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Stuller v. Price12/16/2003
.This is an appeal by plaintiff-appellant, Dorothy Stuller, from a judgment of the Franklin County Court of Common Pleas, granting summary judgment in favor of defendant-appellee, Phillip D. Price, M.D., and granting appellee's motion for sanctions.
.On March 19, 2002, appellant filed a complaint against appellee, asserting a claim for loss of consortium based upon alleged medical malpractice on the part of appellee in treating appellant's husband, Richard A. Stuller. On April 16, 2002, appellee filed a motion to dismiss or, in the alternative, motion for summary judgment. Appellee also filed a motion for sanctions, arguing in the accompanying memorandum that he had been forced to defend appellant's claim for loss of consortium in three separate actions, and that appellant's claim in the instant case was barred by the doctrines of res judicata and collateral estoppel, and by the applicable statute of limitations.
.On September 12, 2002, the trial court rendered a decision granting summary judgment in favor of appellee, and the court set the matter for hearing on the issue of sanctions. On September 20, 2002, appellant filed a "motion to strike" the trial court's September 12, 2002 decision granting summary judgment in favor of appellee. In the accompanying memorandum, appellant asserted that the trial court had converted a motion to dismiss into one for summary judgment without proper notice. By journal entry, the court set a hearing date on appellant's motion to strike. On November 4, 2002, appellant filed a motion for leave to file an amended complaint, seeking to add her two children as additional plaintiffs. On November 7, 2002, the trial court conducted a hearing on the motion for sanctions.
.On December 13, 2002, the trial court filed an entry granting summary judgment in favor of appellee, and granting sanctions against counsel for appellant in the amount of $10,744.75. Also on that date, the trial court rendered a decision denying appellant's motion to strike, and appellant's motion for leave to amend.
.On December 27, 2002, appellant filed a motion for reconsideration of the trial court's December 13, 2002 decision and entry granting summary judgment and sanctions in favor of appellee. On January 8, 2003, the trial court filed a nunc pro tunc entry granting summary judgment in favor of appellee, and granting sanctions against counsel for appellant in the amount of $10,744.75.
.On appeal, appellant sets forth the following six assignments of error for review:
ASSIGNMENT OF ERROR #1
The trial court erred in it's December 13, 2002 decision as a loss of consortium claim is not derivative and therefore is not subject to an earlier adjudication, therefore summary judgment based upon res judicata was improper and furthermore the award of sanctions would also be improper.
ASSIGNMENT OF ERROR #2
The trial court erred in it's December 13, 2002 decision as appellant's claim is not barred by the applicable statute of limitations and therefore is timely and a separate and distinct action not in violation of res judicata therefore a granting of summary judgment on the grounds of res judicata is improper and furthermore the award of sanctions would also be improper.
ASSIGNMENT OF ERROR #3
The trial court erred in it's December 13, 2002 decision as there are genuine material issues of fact in dispute therefore a granting of summary is improper, furthermore an award of sanctions is also improper.
ASSIGNMENT OF ERROR #4
The trial court erred in it's December 13, 2002 decision as Appellee Price is not entitled to damages because no
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