[Cite as Adkins v. Women's Welsh Club of Am., 2019-Ohio-70.]


                Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                        No. 106859



                                      JUDY ADKINS, ET AL.

                                                         PLAINTIFFS-APPELLANTS

                                                   vs.

                      WOMEN’S WELSH CLUB OF AMERICA, ET AL.

                                                         DEFENDANTS-APPELLEES




                                        JUDGMENT:
                                  REVERSED AND REMANDED




                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-18-891060

        BEFORE: S. Gallagher, P.J., Laster Mays, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: January 10, 2019
ATTORNEY FOR APPELLANTS

Brent L. English
The 820 Building, 9th Floor
820 Superior Avenue, West
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEES

For The Women’s Welsh Club of America Foundation
and The Welsh Home

Bret C. Perry
Christopher F. Mars
Bonezzi, Switzer, Polito & Hupp Co., L.P.A.
1300 East 9th Street, Suite 1950
Cleveland, Ohio 44114

For Dr. Khaleel Deeb

George M. Moscarino
Moscarino & Treu, L.L.P.
The Hanna Building
1422 Euclid Avenue, Suite 630
Cleveland, Ohio 44115

For Dr. Ali Ghalib

Brian D. Sullivan
Stephen E. Walters
Reminger Co., L.P.A.
101 West Prospect Avenue, Suite 1400
Cleveland, Ohio 44115

For Sumner Home for the Aged, Inc.

Sumner Home for the Aged, Inc.
c/o Statutory Agent
22199 Center Ridge Road
Rocky River, Ohio 44116

SEAN C. GALLAGHER, P.J.:
       {¶1} Plaintiff-appellant Judy Adkins, administrator of the estate of Ernestine Adkins,

deceased, appeals the decision of the trial court that dismissed her medical malpractice complaint

for lack of an affidavit of merit. Because the dismissal occurred without notice and a reasonable

opportunity to respond, we reverse the trial court’s decision and remand the matter for further

proceedings.

       Background

       {¶2} On January 3, 2018, appellant filed a complaint for medical malpractice along with a

motion for a 60-day extension of time to provide an affidavit of merit pursuant to Civ.R.

10(D)(2). As grounds for the extension, appellant asserted that “[p]laintiff’s counsel needs the

requested time to complete his interactions with several potential experts in this case.”

       {¶3} In response, the various defendants filed briefs in opposition arguing that appellant

had not established good cause to obtain an extension because this was a refiled case, the initial

lawsuit was voluntarily dismissed after appellant had been granted a 90-day extension to file an

affidavit of merit, appellant had waited 365 days to refile the case under the saving statute, and

appellant remained unable to produce the required affidavit of merit.             The defendants all

requested that the court deny the motion for extension of time to file the affidavit.

Defendant-appellee Dr. Deeb also requested in his opposition brief that the court dismiss the

complaint for failure to comply with Civ.R. 10(D)(2).

       {¶4} On January 24, 2018, the trial court issued a journal entry denying appellant’s

motion for extension of time to file an affidavit of merit. Contemporaneous therewith, and

without notice, the trial court issued a journal entry dismissing the case for failure to state a claim

upon which relief can be granted. In denying the extension, the trial court ruled as follows:
          Plaintiff has failed to show good cause for an extension of time to file an affidavit
          of merit, as required by Civil Rule 10(D)(2)(b).

          Plaintiff has not identified what information, if any, is necessary in order to obtain
          an affidavit of merit, nor who possesses such information, nor what discovery, if
          any, is necessary to obtain information necessary to obtain an affidavit of merit.
          Plaintiff has not indicated what steps were taken to obtain necessary information
          for an affidavit. Thus, the first four factors identified in Civil Rule 10(D)(2)(C)
          do not support a finding of good cause in this case.

          In support of the motion for extension of time, plaintiff states that “plaintiff’s
          counsel needs the requested time to complete his interactions with several
          potential experts in the case.” Plaintiff stated the same when filing a motion for
          extension of time on 10/03/2016 in [Cuyahoga C.P.] Case No. CV 16 869893. In
          determining whether good cause exists, the court considered plaintiff’s claim
          regarding interaction with potential witnesses, potential prejudice to the
          defendants, and the circumstances of plaintiff’s motion.               See Civ.R.
          10(D)(2)(c)(v). Plaintiff has provided no explanation of why plaintiff’s counsel
          could not complete interactions with potential experts prior to re-filing this case.
          The court finds that plaintiff’s statement does not demonstrate good cause for an
          extension of time to file an affidavit of merit.

