[Cite as Monroe v. Forum Health, 2012-Ohio-6133.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
CHARLES MONROE, et al., : OPINION
Plaintiffs-Appellants, : CASE NO. 2012-T-0026 - vs - :
FORUM HEALTH, d.b.a. TRUMBULL : MEMORIAL HOSPITAL, et al., : Defendants-Appellees.
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2009 CV 448.
Judgment: Affirmed in part, reversed in part, and remanded.
Laurel A. Matthews, Matthews & Assoc. Co., LPA, 4471 Buckeye Lane, Dayton, OH 45440 (For Plaintiffs-Appellants).
Marshall D. Buck and Bobbie L. Flynt, Comstock, Springer & Wilson Co., L.P.A., 100 Federal Plaza East, #926, Youngstown, OH 44503 (For Defendants-Appellees).
DIANE V. GRENDELL, J.
{¶1} Plaintiffs-appellants, Charles and Joan Monroe, appeal from the March 1,
2012 Judgment Entry of the Trumbull County Court of Common Pleas, granting
defendants-appellees, Forum Health, dba Trumbull Memorial Hospital, Marshall D.
Buck, Comstock, Springer, & Wilson Co., L.P.A., Dawn Dominic, and Forum Health at
Home’s, Motion to Dismiss. The issues to be determined by this court are whether a
Spoliation of Evidence claim can be dismissed pursuant to a Civ.R. 12(B)(6) motion when the spoliation of evidence may have been discovered during a previous suit,
whether a Fraud claim is pled with particularity when the claim fails to state the
consequences of the alleged fraud, and whether a claim for a violation of the Ohio
Consumer Sales Practices Act can be pursued against a hospital. For the following
reasons, we affirm in part, reverse in part, and remand the decision of the trial court.
{¶2} On February 18, 2009, the Monroes filed a Complaint against Forum
Health, Marshall D. Buck, Comstock, Springer, & Wilson Co, L.P.A., Dawn Dominic, and
Forum Health at Home, as well as Celtic Healthcare of N.E. Ohio and Snapshots,
asserting four counts. Under Counts One and Two, they asserted claims for Spoliation
of Evidence, arguing that all of the defendants destroyed, altered, or falsified various
medical records and bills related to Charles Monroe’s medical treatment. The claims
alleged that these records were altered or destroyed “for the express purpose of
disrupting” a medical malpractice case previously filed and litigated by the Monroes in
Trumbull County Court of Common Pleas Case No. 2007 CV 2107. They asserted that
the case had been tried to a jury, judgment was entered in favor of the defendants, and
the spoliation of the evidence had resulted in the disruption of the Monroes’ case.
{¶3} Under Count Three, the Monroes asserted Fraud against Forum Health,
arguing that it falsely misrepresented and/or billed Charles Monroe for treatment and
tests that were either not rendered or Forum Health was not entitled to be compensated
for rendering.
{¶4} In Count Four, the Monroes asserted that Forum Health violated R.C.
1345, the Ohio Consumer Sales Practices Act (CSPA), by committing unfair or
deceptive acts as a supplier of medical services.
2 {¶5} On March 3, 2009, Forum Health, Buck, Comstock, Springer, & Wilson,
Dominic, and Forum Health at Home, filed a Motion to Dismiss, pursuant to Civ.R.
12(B)(6). In the Motion, they argued that the Spoliation claims were not brought in a
timely fashion, the claims were barred by both immunity and res judicata, the Fraud
claim was not pled with sufficient particularity, and the Monroes failed to state a claim
related to the CSPA.
{¶6} On March 11, 2009, the Monroes filed a Brief in Opposition to the Motion
to Dismiss.
{¶7} On March 16, 2009, Celtic Healthcare filed a Motion to Dismiss. The
Motion raised similar grounds for dismissal as the other defendants’ Motion, arguing
that the Spoliation claims were not brought in a timely fashion and that the claims were
barred by immunity and res judicata. A Brief in Opposition was filed by the Monroes on
March 24, 2009.
