[Cite as Barker v. Emergency Professional Serv., Inc., 2013-Ohio-5817.]


                                     IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


JEFFREY BARKER, et al.,                                 :           OPINION

             Plaintiffs-Appellees,                      :
                                                                    CASE NO. 2012-T-0096
    - vs -                                              :

EMERGENCY PROFESSIONAL                                  :
SERVICES, INC., et al.,
                                                        :
             Defendants,
                                                        :
HAROLD ROBINSON, M.D., et al.,
                                                        :
             Defendants/
             Third Party Plaintiffs,                    :

FORUM HEALTH, d.b.a.                                    :
TRUMBULL MEMORIAL HOSPITAL,
                                                        :
             Defendant/
             Third Party Plaintiff-Appellant,           :

    - vs -                                              :

CLARENCE SPEAKER, et al.,                               :

             Third Party Defendants-Appellees. :


Civil Appeal from the Trumbull County Court of Common Pleas.
Case No. 2010 CV 2566.

Judgment: Affirmed.


Martin F. White, Martin F. White Co., L.P.A., 156 Park Avenue, N.E., P.O. Box 1150,
Warren, OH 44482-1150 (For Plaintiffs-Appellees).

Thomas J. Wilson, Comstock, Springer & Wilson Co., L.P.A., 100 Federal Plaza East,
Suite 926, Youngstown, OH           44503-1811 (For Defendant/Third Party Plaintiff-
Appellant).

Adam E. Carr, The Carr Law Office, L.L.C., 5824 Akron-Cleveland Road, Suite A,
Hudson, OH 44236 (For Third Party Defendants-Appellees).



TIMOTHY P. CANNON, P.J.

       {¶1}   Defendant/third party plaintiff-appellant, Forum Health d.b.a. Trumbull

Memorial Hospital, appeals the judgment of the Trumbull County Court of Common

Pleas dismissing the third-party complaint against third party defendants-appellees,

Cynthia and Clarence Speaker, pursuant to Civ.R. 12(B)(6). and granting plaintiffs-

appellees, Jeffrey and Shirley Barker’s, partial motion for summary judgment. For the

following reasons, the judgment of the trial court is affirmed.

       {¶2}   On June 18, 2010, Jeffrey Barker was at the Speakers’ home.         That

evening, Mr. Barker apparently dove off a diving board into the Speakers’ lake.

       {¶3}   Unfortunately, Mr. Barker did not immediately resurface. His son pulled

Mr. Barker out of the lake, CPR was administered, and 9-1-1 was called.           When

emergency assistance arrived, Mr. Barker was unconscious. He was transported to

Forum Health d.b.a. Trumbull Memorial Hospital, appellant herein. Mr. Barker remained

at Trumbull Memorial Hospital for three days before being transported to MetroHealth

Medical Center. It is undisputed that Mr. Barker now suffers from quadriplegia. The

Barkers allege that Mr. Barker received improper care constituting medical malpractice,

which ultimately exacerbated the extent of his injuries.

       {¶4}   Mr. Barker, with his wife and two minor children, initiated a medical

malpractice action against multiple defendants, including Dr. K.N. Amirthalingam




                                             2
(hereinafter referred to as “Dr. Amir”), Dr. Harold Robinson, and Dr. Zachary Veres, as

well as Emergency Professional Services, Forum Health d.b.a. Trumbull Memorial

Hospital and several of its employees, and a number of other groups and physicians.

Several defendants were voluntarily dismissed.

       {¶5}   The complaint alleged that on June 18, 2010, Mr. Barker was brought to

Trumbull Memorial Hospital in an unconscious state and in respiratory arrest after diving

off a diving board into a lake. The complaint further alleged that Mr. Barker’s medical

providers negligently failed to “recognize that [Mr. Barker] may have suffered an injury

to his neck and negligently failed to immobilize his cervical spine.” It is further alleged

that defendants “failed to properly diagnose [Mr. Barker’s] condition”; “negligently failed

to order appropriate radiological studies”; “negligently failed to order a consult with

trauma services regarding [Mr. Barker’s] condition”; and “negligently failed to immobilize

his cervical spine.” It is alleged that as a result of the named defendants’ negligence,

Mr. Barker suffered irreversible and permanent spinal cord injury resulting in

quadriplegia. The lawsuit was brought solely against medical co-defendants and not

against the owners of the pond, the Speakers.         The complaint does not seek any

damages for injuries that occurred prior to Mr. Barker arriving at the hospital.