          Accordingly, plaintiff’s motion for an extension of time is not well-taken and is

          denied.

          {¶5} A day after the trial court’s dismissal of the action, defendants-appellees The

Women’s Welsh Club of America Foundation, The Welsh Home, and The Women’s Welsh

Clubs of America Foundation filed a motion to dismiss the complaint for failure to submit a

timely and sufficient affidavit of merit. The motion to dismiss was deemed moot.

          {¶6} Appellant timely filed this appeal. She raises two assignments of error for our

review.

          Law and Analysis

          {¶7} Under her first assignment of error, appellant claims the trial court erred by

dismissing the case without a motion to dismiss having been filed.                 Under her second
assignment of error, appellant claims the trial court erred and abused its discretion by denying her

motion for enlargement of time to provide an affidavit of merit.

       {¶8} Our review of the trial court’s decision to dismiss the complaint pursuant to Civ.R.

12(B)(6) is de novo. LGR Realty, Inc. v. Frank & London Ins. Agency, 152 Ohio St.3d 517,

2018-Ohio-334, 98 N.E.3d 241, ¶ 10. We apply an abuse of discretion standard to the trial

court’s ruling on a request for an extension of time to file an affidavit of merit. Johnson v. Univ.

Hosp. Case Med. Ctr., 8th Dist. Cuyahoga No. 90960, 2009-Ohio-2119, ¶ 5.

       {¶9} Civ.R. 10(D)(2)(a) requires any complaint that contains a medical claim to be

accompanied by an affidavit of merit.       “An affidavit of merit is required to establish the

adequacy of the complaint[.]” Civ.R. 10(D)(2)(d). Civ.R. 10(D)(2)(b) permits a plaintiff to file

a motion to extend the period of time to file an affidavit of merit, which the court shall grant for

good cause shown and in accordance with Civ.R. 10(D)(2)(c). The Supreme Court of Ohio has

recognized that the purpose of Civ.R. 10(D)(2) is “to deter the filing of frivolous

medical-malpractice claims” and “to place a heightened pleading requirement on parties bringing

medical claims.” Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379,

897 N.E.2d 147, ¶ 10, 12. “The proper response to the failure to file the affidavit required by

Civ.R. 10(D)(2) is a motion to dismiss pursuant to Civ.R. 12(B)(6).” Id. at paragraph one of the

syllabus.

       {¶10} In this matter, the stated reason for the requested extension of time to file an

affidavit of merit was that “[p]laintiff’s counsel needs the requested time to complete his

interactions with several potential experts in this case.” The defendants opposed the requested

extension and argued that this was a refiled action and that good cause had not been shown. At

the time of the trial court’s ruling, there was no motion to dismiss pursuant to Civ.R. 12(B)(6),
although one defendant requested in their opposition brief that the court dismiss the action for

failure to comply with Civ.R. 10(D)(2).

        {¶11} We recognize that “[a] court is allowed to grant sua sponte a Civ.R. 12(B)(6)

motion to dismiss after the parties are given notice of the court’s intent and an opportunity to

respond.” Metro v. Diplomat Healthcare, 8th Dist. Cuyahoga No. 100799, 2014-Ohio-3146, ¶

5, citing Sheridan v. Metro. Life Ins. Co., 182 Ohio App.3d 107, 2009-Ohio-1808, 911 N.E.2d

950, ¶ 14 (10th Dist.). This is consistent with a trial court’s discretion to sua sponte dismiss an

action pursuant to Civ.R. 41(B)(1) when a plaintiff fails to comply with the civil rules, provided

notice is given. Further, no prejudice to the defendants was shown.

        {¶12} In Diplomat Healthcare, this court found the trial court did not err by granting

judgment on the pleadings in a medical malpractice action when the trial court had given the

plaintiff time to file a conforming affidavit of merit, which also constituted notice that the failure

to do so would result in a dismissal of the claims, without prejudice, in accordance with Civ.R.

