Maxwell v. Lombardi

[Cite as Maxwell v. Lombardi, 2022-Ohio-1686.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Joy L. Maxwell, Individually and as :
Administrator of the Estate of
Robert P. Maxwell, Deceased, : No. 21AP-556
(C.P.C. No. 19CV-352)
Plaintiffs-Appellants, :
(REGULAR CALENDAR)
v. :

Adolph V. Lombardi, Jr., M.D. et al., :

Defendants-Appellees. :

D E C I S I O N

Rendered on May 19, 2022

On brief: Elk & Elk Co., Ltd., and R. Craig McLaughlin, for
appellant Joy L. Maxwell, individually and as administrator of
the estate of Robert P. Maxwell, deceased. Argued: R. Craig
McLaughlin

On brief: Poling Law, Brant E. Poling, and Sabrina S.
Sellers, for appellees Adolph V. Lombardi, Jr., M.D. and Joint
Implant Surgeons, Inc. Argued: Brant E. Poling

APPEAL from the Franklin County Court of Common Pleas

MENTEL, J.
{¶ 1} Plaintiff-appellant, Joy L. Maxwell, individually and as administrator of the
estate of Robert P. Maxwell, appeals from the July 27, 2021 entry granting leave for
defendants-appellees, Adolph V. Lombardi, Jr., M.D. and Joint Implant Surgeons, Inc., to
file a motion for summary judgment and the October 1, 2021 decision and entry granting
the motion for summary judgment of appellees. For the reasons that follow, we affirm, in
part, and reverse, in part.
No. 21AP-556 2

I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On January 30, 2015, appellant filed her initial complaint. Maxwell et al. v.
Lombardi et al., Franklin C.P. No. 15CV-892. Pursuant to Civ.R. 41(A), appellant
voluntarily dismissed the complaint on January 18, 2018. Appellant refiled her complaint
on January 14, 2019 alleging causes of action for survivorship, loss of consortium, and
wrongful death. Appellees filed their answer on May 7, 2019.
{¶ 3} According to appellant's complaint, on August 21, 2013, Dr. Lombardi
performed a total hip replacement surgery on the decedent, Mr. Maxwell. Following the
procedure, Mr. Maxwell was sent home that same day. On September 2, 2013,
approximately two weeks after the procedure, Mr. Maxwell died from a pulmonary
embolism. Appellant provided an affidavit of merit by Dr. Steven Graboff with her
complaint. Relevant to the instant case, Dr. Graboff, a board-certified physician in
orthopedic surgery, wrote, after reviewing the available medical records and documents in
the case, he believed, to a reasonable degree of medical certainty, Dr. Lombardi and Joint
Implant Surgeons, Inc., breached the standard of care by causing unnecessary injuries and
damage to the decedent, which ultimately led to his death on September 2, 2013. (Jan. 14,
2019 Compl.; Aff. of Merit, ¶ 4-6.) The initial dispositive motion deadline in this case was
set for June 5, 2020. The deadline passed and this case was set for trial on September 21,
2020. The trial was subsequently continued and reset for October 18, 2021. (Feb. 2, 2021
Mag. Sched. Notice.)
{¶ 4} On December 23, 2020, the Supreme Court of Ohio released its decision in
Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827. On April 28, 2021, appellees filed
a motion for leave to file a motion for summary judgment instanter. Appellees argued that
based on the recent ruling in Wilson, they should be permitted leave to file a motion for
summary judgment as appellant failed to file her amended complaint within the statute of
repose for medical claims as set forth in R.C. 2305.113(C). On May 12, 2021, appellant filed
a memorandum contra arguing that appellees had failed to demonstrate excusable neglect
for filing the motion for summary judgment after the dispositive motion deadline had
passed. A reply brief was filed on May 17, 2021.
{¶ 5} On July 27, 2021, the trial court granted appellees' motion for leave to file
their motion for summary judgment instanter and deemed the motion filed as of the date
No. 21AP-556 3

of the order. On August 24, 2021, appellant filed a motion in opposition. Relevant to the
instant appeal, appellant argued that the wrongful death claim did not fall under the
medical malpractice statute of repose. As such, appellant argued that the holding in Wilson
was inapplicable to the instant case. A reply brief was filed on August 27, 2021.
{¶ 6} On October 1, 2021, the trial court granted appellees' motion for summary
judgment in its entirety. The trial court found that the statute of repose for medical
malpractice claims, R.C. 2305.113(C), applied to appellant's wrongful death claim as the
underlying cause of action was derived from a medical claim. The trial court found that
based on the "plain and unambiguous language of R.C. 2305.113(C) and * * * Wilson"
appellant's "wrongful death action is time barred as a matter of law, and [appellees] are
entitled to summary judgment." (Oct. 1, 2021 Dec. & Entry at 6.)
{¶ 7} Appellant filed a timely appeal.
II. ASSIGNMENTS OF ERROR
{¶ 8} Appellant assigns the following as trial court error:
[1] The Trial Court Erred in Granting Leave for Appellees to File
a Motion for Summary Judgment.
[2] The Trial Court Erred in Granting Summary Judgment in
Favor of Appellees.

