[Cite as Shade v. Kaiser, 2012-Ohio-4979.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
THOMAS A. SHADE :
Plaintiff-Appellant : C.A. CASE NO. 24974
vs. : T.C. CASE NO. 2005-CV-8366 2007-CV-2796 GEORGE M. KAISER, D.O., et al. : (Civil Appeal from the Defendants-Appellees : Common Pleas Court)
.........
OPINION
Rendered on the 26th day of October, 2012.
Dwight D. Brannon, Atty. Reg. No. 0021657, 130 West Second Street, Suite 900, Dayton, Ohio 45402 Attorney for Plaintiff-Appellant Thomas A. Shade
Karen L. Clouse, Atty. Reg. No. 0037294, 580 Lincoln Park Boulevard, Suite 222, Dayton, Ohio 45429 Attorney for Defendants-Appellees George M. Kaiser, D.O., Nancy Hogan CNP and Kaiser Medical Corp.
GRADY, P.J.:
I. INTRODUCTION
{¶ 1} This matter is before the court on a notice of appeal filed by Plaintiff, William
Smead, administrator of the estate of his son, Thomas Shade, from summary judgments for Defendants, George M. Kaiser, D.O., Kaiser Medical Corporation, and Nancy Hogan, a nurse,
on medical and nursing malpractice claims. The court granted summary judgments on
Defendants’ statute of limitations defense.
{¶ 2} Plaintiff claims that his action, which was refiled after the one-year statute of
limitations for malpractice claims expired, was nevertheless timely filed pursuant to Ohio’s
savings statute, R.C. 2305.19, because the action related back to an earlier action Plaintiff had
filed in federal court that failed otherwise than on the merits.
{¶ 3} We find that the present action does not relate back because Defendants were
not parties to the prior action, and may not be substituted for “John Doe” defendants named in
the prior action. Therefore, we will affirm the judgment from which the appeal was taken.
A. STATEMENT OF FACTS
{¶ 4} On August 26, 2002, Thomas Shade was arrested and incarcerated in the
Middletown City Jail. While in jail, Shade manifested serious medical problems. He was
examined by a nurse, Nancy Hogan, who was employed by and acted under the directions of
George M. Kaiser, D.O., who provided medical services to jail inmates pursuant to a contract
with the City of Middletown.
{¶ 5} Shade’s condition worsened over the next several days, during which he was
seen several more times by Nurse Hogan. Shade was removed to a hospital on August 30,
2002. Shade fell into a month-long coma resulting from West Nile Encephalitis. He was
left a quadriplegic as a result.
B. PROCEDURAL HISTORY
{¶ 6} Shade was last examined by Nurse Hogan on August 29, 2002. One year
later, on August 29, 2003, Shade commenced an action in United States District Court on six 3
causes of action. Five of those claims alleged either federal civil rights violations and/or
common law breaches of duty of ordinary care. The sixth cause of action alleged:
38. Plaintiff states that the Defendants, jointly and/or severally, negligently
departed from the accepted standards of medical care and treatment in their
care and treatment of him.
39. Further pleading, Plaintiff states that as a direct and proximate result of
the Defendants joint and/or several departures from the accepted standards of
medical care, their negligence and malpractice as aforesaid, he sustained
permanent injuries; that in the care and treatment of his injuries, he has been
required to submit to numerous and extensive examinations, surgery,
treatments, hospitalizations, including the taking of medications in an effort to
control conditions from which he suffers; that he has incurred medical and
pharmaceutical expenses to date hereof in an amount yet to be determined; that
he will be required to incur additional medical expenses in the future to an
extent which cannot be determined, nor which reasonable diligence ascertained
at this time; that his injuries are permanent and disabling; that he has been
deprived of his ability to enjoy life; that he has suffered a loss of income in an
amount yet to be determined, and that he continues to suffer from pain and
emotional distress.
