[Cite as Carbone v. Austintown Surgery Ctr., L.L.C., 2010-Ohio-1314.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

MARIO CARBONE,                )
                              )                            CASE NO. 09 MA 35
      PLAINTIFF-APPELLANT,    )
                              )
      - VS -                  )                                    OPINION
                              )
AUSTINTOWN SURGERY CENTER, )
LLC, aka AUSTINTOWN HEALTHCARE)
CENTER, INC., et al.,         )
                              )
      DEFENDANTS-APPELLEES.   )


CHARACTER OF PROCEEDINGS:                                  Civil Appeal from Common Pleas
                                                           Court, Case No. 07CV2327.


JUDGMENT:                                                  Affirmed.


APPEARANCES:
For Plaintiff-Appellant:                                   Attorney William C.H. Ramage
                                                           4822 Market Street, Suite 220
                                                           Youngstown, OH 44512

For Defendants-Appellees:                                  Attorney Steven G. Janik
                                                           Attorney Kelly Rogers
                                                           Attorney Jason Winter
                                                           Janik, Dorman & Winter LLP
                                                           9200 South Hills Blvd., Suite 300
                                                           Cleveland, OH 44147-3521

JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite

                                                           Dated: March 25, 2010
DeGenaro, J.
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       {¶1}   This timely appeal comes for consideration upon the record in the trial court,
the parties' briefs, and their oral arguments before this court. Plaintiff-Appellant, Mario
Carbone, appeals the decision of the Mahoning County Court of Common Pleas denying
his Civ.R. 60(B) motion to vacate the court's order granting summary judgment in favor of
Defendants-Appellees, Austintown Surgery Center, and Diane M. Lefoer, R.N. in a
medical malpractice action.
       {¶2}   On appeal, Carbone argues that the court abused its discretion by denying
the Civ.R. 60(B) motion for several reasons. First, he claims the summary judgment
motion filed by Appellees was never properly before the trial court because Appellees did
not request leave to file the motion and because the trial court never ruled on Carbone's
motion to enlarge discovery. Carbone contends the court should have vacated its order
granting summary judgment for these reasons. However, these arguments were never
raised in the trial court and in any event are wholly meritless.
       {¶3}   Second Carbone argues that the trial court abused its discretion in denying
Carbone's Civ.R. 60(B) motion because his failure to attend the summary judgment
hearing was due to excusable neglect and because he has a meritorious claim against
Appellees.    However, Carbone's failure to attend the hearing does not constitute
excusable neglect, and moreover Carbone failed to give any reason as to why he failed to
file a response brief to Appellees' motion for summary judgment. In addition, Carbone
does not have a meritorious claim because his complaint was untimely re-filed pursuant
to Ohio's savings statute, R.C. 2305.19. The trial court properly denied Carbone's Civ.R.
60(B) motion, and accordingly, the judgment of the trial court is affirmed.
                              Facts and Procedural History
       {¶4}   On July 14, 2005, Carbone filed a complaint against the Surgery Center and
Lefoer in the Mahoning County Court of Common Pleas. Carbone alleged that while he
was a patient at the Surgery Center on July 30, 2004, Lefoer negligently placed an
intravenous needle into the radial nerve of his left wrist, rather than in a vein, thereby
causing him pain, numbness and loss of function of his left hand. On April 18, 2006,
Carbone voluntarily dismissed his complaint, pursuant to Civ.R. 41(A)(1), without
                                                                                         -3-


