[Cite as Estate of Aukland v. Broadview NH, L.L.C., 2017-Ohio-7332.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Estate of Nancy L. Aukland,                         :
[c/o Mark Aukland, Executor],
                                                    :
                Plaintiff-Appellant,
                                                    :                   Nos. 16AP-661
v.                                                                      and 16AP-765
                                                    :                  (C.P.C. No. 16CV-4336)
Broadview NH, LLC et al.,
                                                    :              (ACCELERATED CALENDAR)
                Defendants-Appellees.
                                                    :


                                           D E C I S I O N

                                    Rendered on August 24, 2017


                Law Offices of Stanley B. Dritz, Stanley B. Dritz and D.
                Chadd McKitrick; Law Office of Thomas D. Hunter, and
                Thomas D. Hunter, for appellant.

                Reminger Co., L.P.A., Robert V. Kish and Melvin J. Davis, for
                appellee.

                             ON MOTION TO CERTIFY A CONFLICT

HORTON, J.
        {¶ 1} Plaintiff-appellant, Estate of Nancy L. Aukland ("appellant"), has filed a
motion for an order certifying a conflict between our decision in Estate of Aukland v.
Broadview NH, LLC, 10th Dist. No. 16AP-661, 2017-Ohio-5602, and opinions issued by
the Eighth District Court of Appeals in Jarina v. Fairview Hosp., 8th Dist. No. 91468,
2008-Ohio-6846, and Chapman v. S. Pointe Hosp., 8th Dist. No. 92610, 2010-Ohio-152;
and the Ninth District Court of Appeals in Wick v. Lorain Manor, Inc., 9th Dist. No. 12
CA 10324, 2014-Ohio-4329. Defendant-appellee, Broadview NH, LLC et al. ("appellee"),
opposes the motion. For the reasons that follow, we grant appellant's motion to certify.
No. 16AP-661 and 16AP-765                                                                   2

I. THE ESTATE OF AUKLAND DECISION
       {¶ 2}   The background of this case is fully set forth in the Estate of Aukland
decision. However, the following facts are pertinent to appellant's motion to certify.
Appellant originally filed this medical malpractice and wrongful death action on
August 15, 2014. Contemporaneously with the complaint appellant filed a motion for an
extension of time to file an affidavit of merit ("AOM"), which was granted. On April 7,
2015, appellee moved to dismiss the complaint on the basis that appellant had failed to
submit an AOM. Appellant did not respond. On May 6, 2015, the trial court granted
appellee's motion and dismissed appellant's complaint without prejudice.
       {¶ 3} On May 4, 2016, contemporaneously with refiling its complaint, appellant
moved for a second extension of time to file an AOM. On May 16, 2016, appellant filed an
AOM from nurse Johanna Ojeda, and the trial court subsequently found appellant's
motion for an extension to be moot.
       {¶ 4} On June 8, 2016, appellee moved for judgment on the pleadings, arguing
that Ojeda's affidavit failed to comply with Civ.R. 10(D)(2), as a nurse is not competent to
testify as to causation. On June 22, 2016, appellant filed a motion for extension of time to
cure an allegedly defective AOM pursuant to Civ.R. 10(D)(2)(e). Appellee objected,
arguing that Civ.R. 10(D)(2)(e) permits a plaintiff to cure an AOM only when filed
contemporaneously with a complaint. Appellant countered that Civ.R. 10(D)(2)(e)
requires the trial court to permit a plaintiff to cure an AOM, regardless of whether such
affidavit was filed contemporaneously with a complaint or pursuant to a permitted
extension.
       {¶ 5} On August 24, 2016, the trial court ruled that Civ.R. 10(D)(2)(e) was
inapplicable in this case because the rule requires a court to permit a plaintiff a reasonable
period of time to cure a defective AOM if an AOM, as required by this rule, has been filed
along with the complaint or amended complaint in which claims are first asserted against
that defendant. The court noted that appellant did not file an AOM with the complaint in
which its claims were first asserted against the appellee, and did not file an AOM when it
refiled its complaint. As such, the trial court granted appellee's motion for judgment on
the pleadings and, pursuant to Civ.R. 10(D)(2)(d), noted that the "Court's dismissal
No. 16AP-661 and 16AP-765                                                                   3