40. The conduct of the Defendants, jointly and severally, in departing from
the standards of care and exhibiting extreme indifference toward the care of the 4
Plaintiff that was extremely likely to result in injury was reckless, wanton and
legally malicious.
{¶ 7} The Defendants named in Shade’s federal action were: the City of
Middletown, Ohio; Bill Becker, Middletown Chief of Police; “John Does #1 and #2,
Middletown officers who arrested Plaintiff, Thomas A. Shade;” and “Other John Does who
were Middletown jail personnel and who may be responsible for the Constitutional and
Statutory Violations as well as the Common Law Tort’s alleged hereinafter.”
{¶ 8} Plaintiff deposed Dr. Kaiser and Nurse Hogan in September of 2004. In the
course of their depositions, Plaintiff learned that they were not employees of Middletown, and
that Dr. Kaiser was an independent contractor and Nurse Hogan his employee. Thereafter, on
October 11, 2004, Plaintiff moved to amend his federal complaint to add Kaiser and Hogan as
parties defendant.
{¶ 9} The federal district court did not expressly rule on Plaintiff’s motion to amend
his complaint. Instead, the court, on March 31, 2005 dismissed Plaintiff’s federal civil rights
claims, with prejudice. The court also dismissed Plaintiff’s state law claims, but without
prejudice. Ten months later, on November 1, 2005, Plaintiff commenced an action on those
state law claims in the common pleas court. Included as defendants were Kaiser, Hogan, and
Kaiser’s professional corporation, Kaiser Medical Corporation (hereinafter “Kaiser”).
{¶ 10} On April 6, 2006, Defendants Kaiser and Hogan moved for summary judgment
on their statute of limitations defense to Plaintiff’s claims for medical and nursing
malpractice, arguing that Plaintiff’s claims are barred by the one-year statute of limitations,
R.C. 2305.113. Plaintiff argued that his claims were timely filed pursuant to the “savings 5
statute,” R.C. 2305.19, by which they relate back to the federal action that was timely filed.
The trial court overruled the Defendant’s motions on April 13, 2007.
{¶ 11} Following Thomas Shade’s death on January 15, 2007, his father, the
administrator of Shade’s estate, filed a wrongful death/survivorship action predicated on the
same malpractice claims. That case was consolidated with the case Shade previously filed, in
which his administrator was substituted as the real party in interest.
{¶ 12} On April 28, 2008, Defendants asked the court to reconsider its decision
denying their motions for summary judgment. The court denied the motion to reconsider on
June 9, 2008.
{¶ 13} On September 9, 2011, Defendants again asked the court to reconsider its
decision. This time the court did, and agreed with Defendants Kaiser and Hogan that
Plaintiff’s malpractice action was not timely filed. The court granted summary judgments for
Kaiser and Hogan and certified its judgment for review per Civ. R. 54(B). Plaintiff appeals.
II. LEGAL ANALYSIS
{¶ 14} ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT TO
DEFENDANTS KAISER, HOGAN AND KAISER MEDICAL CORPORATION.”
{¶ 15} Summary judgment may not be granted unless the entire record demonstrates
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Shade v. Kaiser, 2012-Ohio-4979.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
THOMAS A. SHADE :
Plaintiff-Appellant : C.A. CASE NO. 24974
vs. : T.C. CASE NO. 2005-CV-8366 2007-CV-2796 GEORGE M. KAISER, D.O., et al. : (Civil Appeal from the Defendants-Appellees : Common Pleas Court)
.........
OPINION
Rendered on the 26th day of October, 2012.
Dwight D. Brannon, Atty. Reg. No. 0021657, 130 West Second Street, Suite 900, Dayton, Ohio 45402 Attorney for Plaintiff-Appellant Thomas A. Shade
Karen L. Clouse, Atty. Reg. No. 0037294, 580 Lincoln Park Boulevard, Suite 222, Dayton, Ohio 45429 Attorney for Defendants-Appellees George M. Kaiser, D.O., Nancy Hogan CNP and Kaiser Medical Corp.