{¶8} On March 20, 2009, a Notice of Filing of Bankruptcy Petition and request
for a stay was filed by Forum Health. On March 27, 2009, a Judgment Entry was issued
by the trial court, staying proceedings pending further order of the bankruptcy court.
{¶9} On March 30, 2009, Snapshots filed an Answer and Counterclaim,
asserting that they had been improperly named as “Snapshots” and should be identified
as Natalie, Inc. Natalie, Inc. filed a Third Party Complaint on the same date against the
Monroes’ attorney, Laurel Matthews.
{¶10} On April 3, 2009, the Monroes filed a Motion to Amend to Add a Claim for
Civil Conspiracy and a Party Pursuant to Civ.R. 15. In the Motion, they requested to
3 add a Civil Conspiracy complaint against all named defendants. They also requested to
add Natalie, Inc. as a defendant.
{¶11} On May 13, 2009, the trial court filed a second Judgment Entry, stating
that the case was stayed due to bankruptcy filings and removing the case from the
active docket. A motion to remove the stay was filed by Forum Health on November 16,
2011.
{¶12} A Notice of Voluntary Dismissal was filed on February 29, 2012, in which
the parties agreed that the Monroes would dismiss their claims against Natalie, Inc. and
Herb Doe, and that Natalie, Inc. would dismiss its third party claim and its counterclaim
against the Monroes.
{¶13} On March 1, 2012, the trial court issued a Judgment Entry, granting Forum
Health, Buck, Comstock, Springer, & Wilson, Dominic, and Forum Health at Home’s
Motion to Dismiss. In its Judgment Entry, the trial court stated that it had reviewed the
defendants’ motion and found it well taken. The court noted that the Monroes had
“failed to file a responsive pleading to the motion to dismiss.” The court further noted
that the claims against Herb Doe and Natalie, Inc., dba Snapshots, had been voluntarily
dismissed. It found that the claim against defendant Celtic Healthcare had previously
been dismissed. It ultimately concluded that all claims asserted in the Monroes’ action
had been resolved or dismissed.
{¶14} The Monroes filed a Motion for Relief from Judgment Pursuant to Civ.R.
60 on March 16, 2012, asserting that the trial court erred in finding the Monroes failed to
file a responsive pleading to the defendants’ Motion to Dismiss. A review of the docket
indicates that the trial court has not ruled on that motion.
4 {¶15} On September 14, 2012, this court issued a Judgment Entry, noting that
the trial court’s March 1, 2012 Judgment Entry stated that the claims against Celtic
Healthcare had “previously been dismissed,” but that the record did not show that such
claims had been dismissed. The Entry remanded the matter to the trial court and
ordered it to issue a judgment clarifying the matter.
{¶16} The trial court issued a Judgment Entry on September 20, 2012, stating
that it inadvertently failed to dismiss the claims against Celtic Healthcare. The court
noted that it had “reviewed the motion, memoranda, pleadings, exhibits and the relevant
applicable law” and granted Celtic Healthcare’s Motion to Dismiss.
{¶17} The Monroes timely appeal and raise the following assignments of error:
{¶18} “[1.] A. The Trial Court’s Determination That Plaintiffs-Appellants Failed To
File A Pleading in Response to the Motion to Dismiss Filed by Defendant-Appellees
Forum Health, et al., Was Erroneous and Contrary To The Court’s Official Docket[.] B.
The Trial Court’s Finding That Defendant Celtic Health Care of N.E. Ohio, Inc. Had
Previously Been Dismissed from the Action Was Erroneous.
{¶19} “[2.] The Trial Court Committed Reversible Error by Failing to Consider
Plaintiffs-Appellants’ Brief in Opposition to Appellees’ Motion to Dismiss and the Further
Failure, Or Refusal, To Consider Their Motion for Relief From Judgment Pursuant to
Civ. R. 60.
