[Cite as Antoon v. Cleveland Clinic Found., 2015-Ohio-421.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101373
DAVID ANTOON, ET AL.
PLAINTIFFS-APPELLANTS
vs.
CLEVELAND CLINIC FOUNDATION, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-13-817237
BEFORE: Keough, J., Jones, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: February 5, 2015
ATTORNEYS FOR APPELLANTS
Dwight D. Brannon
Matthew C. Schultz
Kevin A. Bowman
Brannon & Associates
130 West Second Street, Suite 900
Dayton, Ohio 45402
ATTORNEYS FOR APPELLEES
Martin T. Galvin
William A. Meadows
Reminger Co., L.P.A.
1400 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115
KATHLEEN ANN KEOUGH, J.:
{¶1} Plaintiffs-appellants, David and Linda Antoon (“the Antoons”), appeal the trial
court’s decision dismissing their complaint pursuant to Civ.R. 12(B)(6). For the reasons that
follow, we reverse and remand.
{¶2} On November 14, 2013, the Antoons filed the instant complaint against the
defendants-appellees, the Cleveland Clinic Foundation, Jihad Kaouk, M.D., Raj Goel, M.D., and
Michael Lee, M.D. (collectively “appellees”), alleging various causes of action arising from a
surgical procedure that occurred on January 8, 2008. In response, the appellees moved to
dismiss the complaint pursuant to Civ.R. 12(B)(6) arguing that the Antoons’ complaint failed
because it was not commenced within the one-year statute of limitations for medical malpractice
claims, including all the derivative and related claims raised, pursuant to R.C. 2305.113(A).
The appellees further moved to dismiss the Antoons’ complaint because it was in violation of
R.C. 2305.113(C), Ohio’s statute of repose, which requires that a medical claim be filed no more
than four years after the alleged malpractice.
{¶3} The Antoons opposed the motion arguing that their complaint was filed within the
relevant statute of limitations period because it was filed within 30 days after their federal
complaint was dismissed, citing 28 U.S.C. 1367(d).
{¶4} The trial court agreed with the appellees and dismissed the complaint. In granting
the appellees’ motion, the court concluded:
On June 1, 2010, plaintiff’s case was originally filed in this court as CV-728174.
The case was voluntarily dismissed without prejudice on June 3, 2011. The case
was not refiled until the filing of this case on November 14, 2013. The case was
filed outside the applicable statute of limitations and outside the one year allowed
by the Ohio Savings statute. R.C. 2305.19. Further, this filing is also outside
the statute of repose, R.C. 2305.113(c) which requires that a medical claim be
filed no more than four years after the alleged malpractice. Plaintiff”s position is
that 28 USCS [Section] 1367 applies. However, the court finds [Section] 1367(d)
would only apply to protect claims while pending in federal court. The request to
amend the federal complaint to include medical malpractice and other claims was
denied. Therefore, plaintiff’s claims at issue were never pending in federal court
and are not protected under 28 USCS [Section] 1367. Therefore, defendants’
motion is granted.
{¶5} The Antoons appeal this decision, raising two assignments of error, which will be
addressed together.
{¶6} In their first assignment of error, the Antoons contend that the trial court erred by
granting appellees’ motion to dismiss regarding the medical claims. In their second assignment
of error, the Antoons contend that the trial court erred by granting the appellees’ motion to
dismiss with regard to the non-medical claims raised, by failing to consider the periods of
limitation for all the different claims included in their complaint.
{¶7} A motion to dismiss a complaint for failure to state a claim upon which relief can be
granted, pursuant to Civ.R. 12(B)(6), tests the sufficiency of a complaint. In order for a trial
court to dismiss a complaint under Civ.R. 12(B)(6), it must appear beyond doubt that the plaintiff
can prove no set of facts in support of the claim that would entitle the plaintiff to the relief
sought. O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d
753 (1975); LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323, 2007-Ohio-3608, 872
N.E.2d 254, ¶ 14. The allegations of the complaint must be taken as true, and those allegations
and any reasonable inferences drawn from them must be construed in the nonmoving party’s
favor. Id. Appellate review of a trial court’s decision to dismiss a complaint pursuant to Civ.R.