GRADY, P.J.:
I. INTRODUCTION
{¶ 1} This matter is before the court on a notice of appeal filed by Plaintiff, William
Smead, administrator of the estate of his son, Thomas Shade, from summary judgments for Defendants, George M. Kaiser, D.O., Kaiser Medical Corporation, and Nancy Hogan, a nurse,
on medical and nursing malpractice claims. The court granted summary judgments on
Defendants’ statute of limitations defense.
{¶ 2} Plaintiff claims that his action, which was refiled after the one-year statute of
limitations for malpractice claims expired, was nevertheless timely filed pursuant to Ohio’s
savings statute, R.C. 2305.19, because the action related back to an earlier action Plaintiff had
filed in federal court that failed otherwise than on the merits.
{¶ 3} We find that the present action does not relate back because Defendants were
not parties to the prior action, and may not be substituted for “John Doe” defendants named in
the prior action. Therefore, we will affirm the judgment from which the appeal was taken.
A. STATEMENT OF FACTS
{¶ 4} On August 26, 2002, Thomas Shade was arrested and incarcerated in the
Middletown City Jail. While in jail, Shade manifested serious medical problems. He was
examined by a nurse, Nancy Hogan, who was employed by and acted under the directions of
George M. Kaiser, D.O., who provided medical services to jail inmates pursuant to a contract
with the City of Middletown.
{¶ 5} Shade’s condition worsened over the next several days, during which he was
seen several more times by Nurse Hogan. Shade was removed to a hospital on August 30,
2002. Shade fell into a month-long coma resulting from West Nile Encephalitis. He was
left a quadriplegic as a result.
B. PROCEDURAL HISTORY
{¶ 6} Shade was last examined by Nurse Hogan on August 29, 2002. One year
later, on August 29, 2003, Shade commenced an action in United States District Court on six 3
causes of action. Five of those claims alleged either federal civil rights violations and/or
common law breaches of duty of ordinary care. The sixth cause of action alleged:
38. Plaintiff states that the Defendants, jointly and/or severally, negligently
departed from the accepted standards of medical care and treatment in their
care and treatment of him.
39. Further pleading, Plaintiff states that as a direct and proximate result of
the Defendants joint and/or several departures from the accepted standards of
medical care, their negligence and malpractice as aforesaid, he sustained
permanent injuries; that in the care and treatment of his injuries, he has been
required to submit to numerous and extensive examinations, surgery,
treatments, hospitalizations, including the taking of medications in an effort to
control conditions from which he suffers; that he has incurred medical and
pharmaceutical expenses to date hereof in an amount yet to be determined; that
he will be required to incur additional medical expenses in the future to an
extent which cannot be determined, nor which reasonable diligence ascertained
at this time; that his injuries are permanent and disabling; that he has been
deprived of his ability to enjoy life; that he has suffered a loss of income in an
amount yet to be determined, and that he continues to suffer from pain and
emotional distress.
40. The conduct of the Defendants, jointly and severally, in departing from
the standards of care and exhibiting extreme indifference toward the care of the 4
Plaintiff that was extremely likely to result in injury was reckless, wanton and
legally malicious.
{¶ 7} The Defendants named in Shade’s federal action were: the City of
Middletown, Ohio; Bill Becker, Middletown Chief of Police; “John Does #1 and #2,
Middletown officers who arrested Plaintiff, Thomas A. Shade;” and “Other John Does who
were Middletown jail personnel and who may be responsible for the Constitutional and
Statutory Violations as well as the Common Law Tort’s alleged hereinafter.”
{¶ 8} Plaintiff deposed Dr. Kaiser and Nurse Hogan in September of 2004. In the
course of their depositions, Plaintiff learned that they were not employees of Middletown, and
that Dr. Kaiser was an independent contractor and Nurse Hogan his employee. Thereafter, on
October 11, 2004, Plaintiff moved to amend his federal complaint to add Kaiser and Hogan as
parties defendant.