prejudice, but "reserving all rights to refile within cause within one (1) year of the date of
this filing." The trial court journalized a dismissal order on July 28, 2006.
         {¶5}   Carbone refiled his complaint on June 28, 2007, attaching an affidavit of
merit in support of his claims. Appellees filed a joint answer. On April 9, 2008, the case
was called for a pre-trial conference, and the magistrate issued a pre-trial order setting a
September 8, 2008 discovery deadline for Carbone and an October 1, 2008 discovery
deadline for Appellees. In addition, the order specified that the identity of experts, along
with a report of their testimony must be disclosed to opposing counsel by those dates.
Further, it ordered all dispositive motions be filed by November 1, 2008. Final pre-trial
and trial dates were also set.
         {¶6}   On September 16, 2008, Carbone filed a motion to enlarge discovery time,
and on September 30, 2008, Appellees filed a brief in opposition thereto. On September
17, 2008, Appellees filed a motion to extend all remaining case management dates with
the exception of the final pre-trial and trial, for at least ninety days. Appellees noted that
as of September 8, 2008, Carbone's discovery cut-off date, Carbone had failed to
propound any discovery requests on them nor had he requested the deposition of Lefoer
or any other defense witnesses. Further, they noted that Carbone had failed to identify
any expert witnesses of his own or submit any expert reports. From the docket, it does
not appear that the court ever specifically ruled on these two motions.
         {¶7}   On September 18, 2008, Appellees filed a motion pursuant to Civ.R. 35(A)
requesting an order compelling Carbone to submit to an independent medical
examination. That same day, Appellees filed a motion for summary judgment, on two
separate grounds: (1) that Carbone failed to refile his action in a timely manner pursuant
to Ohio's savings statute, R.C. 2305.19; and (2) that by failing to provide expert testimony
as required in a medical malpractice action Carbone had failed to satisfy his burden of
proof.
         {¶8}   On October 2, 2008, the trial court granted Appellees' motion for an order
compelling Carbone to submit to an independent medical exam. The court ordered
Carbone to submit to this examination by October 17, 2008.
                                                                                       -4-


       {¶9}   On October 14, 2008, Carbone filed a motion for extension of time to obtain
and provide an expert report. For cause, Carbone stated "that the medical expert who
reviewed his case, Dr. Janice Katz, was in the process of moving cross-country during the
time frame in which her report was to be obtained." Appellees opposed this request. It
does not appear from the docket that the trial court specifically ruled on this motion.
       {¶10} A summary judgment hearing was twice set for hearing, but continued at the
request of Carbone until December 8, 2008.
       {¶11} On December 17, 2008, the trial court granted Appellees' motion for
summary judgment. The court noted that Carbone failed to file a response to the motion,
and moreover, that neither Carbone nor his counsel had appeared at the summary
judgment hearing.
       {¶12} On December 26, 2008, Carbone filed a motion to vacate pursuant to Civ.R.
60(B). Carbone claimed that he had inadvertently failed to appear at the motion hearing
because "the calendar of Plaintiff's attorney for that date was marked in such a way that it
appeared the hearing had been cancelled or postponed, and, by mistake, counsel for
Plaintiff misread the calendar and believed that the hearing had been cancelled or
postponed." Carbone further asserted that he has a valid defense to the motion for
summary judgment and a valid claim against Appellees on the merits of the case.
Carbone attached a brief in opposition to Appellees' motion for summary judgment. This
belated response was the first response Carbone had made to Appellees' summary
judgment motion. Carbone also attached his own affidavit in support, along with an
expert report authored by Kenneth Cowens M.D. that was critical of the medical treatment
provided to Carbone by Appellees.
       {¶13} Appellees filed a brief in opposition to the motion to vacate, arguing that
Carbone's counsel's failure to attend the hearing on the motion for summary judgment did
not constitute excusable neglect, nor was it the sole basis of the trial court's grant of
summary judgment in favor of Appellees. Appellees also argued that Carbone did not
have a meritorious claim to support vacation of the grant of summary judgment because
the complaint was not timely refiled pursuant to Ohio's savings statute. Finally, Appellees
                                                                                       -5-


argued that Dr. Cowens's expert report was insufficient to establish a prima facie case of
medical malpractice. Carbone filed a reply brief in support of his Civ.R. 60(B) motion
which merely reiterated the arguments set forth in the original motion.
       {¶14} By entry of January 28, 2009, after considering the arguments and the
relevant case law and statutory law, the trial court overruled Carbone's motion to vacate
and dismissed Carbone's claim.
                            Ruling on the Civ.R. 60(B) Motion
       {¶15} Both of Carbone's assignments of error challenge the trial court's ruling on
his motion to vacate, pursuant to Civ.R. 60(B), which states, in pertinent part:
       {¶16} "On motion and upon such terms as are just, the court may relieve a party
or his legal representative from a final judgment, order or proceeding for the following
reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered
evidence which by due diligence could not have been discovered in time to move for a
new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment
has been satisfied, released or discharged, or a prior judgment upon which it is based has
been reversed or otherwise vacated, or it is no longer equitable that the judgment should
have prospective application; or (5) any other reason justifying relief from the judgment.
The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not
more than one year after the judgment, order or proceeding was entered or taken. A
motion under this subdivision (B) does not affect the finality of a judgment or suspend its
operation." Civ.R. 60(B).
       {¶17} "In order to prevail on a motion for relief from judgment pursuant to Civ.R.
60(B), the movant must demonstrate: (1) a meritorious claim or defense; (2) entitlement
to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) timeliness
of the motion." Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20, 520 N.E.2d
564, citing GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, 1 O.O.3d
86, 351 N.E.2d 113, at paragraph two of the syllabus. See, also, Strack v. Pelton (1997),
70 Ohio St.3d 172, 174, 637 N.E.2d 914. "These requirements are independent and in
                                                                                          -6-


