[Cite as Barker v. Emergency Professional Serv., Inc., 2013-Ohio-5819.]


                                     IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


JEFFREY BARKER, et al.,                                 :           OPINION

             Plaintiffs-Appellees,                      :
                                                                    CASE NO. 2012-T-0098
    - vs -                                              :

EMERGENCY PROFESSIONAL                                  :
SERVICES, INC., et al.,
                                                        :
             Defendants,
                                                        :
HAROLD ROBINSON, M.D., et al.,
                                                        :
             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).

Timothy A. Spirko and Dirk E. Riemenschneider, Buckingham, Doolittle & Burroughs,
LLP, One Cleveland Center, Suite 1700, 1375 East Ninth Street, Cleveland, OH
44114 (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, Harold Robinson, M.D., appeals

the judgment of the Trumbull County Court of Common Pleas dismissing his 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 reasons that follow, we affirm.

       {¶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. 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. It is alleged 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

(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.




                                            2
       {¶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, including Dr. Robinson, 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 against the Speakers 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. 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




                                             3
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 a motion 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 use immunity doctrine.

      {¶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 their

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

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

motion for partial summary judgment.




                                            4
       {¶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} Dr. Robinson filed a notice of appeal. Thereafter, he 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

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




                                               5
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 court 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 lake. 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.

       {¶16} Dr. Robinson filed a notice of appeal and asserts four assignments of error

for our review:




                                            6
              [1.] Whether the trial court committed prejudicial error in granting
              the motion to dismiss of Third-Party Defendants, Clarence Speaker
              and Cynthia Speaker, based upon its opinion that Dr. Robinson and
              the Speakers were not joint tortfeasors.

              [2.] Whether the trial court committed prejudicial error in granting
              the motion to dismiss of Third-Party Defendants, Clarence Speaker
              and Cynthia Speaker, based upon its opinion that Dr. Robinson did
              not have standing to bring an action for contribution, making O.R.C.
              2307.25 inapplicable.

              [3.] Whether the trial court erred in granting the motion to dismiss
              Third-Party Defendants, Clarence Speaker and Cynthia Speaker,
              based upon the expiration of the statute of limitations.

              [4.] Whether the trial court erred in granting the motion for partial
              summary judgment of plaintiff, Jeffrey Barker against Defendant
              Harold Robinson, M.D. when the issue was moot due to
              Defendant’s withdrawal of the affirmative defenses at issue in the
              motion.

       {¶17} As Dr. Robinson’s first three assignments of error relate to the dismissal of

his third-party complaint against the Speakers, we address them in a consolidated

fashion. First, Dr. Robinson argues the trial court erred in determining that he and the

Speakers were not joint tortfeasors. Second, Dr. Robinson maintains the trial court

erred in holding his third-party complaint did not satisfy the notice pleading requirement

in setting forth a claim for contribution. Third, Dr. Robinson alleges the trial court went

beyond the four corners of the complaint when it determined that the alleged negligence

of Dr. Robinson and the Speakers constituted separate wrongful acts, not concurrent

ones, that resulted in distinct injuries to Mr. Barker.

       {¶18} In response, the Speakers, while acknowledging they do not “entirely

agree with the reasoning of the trial court,” agree with the dismissal of the third-party

complaint.    The Speakers maintain that Dr. Robinson does not have a claim for

contribution because a physician cannot make such a claim against a prior non-medical



                                               7
tortfeasor for tortious conduct that occurred prior to the beginning of the patient-

physician relationship. Next, the Speakers note the claims brought by Dr. Robinson are

not the proper subject matter for a third-party complaint, and further, the third-party

complaint fails to state a claim upon which relief can be granted.

       {¶19} 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-

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

2480, ¶5.

       {¶20} “[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.

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

contribution or partial indemnification. Dr. Robinson is not entitled to indemnification

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




                                             8
Dr. Robinson 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.

       {¶22} 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
              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.

       {¶23} At the outset, we note that in dismissing Dr. Robinson’s third-party

complaint against the Speakers, the trial court misconstrued the application of the

statute of limitations in this matter, finding that even if Dr. Robinson has standing, 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



                                              9
contribution was not time barred by the one year statute of limitations set forth in R.C.

2305.11).

       {¶24} 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.)

       {¶25} 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.

       {¶26} 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,



                                             10
              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).

       {¶27} 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).

       {¶28} Here, the third-party complaint does not allege that Dr. Robinson has 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 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.




                                             11
       {¶29} 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).

       {¶30} 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.

       {¶31} We also observe the third-party complaint 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.




                                             12
       {¶32} 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.

       {¶33} The medical defendants’ position is incongruous: they want 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 instruction is

clear that the medical defendants cannot introduce evidence of Mr. Barker’s own

negligence or misconduct in a medical malpractice case.

       {¶34} 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 reveals that Dr. Robinson has

failed to state a claim upon which relief can be granted.

       {¶35} As such, Dr. Robinson’s first, second, and third assignments of error are

without merit.

       {¶36} Under his fourth assignment of error, Dr. Robinson maintains the trial

court erred in granting Mr. Barker’s motion for partial summary judgment when the issue

was moot due to Dr. Robinson’s withdrawal of the affirmative defense at issue in the

motion.




                                            13
       {¶37} 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.

       {¶38} The granting of partial summary judgment in favor of the Barkers on the

affirmative defenses of contributory negligence and assumption of the risk does not

satisfy any definition of a final order pursuant to R.C. 2505.02. The order concerning

the availability of an affirmative defense is essentially a pretrial ruling on what evidence

the trial court will allow to be presented; under this circumstance, this is not a final,

appealable order. See Schiff v. Dickson, 8th Dist. Cuyahoga Nos. 96539 & 96541,

2011-Ohio-6079, ¶38.

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

with respect to the affirmative defenses raised by defendants. Thereafter, Dr. Robinson

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

motion for partial summary judgment moot.

       {¶40} By Dr. Robinson withdrawing his affirmative defenses at issue in the

Barkers’ motion for partial summary judgment, the trial court entered judgment on an

issue that was not before it; thus, that aspect of the order is moot. Simply put, there

was nothing for the trial court to rule upon because Dr. Robinson had withdrawn his

affirmative defenses.

       {¶41} Even assuming error by the trial court, any error was harmless as to Dr.

Robinson. The fourth assignment of error is thus not well-taken and without merit.




                                             14
      {¶42} The judgment of the Trumbull County Court of Common Pleas is hereby

affirmed.



DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




                                      15
