[Cite as Troyer v. Janis, 132 Ohio St.3d 229, 2012-Ohio-2406.]




                 TROYER ET AL., APPELLANTS, v. JANIS, APPELLEE.
           [Cite as Troyer v. Janis, 132 Ohio St.3d 229, 2012-Ohio-2406.]
Civil procedure—Civ.R. 10(D)(2)—Dismissals—Dismissal of medical claim for
        failure to attach required affidavit of merit is adjudication otherwise than
        on merits and is without prejudice by operation of law.
        (No. 2011-1162—Submitted April 3, 2012—Decided June 5, 2012.)
               APPEAL from the Court of Appeals for Franklin County,
                            No. 10AP-434, 2011-Ohio-2538.
                                  __________________
                               SYLLABUS OF THE COURT
A dismissal of a complaint for failure to attach the affidavit of merit required by
        Civ.R. 10(D)(2) is an adjudication otherwise than on the merits and is a
        dismissal without prejudice by operation of law.
                                  __________________
        LUNDBERG STRATTON, J.
        {¶ 1} We are asked to determine whether dismissal of a complaint for
failure to file an affidavit of merit as required by Civ.R. 10(D)(2) results in a
dismissal without prejudice by operation of law. For the reasons that follow, we
hold that it does. Consequently, we reverse the judgment of the court of appeals
and remand to the trial court for further proceedings in accordance with our
opinion.
                                   Procedural History
        {¶ 2} On December 9, 2009, appellants, Donald and Tamara Troyer, filed
a medical-malpractice complaint in the Franklin County Court of Common Pleas
against appellee, Leonard J. Janis. In response, Janis filed a motion for summary
judgment in which he alleged that the claims asserted against him in the
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complaint had already been filed and dismissed in a previous action and were now
barred by the doctrine of res judicata. In support of his motion, Janis attached a
copy of the complaint in the prior case, the trial court’s decision granting his
motion to dismiss under Civ.R. 12(B)(6) for failure to file an affidavit of merit,
and the court’s judgment entry.
       {¶ 3} The Troyers opposed summary judgment on the basis that the
previous dismissal for failure to attach an affidavit of merit was a dismissal
without prejudice. The Troyers relied on Fletcher v. Univ. Hosps. of Cleveland,
120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, which held that a
dismissal for failure to file the required affidavit is an adjudication otherwise than
on the merits and is therefore a dismissal without prejudice. Thus, the Troyers
argued, dismissal of their previous complaint did not bar refiling under the saving
statute, which permits refiling of an action that has failed otherwise than on the
merits. R.C. 2305.19(A).
       {¶ 4} But the trial court construed the previous judgment entry, which did
not specify whether the dismissal was with or without prejudice, as a dismissal
with prejudice. The court relied on Nicely v. Ohio Dept. of Rehab. & Corr., 10th
Dist. No. 09AP-187, 2009-Ohio-4386, which held that under Civ.R. 41(B)(3),
dismissal is with prejudice unless the entry specifies otherwise. Consequently,
the court concluded that the dismissal had been a final judgment and that the
current complaint was barred by the doctrine of res judicata. The court granted
summary judgment for Janis.
       {¶ 5} The Franklin County Court of Appeals affirmed. Troyer v. Janis,
10th Dist. No. 10AP-434, 2011-Ohio-2538. The cause is before this court upon
our acceptance of a discretionary appeal. 129 Ohio St.3d 1504, 2011-Ohio-5358,
955 N.E.2d 386.




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                                      Analysis
         {¶ 6} In reviewing whether the trial court’s granting of summary judgment
was proper, we apply a de novo review. Smith v. McBride, 130 Ohio St.3d 51,
2011-Ohio-4674, 955 N.E.2d 954, ¶ 12. Thus, viewing the pleadings in the light
most favorable to the Troyers, we must determine whether Janis was entitled to
judgment as a matter of law. Civ.R. 56(C).
         {¶ 7} Civ.R. 10(D)(2) requires that every complaint containing a medical
claim as defined in R.C. 2305.113 must include an affidavit of merit from an
expert witness. We have held that the purpose of the affidavit of merit is to
establish the adequacy of the complaint and thus deter the filing of frivolous
medical-malpractice claims. Fletcher, 120 Ohio St.3d 167, 2008-Ohio-5379, 897
N.E.2d 147, ¶ 10. The rule also specifically provides that “[a]ny dismissal for the
failure to comply with this rule shall operate as a failure otherwise than on the
merits.” Civ.R. 10(D)(2)(d). We held in Fletcher that a dismissal for failure to
comply with the rule is a dismissal without prejudice. Id. at paragraph two of the
syllabus.
         {¶ 8} In this case, the parties agree that the complaint in the previous case
was properly dismissed due to the Troyers’ failure to attach an affidavit of merit
as required by Civ.R. 10(D)(2). The parties also agree that the trial court’s entry
of dismissal was silent as to whether the dismissal was with or without prejudice.
The Troyers contend that under Fletcher, the previous dismissal was an
adjudication otherwise than on the merits and thus was without prejudice, by
operation of law, regardless of the failure of the entry to so specify. Thus, they
were permitted to refile the action using the saving statute, R.C. 2305.19(A). We
agree.
         {¶ 9} Fletcher examined the proper procedural remedy when a plaintiff
fails to attach an affidavit of merit to a complaint. The trial court had granted a
defense motion to dismiss for failure to state a claim under Civ.R. 12(B)(6) and




