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Kreger v. Spetka7/29/2005
DECISION AND JUDGMENT ENTRY
{ } In this accelerated appeal, we are asked to determine whether the trial court abused its discretion in denying appellant's motion for the imposition of Civ. 11 sanctions.
{ } On September 10, 2002, counsel for appellee, Suzanne Kreger, Executrix of the Estate of Ann M. Takacs, filed an action for wrongful death/medical malpractice against "The Toledo Hospital " and appellant, Lawrence Spetka, M.D. Kreger alleged that in treating the decedent, the hospital and appellant departed from the generally accepted standards of medical care and, through their negligence, caused the death of Takacs.
{ } During the course of those proceedings, Kreger's attorney contacted a vascular surgeon in order to obtain his expert opinion concerning the cause of Takacs' demise. After reviewing the case, the physician wrote a letter to Kreger's attorney in which he stated that he would be unable to provide expert testimony indicating that appellant's treatment of Takacs deviated from the applicable medical standard. Based upon this opinion, Kreger's attorney recommended that she dismiss her cause of action. Therefore, on April 29, 2003, Kreger voluntarily dismissed her wrongful death/medical malpractice suit, without prejudice.
{ } On April 30, 2004, Kreger, acting pro se, re-filed her case. It is undisputed that she initially failed to sign her complaint. After being notified of this omission, Kreger returned to the courthouse and signed the complaint. In the meantime, appellant filed a motion to dismiss Kreger's claims or, in the alternative, a motion for summary judgment. The motions were based upon the fact that Kreger failed to sign the complaint as required by Civ.R. 11 and/or that the complaint was filed beyond the one year statute of limitations found in Ohio's savings statute, R.C. 2305.19(A).
{ } Kreger responded, asserting that (1) she was advised that she had until the end of the day on April 30, 2004 to re-file her case; (2) after learning that she had not signed her complaint, she returned to the clerk's office and did so; (3) she wanted to obtain the opinion of a physician in the same specialty, neurosurgery, as Dr. Spetka; and (4) she was "working diligently to retain Counsel."
{ } Appellant then filed his request for sanctions. He maintained that the suit was groundless due to the fact that in the dismissed case, Kreger's expert opined that "there were no departures from accepted standards of medical care." Although appellant also alleged that Kreger procured a like opinion from a neurosurgeon in Florida, he failed to offer any evidence to support this allegation. Kreger maintained that this was a false statement. Appellant further argued that sanctions should be imposed because Kreger's re-filed complaint was unsigned and untimely.
{ } On December 22, 2004, the common pleas court entered a judgment finding that Kreger re-filed her complaint one day after the time frame mandated by R.C. 2305.19(A) and granted the motions to dismiss her case. The trial court did not address appellant's motion for sanctions in its decision. Appellant appeals this judgment and contends that the following error occurred in the proceedings below:
{ } "The trial court erred when it implicitly denied defendant's motion for sanctions."
{ } As noted infra, the trial court's journal entry dismisses Kreger's wrongful death/ medical malpractice action but does not explicitly deny appellant's motion for Civ.R. 11 sanctions; however, even in the absence of an explicit ruling in an entry, a motion is overruled implicitly by the judgment. Mayes v. City of Columbus (1997), 124 Ohio App.3d 411, 417. We sh
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