Smith v. Stempel
| Decision Date | 26 June 1979 |
| Docket Number | No. 78AP-781,78AP-781 |
| Citation | 414 N.E.2d 445,65 Ohio App.2d 36 |
| Parties | , 19 O.O.3d 23 SMITH, Appellant, v. STEMPEL et al., Appellees. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. By filing a civil action in the Court of Claims, a filing party, other than the state, waives any cause of action, based on the same act or omission, against any state officer or employee. The waiver becomes void if the Court of Claims determines that the act or omission was not within the scope of the officer's or employee's office or employment. R.C. 2743.02(A).
2. In referring to a waiver upon the filing of a complaint in the Court of Claims, R.C. 2743.02(A) contemplates a timely filing of a proper complaint. Where the complaint filed in the Court of Claims is dismissed either for want of jurisdiction or because the claim was not brought within the time permitted by the applicable statute of limitations, the waiver does not become effective even though a complaint was "filed."
3. Where a plaintiff has an action pending in the Court of Common Pleas against several state officers or employees and a simultaneous action pending against the state in the Court of Claims based upon the same act or omission, upon the raising of the issue of waiver in the Court of Common Pleas on the basis that another action is pending in the Court of Claims, Civ.R. 54(B) permits the Court of Common Pleas to enter an interlocutory order of dismissal which may be later modified, removing the necessity of proceeding to trial with respect to the defendant state officers or employees and deferring the entry of final judgment until the Court of Claims has made its determination upon the issue of scope of employment.
Thomas R. McGrath, Columbus, for appellant.
William J. Brown, Atty. Gen., Vorys, Sater, Seymour & Pease, Duke W. Thomas and Nanci L. Danison, Columbus, for appellees.
Plaintiff-appellant, appeals from a judgment of the Court of Common Pleas of Franklin County rendering summary judgment in favor of certain defendants and finding no just reason for delay in entering judgment with respect to part but not all of the defendants. In support of her appeal, plaintiff raises a single assignment of error, as follows:
"The plaintiff may not be barred from proceeding with her action against individual defendants in the Court of Common Pleas by § 2743.02(A), the Ohio Revised Code, if the action is a pending action at the time the Court of Claims action is filed and this is particularly true if the cause of action arose before the effective date of Amended Substitute House Bill 149 (2/7/78)."
By her complaint, plaintiff alleges that the seven defendant doctors treated plaintiff from approximately February 23, 1977, to April 4, 1977, for an abortion and complications thereof and were negligent in such treatment. Plaintiff alleges that defendants negligently released her from an unspecified hospital on February 26, 1977. The complaint was filed May 5, 1978, and service obtained. Defendants Essig and Copeland filed answers, and the case remains pending against them in the trial court.
Defendants Stempel, Warner, Iams, Hsueh and Stine filed a joint answer, setting forth several defenses, the third defense claiming that plaintiff waived her right to sue these defendants. Subsequently, these five defendants filed a motion for summary judgment contending that the action was not commenced within the time permitted by the applicable statute of limitations, to which was attached affidavits of these defendants, stating, inter alia, that each, at the time in question, was "a member of the medical staff of the Ohio State University Hospital." In response, plaintiff contended that the action was timely commenced because of compliance with the notice provisions of R.C. 2305.11 and submitted an affidavit to this effect. In their reply memorandum, defendants included a "supplemental summary judgment motion," contending that plaintiff had waived any claim against these five defendants by bringing an action in the Court of Claims against the state of Ohio. To this motion, these defendants attached a certified copy of a complaint filed in the Court of Claims on the same day that the present action was commenced.
The Court of Claims complaint reads essentially similar to the complaint herein, except that it refers to treatment by the Ohio State University Hospital and makes no specific reference to any of the defendants herein, except to allege that the state of Ohio acted through agents who remain unspecified and unnamed.
The trial court overruled the motion predicated upon the statute of limitations with respect to all defendants except Dr. Stine and sustained the motion as to Dr. Stine. As to defendants Stempel, Warner, Iams and Hsueh, the trial court sustained their motion for summary judgment upon the grounds that plaintiff had waived any claim against them by filing the complaint in the Court of Claims.