       {¶6}   On June 18, 2012, Dr. Robinson, with leave of court, filed a third-party

complaint alleging negligence and that Mr. Barker suffered injury as a direct and

proximate result of their negligence. The third-party complaint alleged the Speakers

“failed to maintain the premises and caused, allowed to be caused or failed to remove a

nuisance and endangerment to the public in general, including a nuisance and

endangerment to the public in general, including a nuisance and endangerment to [Mr.




                                             3
Barker],” and “as a direct and proximate result of the creation of the nuisance and

endangerment, or the failure to maintain the premises,” Mr. Barker suffered injuries. Dr.

Robinson sought “contribution or partial indemnification for any judgment that may be

obtained” or “any settlement that may be paid by the Defendant/Third-Party Plaintiff to

the Plaintiffs and for all attorneys’ fees and costs incurred herein.”

       {¶7}   Subsequently, Dr. Amir and Forum Health filed motions to join the third-

party complaint against the Speakers. The Barkers filed a motion to strike or sever the

third-party complaint. The Speakers filed a motion to dismiss the third-party complaint

on the grounds that it failed to state a claim upon which relief could be granted. During

the pendency of those motions, the Speakers filed an answer to the third-party

complaint. Thereafter, the Speakers filed a motion for summary judgment on the third-

party complaint based on R.C. 1533.181–the recreational user immunity statute.

       {¶8}   During the pendency of these motions, the Barkers were granted leave to

file a motion for partial summary judgment. In the motion for partial summary judgment,

the Barkers maintained that Dr. Robinson, Dr. Amir, and Forum Health each raised

affirmative defenses predicated on claims of wrongdoing on the part of Mr. Barker, i.e.,

contributory negligence and assumption of the risk.

       {¶9}   In response to the Barkers’ motion for partial summary judgment, Dr. Amir

submitted a brief in opposition and requested an extension of time under Civ.R. 56(F) to

conduct expert discovery. Dr. Robinson and Forum Health withdrew their affirmative

defenses of contributory negligence and assumption of the risk and argued the

withdrawal rendered the Barkers’ motion for partial summary judgment moot. Dr. Amir




                                              4
did not withdraw the affirmative defenses and, instead, filed a brief in opposition to the

motion for partial summary judgment.

       {¶10} A hearing was held on the dispositive motions. However, the assignment

office failed to indicate on the hearing notice that the Speakers’ motion for summary

judgment on the third-party complaint would be heard on the date indicated. The trial

court issued a judgment entry on November 6, 2012, ruling on the dispositive motions,

including a grant of the Speakers’ motion for summary judgment on the third-party

complaint, which it addressed on the merits.

       {¶11} Forum Health filed a notice of appeal. Thereafter, Dr. Robinson filed a

motion to remand for clarification by the trial court, as the November 6, 2012 judgment

entry granted both the Speakers’ motion to dismiss the third-party complaint and the

Speakers’ motion for summary judgment.

       {¶12} This court remanded the matter to the trial court “for the sole purpose of

allowing the trial court to rule on appellant’s November 26, 2012 motion to amend its

entry and for the trial court to review the November 6, 2012 judgment entry to determine

whether a clerical error has occurred and if it needs to clarify its ruling.”

       {¶13} The trial court then issued a nunc pro tunc entry on February 12, 2013. In

that entry, the trial court held in abeyance the Speakers’ motion for summary judgment

on the third-party complaint pending the decision on appeal.

       {¶14} In ruling on the other outstanding motions, the trial court dismissed Dr.

Robinson’s third-party complaint, “joined by other Defendants,” with prejudice; granted

the Speakers’ motion to dismiss said third-party complaint; granted the Barkers’ motion

for partial summary judgment as to the affirmative defenses of contributory negligence




                                               5
and assumption of the risk; and rendered the Barkers’ motion to strike or sever Dr.

Robinson’s third-party complaint as moot. In rendering the Barkers’ motion to strike or

sever Dr. Robinson’s third-party complaint moot, the trial court noted the motion would

have been granted if not for the subsequent motion to dismiss filed by the Speakers.

The trial also noted the defenses of contributory negligence and assumption of the risk

would be unavailable to any of the defendants. The Speakers were dismissed with

prejudice.