12(B)(6) is de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814
N.E.2d 44, ¶ 5.
{¶8} In this case, the appellees moved to dismiss the Antoons’ complaint contending that
the complaint is fatally deficient because (1) it was not commenced within the one-year statute of
limitations for medical malpractice as required pursuant to R.C. 2305.113(A); and (2) it was filed
in violation of Ohio’s statute of repose pursuant to R.C. 2305.113(C), which requires that a
medical claim be filed no more than four years after the alleged malpractice.
{¶9} We first find that the trial court erred in dismissing the Antoons’ complaint under
the premise that the complaint was not filed within the relevant four-year statute of repose for
malpractice claims.
{¶10} “The medical malpractice statute of repose found in R.C. 2305.113(C) does not
extinguish a vested right and thus does not violate the Ohio Constitution, Article I, Section 16.”
Ruther v. Kaiser, 134 Ohio St.3d 408, 2012-Ohio-5686, 983 N.E.2d 291, syllabus. “A vested
right occurs when there is ‘the existence of a duty, a breach of that duty and injury resulting
proximately therefrom.’” Id. at ¶ 16, quoting Mussivand v. David, 45 Ohio St.3d 314, 318, 544
N.E.2d 265 (1989). R.C. 2305.113(C) thus bars claims that have not vested within four years of
the negligent act. Once vesting occurs, the timeliness of the complaint is controlled by the
statute of limitations and its relevant tolling provisions such as the discovery rule. Ander v.
Clark, 10th Dist. Franklin No. 14AP-65, 2014-Ohio-2664, ¶ 6.
{¶11} In this case, it is alleged that the negligent act occurred on January 8, 2008, the day
David Antoon underwent the surgical procedure. (Complaint, ¶ 53). Accordingly, any claim
arising from the alleged negligent act needed to vest and a complaint needed to be filed within
four years or by January 8, 2012. In this case, it appears from the face of the complaint that a
claim vested prior to January 8, 2012 and the Antoons previously filed an action against the
defendants, which was dismissed without prejudice in 2011. This filing was within the
four-year statute of repose. As such, the claim had vested, and the statute of repose no longer
applies. The timeliness of the complaint is now controlled by the statute of limitations and any
tolling provisions. See Ander.
{¶12} R.C. 2305.113 establishes a one-year statute of limitations for medical malpractice
claims. The Ohio Supreme Court has explained that the statute of limitations begins to run “(a)
when the patient discovers or, in the exercise of reasonable care and diligence should have
discovered, the resulting injury, or (b) when the physician-patient relationship for that condition
terminates, whichever occurs later.” Frysinger v. Leech, 32 Ohio St.3d 38, 512 N.E.2d 337
(1987), at paragraph one of the syllabus, citing Oliver v. Kaiser Community Health Found., 5
Ohio St.3d 111, 449 N.E.2d 438 (1983).
{¶13} A complaint may be dismissed under Civ.R. 12(B)(6) for failing to comply with the
applicable statute of limitations when the complaint on its face conclusively indicates that the
action is time-barred. Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625,
849 N.E.2d 268, ¶ 11. However, “‘[t]he affirmative defense of statute of limitations is generally
not properly raised in a Civ.R. 12(B)(6) motion, as it usually requires reference to materials
outside the complaint.’” Ryan v. Ambrosio, 8th Dist. Cuyahoga No. 91036, 2008-Ohio-6646, ¶
20, quoting Ferry v. Shefchuk, 11th Dist. Geauga No. 2002-G-2480, 2003-Ohio-2535, ¶ 10. “To
be properly raised, the ‘complaint must show the relevant statute of limitations and the absence
of factors which would toll the statute or make it inapplicable.’” Lisboa v. Tramer, 8th Dist.
