Oscar Siuda, Ruth Siuda, Ruth Hughes and Lora Maxwell v. David G. Howard, M.D., and Tri-State Eye Care, Inc.
| Decision Date | 10 May 2002 |
| Docket Number | 02-LW-1713,C-000656,C-000687 |
| Parties | OSCAR SIUDA, RUTH SIUDA, RUTH HUGHES and LORA MAXWELL, Plaintiffs-Appellees, and GEORGE BELL, SALLIE BELL, JOYCE HIMMELBLAU, DAVID HIMMELBLAU, RITA LAWSON, LINDA NICKLE, NETTIE M. PETERS, JIMMIE PETERS, MARY SUE PRINE, JOHN PRINE, SYLVIA THOMAS, WILLIAM THOMAS, CHARLES VENABLE, and JOYCE VENABLE, Plaintiffs-Appellees/Cross-Appellants v. DAVID G. HOWARD, M.D., and TRI-STATE EYE CARE, INC., Defendants-Appellants/Cross-Appellees APPEAL NOS. C-000656, C-000687(fn1) |
| Court | Ohio Court of Appeals |
TRIAL NOS. A-9802378, A-9804397, A-9805831
Waite Schneider, Bayless & Chesley Co., L.P.A., Stanley M. Chesley, Paul M. DeMarco, Colleen M. Hegge, and Jane H. Walker, and Barret & Weber and Michael R. Barrett, for Plaintiffs-Appellees and Plaintiffs-Appellees/Cross-Appellants,
Lindhorst & Dreidame, Michael F. Lyon, James L. O'Connell, and Bradley D. McPeek, and White, Getgey & Meyer Co., L.P.A., and David P. Kamp, for Defendants-Appellants/Cross-Appellees.
In 1998, seven separate complaints were filed in the court of common pleas against defendants Dr. David Howard, an ophthalmologist, and his employer, Tri-State Eye Care Service ("Tri-State"). The seven complaints named as plaintiffs Linda Nickel, Ruth Hughes, Joyce Himmelblau, Ruth Siuda, George Bell, Nettie Peters, Mary Sue Prine, Rita Lawson, Charles Venable, Lora Maxwell, and Sylvia Thomas,[2] all of whom were Howard's former patients. They asserted similar claims for medical negligence, negligence, lack of informed consent, fraud, conspiracy to defraud, agency, battery, and punitive damages resulting from Howard's care in performing or recommending surgery for glaucoma and/or cataracts. Oscar Siuda, Sallie Bell, Jimmie Peters, John Prine, William Thomas, Joyce Venable, and David Himmelblau filed derivative claims for loss of consortium. In response to the complaints, Howard and Tri-State filed the same four counterclaims against each plaintiff, including slander per se, libel, loss of business, and intentional infliction of emotional distress.
On April 14, 1999, the seven cases were consolidated under the case number A-9802378. Howard and Tri-State then filed a motion for separate trials, which was denied on January 24, 2000.
In November 1999, the plaintiffs filed a joint motion for summary judgment on Howard's and Tri-State's counterclaims. In turn, Howard and Tri-State moved separately for summary judgment against Ruth and Oscar Siuda, Charles and Joyce Venable, Linda Nickle, George and Sallie Bell, Sylvia Thomas, Lora Maxwell, Rita Lawson, Joyce and David Himmelblau, Mary Sue and John Prine, and Ruth Hughes. A motion for summary judgment was not filed against Nettie and Jimmie Peters. Following a hearing on the motions, the trial court granted summary judgment to all of the plaintiffs, presumably including Nettie and Jimmie Peters, on the four counterclaims asserted by Howard and Tri-State, but the court denied summary judgment to Howard and Tri-State on the claims asserted by the plaintiffs.
A jury trial commenced in February 2000, and one month later, on March 3, the jury returned verdicts in favor of (1) Ruth Siuda for medical negligence; (2) Oscar Siuda for loss of consortium; (3) Ruth Hughes for medical negligence, failure to obtain informed consent, and malicious or fraudulent acts by Howard that were ratified by Tri-State; and (4) Lora Maxwell for medical negligence and malicious or fraudulent acts by Howard that were ratified by Tri-State. Ruth Hughes was awarded $200,000 in compensatory damages and $500,000 in punitive damages against Howard, and $250,000 in punitive damages against Tri-State. Lora Maxwell was awarded $250,000 in compensatory damages and $500,000 in punitive damages against Howard, and $250,000 in punitive damages against Tri-State. Ruth Siuda was awarded $275,000 in compensatory damages, and her husband received $75,000 for his loss-of-consortium claim. The verdicts also granted attorney fees, costs, and prejudgment interest to the prevailing plaintiffs. Following a hearing, the trial court awarded the prevailing plaintiffs $920,000 in attorney fees, $10,237.05 in costs, and prejudgment interest at the rate of ten percent per annum.
