Bright v. Family Medicine Foundation12/11/2003
.Defendant-appellant, Family Medicine Foundation, Inc. ("FMF") d.b.a. The Thomas E. Rardin Family Practice Center ("the Practice Center"), appeals from the December 18, 2002 decision and entry of the Franklin County Court of Common Pleas that dismissed appellant's Civ.R. 60(B) motion on the basis that the court lacked subject-matter jurisdiction.
.On September 22, 1998, Maria Nicole Bright, plaintiff-appellee, filed a complaint in the Franklin County Court of Common Pleas against the Practice Center and three physicians, alleging medical malpractice ("the medical malpractice case"). The three physicians were voluntarily dismissed from the lawsuit. The complaint was served on the Practice Center at 2231 North High Street, Columbus, Ohio. Appellant did not file an answer or otherwise appear in the action. On June 24, 1999, appellee filed a motion for default judgment. Appellee's motion for default judgment was sustained, and a hearing on the issue of damages was held before a magistrate. The magistrate determined that appellee's damages were $978,840.41. The trial court adopted the magistrate's findings and entered a final judgment for appellee and against appellant in the amount of $978,840.41.
.The Ohio State University ("OSU"), which owned the building in which the Practice Center was located, filed a motion to vacate the default judgment against the Practice Center, asserting that the court lacked subject-matter jurisdiction. Appellant filed a motion to intervene and a memorandum in support of OSU's motion to vacate the default judgment. After a hearing, the trial court, in a February 25, 2000 order, denied these motions.
.Also on February 25, 2000, appellant filed a complaint in the Franklin County Court of Common Pleas against appellee, N. Gerald DiCuccio, Gail M. Zalimeni, and the law firm of Butler, Cincione, DiCuccio and Barnhart, Family Medicine Found., Inc. v. Bright, case No. 02CVH-02-01619 ("the injunction case"). Appellant sought a permanent injunction that would prohibit appellee and the other above-named defendants from garnishing appellant's assets and/or property. Mr. DiCuccio, Mr. Zalimeni, and the law firm filed an answer and a counterclaim, seeking declaratory relief. Appellee also filed an answer and counterclaim seeking declaratory relief. In its October 30, 2000 decision, the trial court found that appellee, Mr. DiCuccio, Mr. Zalimeni, and the law firm had not knowingly maintained the medical malpractice lawsuit against a fictitious entity. Subsequently, in its November 16, 2000 decision, the trial court concluded that FMF used the name of the Practice Center to carry on its business, that the medical malpractice default judgment was not void, and that the judgment was enforceable against FMF. FMF appealed to this court from the judgment entered in the injunction case by the trial court.
.On June 30, 2000, FMF filed in the Franklin County Court of Common Pleas (case No. 98CVA-09-7342), a Civ.R. 60(B) motion to vacate the default judgment in the medical malpractice case. Subsequently, on September 28, 2000, FMF filed a motion to vacate the judgment against the Practice Center, arguing that the judgment was void. On June 14, 2001, the above motions were stayed by the trial court, pending this court's decision in the injunction case.
.On June 28, 2001, this court, in Family Medicine Found., Inc. v. Bright (June 28, 2001), Franklin App. No. 00AP-1476 (the injunction case), reversed the trial court on the ground that the judgment against FMF was void. Specifically, this court held that under R.C. 1329.10(C), "a suit cannot be commenced or maintained against the user of a fictitious name when such suit is brought solely i
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