operates as a failure otherwise than on the merits." (Aug. 24, 2016 Decision and Entry at
5.)
       {¶ 6} In Estate of Aukland, we agreed with the trial court.               We noted that
Civ.R. 10(D)(2)(e) clearly and unambiguously provides:
              If an affidavit of merit as required by this rule has been filed
              as to any defendant along with the complaint or
              amended complaint in which claims are first
              asserted against that defendant, and the affidavit of
              merit is determined by the court to be defective pursuant to
              the provisions of division (D)(2)(a) of this rule, the court shall
              grant the plaintiff a reasonable time, not to exceed sixty days,
              to file an affidavit of merit intended to cure the defect.

(Emphasis added.) We stated that the plain language of Civ.R. 10(D)(2)(e) unequivocally
provides that a plaintiff may cure a defective AOM if an affidavit was filed with a
complaint. To interpret Civ.R. 10(D)(2)(e) as appellant argues would effectively remove
the bold-faced words above from the rule, i.e., Civ.R. 10(D)(2)(e) would read: "If an
affidavit of merit as required by this rule has been filed as to any defendant, and the
affidavit of merit is determined by the court to be defective pursuant to the provisions of
division (D)(2)(a) of this rule, the court shall grant the plaintiff a reasonable time, not to
exceed sixty days, to file an affidavit of merit intended to cure the defect."
       {¶ 7} As such, we agreed with the trial court that Civ.R. 10(D)(2)(e) was
inapplicable in this case. Consequently, appellant was not permitted to take advantage of
Civ.R. 10(D)(2)(e) to cure the defective affidavit.
II. APPELLANT'S MOTION TO CERTIFY CONFLICT
       {¶ 8} The Ohio Constitution, Article IV, Section 3(B)(4), governs motions seeking
an order to certify a conflict, providing as follows:
              Whenever the judges of a court of appeals find that a
              judgment upon which they have agreed is in conflict with a
              judgment pronounced upon the same question by any other
              court of appeals of the state, the judges shall certify the record
              of the case to the supreme court for review and final
              determination.

       {¶ 9} In Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594 (1993), the Supreme
Court of Ohio held that "there must be an actual conflict between appellate judicial
districts on a rule of law before certification of a case to the Supreme Court for review and
No. 16AP-661 and 16AP-765                                                                 4

final determination is proper." Id. at paragraph one of the syllabus. The court further
stated:
                [A]t least three conditions must be met before and during the
                certification of a case to this court * * *. First, the certifying
                court must find that its judgment is in conflict with the
                judgment of a court of appeals of another district and the
                asserted conflict must be "upon the same question." Second,
                the alleged conflict must be on a rule of law -- not facts. Third,
                the journal entry or opinion of the certifying court must
                clearly set forth that rule of law which the certifying court
                contends is in conflict with the judgment on the same
                question by other district courts of appeals.

Id. at 596.
          {¶ 10} Further, factual distinctions between cases are not a basis upon which to
certify a conflict. Semenchuk v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 10AP-19,
2010-Ohio-6394, ¶ 4, citing Whitelock at 599. " 'For a court of appeals to certify a case as
being in conflict with another case, it is not enough that the reasoning expressed in the
opinions of the two courts of appeals be inconsistent; the judgments of the two courts
must be in conflict.' " Semenchuk at ¶ 4, quoting State v. Hankerson, 52 Ohio App.3d 73
(2d Dist.1989).
          {¶ 11} We first note that a complaint that contains a "medical claim" must include
"one or more affidavits of merit relative to each defendant named in the complaint for
whom expert testimony is necessary to establish liability." Civ.R. 10(D)(2)(a). This
heightened pleading requirement is to "deter the filing of frivolous medical-malpractice
claims. The rule is designed to ease the burden on the dockets of Ohio's courts and to
ensure that only those plaintiffs truly aggrieved at the hands of the medical profession
have their day in court." Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-
Ohio-5379, ¶ 10.
          {¶ 12} Appellant states that in Estate of Aukland, we "held there is a distinction
between affidavits of merit filed with a complaint and affidavits of merit filed upon
extension under Rule 10(D)(2)(b), stating that only affidavits of merit filed at the exact
same time as a complaint or amended complaint are subject to the curative provisions
provided by Rule 10(D)(2)(e)." (Mot. to Certify Conflict at 3.) Appellant also argues that
we acknowledged in Estate of Aukland that our "ruling is in direct conflict with" Jarina,
No. 16AP-661 and 16AP-765                                                                    5