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dismissed the case with prejudice. The court of appeals reversed, concluding that
the proper remedy for a defendant under these circumstances was to request a
more definite statement. Id. at ¶ 5.
       {¶ 10} In Fletcher, we held that the trial court properly dismissed the case,
but that the dismissal should have been without prejudice.          Id. at ¶ 15-18.
Because Civ.R. 10(D)(2) requires an affidavit of merit to be attached to the
complaint, when one is not attached, the proper remedy is to dismiss the
complaint for failure to state a claim. Such a dismissal is not based on the merits
of the case, but on the insufficiency of the complaint. Id. at ¶ 18. We held that
“[a] dismissal of a complaint for failure to file the affidavit required by Civ.R.
10(D)(2) is an adjudication otherwise than on the merits.            The dismissal,
therefore, is without prejudice.”      120 Ohio St.3d 167, 2008-Ohio-5379, 897
N.E.2d 147, at paragraph two of the syllabus.
       {¶ 11} In this case, because the previous dismissal entry did not specify
whether it was with or without prejudice (unlike the entry in Fletcher, which
erroneously stated that it was with prejudice), the trial court applied Nicely, 2009-
Ohio-4386, and Civ.R. 41(B)(3) in support of its conclusion that the previous
dismissal entry was with prejudice. But a close reading of Nicely demonstrates
that it further supports the Troyers’ position that a court’s dismissal of a
complaint for lack of an affidavit of merit is without prejudice.
       {¶ 12} In Nicely, the trial court dismissed the complaint for failure to
attach an affidavit of merit, but the court’s entry did not specify whether the
dismissal was with, or without, prejudice. Id., 2009-Ohio-4386, ¶ 3. On appeal,
Nicely argued that the dismissal must be considered as having been without
prejudice, citing Fletcher. The Nicely court of appeals found that the trial court
properly had dismissed the complaint for lack of a Civ.R. 10(D)(2) affidavit of
merit, id. at ¶ 6, but agreed that under Fletcher, it was error to dismiss the case
with prejudice. Id. at ¶ 14. The appellate court acknowledged that generally,




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under Civ.R. 41(B)(3), when the entry is silent, the dismissal is with prejudice.
But when the dismissal is for failure to attach the affidavit required by Civ.R.
10(D)(2), Fletcher and Civ.R.10(D)(2)(d) dictate that the dismissal must be
without prejudice. Nicely at ¶ 14.
       {¶ 13} Janis urges us to affirm the judgment of the court of appeals. He
argues that the Troyers did nothing to correct the previous judgment entry to
include the phrase “without prejudice,” that they did not appeal, and that, as a
result, the previous entry became a final judgment. Thus, Janis urges, the refiled
claim is precluded by the doctrine of res judicata.
       {¶ 14} We need not reach the issue of res judicata because, applying
Civ.R. 10(D)(2)(d) and Fletcher, we conclude that the previous dismissal was an
adjudication otherwise than on the merits and thus, without prejudice by operation
of law. First, Civ.R. 10(D)(2)(d) expressly provides that “[a]ny dismissal for the
failure to comply with this rule shall operate as a failure otherwise than on the
merits.” (Emphasis added.) Second, Fletcher recognized that this language can
mean only that such dismissals are without prejudice. A close reading of Nicely
only confirms the correctness of Fletcher’s application of the rule.
       {¶ 15} Here, we have a specific rule, Civ.R. 10(D)(2), which applies only
to cases involving a medical claim, requires an affidavit of merit in these cases,
and explicitly provides that any dismissal for failure to comply shall be a
dismissal otherwise than on the merits.         Under these circumstances, it is
customary to apply the more specific provision, the one meant to govern the
particular situation involved, rather than the more general rule. Moreover, we
must construe the Civil Rules “to effect just results” and promote “the expeditious
administration of justice.” Civ.R. 1(B). Thus, the previous entry’s silence on the
matter of prejudice does not affect the application of Civ.R. 10(D)(2)(d).
       {¶ 16} Finally, Janis argues that the Troyers should have appealed the
previous judgment—as the plaintiff did in Nicely—thereby giving the appellate




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court an opportunity to correct the error. But we have held that the previous
dismissal was, by operation of law under Civ.R. 10(D)(2)(d), without prejudice.
Thus, the Troyers’ failure to appeal that dismissal was irrelevant. They reserved
their right to continue their suit by refiling their complaint within the time period
set forth in R.C. 2305.19(A). This approach has the additional advantage of
avoiding the delay engendered by yet another unnecessary procedural hurdle.
                                    Conclusion
       {¶ 17} Based on the clear language of Civ.R. 10(D)(2) and Fletcher, we
hold that a dismissal of a complaint for failure to attach the affidavit of merit
required by Civ.R. 10(D)(2) is an adjudication otherwise than on the merits and is
a dismissal without prejudice by operation of law.
       {¶ 18} The judgment of the court of appeals is reversed, and the matter is
remanded to the trial court for further proceedings.
                                                                 Judgment reversed
                                                               and cause remanded.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, CUPP, and
MCGEE BROWN, JJ., concur.
                              __________________
       Leeseberg & Valentine, Anne M. Valentine, and Susie L. Hahn, for
appellants.
       Lane, Alton & Horst, L.L.C., Gregory D. Rankin, and Ray S. Pantle, for
appellee.
                            ______________________




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