{¶ 9} The federal district court did not expressly rule on Plaintiff’s motion to amend
his complaint. Instead, the court, on March 31, 2005 dismissed Plaintiff’s federal civil rights
claims, with prejudice. The court also dismissed Plaintiff’s state law claims, but without
prejudice. Ten months later, on November 1, 2005, Plaintiff commenced an action on those
state law claims in the common pleas court. Included as defendants were Kaiser, Hogan, and
Kaiser’s professional corporation, Kaiser Medical Corporation (hereinafter “Kaiser”).
{¶ 10} On April 6, 2006, Defendants Kaiser and Hogan moved for summary judgment
on their statute of limitations defense to Plaintiff’s claims for medical and nursing
malpractice, arguing that Plaintiff’s claims are barred by the one-year statute of limitations,
R.C. 2305.113. Plaintiff argued that his claims were timely filed pursuant to the “savings 5
statute,” R.C. 2305.19, by which they relate back to the federal action that was timely filed.
The trial court overruled the Defendant’s motions on April 13, 2007.
{¶ 11} Following Thomas Shade’s death on January 15, 2007, his father, the
administrator of Shade’s estate, filed a wrongful death/survivorship action predicated on the
same malpractice claims. That case was consolidated with the case Shade previously filed, in
which his administrator was substituted as the real party in interest.
{¶ 12} On April 28, 2008, Defendants asked the court to reconsider its decision
denying their motions for summary judgment. The court denied the motion to reconsider on
June 9, 2008.
{¶ 13} On September 9, 2011, Defendants again asked the court to reconsider its
decision. This time the court did, and agreed with Defendants Kaiser and Hogan that
Plaintiff’s malpractice action was not timely filed. The court granted summary judgments for
Kaiser and Hogan and certified its judgment for review per Civ. R. 54(B). Plaintiff appeals.
II. LEGAL ANALYSIS
{¶ 14} ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT TO
DEFENDANTS KAISER, HOGAN AND KAISER MEDICAL CORPORATION.”
{¶ 15} Summary judgment may not be granted unless the entire record demonstrates
that there is no genuine issue of material fact and that the moving party is, on that record,
entitled to judgment as a matter of law. Civ. R. 56. The burden of showing that no genuine
issue of material fact exists is on the moving party. Harless v. Willis Day Warehousing Co.,
54 Ohio St.2d 64, 375 N.E.2d 46(1978). All evidence submitted in connection with a motion 6
for summary judgment must be construed most strongly in favor of the party against whom
the motion is made. Morris v. First National Bank & Trust Co., 21 Ohio St.2d 25, 254
N.E.2d 683 (1970). In reviewing a trial court’s grant of summary judgment, an appellate
court must view the facts in a light most favorable to the party who opposed the motion.
Osborn v. Lyles, 63 Ohio St.3d 326, 587 N.E.2d 825(1992). Further, the issues of law
involved are reviewed de novo. Nilavar v. Osborn, 127 Ohio App.3d 1, 711 N.E.2d 726
(1998).
{¶ 16} Plaintiff-Appellant presents four issues in relation to the error assigned. Those
issues will be considered in the order in which they are presented.
ISSUE ONE
{¶ 17} “THE TRIAL COURT ERRED BY OVERTURNING THE
DECISION OF THE PREVIOUS JUDGE ASSIGNED TO THE CASE.”
{¶ 18} “Regarding a summary judgment motion, an order overruling such a
motion is subject to revision by the trial court at any time prior to entry of final judgment, and
the court may correct an error upon a motion for reconsideration predicated upon the same law
and facts.” Poluse v. Younstown, 135 Ohio App.3d 720, 725, 735 N.E.2d 505 (1999). The
rule is unaffected by the “law of the case” doctrine, which requires trial courts to apply the law
as previously decided by a reviewing court in the same case. Nolan v. Nolan, 11 Ohio St.3d
1, 462 N.E.2d 410 (1984). There was no prior appellate review that constrained the trial
court from applying the law as it did. Neither does it matter that the different decision upon
reconsideration is made by a different judge, who, in this case succeeded to the position of the
prior judge following his voluntary retirement. 7
{¶ 19} Plaintiff’s contention lacks merit.