Chapman, and Wick by stating at ¶ 16 of our opinion that "[t]he court of appeals cases
cited by appellant do, in varying degrees, support its argument." Id.
       {¶ 13} Appellee responds that, "[r]egarding Chapman and Jarina, this Court
properly recognized that neither case addressed the issue of whether or not the defective
AOM was required to be filed with the complaint or amended complaint. Furthermore,
while the court in Wick held that the plaintiff, in that case, was permitted to file a curative
affidavit although an affidavit was not filed with the complaint, the court's decision did
not contain any analysis of Civ.R. 10(D)(2)(e). * * * As such, this Court's decision contains
a legal analysis that was not present in the cases cited by Appellant. And because this
Court's decision does not directly conflict with any of the cases cited by Appellant, the
request to certify a conflict must be denied." (Memo Contra at 2-3.)
III. DISCUSSION
       {¶ 14} Estate of Aukland and the three cases cited by appellant are essentially
medical malpractice cases. In all of the cases the action was initiated and then, either
voluntarily or involuntarily, dismissed. The cases were then refiled without an AOM
being filed along with the complaint. After requesting an extension in which to file the
AOM, appellants then filed, or attempted to file, a defective AOM.            In determining
whether or not to grant appellant's motion to certify a conflict, we will review the facts,
holdings, and judgments, as relevant to this motion, of Jarina, Chapman, and Wick.
   A. Jarina
       {¶ 15} In Jarina, the appellants refiled their case without an AOM, but with a
motion for extension of time to file an AOM. Later, appellants filed an AOM from a nurse.
Appellee Fairview Hospital renewed its motion for judgment on the pleadings. The
motion challenged the AOM on the grounds that it failed to identify a qualified expert as
defined by Evid.R. 601(D) and 702, and that the affidavit failed to contain opinions that
the standard of care was breached and that the breach caused appellant's injury. Jarina at
¶ 8. The trial court granted appellee's motion for judgment on the pleadings because
appellant's AOM was insufficient. Jarina at ¶ 11.
       {¶ 16} The appeals court held that "[a]s the trial court determined the affidavit of
merit filed by [appellants] was defective under Civ.R. 10(D)(2)(a), according to the
specific language of Civ.R. 10(D)(2)(e), the trial court must grant [appellants] 'a
No. 16AP-661 and 16AP-765                                                                  6