Plaintiff has raised no issue herein with respect to the dismissal of her claim as against Dr. Stine because it was not commenced within the time permitted by the statute of limitations.
Prior to the trial court's decision, plaintiff filed an additional memorandum in opposition to the motion for summary judgment, to which was attached an order of the Court of Claims dismissing the action in that court but granting leave to plaintiff to file an amended complaint. Since the trial court's decision makes no reference to the contentions made in this additional memorandum, the trial court apparently was unaware of this argument. At least, the trial court made no reference to this argument in the decision.
After plaintiff's cause of action arose, but prior to the filing of the complaints, R.C. 2743.02(A) was amended 1 effective February 7, 1978, to read as follows:
Plaintiff contends that, pursuant to R.C. 1.58, this amendment does not affect her claim and relies upon Torpey v. State (1978), 54 Ohio St.2d 398, 377 N.E.2d 763. The syllabus of the Torpey case reads as follows:
"Prior to February 7, 1978, a claimant who sued the state in the Court of Claims and joined in that suit state employees alleged to be acting within the scope of their employment in both their official and individual capacities was entitled to a jury trial under R.C. 2743.11 for the determination of the individual liability of state employees."
Torpey is not controlling, inasmuch as it is distinguishable. Torpey involved an action commenced prior to the effective date of the 1978 amendment to R.C. 2743.02(A), which sets forth the waiver; and the Supreme Court held that the amendment did not affect a pending action. Here, no action was pending, although the cause of action had already arisen.
R.C. 1.58 provides, in part, that:
The trial court referred to the "doubtful applicability" of R.C. 1.58 and apparently predicated its decision upon a finding that R.C. 2743.02(A) does not affect any remedy in respect to any liability. This finding is somewhat inconsistent with Torpey, supra, in that the Supreme Court in that case held that a claimant who sued the state under R.C. 2743.02(A) prior to its amendment had, in effect, a dual remedy by filing an action in the Court of Claims, joining both the state and the state's agents or employees, with a right to separate factual determinations: (1) by the judge of the Court of Claims with respect to the state; and (2) by a jury with respect to state officers or employees. The court in Torpey held that the factual determination of no liability on the part of the state by the judge of the Court of Claims did not constitute collateral...
To continue reading
Request your trial
-
Leaman v. Ohio Dept. of Mental Retardation & Development Disabilities
...their employment or maliciously. The words "the court" mean the Court of Claims. Van Hoene, supra, 486 N.E.2d at 872; Smith v. Stempel, 65 Ohio App.2d 36, 414 N.E.2d 445 (Franklin 1979), 3d Syl. In deciding, as it did, that the termination of Ms. Leaman's employment "was in accordance with ......
-
University of Texas v. Loutzenhiser
...actions against the state permitted by [state tort claims act] shall be commenced" within the limitations period); Smith v. Stempel, 65 Ohio App.2d 36, 414 N.E.2d 445 (1979) (untimely filing does not activate state's limited waiver of sovereign immunity); Wyoming — Wyo. Stat. § 1-39-113(a) ......
-
Wilson v. Patton, 87
...determination. See McIntosh, supra, 24 Ohio App.3d at 120, 24 OBR at 190-191, 493 N.E.2d at 324-325; Smith v. Stempel (1979), 65 Ohio App.2d 36, 19 O.O.3d 23, 414 N.E.2d 445. This argument has been expressly rejected by the Supreme Court of Ohio in Cooperman v. Univ. Surgical Assoc., Inc. (......
-
Parks v. Wilkins
...24 Ohio App.3d 116, 493 N.E.2d 321 (1985); Van Hoene v. State, 20 Ohio App.3d 363, 486 N.E.2d 868 (1985); Smith v. Stempel, 65 Ohio App.2d 36, 414 N.E.2d 445 (1979). Although none of the cases cited deals directly with the application of Section 2743.02(F) in its present form, all of these ......