the conjunctive; thus the test is not fulfilled if any one of the requirements is not met." Id.
       {¶18} When reviewing a trial court's decision regarding a Civ.R. 60(B) motion an
appellate court will not reverse that decision unless the trial court abuses its discretion.
State ex rel. Russo v. Deters (1997), 80 Ohio St.3d 152, 153, 684 N.E.2d 1237. An
abuse of discretion implies that the trial court acted unreasonably, arbitrarily, or
unconscionably. Id.
       {¶19} In his first of two assignments of error, Carbone asserts:
       {¶20} "The trial court committed error prejudicial to the Appellant when it failed to
vacate its judgment which was filed on December 17, 2008 for the reason that the
Plaintiff's summary judgment motion which was the basis of the order was not properly
before the court."
       {¶21} Carbone claims that, pursuant to Civ.R. 56(A), Appellees' summary
judgment motion was never properly before the trial court, and that the court abused its
discretion in denying his motion to vacate for this reason. However, Carbone failed to
raise this issue within his Civ.R. 60(B) motion to the trial court. Rather, in that motion he
argued, pursuant to Civ.R. 60(B)(1), that the court should vacate its order granting
summary judgment because his failure to attend the summary judgment hearing was
purportedly due to excusable neglect, and because he alleged to have a meritorious claim
against Appellees. As such, the Civ.R. 56(A) argument is waived absent plain error. See,
e.g., Gentile v. Ristas, 160 Ohio App.3d 765, 2005-Ohio-2197, 828 N.E.2d 1021, at ¶74;
Vermeer of S. Ohio, Inc. v. Argo Constr. Co. (2001), 144 Ohio App.3d 271, 275, 760
N.E.2d 1. The plain error doctrine is rarely invoked in civil cases and moreover is
discretionary on the part of the reviewing court.
       {¶22} "In appeals of civil cases, the plain error doctrine is not favored and may be
applied only in the extremely rare case involving exceptional circumstances where error,
to which no objection was made at the trial court, seriously affects the basic fairness,
integrity, or public reputation of the judicial process, thereby challenging the legitimacy of
the underlying judicial process itself." Goldfuss v. Davidson (1997), 79 Ohio St.3d 116,
679 N.E.2d 1099, at paragraph one of the syllabus. In Goldfuss, the Court explained that
                                                                                           -7-


the doctrine shall only be applied in extremely unusual circumstances where the error
complained of, if left uncorrected, would have a material adverse effect on the character
of and public confidence in judicial proceedings. Id. at 121. The Court continued that the
public's confidence is rarely upset merely by forcing civil litigants to live with the errors
they themselves or the attorney chosen by them committed at trial. Id. at 121-122.
       {¶23} We conclude that the trial court committed no error, let alone plain error, in
this instance. Civ.R. 56(A) provides in part that "[i]f the action has been set for pretrial or
trial, a motion for summary judgment may be made only with leave of court." Carbone
contends that because final pretrial and trial dates had been set and Appellees failed to
obtain leave prior to filing their motion for summary judgment, the motion was never
properly before the trial court pursuant to Civ.R. 56(A).
       {¶24} Carbone is incorrect for several reasons. First, although trial and pre-trial
dates were set during the initial pretrial scheduling order, in that same order the court also
designated November 1, 2008 as the deadline for filing dispositive motions. Appellee's
motion for summary judgment was filed on September 18, 2008, well before the deadline.
Further, a trial court's grant of a motion for summary judgment, which was filed without
first obtaining leave, indicates the court implicitly granted leave. Coney v. Youngstown
Metro. Hous. Auth., 7th Dist. No. 00-C.A.-251, 2002-Ohio-4371, at ¶42. See, also,
Juergens v. Strang, Klubnik & Assoc., Inc. (1994), 96 Ohio App.3d 223, 234, 644 N.E.2d
1066 (holding that "[t]he acceptance of the motion by the court after the case has been
set for pretrial is in itself by leave of court albeit without the formal writing saying 'I seek
the leave of court.'"). Accordingly, Appellees' motion for summary judgment was properly
before the trial court and Carbone's first assignment of error is meritless.
       {¶25} In his second assignment of error, Carbone asserts:
       {¶26} "The trial court committed error prejudicial to Appellant when it failed to
vacate its order filed on December 17, 2008 because Appellant had presented substantial
evidence in a timely motion that established that it had a valid claim against Appellees,
that its failure to attend a hearing on Appellee's motion was due to excusable neglect, and
that Appellees motion for summary judgment which was the basis of the court's ruling was
                                                                                      -8-