       {¶15} With respect to its dismissal of the third-party complaint, the trial court

stated the following:

              In this case, Dr. Robinson is not a joint tortfeasor, as he is not
              jointly liable with the Speakers, if at all, for the same injuries
              suffered by Jeffrey Barker. The Speakers can only be negligent for
              the injuries suffered by Mr. Barker at the lake, while Dr. Robinson
              can only be held liable for the injuries that resulted from any
              negligence in his medical treatment of Jeffrey Barker. The same
              logic applies to the other medical provider Defendants in this case.
              These are separate alleged “wrongful acts,” not concurrent ones.
              Furthermore, Dr. Robinson has not paid anything in this case and
              does not have standing to bring a premises liability action, or an
              action for contribution, against the Speakers.

              The Court finds that R.C. 2307.25 is inapplicable and further finds
              that the Defendants lack standing to sue the Speakers for Mr.
              Barker’s injuries suffered at the lack. Finally, even if they did have
              standing to sue for Mr. Barker’s bodily injuries, they have failed to
              do so within the applicable statute of limitations for bodily injury,
              which is two years. R.C. 2305.10(A).

              The Court also agrees with the Plaintiffs that the defenses of
              contributory negligence and assumption of risk (as it relates to Mr.
              Barker’s decision to jump off a diving board into a pond) will not be
              available to any of the Defendants as defenses at trial. The
              Defendants have every right to argue that their care did not make
              Mr. Barker’s condition worse, and Mr. Barker’s condition at the time
              he entered their care is extremely relevant and may be developed
              through discovery and ultimately through testimony in this case.




                                            6
       {¶16} Forum Health filed a notice of appeal and asserts the following

assignments of error:

              [1.] The trial court erred as a matter of law by dismissing the third
              party complaint and preventing the medical defendants from
              establishing Clarence and Cynthia Speakers’ liability for Jeffrey
              Barker’s injuries.

              [2.] The trial court erred as a matter of law by granting the Barkers’
              motion for partial summary judgment on the issue of Mr. Barkers’
              own negligence.

       {¶17} Under its first assignment of error, Forum Health presents three issues for

our review. First, Forum Health alleges the trial court erred in dismissing the third-party

complaint based on the erroneous legal conclusion that concurrent liability cannot exist

and thereby eliminates any right of contribution or instruction on apportionment of

liability. Second, Forum Health asserts the trial court erred in determining that it lacked

standing under R.C. 2307.25.       Third, Forum Health argues the trial court erred in

determining the statute of limitations precluded recovery.

       {¶18} Our review of a trial court’s ruling on a Civ.R. 12(B) motion is de novo.

Perrysburg Twp. v. City of Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, ¶5. Pursuant

to Civ.R. 12(B)(6), a complaint may be dismissed for failure to state a claim when it

appears “beyond doubt from the complaint that the plaintiff can prove no set of facts

entitling him to recovery.” Cleveland Elec. Illum. Co. v. PUC, 76 Ohio St.3d 521, 524,

(1996), citing O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245

(1975). “As 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.” Huffman v. City of Willoughby, 11th Dist. Lake No. 2007-L-040, 2007-Ohio-




                                             7
7120, ¶18, citing Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-

2480, ¶5.

       {¶19} “[W]hen a party files a motion to dismiss for failure to state a claim, all the

factual allegations of the complaint must be taken as true and all reasonable inferences

must be drawn in favor of the non-moving party.” Byrd v. Faber, 57 Ohio St.3d 56, 60

(1991). Our scrutiny, therefore, is limited to the “four corners” of Dr. Robinson’s third-

party complaint.

       {¶20} Dr. Robinson filed a third-party complaint against the Speakers, seeking

contribution or partial indemnification from the Speakers, which was joined by Forum

Health. However, based on the third-party complaint, Forum Health is not entitled to

indemnification from the Speakers; there was no allegation of an express or implied

contract between Forum Health and the Speakers, thereby creating a duty by one party

to indemnify the other. See Hoffman v. Fraser, 11th Dist. Geauga No. 2010-G-2975,

2011-Ohio-2200, ¶69, quoting Casto v. Sanders, 11th Dist. Portage No. 2004-P-0060,

2005-Ohio-6150, ¶5 (“‘[i]ndemnity arises from contract, * * * and is the right of a person,

who has been compelled to pay what another should have paid to require complete

reimbursement’”).    The trial court did not err in determining that the third-party

complaint, as presently constituted, failed to state a claim against the Speakers for

indemnification.

       {¶21} A party’s right to contribution, however, is determined by R.C. 2307.25(A).