{¶20} “[3.] The Trial Court Considered Matters Beyond Its Proper Scope On A
Motion To Dismiss Pursuant to Civ. R. 12(B)(6) Such That Its Ruling Was Erroneous As
A Matter of Law.”
5 {¶21} Appellees initially argue that the Judgment Entry from which the Monroes
appeal is not a final order, since the trial court improperly stated that the claims against
Celtic Healthcare had been dismissed and these claims remain pending in the trial
court.
{¶22} However, upon remand, the trial court noted that it had inadvertently failed
to dismiss the claims against Celtic Healthcare and granted Celtic Healthcare’s Motion
to Dismiss. At the present time, all claims against all parties have been disposed of by
the trial court and there is no reason to delay consideration of the present appeal.
{¶23} In the present matter, the errors raised by the Monroes generally arise
from the trial court’s Judgment Entry granting the Forum Health defendants’ Motion to
Dismiss. As a general rule, “[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.” State ex
rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605 N.E.2d 378
(1992). “In reviewing a judgment involving a Civ.R. 12(B)(6) motion to dismiss, an
appellate court conducts a de novo review of the complaint to determine whether the
dismissal was appropriate.” (Citations omitted.) Masek v. Marroulis, 11th Dist. No.
2007-T-0034, 2007-Ohio-6159, ¶ 24.
{¶24} In construing the complaint, an appellate court must “limit its inquiry to the
material allegations contained in the complaint and accept those allegations and all
reasonable inferences as true.” (Citation omitted.) Gawloski v. Miller Brewing Co., 96
Ohio App.3d 160, 163, 644 N.E.2d 731 (9th Dist.1994). Accepting all factual allegations
as true, a complaint should not be dismissed unless it appears “beyond doubt from the
complaint that the plaintiff can prove no set of facts entitling him to recovery.” O’Brien v.
6 Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975),
syllabus. “‘[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.’” (Citations omitted.) Goss v. Kmart Corp., 11th Dist. No. 2006-T-0117,
2007-Ohio-3200, ¶ 20.
{¶25} This court has further held that in applying civil rules, including Civ.R.
60(A), this application “is a question of law, which we review de novo.” Home Savings
& Loan Co. v. Great Lakes Plaza, Ltd., 11th Dist. Nos. 2011-L-168, et al., 2012-Ohio-
3420, ¶ 12.
{¶26} In their first assignment of error, the Monroes raise several arguments.
First, they assert that the trial court’s determination that they failed to file a responsive
pleading to the defendants’ Motion to Dismiss was erroneous.
{¶27} A review of the record reveals that the Monroes did file a responsive
pleading to Forum Health, et al.’s Motion to Dismiss, entitled “Plaintiffs’ Brief in
Opposition to Defendants’ Motion to Dismiss Pursuant to Civ.R. 12(B)(6),” on March 11,
2009. The trial court’s statement that no responsive pleading was filed does not
accurately reflect the record. Although the Monroes argued that they were “prejudiced”
by this failure, they advance no argument to support this contention. The Monroes do
not argue how the result would have been different had the trial court considered their
responsive pleading. The trial court stated that it considered the issues raised in the
Motion to Dismiss and the related case law. All of the issues raised in the Motion to
Dismiss were legal issues, such that the response would not have been necessary to
point to any factual issues or clarify the facts. See R.C. 2501.02 (a lower court’s
7 decision will be reversed upon a finding of prejudicial error). Moreover, to the extent
that the trial court made any error related to the dismissal of the counts based on the
grounds provided in the Motion to Dismiss, it will be further reviewed in the third
assignment of error.
{¶28} The Monroes also appear to assert that, pursuant to Civ.R. 60(A), the trial
court made a clerical mistake by finding that they did not file a responsive pleading to
the Motion to Dismiss. Under Civ.R. 60(A) “[c]lerical mistakes in judgments, orders or
other parts of the record and errors therein arising from oversight or omission may be
corrected by the court at any time on its own initiative or on the motion of any party and
after such notice, if any, as the court orders.” During the pendency of an appeal, after
the appeal is docketed with the appellate court, such mistakes can be corrected with
leave of the appellate court. Civ.R. 60(A).
