all raisé essentially the same issue: whether the trial court’s dismissal of plaintiff’s action was against the manifest weight of the evidence. Accordingly, we will consider the assignments of error together.

Initially, we note that, during the trial of this matter, the trial court discussed with defendant the opportunity for defendant to request a “Rule 29 motion” for judgment. It appears that the court may have inadvertently been referring to Crim.R. 29, pertaining to a motion for acquittal in a criminal proceeding, rather than the Civil Rule governing the dismissal of an action. While it is not entirely clear under what standard the trial court granted the dismissal of plaintiffs case, in a nonjury action, such as the present one, the proper motion for a dismissal is set forth under Civ.R. 41(B)(2).

Civ.R. 41(B)(2) provides:

“After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52 if requested to do so by any party.”

Thus, pursuant to Civ.R. 41(B)(2), if a case is tried to the court, rather than before a jury, the defendant may, after the plaintiff has presented his evidence and rested, move for a dismissal of the plaintiffs action on the ground that, upon the facts and law, the plaintiff has failed to show a right to relief. Cent. Motors Corp. v. Pepper Pike (1979), 63 Ohio App.2d 34, 48, 13 O.O.3d 347, 356-357, 409 N.E.2d 258, 270. The trial court, in determining whether the plaintiff has shown a right to relief, “is not required to review the evidence in the light most favorable to the plaintiff but is required only to determine whether the plaintiff has made out his case by a preponderance of the evidence.” Jacobs v. Bd. of Cty. Commrs. of Auglaize Cty. (1971), 27 Ohio App.2d 63, 65, 56 O.O.2d 245, 246, 272 N.E.2d 635, 636. Furthermore, the conclusions of the trial judge “may not be set aside unless they are erroneous as a matter of law or against the manifest weight of the evidence.” Id.

Based upon a review of the evidence presented by plaintiff during his case in chief, we find that the judgment of the trial court was unsupported by the evidence at the time the proceeding was terminated. While the trial court is entitled to weigh the evidence under a Civ.R. 41 motion, in the case sub judice there was no conflicting evidence to weigh at the time the trial court dismissed this action. Rather, at the close of plaintiffs case, the only evidence presented regarding the issue of services rendered was the testimony of plaintiffs bookkeeper and the admission of the billing statement indicating that such services had been performed. More specifically, the bookkeeper, Hignite, testified that Exhibit No. 1, plaintiffs billing statement, was prepared in the normal course of business and was part of the physician’s business records. The billing statement, which was introduced without objec tion, indicates that defendant’s daughter received ten hospital visits from plaintiff covering the period from August 21, 1990, the date of her admission to the hospital, through August 31, 1990, the date of her release.

The trial court apparently placed great reliance upon the fact that Hignite, when asked by defendant if she knew plaintiff’s vacation dates for 1990, testified that she did not know his vacation schedule. Hignite’s response, however, did not constitute contravening evidence. Rather, her response that she did not know plaintiff’s vacation dates provided no evidence as to that issue. Moreover, the question propounded by defendant, standing alone, is not evidence. 1

While not dispositive of this action, we find instructive the approach taken by some jurisdictions which follow the so-called “Alaska rule” in addressing a Civ.R. 41(B) motion. The rule was first set forth in Rogge v. Weaver (Alaska 1962), 368 P.2d 810, 813, wherein the court held:

“ * * * [WJhere plaintiff has presented a prima facie case based on unimpeached evidence we are of the opinion that the trial judge should not grant the [Civ.R. 41(B) ] motion even though he is the trier of the facts and may not himself feel at that point in the trial that the plaintiff has sustained his burden of proof. We believe that in the latter situation the trial judge should follow the alternative offered by the rule wherein it is provided that he ‘ * * * may decline to render any judgment until the close of all the evidence,’ and deny the motion. If, after denial of the motion, the defendant declines to present any evidence, the judge must, of course, then exercise his own judgment in applying the law to the facts presented and rule on the motion and decide the case.”

Although the position set forth in Rogge may appear to hinder the trial court from freely weighing the evidence, commentators have noted that the “Alaska rule” is consistent with Civ.R. 41(B) and does not significantly differ from the view employed by federal courts which weigh the evidence pursuant to a motion for involuntary dismissal:

“The view taken in Alaska is wholly consistent with the language of amended Rule 41(b), though the language of the rule does not require that result. In practice there is probably not much difference between the position in Alaska and that taken in the federal courts. It is doubtful if federal judges would enter judgment on the merits against plaintiff at the conclusion of his case if his evidence making out a prima facie case is unimpeached. It is only when the evidence has been impeached that there is any real occasion for the judge to weigh the evidence.” (Emphasis added.) 9 Wright & Miller, Federal Practice and Procedure (1971) 227, Section 2371.

We find the above commentary persuasive. The rationale that there can be no practical weighing of the evidence when the evidence is unimpeached constitutes a common-sense approach which promotes the interests of justice under such circumstances. In the present case, at the time the trial court prompted defendant to make his motion for dismissal, plaintiffs evidence was uncontradicted either by discrepancies from within or by contrary evidence from defendant. Had the trial court allowed the action to proceed, defendant would have had the opportunity to present a conflicting version surrounding the services allegedly rendered. However, no conflicting evidence was before the court when it dismissed this action and plaintiffs own evidence was neither impeached nor inherently implausible. In sum, we find that the judgment of the trial court was against the manifest weight of the evidence as the evidence stood when the trial court granted defendant’s motion.

Based upon the foregoing, we conclude that the trial court’s decision was erroneous. Accordingly, plaintiff’s five assignments of error are sustained to the extent provided above.

Defendant has filed a motion to dismiss plaintiff’s appeal, asserting that the appellate brief of plaintiff was not filed in a timely manner and that neither plaintiff nor his counsel attended a scheduled prehearing conference. Defendant further seeks sanctions for plaintiff’s failure to appear at the prehearing conference.

Concerning defendant’s contention that plaintiff failed to timely file an appellate brief, the record in this case indicates that, by entry dated December 3, 1991, this court granted plaintiff an extension by which plaintiff was required to file his brief on December 4,1991. The record shows that plaintiff timely filed his brief on that date.

Defendant’s motion to dismiss for the failure of plaintiff or his counsel to attend a prehearing settlement conference is without merit. While the record indicates that a prehearing settlement conference was scheduled by the assignment commissioner, defendant has failed to demonstrate prejudice warranting the dismissal of this action or the award of sanctions, nor does the record show that plaintiff violated a prehearing conference order of this court pursuant to Loc.R. 15 of the Tenth District Court of Appeals.

Accordingly, defendant’s motion to dismiss this appeal is not well taken and is overruled.

Based upon the foregoing, plaintiff’s five assignments of error are sustained to the extent set forth above, defendant’s motion to dismiss is overruled, the judgment of the trial court is reversed and this matter is remanded for a new trial in accordance with law and consistent with this opinion.

Judgment reversed and cause remanded.

John C. Young, P.J., concurs. Whiteside, J., dissents.

1 . The trial court further made reference to the fact that defendant, through his pleadings and opening statement, "placed at issue the fact that he didn’t feel that Dr. Shoemaker had performed the services that were the basis of this action.” However, neither defendant’s opening statement nor his pleadings are evidence. See Long v. Maxwell (1962), 118 Ohio App. 134, 24 O.O.2d 446, 193 N.E.2d 423; Farmers Prod. Credit Assn, of Ashland v. Stoll (1987), 37 Ohio App.3d 76, 523 N.E.2d 899.