That section provides, in pertinent part:

              [I]f one or more persons are jointly and severally liable in tort for the
              same injury or loss to person or property * * *, there may be a right
              of contribution even though judgment has not been recovered
              against all or any of them. The right of contribution exists only in



                                              8
              favor of a tortfeasor who has paid more than that tortfeasor’s
              proportionate share of the common liability, and that tortfeasor’s
              total recovery is limited to the amount paid by that tortfeasor in
              excess of that tortfeasor’s proportionate share.

       {¶22} At the outset, we note that in dismissing the third-party complaint against

the Speakers, which was joined by Forum Health, the trial court misconstrued the

application of the statute of limitations in this matter, finding that even if standing was

established, the third-party complaint is barred by the two-year statute of limitations for

bodily injury. “The applicable statute of limitations for such claims does not begin to run

against defendant (third party defendant) until judgment has been entered against the

defendant, and perhaps not until the judgment has been paid by the defendant.” State

Farm Mut. Auto Ins. Co. v. Swartz, 5th Dist. Richland No. 2005 CA 0086, 2006-Ohio-

2096, ¶16. See also Goodyear Tire & Rubber Co. v. Brocker, 7th Dist. Mahoning No.

97 CA 184, 1999 Ohio App. LEXIS 3170, *5 (June 30, 1999) (holding plaintiffs’ claim for

contribution was not time barred by the one year statute of limitations set forth in R.C.

2305.11).

       {¶23} As stated in R.C. 2307.25, the right of contribution may exist “if one or

more persons are jointly and severally liable in tort for the same injury or loss to a

person * * *.” (Emphasis added.)

       {¶24} In a medical malpractice action, a defendant is liable only for that portion

of a plaintiff’s injuries that are attributable to that defendant’s malpractice. The fact that

a plaintiff in a medical malpractice action may have contributed to his medical condition

before receiving care is not to be considered. See, e.g., OJI §417.01(7) Freedom From

Negligence Instruction.




                                              9
       {¶25} In the present case, the third-party plaintiff medical providers are

attempting to seek contribution from the Speakers based upon alleged negligent acts

that occurred prior to any medical treatment.        This appears to be a case of first

impression in Ohio under the current version of the contribution statute. Although the

Barkers have indicated they conducted a nationwide search and were unable to find any

case where this situation has been permitted, there is authority from the state of New

York. In the case of Dubrey v. Champlain Valley Physicians Hosp. Med. Ctr., 189

A.D.2d 950, 1993 N.Y. App. Div. LEXIS 81, *3-4, the New York Supreme Court,

Appellate Division, noted as follows:

              It is well settled that ‘the liability of an independent and successive
              tortfeasor is generally limited to separate injuries or the aggravation
              caused by his conduct * * * so that a claim for contribution by a
              subsequent tortfeasor against a prior tortfeasor is not available’
              (Lewis v. Yonkers Gen. Hosp., 174 AD2d 611, 612 [citations
              omitted]; see, Kalikas v. Artale, 124 AD2d 645, 646). Thus, as a
              general rule, defendants in a medical malpractice action are not
              entitled to apportionment where they are subsequent tortfeasors,
              because their liability extends only to that portion of the plaintiff’s
              injuries attributable to their malpractice (see, Frederic v. St. John’s
              Episcopal Hosp., 100 AD2d 571). Where, however, ‘the plaintiff’s
              injury is such that it is incapable of a reasonable or practicable
              division or allocation between the tortfeasors, the focus shifts to the
              relative degree of fault of the multiple tortfeasors and contribution
              becomes appropriate’ (Lewis v. Yonkers Gen. Hosp., supra, at 612;
              see, Ravo v. Rogatnick, 70 NY2d 305, 310-312; Wiseman v. 374
              Realty, 54 AD2d 119, 122).

       {¶26} The relevant New York statute, NY CLS CPLR §1401, however, does not

impose the same requirements as the Ohio statute. Most notably, Ohio’s contribution

statute has a specific limitation which provides that the “right of contribution exists only

in favor of a tortfeasor who has paid more than that tortfeasor’s proportionate share of

the common liability.” R.C. 2307.25(A) (emphasis added).




                                            10
       {¶27} Here, the third-party complaint does not allege any of the third-party

plaintiffs have paid anything toward compensation for injuries over and above the

injuries he has caused, as required by the statute.         The plain language of Ohio’s

contribution statute establishes that the right of contribution “exists only in favor of a

tortfeasor who has paid more” than its share. The third-party plaintiffs assert that this

provision is not mandatory due to the inclusion of the preceding sentence, which

suggests “there may be a right of contribution even though judgment has not been

recovered against all or any of them.” If the statute is read in pari materia, however, it is

clear that the aforementioned language—i.e., that the right of contribution may exist

even though judgment has not been recovered—refers to the fact that a tortfeasor may

seek contribution even though payment was made by settlement, as opposed to

satisfaction of a judgment, provided the tortfeasor seeking contribution extinguishes the

liability of the joint tortfeasor in the settlement.