ISSUE TWO
{¶ 20} “MR. SHADE MISTAKENLY MISIDENTIFIED THE PROPER
DEFENDANTS FOR HIS MEDICAL MALPRACTICE CLAIM.”
{¶ 21} R.C. 2305.19, Ohio’s savings statute, provides that if in an action timely
commenced or attempted to be commenced the plaintiff fails otherwise than upon the merits
after the applicable statute of limitations has expired, the plaintiff may recommence the same
action within one year thereafter. The rule likewise applies to actions commenced in state
court on claims for relief that previously failed otherwise than on the merits in a federal
action. Wasyk v. Trent, 174 Ohio St. 525, 191 N.E.2d 58 (1963). Then, the issue is whether
the later state action relates back to the federal action previously filed.
{¶ 22} Plaintiff commenced his action in common pleas court within one year after
the claims for relief it involved had failed otherwise than on the merits on the federal action,
and the federal action was timely filed. However, the state action named three parties
defendants, Kaiser, Hogan, and Kaiser’s professional corporation, who were not parties in the
federal action. New parties may not be added pursuant to the savings statute, because the
prior and subsequent actions are then not the same, and the refiled action is a new action for
purposes of the applicable statute of limitations. Cox v. Treadway, 75 F.3d 230 (6th Cir.,
1996). However, in a federal action, a different party may be substituted in a refiled action
for a party mistakenly named in the prior action pursuant to Fed.R.Civ.P. 15(c), which states:
Relation Back of Amendments. 8
(1) When an Amendment Relates Back. An amendment to a pleading
relates back to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations allows
relation back;
(B) the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out – or attempted to be
set out – in the original pleading; or
(C) the amendment changes the party or the naming of the party
against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied
and if, within the period provided by Rule 4(m) for serving the
summons and complaint, the party to be brought in by
amendment:
(i) received such notice of the action that it will not be
prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have
been brought against it, but for a mistake concerning the
proper party’s identity.
{¶ 23} Fed.R.Civ.P. 4(m) requires service of notice and summons within 120 days
after a complaint is filed. There is no basis to find that Kaiser and/or Hogan were served with
notice of the federal action within that time. Therefore, Plaintiff’s state action brought
against Kaiser, Hogan, and Kaiser’s corporation, can relate back to the date the federal action
that was timely filed only if those Defendants “knew or should have known that the (federal) 9
action would have been brought against (them), but for a mistake concerning the proper
party’s identity.” Id.
{¶ 24} In Krupski v. Costa Crociere S.p.A., ______ U.S. _______, 130 S.Ct. 2485,
2487, 177 L.Ed.2d 48 (2010), the Supreme Court explained the nature of the mistake that
Fed.R.Civ.P. 15(c)(1)(C)(ii) contemplates, stating:
[A] plaintiff might know that the prospective defendant exists but nonetheless
harbor a misunderstanding about his status or role in the events giving rise to
the claim at issue, and she may mistakenly choose to sue a different defendant
based on that misimpression. That kind of deliberate but mistaken choice
does not foreclose a finding that Rule 15(c)(1)(C)(ii) has been satisfied.
{¶ 25} Plaintiff relies on Krupski to argue that he mistakenly identified the City of
Middletown as the party liable on the claims of medical and nursing malpractice in the sixth
cause of action in the complaint Plaintiff had filed in federal court on August 29, 2003.