{¶29} We note that the trial court has not taken action to make any corrections,
although a Civ.R. 60 motion was filed with the trial court. The Monroes did not seek
leave of this court to correct the mistake. Moreover, it is not clear whether the trial
court’s failure to consider the responsive pleading was a clerical mistake or instead
something more. See In re D.H., 4th Dist. No. 10CA2, 2011-Ohio-601, ¶ 26 (rejecting
appellant’s assignment of error when she did not seek leave to correct the clerical
mistake in the entry and it was not clear from the record that the error “constitute[d] a
pure clerical error subject to correction pursuant to Civ.R. 60(A)”). Based on the
foregoing, we cannot order the trial court to amend its Judgment Entry to correct the
alleged clerical error.
8 {¶30} Finally, the Monroes state that the trial court erroneously found that Celtic
Healthcare had been dismissed when no such dismissal occurred. However, as
explained above, this was remedied upon remand, where the trial court granted Celtic’s
Motion to Dismiss.
{¶31} The first assignment of error is without merit.
{¶32} In their second assignment of error, the Monroes again present the
argument that the trial court failed to consider their response to the Motion to Dismiss.
As was discussed in the first assignment of error, this argument is without merit.
{¶33} Additionally, in the text of this assignment of error and issue presented for
review, the Monroes argue that the trial court erred through its “failure, or refusal,” to
consider their motion for relief from judgment under Civ.R. 60(B).1 However, they
present no additional argument in support of this issue. The Monroes’ Civ.R. 60(B)
motion filed with the trial court, in which they requested relief from judgment due to the
trial court’s failure to consider their Brief in Opposition to the Motion to Dismiss, has not
been ruled on by the trial court. The Monroes provide no support for their apparent
contention that the trial court erred by failing to rule on the motion. This court cannot
address the merits of a Civ.R. 60(B) motion, since there is no judgment before us in
which the trial court has ruled on the motion. See Troutman v. Hartford Fire Ins. Co.,
9th Dist. No. 20583, 2001 Ohio App. LEXIS 5073, *16 (Nov. 14, 2001) (“as the Civ.R.
60(B) motion is still pending before the trial court, the issues raised in this assignment of
error are not yet ripe for review; therefore, we decline to address them”).
1. Although the Monroes identify their motion in this assignment of error as a Civ.R.60(B) motion, they also assert that it is a Civ.R. 60(A) motion, as discussed in the first assignment of error.
9 {¶34} Moreover, had the Monroes felt that a ruling on their motion for relief from
judgment was necessary prior to this court’s consideration of their appeal, they could
have requested a stay of the appeal and a remand to the trial court for consideration of
its motion for relief from judgment, but failed to do so. See Id.; Wiltz v. Moundbuilders
Guidance Ctr., 5th Dist. No. 11-CA-22, 2012-Ohio-1798, ¶ 46 (the “trial court correctly
did not rule on Appellant’s request for relief because it lacked jurisdiction to do so,”
given that the matter had been appealed and the appellant did not seek a remand to the
trial court). Given that the trial court had only a few days to rule on the Civ.R. 60 motion
before the Monroes filed their notice of appeal, divesting the lower court of jurisdiction,
we cannot say that the trial court erred by failing to rule on the motion.
{¶35} The Monroes also argue that the claims in their Complaint cannot be
dismissed on a Civ.R. 12(B)(6) motion. They assert that the Motion to Dismiss was
predicated on “evidentiary materials, affirmative defenses and other avoidances that are
beyond the proper scope of a Court’s consideration on a Motion to Dismiss.” They
further argue that if the trial court considered matters outside of the Complaint, it
converted the Motion to Dismiss into a motion for summary judgment and failed to give
the required notice to the parties.