reasonable time, not to exceed sixty days, to file an affidavit of merit intended to cure the
defect.' " Jarina at ¶ 27.
       {¶ 17} It appears that the issue of whether Civ.R. 10(D)(2)(e) was applicable, since
appellant's had not filed an AOM "along with the complaint or amended complaint in
which the claims are first asserted," was never raised in this action. In any event, there
was no analysis from the court regarding this issue.
   B. Chapman
       {¶ 18} Appellant Chapman refiled this wrongful death and medical malpractice
action without an AOM and requested an enlargement of time to file an AOM under
Civ.R. 10. The trial court granted appellant several extensions. Appellee, South Pointe
Hospital, filed a motion to dismiss. Chapman at ¶ 5.
       {¶ 19} Appellant was granted until November 14, 2008 to respond to appellee's
motion to dismiss. On November 12, 2008, appellant filed a motion for leave to file an
amended complaint instanter; attached to the amended complaint was an AOM executed
by a nurse. Appellee opposed the affidavit as not satisfying the requirement of Civ.R.
10(D)(2) on the ground that a nurse is not qualified to express an opinion on proximate
cause in a medical malpractice action. On December 2, 2008, the court granted
appellant's leave to file her complaint instanter. On the same date, the court also granted
appellee's motion to dismiss. Id. at ¶ 6.
       {¶ 20} On appeal, appellant's argued that the Eighth District's prior case of Jarina
was authority for reversing the trial court, pursuant to Civ.R. 10(D)(2)(e), and remanding
the case with orders to the trial court to grant the plaintiffs a reasonable period of time,
not to exceed 60 days, to file an AOM to cure the defect in the original affidavit. Id. at
¶ 23-24.
       {¶ 21} The appeals court summarized appellee's argument, and the court's
response:
               The hospital contends that Civ.R. 10(D)(2)(e) does not apply
               to this case because the proposed amended complaint was not
               the pleading "in which the claims [were] first asserted against
               [it]." (Emphasis added.) Id. Specifically, the hospital notes
               that no affidavit of merit was filed in the first case of April
               2006 or this case. In regard to the hospital's citation to the
               first case, this court held in Jarina that because the plaintiffs
               voluntarily dismissed their case without prejudice, "such a
No. 16AP-661 and 16AP-765                                                                   7

              dismissal causes all proceedings in that case to be treated as a
              nullity, as if the case had never been filed." (Citations
              omitted.) Id. at P18. See, also, Stafford v. Hetman (June 4,
              1998), Cuyahoga App. No. 72825, 1998 Ohio App. LEXIS
              2402 ("A dismissal without prejudice relieves the court of all
              jurisdiction over the matter, and the action is treated as
              though it had never been commenced.") The first filing of this
              case was similarly dismissed without prejudice and, thus,
              citation to that first case in this context is not proper.

Chapman at ¶ 26.
       {¶ 22} The Eighth District then reasoned and held that:
              In regard to Chapman's failure to submit an affidavit with this
              case in May 2007 when she re-filed her action, the same
              situation essentially existed in Jarina. The only difference
              between Jarina and this case is that the plaintiffs in Jarina
              did not file an amended complaint with their affidavit. Here,
              the affidavit submitted by Chapman was an exhibit to her
              proposed amended complaint. But the proposed amended
              complaint was substantively the same complaint as the May
              2007 complaint. Thus, this court in Jarina found that Civ.R.
              10(D)(2)(e) applied in a situation essentially the same as here.
              Moreover, we are unable to find any other authority
              supporting the hospital's position.

              In light of the above, although the affidavit in this case was
              deficient under the requirements of Civ.R. 10(D), Chapman
              should have been granted an extension of time, not to exceed
              60 days, to cure the defect.

Id. at ¶ 27-28.
       {¶ 23} In Chapman, the appeals court followed its own prior case of Jarina in
reaching its decision. Again, there was no analysis of the wording in Civ.R. 10(D)(2)(e).
   C. Wick
       {¶ 24} In Wick, no AOM was filed with the refiled case, however, on the same day
appellant filed a motion for an extension of time to file the required AOM. The court
granted appellant's motion for an extension of time and ordered that an affidavit be filed
on or before September 22, 2011. Id. at ¶ 3.
       {¶ 25} On September 22, 2011, appellant filed an AOM from a nurse and requested
an additional 30-day extension to file an affidavit of merit from an out-of-state physician.
While the court did not explicitly rule on his motion, appellant filed an affidavit of a
No. 16AP-661 and 16AP-765                                                                  8

