Practice Areas

Success in the Eleventh District Court of Appeals

Recently, the Eleventh District Court of Appeals granted Defendant-Appellee's Motion to Dismiss and held that a dismissal based upon a failure to produce an Affidavit of Merit is a dismissal without prejudice and not a final appealable order.

On July 8, 2010, Plaintiff-Appellant, Administratrix of Decedent's Estate, filed a medical negligence action against Defendant, healthcare facility. Plaintiff's Complaint was deficient as she failed to contemporaneously file an Affidavit of Merit or a Motion for Extension of Time to File an Affidavit of Merit with her Complaint, pursuant to Civ.R. 10(D)(2). On December 27, 2010, Defendant filed a Motion to Dismiss, pursuant to Civ. R. 12(B)(6) seeking a dismissal for Plaintiff's failure to state a claim upon which relief could be granted.

On June 20, 2011, the trial court entered a judgment dismissing Plaintiff's lawsuit without prejudice because Plaintiff failed to file an Affidavit of Merit as required by Civ. R. 10(D)(2). Plaintiff filed a Notice of Appeal on July 12, 2011.

On September 7, 2011, Counsel for Defendant prepared and filed a Motion to Dismiss Plaintiff's Appeal based on the fact that a trial court's granting of a Motion to Dismiss for failure to file an Affidavit of Merit or a Motion for Extension of Time to File an Affidavit of Merit contemporaneous with her Complaint, as required by Civ.R. 10(D)(2), is not a reviewable determination on appeal because the order is without prejudice and not final, pursuant to R.C. 2505.02.

Plaintiff filed a Brief in Response and her sole argument was that she was appealing the denial of her Motion for Default Judgment. Plaintiff claimed that the trial court rendered a final judgment by denying Plaintiff's Motion for Default Judgment; specifically, Plaintiff claimed that Defendant did not demonstrate excusable neglect when it failed to timely file an Answer.

Defendant filed its Reply Brief with three arguments: (1) it was within the sound discretion of the trial court to grant Defendant's Civ.R. 6(B)(2) motion based on the trial court's finding that the inadvertent failure to file its Answer timely was the result of excusable neglect; (2) the denial of Plaintiff's Motion for Default Judgment neither determined the action nor prevented a judgment; therefore, the trial court's decision was not a final order pursuant to R.C. 2505.02; and (3) the trial court properly examined the sufficiency of Plaintiff's Complaint and its ruling, a dismissal without prejudice, was appropriate in light of Plaintiff's failure to produce an Affidavit of Merit and subsequent failure to state a claim upon which relief could be granted.

On December 12, 2011, the Eleventh District Court of Appeals granted Defendant's Motion to Dismiss the Appeal. The Court of Appeals found that the June 20, 2011 order dismissing Plaintiff's Complaint without prejudice was not a final appealable order.

Further, the Court also addressed Plaintiff's argument that she was appealing from the trial court's judgment overruling Plaintiff's Motion for Default Judgment. Defendant argued that a plain reading of R.C. 2505.02 makes it clear that the trial court's denial of Plaintiff's Motion for Default Judgment is not a final order. Pursuant to R.C. 2505.02(B)(1), a final order must prevent a judgment in the action - the denial of Plaintiff's Motion for Default Judgment did not in any way prevent the possibility of a judgment in Plaintiff's favor (had Plaintiff initially complied with Civ.R. 10(D)(2)). Despite Defendant's argument, the Court ultimately held that it was without jurisdiction to address the issue because Plaintiff never attached the trial court's judgment denying the Motion for Default Judgment to the Notice of Appeal.