George Bell, Sallie Bell, Joyce Himmelblau, David Himmelblau, Rita Lawson, Linda Nickle, Nettie Peters, Jimmie Peters, Mary Sue Prine, John Prine, Sylvia Thomas, William Thomas, Charles Venable, and Joyce Venable filed a motion for judgment notwithstanding the verdict ("jnov") or, alternatively, for new trial, which the trial court denied.[3] Howard and Tri-State also filed a motion for jnov and a motion for new trial against the Ruth and Oscar Siuda, Ruth Hughes, and Lora Maxwell, which the trial court denied.
Howard and Tri-State have appealed, contesting the order granting consolidation, the entry denying their motion for reconsideration of consolidation, the final judgment entry, the entry approving counsel's application for attorney fees, and the entry overruling their motions for jnov and a new trial. George and Sallie Bell, Joyce and David Himmelblau, Rita and Kenneth Lawson, Linda Nickle, Nettie and Jimmie Peters, Mary Sue and John Prine, Sylvia and William Thomas, and Charles and Joyce Venable have filed a cross-appeal against Howard and Tri-State. Despite the fact that the trial court entered a judgment against Kenneth Lawson and that he has been named as a party on the notice of cross-appeal, the record is devoid of any evidence that Kenneth Lawson had served notice of a loss-of-consortium claim against Howard or Tri-State or that he had moved to intervene in this action. On the state of this record, we do not consider the cross-appeal to include Kenneth Lawson. The appeal and the cross-appeal have been consolidated by this court.
Preliminarily, we note that Howard and Tri-State did not specify all of the parties or the case numbers in their notice of appeal; rather the parties were referred to as "Oscar Siuda, et al," and the case numbers were identified as those belonging to the prevailing parties. In the notice of cross-appeal, the nonprevailing plaintiffs used the same heading provided by Howard and Tri-State in their notice of appeal.
The Ohio Supreme Court has held that inclusion of the designation "et al." in the notice of appeal, without specifically naming a party, constitutes sufficient compliance with App.R. 3(A) so as to vest jurisdiction in the court of appeals over the unspecified appellants.[4] This is so because the only jurisdictional requirement for a valid appeal is the timely filing of the notice of appeal.[5] Accordingly, when an appellate court is confronted with a notice of appeal that is arguably deficient for some reason other than timeliness, the court is vested with the discretion to determine whether sanctions, such as dismissal, are warranted.[6] The purpose of the notice of appeal is to apprise the opposing parties of the taking of an appeal;[7] if this is done without the potential for reasonable misunderstanding, the purpose of the notice of appeal has been accomplished.
While the omissions in this notice of appeal could have resulted in a failure to notify plaintiffs Linda Nickle, Joyce and David Himmelblau, George and Sallie Bell, and Sylvia and William Thomas of the appeal against them, we hold that there has been no prejudice: they were obviously aware of the appeal because they filed a timely cross-appeal with the other non-prevailing plaintiffs. Given that, we are able to consider those assignments of error that relate to them. For the purposes of our review, we note that the parties have stipulated that the record has been supplemented after oral arguments to include all the findings and entries involving Linda Nickel, Joyce and David Himmelblau, George and Sallie Bell, and Sylvia and William Thomas. We now turn to the direct appeal filed by Howard and Tri-State.
The first issue presented for review is whether the trial court erred in granting the motion to consolidate. Civ.R. 42(A) permits, in actions involving a common question of law or fact, the trial court to consolidate some or all the issues in the actions after a hearing. The decision whether to consolidate cases is within the discretion of the trial court, and we will not reverse its decision absent an abuse of discretion.[8] An abuse of discretion has been defined as more than an error of law or judgment; it implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable.[9] When considering consolidation, a trial court must determine if there is sufficient commonality of issues and parties to warrant consolidating the cases.[10] Further, the court should consider whether consolidation would save time and resources.[11]
Howard and Tri-State maintain that the trial court abused its discretion when granting consolidation because there was not a sufficient commonality of issues, and because there was a danger of jury confusion and prejudice. We do not agree.
All of the cases consolidated by the trial court concerned an attempt to hold Howard liable for his treatment and care of the plaintiffs when he recommended eye surgery, in particular cataract, glaucoma, or YAG surgery, and to hold Howard's employer, Tri-State, liable for the ratification of Howard's acts. All of the cases contained the same defendants, set forth the same legal theories, and would call upon similar expert testimony. Because common issues of law and fact existed, judicial economy was served by consolidation. Moreover, given the verdicts, there was no evident confusion by the jury. The jury was clearly able to handle the voluminous evidence and to resolve the cases individually. Accordingly, we hold that the trial...
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