Plaintiff contends that, at the time he filed his federal complaint, he believed that the persons
responsible for the alleged malpractice were employees of Middletown. Plaintiff further
contends that the motion he filed in the federal action on October 11, 2004 to amend his
federal complaint to add Kaiser and Hogan as defendants was an action against them
“attempted to be commenced” for purposes of R.C. 2305.19, and that his state action relates
back either or to both dates pursuant to Fed.R.Civ.P. 15(c)(1)(C)(ii).
{¶ 26} We agree that Plaintiff’s motion to amend his complaint may be construed as
an attempt to commence an action against Kaiser and Hogan. However, that motion was
filed on October 11, 2004, more than one year after Plaintiff’s physician-patient relationship 10
with Kaiser and Hogan had terminated on August 29, 2002. Plaintiff cannot rely on the
discovery alternative, because the filing of his federal action demonstrates notice of his claim
for relief, and the action was filed on August 29, 2003, more than one year before Plaintiff’s
motion to amend was filed on October 11, 2004.
{¶ 27} The trial court did not consider Krupski or Plaintiff’s reliance on it to support
his claim that he had mistakenly identified Middletown instead of Kaiser and Hogan as liable
parties on his malpractice claim. The reason for that is evident when one reviews Plaintiff’s
Response to Defendants’ Motion for Reconsideration of Motion for Summary Judgment, filed
on May 15, 2008 [Dkt. 37]. At page 2 of that document, Plaintiff contends: “Plaintiff had
sought to join Defendants Kaiser, Hogan and Kaiser Medical in that (federal) action, which
originally named them as ‘John Does,’ but their federal claims were decided on summary
judgment before the motion to amend the complaint and rename John Doe defendants was
decided.” (Emphasis supplied). In other words, Plaintiff argued that Kaiser and Hogan were
substituted for the Doe defendants, not for Middletown.
{¶ 28} In Krupski, the Supreme court clarified the operation of Fed.R.Civ.P. 15(c)in
cases in which a plaintiff sues the wrong defendant. In allowing the amendment, the
Supreme court broadly defined “mistake” as an error, misconception, or misunderstanding; an
erroneous belief. Id, at 2494. By way of example, Krupski described a plaintiff who sues
party A, rather than party B because of a misunderstanding regarding the roles that the
potential defendants played in the transaction giving rise to the claim. The error or mistake
involves suing one party while intending to sue another. Krupski does not apply to situations
in which the plaintiff knows who he wants to sue, but does not know the intended defendants 11
names and instead sues John or Jane Does. In that event, Fed.R.Civ.P. 15(c)does not apply to
cause a new complaint to relate back to the time of the initial complaint. Flick v. Lake
County Jail, N.D. Ohio No. 1:10-CV-532, 2011 WL 3502366 (Aug. 10, 2011).
{¶ 29} Plaintiff did not misidentify the parties who had allegedly provided negligent
medical care to Shade in the federal complaint Plaintiff filed. Instead, by naming John Doe
parties, Plaintiff identified no real parties at all. In that circumstance, a motion to substitute a
named defendant for a Doe defendant is equivalent to a request to add a new party, Cox v.
Treadway, which cannot benefit from the savings statute. R.C. 2305.19.
{¶ 30} The Federal Rules of Civil Procedure nevertheless permit relation back when
the state law which supplies the applicable statute of limitations permits amendment more
liberally than the analogous federal rule. Ohio Civ. R. 15(D) provides: “When the plaintiff
does not know the name of a defendant, that defendant may be designated in a pleading or
proceeding by any name and description. When the name is discovered, the pleading or
proceeding may be amended accordingly.” However, Civ. R. 15(D) does not permit John
Doe defendants to act as placeholders in order to avoid the statute of limitations. Erwin v.
Bryan, 125 Ohio St.3d 519, 2010-Ohio-2202, 929 N.E.2d 1019. Therefore, Ohio law does
not permit amendments which relate back more liberally than the federal rule, and
Fed.R.Civ.P. 15(c)controls. Wright v. County of Franklin, Ohio, S.D. Ohio No.