{¶36} It is the trial court’s “responsibility either to disregard extraneous material
or to convert a motion to dismiss into a motion for summary judgment when additional
materials are submitted.” Keller v. Columbus, 100 Ohio St.3d 192, 2003-Ohio-5599,
797 N.E.2d 964, ¶ 18. If a Civ.R. 12(B)(6) motion presents matters outside the
pleading, “and such matters are not excluded by the court, the motion shall be treated
as a motion for summary judgment.” Civ.R. 12(B). Prior to converting a motion to
10 dismiss for failure to state a claim into a motion for summary judgment, a trial court must
give actual notice to the parties and provide an opportunity to respond. State ex rel.
Baran v. Fuerst, 55 Ohio St.3d 94, 97, 563 N.E.2d 713 (1990).
{¶37} In the present matter, there were no additional evidentiary materials
submitted with the Motion to Dismiss for the trial court to consider. There is also no
indication that the trial court intended to rule on matters outside of the Complaint, and
no statement by the court that it had converted the Motion to Dismiss into a summary
judgment motion. Based on the record, we cannot find that the Motion to Dismiss was
improperly converted into a motion for summary judgment, such that notice was
required to the Monroes. To the extent that certain grounds or defenses are
inappropriate to rule on in a motion to dismiss, these will be addressed within the third
assignment of error’s analysis regarding whether the trial court properly granted the
Motion to Dismiss on each of the claims raised by the Monroes.
{¶38} The second assignment of error is without merit.
{¶39} In their third assignment of error, the Monroes argue that there was no
basis for the trial court to dismiss any of their claims based on the defenses and
arguments raised in the defendants’ Motion to Dismiss.
{¶40} As an initial matter, we note that the trial court did not provide its specific
reasons for granting the defendants’ Motion to Dismiss. It instead stated only that it had
reviewed the motion and the case law and “finds the motion is well taken and it is
hereby sustained.” Therefore, we must consider the grounds raised in the Motion to
Dismiss to determine whether the dismissal of the Monroes’ claims was proper.
11 {¶41} One ground for dismissal raised by the defendants was that the Monroes’
claims were barred by res judicata and should have been raised in the prior malpractice
lawsuit.
{¶42} However, “[t]his court and others have concluded, under Civ.R. 8(C), that
‘[r]es judicata is an affirmative defense,’ which ‘must be pleaded’ and ‘cannot be raised
by [a] motion [to dismiss].’” (Citation omitted.) JP Morgan Chase Bank v. Ritchey, 11th
Dist. No. 2006-L-247, 2007-Ohio-4225, ¶ 22; Nelson v. Pleasant, 73 Ohio App.3d 479,
482, 597 N.E.2d 1137 (4th Dist.1991); Hamrick v. Daimler-Chrysler Motors, 9th Dist.
No. 02CA008191, 2003-Ohio-3150, ¶ 7. Accord Jim’s Steak House, Inc. v. Cleveland,
81 Ohio St.3d 18, 21, 688 N.E.2d 506 (1998) (“the defense of res judicata may not be
raised by a motion to dismiss under Civ.R. 12(B)”) (citation omitted).
{¶43} Since appellees raised the issue of res judicata in a motion to dismiss,
rather than in a responsive pleading or a motion for summary judgment, we conclude
that it would have been improper for the trial court to grant the motion to dismiss on this
ground. JP Morgan at ¶ 23.
{¶44} The appellees also argued in their Motion to Dismiss that the claims raised
by the Monroes were barred as to all defendants because they had immunity. They first
argued that Attorney Buck and Comstock, Springer, and Wilson Co., L.P.A., were
protected by attorney-client privilege against the Spoliation claims.