premature and should have been overruled on its face."
       {¶27} Carbone makes two distinct arguments within this assignment of error.
First, he contends the trial court erred in denying his Civ.R. 60(B) motion because the
court never ruled on his motion to extend the discovery deadlines prior to granting
summary judgment. In essence, he contends that the trial court's ruling on Appellees'
motion for summary judgment was premature. Again, Carbone failed to raise this
argument in the trial court and we review for plain error only.
       {¶28} The trial court committed no error by ruling on the summary judgment
motion without ruling on Carbone's motion to extend discovery. The court's ruling on the
summary judgment motion was not premature, because Carbone failed to avail himself of
the procedures contained in Civ.R. 56(F).
       {¶29} As this court held in Kristian v. Youngstown Orthopedic Assoc., 7th Dist. No.
03 MA 189, 2004-Ohio-7064:
       {¶30} "Civ.R. 56 does not mandate that full discovery be completed before a
motion for summary judgment may be granted. * * * If a motion for summary judgment
has been filed before the plaintiff has an opportunity to learn the facts of the case
sufficient to oppose a motion for summary judgment, Civ.R. 56(F) provides a specific
remedy:
       {¶31} "'Should it appear from the affidavits of a party opposing the motion for
summary judgment that the party cannot for sufficient reasons stated present by affidavit
facts essential to justify the party's opposition, the court may refuse the application for
judgment or may order a continuance to permit affidavits to be obtained or discovery to
be had or may make such other order as is just.' (Emphasis added.)" Id. at ¶14-17.
       {¶32} Importantly, "an appellant who failed to seek relief under Civ.R. 56(F) in the
trial court has not preserved his rights thereto for purposes of appeal." Petty v. Mahoning
Women's Centre, Inc. (Feb. 15, 1995), 7th Dist. No. 93 C.A. 32, at *3-4, quoting
Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78, 523 N.E.2d
902, at paragraph four of the syllabus.
       {¶33} In the present case, Carbone failed to seek relief under Civ.R. 56(F). He did
                                                                                          -9-


not file an affidavit alleging he lacked sufficient evidence to oppose Appellees' summary
judgment motion and requesting that the trial court either delay deciding the motion or
refuse to decide it. In fact, Carbone failed to file any response to Appellees' motion for
summary judgment. He finally attempted to file such a brief but this was not until after the
trial court had granted summary judgment and Carbone had filed his Civ.R. 60(B) motion.
Thus, Carbone cannot now claim on appeal that trial court prematurely granted summary
judgment.
       {¶34} Second, Carbone contends the trial court abused its discretion in denying
his Civ.R. 60(B) motion because his failure to appear at the summary judgment hearing
was due to excusable neglect, and because he has a meritorious claim against
Appellees.
       {¶35} Both contentions are meritless. The trial court did not abuse its discretion
by finding there was no excusable neglect. Carbone claims he did not attend the hearing
because he was confused about the date due to some sort of mishap with his calendar.
He also seems to blame his confusion on the fact that the hearing date had been
rescheduled several times. However, it was Carbone who requested those continuances.
Further, even if Carbone's reason for failing to attend the summary judgment hearing
could be considered excusable neglect, Carbone failed to explain his failure to file a
responsive brief to Appellees' motion for summary judgment.
       {¶36} Moreover, as indicated, in order to succeed on a Civ.R. 60(B) motion, the
movant must also demonstrate that he has a meritorious claim or defense. See Strack,
supra, at 174. In this case, Carbone has not satisfied this requirement, because his
refiled complaint was untimely, pursuant to R.C. 2305.19(A).
       {¶37} Carbone originally filed a complaint against Appellees in this matter on July
14, 2005. Carbone filed a notice of voluntary dismissal of the case, which he titled a
"Motion to Dismiss," on April 18, 2006 which stated as follows:
       {¶38} "Now Comes the Plaintiff, MARIO CARBONE, only, by and through his
counsel, Mark A. Hanni, pursuant to Ohio Civil Rule 41(A)(1), and voluntarily dismisses
his claim without prejudice, reserving all rights to refile within cause within one (1) year of
                                                                                       - 10 -