medical doctor on September 26, 2011, and the court considered the affidavit in its later
ruling. Id. at ¶ 4.
       {¶ 26} Appellees all filed motions to dismiss pursuant to Civ.R. 12(B)(6) for failure
to state a claim upon which relief may be granted. In their various motions, appellees
argued, as relevant here, that the AOMs were insufficient to meet the heightened pleading
standard of Civ.R. 10. The court granted appellees' motions to dismiss finding that the
two AOMs filed did not meet the pleading requirements of Civ.R. 10(D)(2)(a). Id. at ¶ 5.
       {¶ 27} On appeal, appellant argued that if the AOMs are deficient, the court erred
in failing to grant him time to cure any defect pursuant to Civ.R. 10(D)(2)(e). Id. at ¶ 27.
Appellees argued that Civ.R. 10(D)(2)(e) did not apply because the AOMs filed by
appellant were not filed "along with the complaint." Instead, they argued, the AOMs were
filed after numerous extensions. The appeals court found appellees' argument
"unpersuasive." Id. at ¶ 29.
       {¶ 28} The Ninth District reasoned and held as follows:
               If the plaintiff does not file an affidavit of merit with the
               complaint, the plaintiff must file a motion for an extension of
               time. See Civ.R. 10(D)(2)(b). Only if the court determines that
               the plaintiff has shown good cause for the extension, will the
               court grant the plaintiff a reasonable period of time to file an
               affidavit. Once an affidavit is filed, the court may determine
               that it does not meet the requirements of Civ.R. 10(D)(2)(a).
               In that circumstance, the court must grant the plaintiff a
               reasonable time to cure the defect. See Civ.R. 10(D)(2)(e).

               Civ.R. 10(D)(2)(b) and Civ.R. 10(D)(2)(e) provide two
               different types of extensions. Civ.R. 10(D)(2)(b) only gives the
               plaintiff more time to file an initial affidavit of merit upon the
               showing of good cause. Civ.R. 10(D)(2)(e), on the other hand,
               requires the court to grant the plaintiff time to correct a defect
               in an already filed affidavit if the court determines that the
               filed affidavit does not meet the requirements of the rule.
               Under Civ.R. 10(D)(2)(e) the court must grant the plaintiff a
               reasonable time to cure the defect; what is a reasonable time
               to cure, however, is discretionary.

               On November 8, 2012, the court found that Wick's affidavits
               of merit were deficient pursuant to Civ.R. 10(D)(2)(a). At that
               time, the court was required to grant Wick a reasonable time
               to cure the defect. See Jarina v. Fairview Hosp., 8th Dist.
               Cuyahoga No. 91468, 2008-Ohio-6846 (court required to
No. 16AP-661 and 16AP-765                                                                    9

              grant extension to cure defect in affidavits of merit even when
              affidavits are filed subsequent to the complaint and pursuant
              to an extension granted under Civ.R. 10(D)(2)(b)). Therefore,
              we conclude that the trial court erred in granting Appellees'
              motions to dismiss without first granting Wick a reasonable
              opportunity to refile affidavits of merit in compliance with
              Civ.R. 10(D)(2)(a).

Id. at ¶ 30-32.
       {¶ 29} In Wick, the Ninth District followed the Eighth District's Jarina case.
IV. CONCLUSION
       {¶ 30} As opposed to Estate of Aukland, in all three cases cited by appellant the
appeals court reversed the trial court and remanded the action to allow appellant's to cure
defective affidavits, pursuant to Civ.R. 10(D)(2)(e), that were not filed contemporaneously
or along with the complaint or refiled complaint. The decisions in Jarina, Chapman, and
Wick are in direct conflict with our holding in Estate of Aukland, wherein we held that
Civ.R. 10(D)(2)(e) is inapplicable because the defective AOM was not filed "along with the
complaint or amended complaint in which claims are first asserted against that
defendant." As such, we conclude that appellant's motion to certify satisfies the Whitelock,
supra, test, in that the judgments conflict upon the same question and on a rule of law.
       {¶ 31} Therefore, we certify the following rule of law:
              Does a right to "cure" an affidavit of merit under Ohio Civ.R.
              10(D)(2)(e) exist only for affidavits that are filed with a
              complaint or amended complaint or for all affidavits of merit,
              including those filed by extension under Ohio Civ.R.
              10(D)(2)(b)?

V. DISPOSITION
       {¶ 32} Based on the foregoing, appellant's motion to certify a conflict is granted.
                                                       Motion to certify a conflict granted.

                           SADLER and DORRIAN, JJ., concur.
                               _________________
