 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Kristian v. Youngstown Orthopedic Association12/15/2004
discovery. (See Appellants' supplemental brief filed on August 26, 2003.) Appellants again failed to follow Civ.R. 56(F), and the trial court, in its discretion, proceeded to rule on the motion for summary judgment according to the schedule previously announced by the court.
{ } Appellants assert that summary judgment should not have been granted because Appellees did not respond to either the first or second set of interrogatories. However, Appellants never sought an order to compel discovery as required by Civ.R. 37(A)(2): " f a deponent fails * * * to answer an interrogatory submitted under Rule 33, * * * the discovering party may move for an order compelling an answer or an order compelling inspection in accordance with the request." The staff notes to Civ.R. 37 state that: "The party who feels aggrieved or who wants discovery must take affirmative action. There is no automatic compulsion upon those who do not comply with discovery requests or who resist discovery." If Appellants genuinely believed that Appellees had completely stymied the discovery process and prevented a proper response to the motion for summary judgment, we would expect to see a motion to compel discovery in the record. It is difficult to see how the trial court could have abused its discretion in failing to allow yet more time for Appellants to submit evidence in opposition to summary judgment when they did not take the proper steps necessary to bring the supposed discovery problems to the court's attention.
{ } Appellants also complain that the trial court failed to specifically explain why it found no genuine issue of material fact in dispute. However, a trial court is not required to furnish specific findings of fact and conclusions of law with respect to summary judgment motions. Mosley v. Gen. Motors Corp., 7th Dist. No. 01-CA-85, 2002-Ohio-6000, . At any rate, our review of a judgment entry that grants a motion for summary judgment is a de novo review, which means that we are not required to give any weight or deference to the trial court judgment. See Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Any error in the trial court's explanation, or lack of explanation, as to why it granted summary judgment is harmless error based on this Court's de novo standard of review.
{ } Appellants argue that, pursuant to the "saving statute" contained in R.C. §2305.19, they refiled this action within one year of voluntary dismissal and therefore the statute of limitations did not expire on their claim. In Ohio, if a plaintiff timely commences an action, and later voluntarily dismisses the action after the applicable statute of limitations has expired, the plaintiff may rely on the saving statute to refile the action within one year of the date of dismissal. Assuming arguendo that Appellants did properly refile their complaint within the one-year period set forth in the saving statute, they nevertheless failed to provide any evidence to rebut Dr. Stefko's affidavit or to establish some type of prima facie case of medical negligence, and summary judgment was appropriate.
{ } Finally, Appellants argue that the four-year statute of repose found in R.C. §2305.11(B) did not bar the refiling of their complaint, as argued by Appellees. A statute of repose is distinct from a statute of limitations. A statute of repose attempts to bar an action based simply on the passage of a certain amount of time from the date of injury, rather than the time from which a plaintiff discovers his or her injury, or from the time that the cause of action legally accrued. Armbrust v. United Tel. Co. of Ohio, Inc. (1997), 119 Ohio App.3d 497, 501, 695 N.E.2d 823, fn.2. The parties disagree as to the applic
Page 1 2 3 4 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|