III. LEGAL ANALYSIS
A. Appellant's First Assignment of Error
{¶ 9} In appellant's first assignment of error, she argues that the trial court erred
in granting appellees' motion for leave to file a motion for summary judgment.
{¶ 10} It is well-established law that the trial court has broad discretion regarding
procedural matters. Jackson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 20AP-233,
2021-Ohio-1642, ¶ 22, citing Williams v. Am. Homes 4 Rent Mgmt. Holdings, LLC, 10th
Dist. No. 18AP-627, 2019-Ohio-3740, ¶ 27, citing State ex rel. Lindenschmidt v. Bd. of
Commrs., 72 Ohio St.3d 464, 465 (1995). Civ.R. 6(B) provides:
When by these rules or by a notice given thereunder or by order
of court an act is required or allowed to be done at or within a
specified time, the court for cause shown may at any time in its
discretion (1) with or without motion or notice order the period
enlarged if request therefor is made before the expiration of the
period originally prescribed or as extended by a previous order,
No. 21AP-556 4

or (2) upon motion made after the expiration of the specified
period permit the act to be done where the failure to act was the
result of excusable neglect.
{¶ 11} When resolving whether neglect is excusable, "all the surrounding facts and
circumstances must be taken into consideration." Davis v. Immediate Med. Servs., Inc.,
80 Ohio St.3d 10, 14 (1997). "Neglect under Civ.R. 6(B)(2) has been described as conduct
that falls substantially below what is reasonable under the circumstances." Id. While a
court should consider the potential prejudice to the opposing party, a court should also be
mindful that, ideally, cases should be resolved on the merits, not on procedural grounds.
Huntington Natl. Bank. v. Haehn, 10th Dist. No. 17AP-342, 2018-Ohio-4837, ¶ 26, citing
Kaur v. Bharmota, 10th Dist. No. 05AP-1333, 2006-Ohio-5782, ¶ 9; Lindenschmidt at 466.
{¶ 12} Accordingly, we review whether the trial court erred in granting leave to file
a motion for summary judgment under an abuse of discretion analysis. Jackson at ¶ 22.
Abuse of discretion is a determination by the trial court that is arbitrary, unreasonable, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). The Supreme
Court has recently clarified this standard, however, noting that all "courts lack the
discretion to make errors of law, particularly when the trial court's decision goes against
the plain language of a statute or rule." Johnson v. Abdullah, Slip. Opinion No. 2021-Ohio-
3304, ¶ 39, __Ohio St.3d__.
{¶ 13} In the case sub judice, the initial dispositive motion deadline was set for
June 5, 2020. The deadline passed and this matter was scheduled for trial on
September 21, 2020. The trial was subsequently continued and reset for October 18, 2021.
(Feb. 2, 2021 Mag. Sched. Notice.) On December 23, 2020, the Supreme Court released its
decision in Wilson. On April 28, 2021, appellees filed a motion for leave to file a motion for
summary judgment citing the recent release of the Wilson decision. On July 27, 2021, the
trial court granted the motion writing that "[g]iven the circumstances presented in
[appellees'] request, [appellees] have sufficiently shown excusable neglect; therefore, the
Court finds [appellees'] motion for leave well taken." (Jul. 27, 2021 Entry.) Upon review,
as the trial court is given broad discretion under Civ.R. 6(B), we conclude that granting
appellees' motion for leave to file a motion for summary judgment was reasonable and not
an abuse of discretion. Appellees had previously filed a motion for judgment on the
pleadings, which was denied by the trial court in 2019. (Apr. 16, 2019 Dec. & Entry.) Given
No. 21AP-556 5

Wilson was decided after the dispositive motion deadline had expired, it is not
unreasonable for the trial court to consider the motion for leave was the result of excusable
neglect under Civ.R. 6. Moreover, as the trial court interpreted Wilson to apply to the
instant case, allowing this matter to be resolved through a motion for summary judgment,
instead of denying the motion on procedural grounds, likely saved the parties time and
expense only for a similar result at a subsequent proceeding. As such, any error in granting
appellees' leave to file the motion for summary judgment was harmless.
{¶ 14} Accordingly, we overrule appellant's first assignment of error.
B. Appellant's Second Assignment of Error
{¶ 15} In appellant's second assignment of error, she argues that the trial court erred
in granting appellees' motion for summary judgment.1
{¶ 16} Summary judgment is appropriate if " 'the moving party demonstrates that:
(1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment
as a matter of law, and (3) reasonable minds can come to but one conclusion and that
conclusion is adverse to the party against whom the motion for summary judgment is
made.' " 2454 Cleveland, LLC v. TWA, LLC, 10th Dist. No. 19AP-157, 2020-Ohio-362, ¶ 8,
quoting Capella III, LLC v. Wilcox, 10th Dist. No. 10AP-206, 2010-Ohio-4746, ¶ 16, citing
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, ¶ 6. When considering on a
motion for summary judgment, the court is required to resolve all questions and construe
the evidence in favor of the nonmoving party. 2454 Cleveland, LLC at ¶ 8, citing Pilz v.
Ohio Dept. of Rehab. & Corr., 10th Dist. No. 04AP-240, 2004-Ohio-4040, ¶ 8. Pursuant
to Civ.R. 56(C), the moving party bears the initial burden of providing the trial court
grounds for the motion and identifying those parts of the record that establish the absence
of a material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). The moving party,
however, cannot meet this initial burden with a conclusory declaration that the nonmoving
party has no evidence to support its case; the moving party must identify specific evidence,
as listed in Civ.R. 56(C), affirmatively demonstrating that the nonmoving party has no
evidence to support its claims. Id. Once the moving party meets this initial burden,