{¶45} In the present matter, we cannot find that the immunity defense can be
applied to dismiss the Spoliation claims against Attorney Buck and Comstock, Springer,
and Wilson at this stage in the proceedings. Regarding the issue of attorney immunity,
it has been held that “an attorney may not be held liable by third parties as a result of
12 having performed services on behalf of a client, in good faith, unless the third party is in
privity with the client for whom the legal services were performed, or unless the attorney
acts with malice.” Simon v. Zipperstein, 32 Ohio St.3d 74, 76, 512 N.E.2d 636 (1987),
citing Scholler v. Scholler, 10 Ohio St.3d 98, 462 N.E.2d 158 (1984), paragraph one of
the syllabus. In their Spoliation claim, the Monroes alleged that Buck and Comstock,
Springer, and Wilson committed “malicious and/or fraudulent” conduct by participating in
the intentional destruction of evidence. Therefore, when construing these assertions as
true and accepting that the attorneys acted with malice, we cannot find that the
Complaint against Attorney Buck and Comstock, Springer and Wilson can be dismissed
at the Civ.R. 12(B)(6) stage. See Id. at 76-77 (finding an attorney’s immunity defense
applicable where appellee’s complaint failed to set forth “special circumstances such as
fraud, bad faith, collusion or other malicious conduct which would justify departure from
the general rule” of immunity).
{¶46} The defendants further asserted that Forum Health, Dominic, and Forum
Health at Home were immune from suit in connection with the proceedings in the prior
malpractice case because they were parties or witnesses in the previous litigation, and
that “witnesses in litigation are immune to all possible civil claims arising from their
testimony.”
{¶47} In support of this argument, the appellants cite Liles v. Gaster, 42 Ohio St.
631, 635 (1885), in which the Ohio Supreme Court stated that “language used in the
ordinary course of judicial proceedings, whether by the judge, a party, counsel, jurors or
witnesses, is protected if it be relevant to the matter under consideration, and the court
have jurisdiction.” As has been held by this court in applying Liles, “defamatory
13 testimony in a judicial proceeding which is material to the inquiry is privileged absolutely
and cannot be the basis of an action for libel or slander even if the testimony is given
maliciously and with knowledge of its falsity.” Rittenhouse v. Johnson, 11th Dist. No. 9-
050, 1982 Ohio App. LEXIS 13464, *11 (Dec. 10, 1982).
{¶48} Regarding the claim of immunity for the remaining defendants, it is argued
they were immune due to the fact that they were witnesses in the prior malpractice
lawsuit. However, the claim in the present matter alleges that these defendants
destroyed evidence and made false claims regarding certain billing procedures, and it is
not evident from the Complaint that these claims are specifically related to any
testimony that may have been given in the prior lawsuit. This is not a claim that arises
from their testimony, such as a libel or slander case. If all parties to a prior lawsuit or
witnesses in those suits were immune to claims against Spoliation by virtue of being a
party to, or testifying in, the prior suit, no party could prevail on such a claim. Again, at
the Civ.R.12(B)(6) stage, we cannot find that there was a basis for dismissing the claims
based on an immunity defense.
{¶49} Regarding the Spoliation claim specifically, the defendants argued in their
Motion to Dismiss that the claim should have been raised in the previous malpractice
trial, not in a separate lawsuit and, therefore, should be dismissed.
{¶50} The Monroes argue that their Complaint properly stated a claim for
Spoliation.
{¶51} A plaintiff must prove the following elements to recover on a claim for
Spoliation of Evidence: “(1) pending or probable litigation involving the plaintiff, (2)
knowledge on the part of defendant that litigation exists or is probable, (3) willful
14 destruction of evidence by defendant designed to disrupt the plaintiff's case, (4)
disruption of the plaintiff’s case, and (5) damages proximately caused by the
defendant’s acts.” Smith v. Howard Johnson Co., Inc., 67 Ohio St.3d 28, 29, 615
N.E.2d 1037 (1993). It has been held that “claims for spoliation of evidence may be
brought after the primary action has been concluded only when evidence of spoliation is
not discovered until after the conclusion of the primary action.” Davis v. Wal-Mart
Stores, Inc., 93 Ohio St.3d 488, 491, 756 N.E.2d 657 (2001); Ciganik v. Kaley, 11th Dist.
