{¶ 27} I respectfully dissent from the decision reached by my colleagues. In my opinion, the trial court abused its discretion in granting the Civ.R. 60(B) motion for relief from judgment. To me, the case law indicates that counsel's action of failing to file the Civ.R. 10 affidavit of merit does not amount to excusable neglect.
{¶ 28} A general definition of excusable neglect is "some action `not in consequence of the party's own carelessness, inattention, or willful disregard of the process of the court, but in consequence of some unexpected or unavoidable hindrance or accident.'" McEnteer v. Moss, 9th Dist. Nos. Civ.A. 22201 and Civ.A. 22220, 2005-Ohio-2679,2005 WL 1283707, quoting Vanest v. Pillsbury Co. (1997), 124 Ohio App.3d 525, 536, 706 N.E.2d 825, fn. 8, quoting Black's Law Dictionary (6 Ed.1990) 566.
{¶ 29} Failing to comply with Civ.R. 10, in the instant case, was inattention to the law as it was at the time the complaint was filed. Civ.R. 10 had been in effect 27 days prior to the filing of the complaint. Moreover, the required affidavit was apparently not discovered by counsel for appellees for at least another 60 days when counsel for appellants filed a motion to dismiss the complaint on September 28, 2005. Therefore, the effective date of Civ.R. 10(D)(2) was ignored by appellee for at least 87 days. Finally, the rule in question here was not the result of a last-minute amendment to a rule that had immediate effect. Rather, the process for changes to the Ohio Rules of Civil Procedure is permeated with deliberation and public awareness. Section 5(B), Article IV, of the Ohio Constitution reads as follows:
{¶ 30} "The supreme court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right. Proposed rules shall be filed by the court, not later than the fifteenth day of January, with the clerk of each house of the general assembly during a regular session thereof, and amendments to any such proposed rules may be so filed not later than the first day of May in that session. Such rules shall take effect on the following first day of July, unless prior to such day the general assembly adopts a concurrent resolution of disapproval. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect."
{¶ 31} Furthermore, the Commission on Rules of Practice and Procedure has set forth a typical schedule for proposed rule amendments to go through before they become effective. See http://www.sconet.state.oh.us/RAC/constitution.asp. In September, the commission finalizes proposed amendments for submission to the Supreme Court. Id. In September or October, the Supreme Court considers the proposed amendments andpublishes the amendments for comment. Id. *Page 119 In November or December, the commission considers comments received on proposed amendments, makes revisions and submits recommendations to the Supreme Court. Id. In December or January, the Supreme Court considers public comment and recommendations from the commission and approves amendments for filing with the General Assembly. Id. Pursuant to Section 5(B), Article IV, of the Ohio Constitution, on or before January 15, the Supreme Court files amendments with the General Assembly. Id. In February, another publication for comment ofamendments is filed. Id. Then, in March or April, the commission reviews comments, makes revisions, and submits proposed revisions to the Supreme Court. Id. Also in April, the Supreme Court considers public comments and revisions prepared by the commission and approves any revision for filing with the General Assembly. Id. On or before May 1, pursuant to Section 5(B), the Supreme; Court must file any revised amendments with the General Assembly. Id. Finally, the effective date of the amendments is, in accordance with the Ohio Constitution, July 1. Id.
{¶ 32} Thus, as can be seen by this ten-month process, the public is made fully aware of proposed rule amendments. Thus, counsel should have been aware of the changes to Civ.R. 10.
{¶ 33} To hold that an attorney's failure to be aware of the law at the time a complaint was filed was excusable neglect because the law had recently changed, in my opinion, is opening up the flood gates for excusing attorneys for their inattention to the changes in the law. The majority states that "the unusual facts of this case are unlikely to happen again." I disagree. Rules and statutes change. Attorneys practicing law should be abreast of these changes, especially in medical-malpractice cases.
{¶ 34} Furthermore, as the majority states, cases have held that ignorance of the law does not amount to excusable neglect, citing International Lottery, Inc. v. Kerouac (1995), 102 Ohio App.3d 660, 657 N.E.2d 820; Katko v.Modic (1993), 85 Ohio App.3d 834, 621 N.E.2d 809;Brown v. Akron Beacon Journal Publishing Co. (1991),81 Ohio App.3d 135, 610 N.E.2d 507; Barber v. Gross, 11th Dist. No. 2005-L-063, 2005-Ohio-7056, 2005 WL 3610477. While the majority states that these cases are distinguishable from the case at hand, I disagree. The fact that appellee's attorney attempted to comply with the rule after he learned of his noncompliance does not diminish the fact that the appropriate rules were not followed when the complaint was filed. I would find that those cases are on point. Furthermore, because I can find no case law that stands for the proposition that ignorance of a current law is excusable neglect, I must find that the trial court abused its discretion.
{¶ 35} Finally, Civ.R. 86(BB) states that the amendment to Civ.R. 10, at issue here, "shall take effect on July 1, 2005" and "govern all proceedings in actions *Page 120 brought after they take effect and also all further proceedings in actions then pending, except to the extent that their application in a particular action pending when the amendments take effect would not be feasible or would work injustice, in which event the former procedure applies." Therefore, it is clear from the language of the amendment itself that the only leeway given to a trial court to deviate from an amended rule may be found only in pending cases. Because this matter was filed after the effective date of the rule, the trial court has no discretion to ignore its applicability.
{¶ 36} Thus, for all the above reasons, I respectfully dissent.