1Subsequent to briefing in this case, appellant has withdrawn her appeal concerning whether the trial court
erred in dismissing the survivorship and loss of consortium claims in its October 1, 2021 decision and entry.
(Apr. 7, 2022, Notice.) Accordingly, we will limit our analysis as to whether the trial court erred in granting
appellees' motion for summary judgment to the wrongful death claim.
No. 21AP-556 6

summary judgment is warranted if the nonmoving party does not respond, by affidavit or
other evidence as otherwise identified in Civ.R. 56, with particular facts demonstrating that
a genuine issue exists in the case. Dresher at 293; Civ.R. 56(E). When the evidence offered
supports conflicting inferences, the court reviewing a summary judgment motion may not
weigh the evidence. DN Reynoldsburg v. Maurices Inc., 10th Dist. No. 20AP-57, 2022-
Ohio-949, ¶ 17, citing Thyssen Krupp Elevator Corp. v. Constr. Plus, Inc., 10th Dist. No.
09AP-788, 2010-Ohio-1649, ¶ 20.
{¶ 17} A reviewing court considers a trial court's grant of a motion for summary
judgment under a de novo standard of review. DN Reynoldsburg at ¶ 16, citing Capella III,
at ¶ 16, citing Andersen v. Highland House Co., 93 Ohio St.3d 547, 548, 2001-Ohio-1607.
" '[D]e novo appellate review means that the court of appeals independently reviews the
record and affords no deference to the trial court's decision.' " (Internal quotations and
citations omitted.) 2454 Cleveland, LLC at ¶ 8, quoting Holt v. State, 10th Dist. No. 10AP-
214, 2010-Ohio-6529, ¶ 9.
{¶ 18} This matter concerns the application of the medical malpractice statute of
repose, R.C. 2305.113(C), to a statutory wrongful death claim. This court has recently
addressed the same issue in Everhart v. Coshocton Cty. Mem. Hosp., 10th Dist. No. 21AP-
74, 2022-Ohio-629. In Everhart, the trial court granted a motion for judgment on the
pleadings finding that the plaintiff's wrongful death claim was barred by the four-year
statute of repose in R.C. 2305.113(C) as the claim was a medical claim as defined in the
statute. See R.C. 2305.113(E). This court disagreed finding that R.C. 2125.02, which
provides time limitations on wrongful death claims, did not set forth a statute of repose for
wrongful death in this context. We also examined the medical malpractice statute
regarding time limitations writing, "[t]here is not a single reference to wrongful death in
R.C. 2305.113." Everhart at ¶ 25. We, therefore, concluded that as the statute of repose for
medical malpractice, set forth in R.C. 2305.113(C), did not apply, the trial court erred in
finding the plaintiff was barred from pursuing her wrongful death claim. Id. at ¶ 51. This
court reaffirmed this interpretation in McCarthy v. Lee, 10th Dist. No. 21AP-105, 2022-
Ohio-1033, writing "[c]onsistent with our decision in Everhart, we find that wrongful death
claims under R.C. 2125 are not medical claims within the meaning of R.C. 2305.113." Id. at
¶ 33, citing Everhart at ¶ 51. The McCarthy court ultimately found that the plaintiffs'
No. 21AP-556 7

wrongful death claims were not barred by the statute of repose in R.C. 2305.113(C) and
remanded the case with instructions to vacate the portion of the trial court decision that
dismissed the wrongful death claim. Id. at ¶ 34.
{¶ 19} In the case sub judice, appellees have presented the same arguments
addressed extensively in our prior decisions. Accordingly, on the authority of Everhart and
McCarthy, we find the trial court erred in its October 1, 2021 decision and entry granting
appellees' motion for summary judgment that found appellant's statutory wrongful death
claim was barred under the medical malpractice statute of repose set forth in
R.C. 2305.113(C). The trial court is instructed to vacate the portion of its October 1, 2021
decision and entry that dismissed appellant's wrongful death claim for failure to comply
with the statute of repose.
{¶ 20} Accordingly, we sustain appellant's second assignment of error.
IV. CONCLUSION
{¶ 21} Having overruled appellant's first assignment of error and sustained
appellant's second assignment of error, we reverse and remand this matter to the Franklin
County Court of Common Pleas for proceedings consistent with law and this decision.
Judgment affirmed in part;
reversed in part; and
cause remanded.
KLATT, and BEATTY BLUNT, JJ., concur.
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