No. 2004-P-0001, 2004-Ohio-6029, ¶ 30.
{¶52} In the present matter, it was not asserted that the Monroes failed to plead
the elements of Spoliation outlined above. Instead, it was argued that they should not
be allowed to proceed on the Spoliation claim because the evidence of spoliation was
discovered during the prior lawsuit.
{¶53} We find that this claim should not have been dismissed at this stage of the
proceedings. The Monroes pled the foregoing elements of their claim. These elements
do not require the plaintiff to plead the time during which the evidence of spoliation was
discovered. To the extent that this court has found spoliation of evidence cannot be
pursued in a separate lawsuit due to earlier discovery of the issue, such proceedings
were at the summary judgment stage, where facts had been discovered regarding this
issue. Ciganik at ¶ 32. See also Davis at 490-491 (where the trial court ruled in favor of
the defendant on a spoliation claim due to the plaintiff’s failure to raise the claim in a
prior lawsuit, this determination was made at the summary judgment stage). In the
present matter, the allegations made by the Monroes in their Complaint were of a
general nature, including claims that evidence was “altered, * * * destroyed, falsified,
15 and/or concealed,” with the exception of their specific assertions that the spoliated
evidence was related to a 2007 medical malpractice suit and testimony was given that
certain medical records had been sold. No further discovery has been conducted to
determine whether all information related to the spoliation of evidence was discovered
during the prior trial. In addition, it appears that this defense is similar to a res judicata
defense, in that the defendants asserted the claim could not be raised since the
plaintiffs had previously done so or had the chance to do so. As noted previously, a res
judicata defense cannot be raised at this stage of the proceedings. JP Morgan, 2007-
Ohio-4225, at ¶ 22. Therefore, the trial court erred in dismissing the Spoliation claims in
Count One and Two of the Monroes’ Complaint.
{¶54} As to the Fraud claim, the Monroes argue that it should not have been
dismissed because the necessary averments were made in Count Three of their
Complaint.
{¶55} “[S]ince Ohio is a notice-pleading state, Ohio law does not ordinarily
require a plaintiff to plead operative facts with particularity.” Cincinnati v. Beretta U.S.A.
Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 29. Civ.R. 8(A)(1)
requires that a complaint include only “(1) a short and plain statement showing that the
party is entitled to relief, and (2) a demand for judgment for the relief to which the party
claims to be entitled.” However, Civ.R. 9(B) provides that when a complainant alleges a
claim for fraud or mistake, “the circumstances constituting fraud or mistake shall be
stated with particularity.”
{¶56} In order to meet this obligation, the complaint must include “the time, place
and content of the false representation; the fact represented; the identification of the
16 individual giving the false representation; and the nature of what was obtained or given
as a consequence of the fraud.” (Citation omitted.) Brown v. Sasak, 11th Dist. No.
2009-A-0054, 2010-Ohio-2676, ¶ 16.
{¶57} In the Monroes’ Complaint, under their Fraud Count, they asserted the
following:
36. Defendants Forum Health falsely misrepresented, with knowledge of that
falsity, and/or with such utter disregard and reckless[ness] as to whether true
or false that knowledge can be inferred, and with the intent of misleading
Plaintiff Charles Monroe, and/or billed him for medical treatments and/or
diagnostic tests, and/or services purportedly rendered between October 1-
October 18, 2006, that they did not render and/or were otherwise not entitled
to be compensated for rendering.
{¶58} In the present matter, we find that the Monroes did not plead their Fraud
claim with sufficient particularity and it was proper for the trial court to dismiss that
claim. Although the Monroes assert that they were improperly billed for certain services
in October, they do not assert when the false statements about the services rendered
were made or when the bills were sent. They also did not explain which specific
services Monroe was falsely led to believe had been rendered. Finally, the Monroes
failed to show what was given or obtained as a consequence of the alleged fraud.