2:10-CV-715, 2011 WL 3667397 (Aug. 22, 2011).
{¶ 31} We reject Plaintiff’s contention that in naming the City of Middletown he
mistakenly misidentified the parties he later sued in common pleas court, Kaiser and Hogan,
per Krupski, for two reasons. 12
{¶ 32} First, in the trial court Plaintiff contended that he intended to substitute Kaiser
and Hogan for the John Doe defendants named in his federal complaint, not to substitute
Kaiser and Hogan for the City of Middletown. It is fundamental that error may not be
assigned on appeal that was not raised in the trial court. State ex rel. Quarto Mining v.
Foreman, 79 Ohio St.3d 78, 1997-Ohio-71, 679 N.E.2d 706.
{¶ 33} Second, by attempting to substitute Kaiser and Hogan for the John Doe
defendants he named in his federal action, Plaintiff did not substitute a proper party for a party
that was mistakenly identified for purposes of Fed.R.Civ.P. 15(c)(1)(C)(iii). Krupski. Rather,
those substituted parties were new parties to the action, and the proposed amendment naming
them is a new action that is not entitled to the benefit of the savings statute, R.C. 2305.19.
Cox v. Treadway. Because the complaint naming Kaiser and Hogan was a new action and was
not filed within the one-year statute of limitations, the trial court properly granted Defendants’
motion for summary judgment.
ISSUE THREE
{¶ 34} “BECAUSE KAISER AND HOGAN FAILED TO PRESENT ANY
EVIDENCE THAT THEY DID NOT KNOW ABOUT THE LITIGATION PRIOR TO THE
EXPIRATION OF THE PERIOD FOR SERVICE OF THE ORIGINAL COMPLAINT,
THEY WERE NOT ENTITLED TO SUMMARY JUDGMENT.”
ISSUE FOUR
{¶ 35} “MR. SHADE ATTEMPTED TO COMMENCE A CASE AGAINST
KAISER AND HOGAN, INVOKING OHIO’S SAVINGS STATUTE, R.C. 2305.19.” 13
{¶ 36} The error these issues concern is rendered moot by our previous rulings.
Therefore, we need not decide them. App. R. 12(A)(1)(C).
III. CONCLUSION
{¶ 37} The assignment of error is overruled. The judgment of the trial court will be
Affirmed.
Fain, J., concurs.
Froelich, J., concurring:
{¶ 38} The previous trial judge set a date for motions, and the Appellees’ Motion to
Reconsider, which was simply a renewed Motion for Summary Judgment, was filed beyond
that date. The motion was purportedly based on Erwin, but that case was decided a year and
a half before the motion and was only passingly mentioned in a footnote to the trial court’s
decision granting the motion for summary judgment. The case had been pending for
approximately six years, and was dismissed on the eve of trial; the parties and counsel had no
doubt expended considerable funds and emotional energy (but, admittedly, would have done
even more if the trial had proceeded).
{¶ 39} It would be difficult to conclude that the decision was based on anything other
than the new trial judge’s differing interpretation of the same law that had been rejected twice
before by the previous trial judge. There is nothing legally wrong with this or, for that
matter, if the same judge were to have reconsidered his own previous interlocutory decision.
However, both advocates and courts must be continually conscious of the appearance of such
“fluidity.” 14
{¶ 40} On the merits, I agree that the Appellant could not amend his complaint to
name the Appellees, because there was no mistake as to the names of the Appellees;
Appellant knew of the presence of health care personnel who were involved with the
alleged malpractice, but not of their legal relationship to the other defendants, and he
did not serve them personally.
{¶ 41} Both the Federal and Ohio relation-back provisions can appear to operate
unfairly, as can any statute of limitations, but the legislature and courts have determined that
such rules can serve other purposes.
Copies mailed to:
Dwight D. Brannon, Esq. Karen L. Clouse, Esq. Hon. Steven K. Dankof