Cuyahoga No. 97526, 2012-Ohio-1549, ¶ 13, quoting Ferry at ¶ 10.
{¶14} In this case, the trial court clearly considered materials outside the instant
complaint when it relied on information contained in the Antoons’ first complaint and the
subsequent federal complaint. This information was not contained in the Antoons’ instant
complaint and “the court may not take judicial notice of court proceedings in another case, ‘even
though between the same parties and even though the same judge presided.’” Wick v. Lorain
Manor, 9th Dist. Lorain No. 12CA010324, 2014-Ohio-4329, ¶ 10, quoting Clayton v. Walker,
9th Dist. Summit No. 26538, 2013-Ohio-2318, ¶ 11. Pursuant to Civ.R. 12(B), the trial court
could have converted the motion to one for summary judgment, however there is no indication
that happened in this case. Moreover, the documents attached to the appellees’ motion to
dismiss were not proper Civ.R. 56(C) evidence for the trial court to consider.
{¶15} Under our de novo review of this appeal, we find that insufficient information was
alleged in the complaint to warrant dismissal pursuant to Civ.R. 12(B)(6). The complaint does
not allege when the relevant statute of limitations began to run. Specifically, there is no
allegation when the Antoons discovered the injury or when the physician-patient relationship
terminated. The complaint stated, “[o]n December 11, 2008, approximately twelve months after
his surgery, Plaintiffs met with Kaouk. Once again, Kaouk told Antoon that he needed to be
patient and that Kaouk had not ruled out recovery.” (Complaint, ¶ 105). This statement does
not indicate whether this was the last time they met for this court to determine that the
physician-patient relationship terminated.
{¶16} Furthermore, the complaint stated that “Antoon sent four more e-mails to Kaouk
before severing all communications. His first e-mail, on January 8, 2009, requested that Kaouk
draft a letter to the VA that documented Antoon’s symptoms and issues that Antoon had been
describing.” (Complaint, ¶ 111). Although paragraph 114 states that “Antoon’s last three
e-mails requested Kaouk’s opinions about his surgical outcomes,” no date was provided when
these emails were sent for this court to determine if this was when the physician-patient
relationship terminated.
{¶17} To determine when the statute of limitations period began or expired, paragraph
12 of the complaint could provide the most guidance.
Plaintiff originally filed an action against these Defendants in Cuyahoga Common
Pleas Court, Case No. CV 10 728174, which was dismissed without prejudice on
June 13, 2011. Plaintiff then filed a cause of action in the Southern District of
Ohio on January 31, 2012 within the one year savings period of R.C. 2305.19.
That case was dismissed by the federal district court on October 16, 2013.
Plaintiffs’ instant action is being filed within the 30-day period permitted under
[28] U.S.C. 1367(d).
{¶18} However, insufficient information is provided in this paragraph to determine if in
fact the statute of limitations expired prior to the Antoons filing of the instant complaint. For
instance, if the statute of limitations expired prior to the time when the Antoons filed their federal
complaint, then the 30-day period permitted under 28 U.S.C. 1367(d) would not revive their
ability to refile their complaint in the trial court below. Our reading of 28 U.S.C. 1367(d) is that
it only applies when the statute of limitations expires while the action that contains state causes
of action is pending in federal court. Such determination cannot be made here.
{¶19} Construing the allegations in favor of the nonmoving party, which we must do
under Civ.R. 12(B), the complaint on its face does not conclusively show that the Antoons’
claims, both medical and non-medical, are time-barred. Therefore, the trial court erred in
granting the appellees’ Civ.R. 12(B)(6) motion and dismissing the complaint with prejudice.
The assignments of error are sustained.
{¶20} Judgment reversed and 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 be sent to said 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.
KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, SR., P.J., and
MELODY J. STEWART, J., CONCUR