Although they assert that they were billed for such services, there is no allegation
regarding the payment made for these services. Therefore, we cannot find that
anything was given to or obtained by Forum Health as a consequence of the fraudulent
action. See Hailey v. MedCorp, Inc., 6th Dist. No. L-05-1238, 2006-Ohio-4804, ¶ 32-33
17 (where the plaintiff alleged that she was overbilled but made no further allegations
regarding the effect of this overbilling, she failed to provide an indication of what was
obtained or given as a consequence of the fraud).
{¶59} The Monroes further argue that their Complaint stated a claim for
violations of the Ohio Consumer Sales Practices Act and, therefore, the trial court erred
in dismissing this claim.
{¶60} The appellants argue that the CSPA does not apply to any actions related
to medical claims, since physicians are specifically exempted under R.C. 1345.01(A).
{¶61} In the Complaint, the Monroes averred the following:
41. Defendant Forum Health committed unfair and/or deceptive acts [as] a
supplier, including acts committed with actual malice, in connection with,
during, and/or after, consumer transactions entered into with Plaintiff Charles
Monroe, including, but not limited to, representing that certain services, tests,
treatments, supplies, and/or other subject matter of consumer transactions,
were supplied, when they were not, in violation of O.R.C. 1345.02.
42. Defendant Forum Health, FHH, and/or Celtic, committed unconscionable
acts and/or practices as suppliers, * * * including, but not limited to, knowingly
taking advantage of Charles Monroe’s inability to reasonably protect his
interests because of his physical or mental infirmities, and/or inability to
understand the language of an agreement in violation of O.R.C. 1345.03.
{¶62} Pursuant to R.C. 1345.01(A), a “consumer transaction” does not include a
transaction between “physicians * * * and their clients or patients.”
18 {¶63} The Monroes did not file their claims against an individual physician but
against Forum Health, doing business as Trumbull Memorial Hospital. Various courts
have held that CSPA claims can be raised against hospitals or medical service
providers, since they are not specifically exempted by the statute. Summa Health Sys.
v. Viningre, 140 Ohio App.3d 780, 795, 749 N.E.2d 344 (9th Dist.2000) (“[w]hile
transactions with physicians are exempted from the CSPA, a transaction between a
service provider such as a hospital and the consumer is not clearly exempted”); Elder v.
Fischer, 129 Ohio App.3d 209, 215, 717 N.E.2d 730 (1st Dist.1998) (hospitals must
abide by the CSPA).
{¶64} The appellees argue that claims can be pursued against medical service
providers only when they relate to billing. As an initial matter, it appears that the
Monroes’ claim is related to billing at least to some extent, since it involves
representations of services that were provided for the purpose of receiving payment.
Moreover, the CSPA has been applied to hospitals even as it relates to specific medical
treatments. See Summa Health at 795 (where appellant contended that the hospital
“engaged in a deceptive manner in a consumer transaction by making representations
about the hospital services it was offering * * * prior to her surgery and then materially
alter[ed] those representations after the surgery was performed,” a claim for a violation
of the CSPA could be pursued). Therefore, we find that the trial court erred by
dismissing the Monroes’ CSPA claim against Forum Health based on the Civ.R.
12(B)(6) Motion to Dismiss.
{¶65} The third assignment of error is with merit to the extent discussed above.
19 {¶66} For the foregoing reasons, the Judgment Entry of the Trumbull County
Court of Common Pleas, granting defendants-appellees, Forum Health, dba Trumbull
Memorial Hospital, Marshall D. Buck, Comstock, Springer, & Wilson Co, L.P.A., Dawn
Dominic, and Forum Health at Home’s, Motion to Dismiss, is affirmed in part, reversed
in part, and remanded for further proceedings consistent with this opinion. Costs to be
taxed against the parties equally.
TIMOTHY P. CANNON, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.