41(B)(1) and Civ.R. 10(D)(2). Id. at ¶ 5. Likewise, in Beegle v. S. Pointe Hosp., 8th Dist.

Cuyahoga No. 96017, 2011-Ohio-3591, this court found the trial court did not err by dismissing a

refiled medical malpractice action under circumstances where the plaintiff did not attach an

affidavit of merit to the complaint or demonstrate good cause to warrant an extension of time to

file the affidavit, the defendant had filed a motion to dismiss pursuant to Civ.R. 12(B)(6), and the

plaintiff had been granted extensions of time to respond to the motion, affording the plaintiff

notice and an opportunity to respond. Id. at ¶ 2-3, 26.1



1
   Although the court in Beegle affirmed the trial court’s judgment dismissing the complaint, it found that it was
error to have done so with prejudice since dismissals under Civ.R. 10(D)(2) are to be entered without prejudice.
The matter was remanded for this correction. Id. at ¶ 26.
         {¶13} In this case, the trial court gave appellant neither notice of any possible dismissal

nor an opportunity to respond against that action.                      Upon determining appellant had not

sufficiently demonstrated good cause, the trial court should have provided appellant notice that

the case would be dismissed if appellant failed to file an affidavit of merit, or failed to provide

supplemental information to demonstrate good cause for an extension.

         {¶14} We further must recognize the gravity of the dismissal without notice or an

opportunity to respond in this case. An involuntary dismissal for failure to comply with Civ.R.

10(D)(2) is to be without prejudice pursuant to Civ.R. 10(D)(2)(d) because it is an adjudication

otherwise than on the merits. Fletcher, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147,

at ¶ 21. Nevertheless, where a case is dismissed after appellant has refiled the complaint under

the saving statute, the dismissal is functionally a dismissal with prejudice.                                 Diplomat

Healthcare, 8th Dist. Cuyahoga No. 100799, 2014-Ohio-3146, at ¶ 2, fn. 1.2

         {¶15} Appellant further argues that the trial court looked beyond the allegations of the

complaint and improperly considered the prior case that had been voluntarily dismissed without

prejudice. In support of her argument, she cites this court’s decisions in Chapman v. S. Pointe

Hosp., 186 Ohio App.3d 430, 2010-Ohio-152, 928 N.E.2d 777 (8th Dist.), and Jarina v.

Fairview Hosp., 8th Dist. Cuyahoga No. 91468, 2008-Ohio-6846.

         {¶16} In Chapman, this court found that in a refiled wrongful death and medical

malpractice action, the plaintiff, who had been granted an enlargement of time to file an affidavit

of merit and who eventually filed a deficient affidavit, should have been granted time to cure the


2
   As noted in Fletcher, although the trial court is required to order such a dismissal “without prejudice,” in the event
of an action that has already been refiled once under the saving statute being filed for a third time, “the parties may
raise the saving-statute issue along with any other applicable Civil Rules or statutes, as they see fit.” Id. at ¶ 19, fn.
4.
defect pursuant to Civ.R. 10(D)(2)(e). Id. at ¶ 28. Insofar as the defendant argued that no

affidavit had been filed in the first filing of the case, this court found that citation to the first case

was not proper because the voluntary dismissal of an action causes all proceedings in that case to

be treated as a nullity. Chapman at ¶ 26, citing Jarina at ¶ 18.

        {¶17} In Jarina, the plaintiff in a refiled medical malpractice action attached a motion for

extension of time to file an affidavit of merit that was opposed for failing to establish “good

cause.” Id. at ¶ 5-6. The trial court granted a motion for judgment on the pleadings after the

plaintiff was ordered to file an affidavit of merit by a specified date and then filed a deficient

affidavit. Id. at ¶ 7-11. It was determined on appeal that the trial court should have given the

plaintiff a reasonable time to cure the defect pursuant to Civ.R. 10(D)(2)(e). Id. at ¶ 27. This

court also found that the trial court had improperly referenced “that a number of extensions of

time to file an affidavit of merit were made in the originally filed case” that had been voluntary

dismissed without prejudice because “[u]nder Ohio law such a dismissal causes all proceedings

in that case to be treated as a nullity, as if the case had never been filed.” Jarina at ¶ 18. More

pertinent to our analysis, it was determined that the trial court had not properly given the plaintiff

notice of a possible dismissal required by Civ.R. 41(B)(1). Id. at ¶ 17; compare O’Stricker v.