       {¶28} It is correct, as appellant notes, that the Ohio Supreme Court has held,

“[w]hen a medical provider’s negligent treatment of bodily injuries caused by a tortfeasor

results in further injury or aggravation of the original injury, R.C. 2307.31 creates a right

of contribution between the tortfeasor and the medical provider as to indivisible injuries.”

Motorists Mut. Ins. Co. v. Huron Rd. Hosp., 73 Ohio St.3d 391, 395 (1995) (emphasis

added).    Concurrent negligence has been defined as “‘negligence of two or more

persons concurring, not necessarily in point of time, but in point of consequence, in

producing a single indivisible injury.’” Id. at 394, quoting Garbe v. Halloran, 150 Ohio

St. 476, 481 (1948).




                                                11
       {¶29} The third-party complaint only pled a premises liability cause of action

against the Speakers; it failed to allege that the injuries Mr. Barker received from the

alleged negligence of the Speakers are inextricably connected to the injuries he

received from the alleged negligence of Dr. Robinson. A claim for contribution is only

possible under this theory if Mr. Barker’s injuries are indivisible.       The third-party

complaint makes no such allegation.

       {¶30} We also observe the third-party complaint, joined by Forum Health, does

not allege that Dr. Robinson and the Speakers are joint tortfeasors, which is the

threshold requirement of the statute. Instead, the third-party complaint merely alleges

the Speakers were negligent in maintaining their premises, thereby causing Barker to

suffer “permanent injury.” The third-party complaint then seeks contribution from the

Speakers for “any judgment that may be obtained against” Dr. Robinson on the

complaint or any settlement that may be paid by Dr. Robinson.

       {¶31} As the trial court notes, the Barkers’ complaint seeks damages for injuries

sustained by Mr. Barker as a result of the treatment he received after arriving at the

hospital. There is no request for recovery for any injuries he incurred prior to that time.

As a result, the introduction of evidence of Mr. Barker’s own negligence cannot be

considered by the jury.     At trial, the burden is on the plaintiffs to separate and

distinguish the injuries and damages sustained by Mr. Barker subsequent to his arrival

at the hospital.

       {¶32} The incongruity of the position taken by the medical defendants is that

they seek to admit into evidence injuries for which plaintiff does not seek to recover and,

thereafter, seek contribution from the Speakers for the corresponding damage. The jury




                                            12
instruction is clear that the medical defendants cannot introduce evidence of Mr.

Barker’s own negligence or misconduct in a medical malpractice case.

       {¶33} We draw no conclusion as to whether a medical malpractice defendant

may ever state a viable claim for contribution by looking back to prior tortfeasors. A

review of the four corners of the third-party complaint, however, reveals it fails to state a

claim upon which relief can be granted.

       {¶34} As such, Forum Health’s first assignment of error is without merit.

       {¶35} Under the second assignment of error, Forum Health alleges it was error

for the trial court to grant the Barkers’ motion for partial summary judgment on its

affirmative defense of contributory negligence.

       {¶36} It is well founded that appellate courts have jurisdiction to review only final

orders or judgments, pursuant to Section 3(B)(2), Article IV of the Ohio Constitution and

R.C. 2505.02. From this constitutional grant of limited authority, it is axiomatic that if an

order is not final and appealable, an appellate court is without jurisdiction to entertain

the merits of that order.

       {¶37} Here, the Barkers submitted a motion for partial summary judgment only

with respect to the affirmative defenses raised by defendants. Thereafter, Forum Health

withdrew the affirmative defenses at issue and argued the withdrawal made the Barkers’

motion for partial summary judgment moot.

       {¶38} As Forum Health withdrew its affirmative defenses at issue in the Barkers’

motion for partial summary judgment, the trial court entered judgment on an issue that

was moot. Simply put, there was nothing for the trial court to rule on because Forum

Health had withdrawn its affirmative defenses. Even assuming error by the trial court,




                                             13
any error was harmless as to Forum Health. The second assignment of error is thus not

well taken and without merit.

      {¶39} The judgment of the Trumbull County Court of Common Pleas is hereby

affirmed.



DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




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