the date of this filing."
       {¶39} Pursuant to the savings statute, Carbone could refile within one year after
the date his claim failed "otherwise than upon the merits," or in other words, within one
year after the date he dismissed his complaint pursuant to Civ.R. 41(A)(1). See R.C.
2305.19(A). Appellees contend that the operative date for savings statute purposes is
April 18, 2006, when Carbone filed his motion for voluntary dismissal. Therefore,
Appellees argue that Carbone had until April 18, 2007 to refile his complaint. Carbone
insists that the operative date was July 28, 2006, the date the trial court journalized an
entry indicating the matter had been voluntarily dismissed. Thus, according to Carbone,
he had until July 28, 2007 to refile the action.
       {¶40} Appellees are correct. The savings statute begins to run at the time the
plaintiffs file a notice of voluntary dismissal. See Gardner v. Gleydura (1994), 98 Ohio
App.3d 277, 279, 648 N.E.2d 537. In Gardner, the plaintiffs filed a Civ.R. 41(A)(1)
voluntary dismissal notice on January 1, 1992, and the trial court journalized an entry
indicating the matter had been voluntarily dismissed on February 11, 1992. On January
5, 1993, the plaintiffs refiled the action. The defendant filed a motion to dismiss and
alternative motion for summary judgment, asserting that the action was not timely refiled,
pursuant to the savings statute. The trial court granted dismissal and the plaintiffs
appealed, arguing, as Carbone does here, that the savings statute began to run on the
date the voluntary dismissal was journalized by the trial court. The Eighth District rejected
this argument, holding that the savings statute began to run when the plaintiffs filed their
notice of dismissal:
       {¶41} The court reasoned that "[d]ismissals pursuant to Civ.R. 41(A)(1) are
effectuated upon filing by the plaintiff; approval by the court is not necessary. 1 Baldwin's
Ohio Civil Practice (1988) 317, Section T25.03. That is, '[t]he filing of the notice of
dismissal automatically terminates the case without any intervention by the court.
Absolutely no court approval is necessary.' Id. at 319. See, also, Perdue v. Handelman
(1980), 68 Ohio App.2d 240, 241, 22 O.O.3d 398, 398-399, 429 N.E.2d 165, 166. The
rule therefore contemplates unilateral action on the part of the plaintiff. Clay Hyder
                                                                                    - 11 -


Trucking Lines, Inc. v. Riley (1984), 16 Ohio App.3d 224, 225, 16 OBR 240, 240-241, 475
N.E.2d 183, 184-185." Gardner at 278-279.
       {¶42} Thus, the fact that the trial court in the instant case journalized Carbone's
voluntary dismissal notice on July 28, 2006 served to merely reiterate the fact that the
case had been voluntarily dismissed. Id. Further, the fact Carbone titled his dismissal
notice a "motion to dismiss" is immaterial. In Perdue, supra, the court held that a
plaintiff's motion to dismiss without prejudice should have been treated as a voluntary
dismissal, terminating the action immediately. Id. at 241.
       {¶43} Thus, the deadline for Carbone to refile under the savings statute in this
case was April 18, 2007, one year after he filed his motion for voluntary dismissal.
However, Carbone did not refile his complaint until June 28, 2007, thus making it
untimely. Therefore, Carbone cannot demonstrate he has a meritorious claim against
Appellees. Carbone's second assignment of error is meritless.
       {¶44} Based on the foregoing, the trial court's decision to deny Carbone's Civ.R.
60(B) motion was not an abuse of discretion. Accordingly, the judgment of the trial court
is affirmed.
Donofrio, J., concurs.
Waite, J., concurs.