Robinson Mem. Hosp. Found., 2017-Ohio-2600, 90 N.E.3d 28 (11th Dist.) (finding trial court

provided adequate notice and a hearing, as well as an opportunity to amend the affidavit, prior to

dismissing medical malpractice claim).

        {¶18} We recognize that this is not a case in which a defective affidavit has been filed,

such that Civ.R. 10(D)(2)(e) would apply. Rather, it involves a motion for an extension to file

an affidavit of merit for which good cause must be shown in accordance with Civ.R. 10(D)(2)(b)
and (c). Civ.R. 10(D)(2)(c) instructs the court to consider the following factors in determining

whether good cause exists to extend the period of time to file an affidavit of merit:

        (i) A description of any information necessary in order to obtain an affidavit of
        merit;

        (ii) Whether the information is in the possession or control of a defendant or
        third party;

        (iii) The scope and type of discovery necessary to obtain the information;

        (iv) What efforts, if any, were taken to obtain the information;

        (v) Any other facts or circumstances relevant to the ability of the plaintiff to

        obtain an affidavit of merit.

        {¶19} Thus, Civ.R. 10(D)(2)(c) permits the court to consider what efforts were taken to

obtain the information and “other facts or circumstances” that may be relevant to the ability of

the plaintiff to obtain an affidavit of merit. Also, “the Rule does not confine a good cause

determination to the above factors.” Beegle, 8th Dist. Cuyahoga No. 96017, 2011-Ohio-3591, at

¶ 22.   Conceivably, this could include that there was a previously filed action in which

extensions were given. See id.

        {¶20} However, regardless of whether it is a refiled action, “[b]ecause there may be

circumstances in which the plaintiff is unable to provide an affidavit of merit when the complaint

is filed, division (D)(2)(b) of the rule requires the trial court, when good cause is shown, to

provide a reasonable period of time for the plaintiff to obtain and file the affidavit.” 2007 Staff

Note Civ.R. 10(D). The Staff Notes to Civ.R. 10(D) also reflect the legislature’s intent that “the

granting of an extension of time to file an affidavit of merit should be liberally applied, but

within the parameters of the ‘good cause’ requirement.” Id.
       {¶21} In requesting the 60-day extension to file the affidavit of merit herein, plaintiff’s

counsel indicated that “counsel needs the requested time to complete his interactions with several

potential experts in this case.” We understand the defendants’ view and the trial court’s position

that appellant provided no explanation of why plaintiff’s counsel could not complete interactions

with potential experts prior to refiling this case. Although the trial court committed no abuse of

discretion in finding the statement in appellant’s motion was not sufficient to demonstrate “good

cause” for an extension, a plaintiff still must be afforded notice and an opportunity to respond

prior to any dismissal for failure to comply with Civ.R. 10(D)(2). Given such notice, appellant

could have sought leave to file an amended complaint with an affidavit of merit, or filed a

supplemental motion providing further information to demonstrate good cause for an extension.

       Conclusion

       {¶22} Upon our review, we find the trial court erred by dismissing the action without

providing appellant with adequate notice and an opportunity to respond.           We reverse the

judgment of the trial court and vacate the dismissal entry from which this appeal was filed. We

further order that the trial court reinstate the instant case and grant appellant an opportunity to

respond within ten days by filing an affidavit of merit as required by Civ.R. 10(D)(2)(a) or

providing further information to demonstrate “good cause” warranting an extension pursuant to

Civ.R. 10(D)(2)(b) and (c). The failure to do so may result in the dismissal of the action without

prejudice pursuant to Civ.R. 10(D)(2)(d).

       {¶23} Judgment reversed, and case remanded.

       It is ordered that appellants recover from appellees costs herein taxed. The court finds

there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



SEAN C. GALLAGHER, PRESIDING JUDGE

ANITA LASTER MAYS, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
