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Castrataro v. Urban6/27/2002
JUDGMENT: Affirmed
Plaintiff-appellant Linda Castrataro appeals from the November 13, 2001, Judgment Entry of the Delaware County Court of Common Pleas granting defendant-appellee Kenneth Urban's Motion for Attorney Fees Under R. C. 2323.15 for Frivolous Conduct.
STATEMENT OF THE FACTS AND CASE
On March 13, 2001, appellant filed a complaint against appellee, a physician, in the Franklin County Court of Common Pleas (Case No. 01CVA03-2391). Appellant, in her complaint, specifically alleged that she sought medical care from appellee in May of 1995 and that appellee was negligent in failing to properly diagnosis and treat her for Epstein-Barr virus "on or about June 9, 1995," and in failing to disclose test results to appellant. According to appellant, such test results "showed positive for Epstein-Barr virus." Appellant further alleged in her complaint that appellee did not meet the standard of care due her. In short, appellant alleged a cause of action for medical malpractice against appellee. Thereafter, appellant, on May 11, 2001, filed a complaint in the case sub judice against appellee in the Delaware County Court of Common Pleas (Case No. 01-CVA-05-243). Appellant, in such complaint, alleged that she was a patient of appellee's from May through September of 1995, that appellee failed to fulfill his obligations to appellant as a patient or client, and that appellee refused to treat appellant after she became ill. In her complaint, appellant specifically sought damages for breach of contract. After filing an answer to appellant's Delaware complaint on June 8, 2001, appellee, through counsel, sent a letter dated June 22, 2001, to appellant which stated, in relevant part, as follows: With regard to the Delaware County action, please accept this letter as our request that you dismiss the claims you have brought in that case. Although you attempt to couch that action as a "breach of contract action," it is apparent the claims which you purportedly raise in the Delaware County action arise out of the same actions which are the subject of the Franklin County case. As such, you are attempting to impermissibly split whatever your purported causes of action are of arising from Dr. Urban's treatment of you. See Rush v. Maple Heights (1958), 167 Ohio St. 221. Additionally, even if Judge Shaw were to determine you have not impermissibly split your cause of action, since you first filed your case in Franklin County and obtained service upon Dr. Urban in the Franklin County case, Franklin County has jurisdictional priority and the Delaware Court has no jurisdiction to entertain a case between the same parties involved in the same "whole issue." See Knowlton Co. v. Knowlton (1992), 63 Ohio St.3d 677. If you have not dismissed your claim by July 6, 2001, Dr. Urban will seek to dismiss your claim and will seek all costs he has incurred in defending the Delaware County action.
Because appellant did not dismiss her complaint, appellee, on September 6, 2001, filed a Motion for Summary Judgment or, in the Alternative, to Transfer in the Delaware County Court of Common Pleas. In his motion, appellee argued that appellant's complaint in the Delaware County Court should be dismissed since, (1) although framed as a breach of contract action, appellant's case in the Delaware County Court of Common Pleas constituted a medical malpractice action under Ohio law, (2) both the Franklin County and Delaware County actions arose out of appellee's treatment of appellee during the same period of time, and (3) appellant could not split her cause of action for medical malpractice into two separate actions in two separate courts. In the alternative, appellee argued that since the Franklin County
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