State ex rel. Sawicki v. Court

• Decision Date: 08 April 2009
• Docket Number: No. 2008-1160.,2008-1160.
• Citation: 905 N.E.2d 1192,121 Ohio St.3d 507,2009 Ohio 1523
• Parties: The STATE ex rel. SAWICKI, Appellee, v. COURT OF COMMON PLEAS OF LUCAS COUNTY et al., Appellants.
• Court: Ohio Supreme Court

905 N.E.2d 1192

121 Ohio St.3d 507

2009-Ohio-1523

The STATE ex rel. SAWICKI, Appellee, v. COURT OF COMMON PLEAS OF LUCAS COUNTY et al., Appellants.

No. 2008-1160.

Supreme Court of Ohio.

Submitted February 3, 2009.

Decided April 8, 2009.

Barkan & Robon, Ltd., James M. Tuschman, and R. Ethan Davis, Maumee, for appellee.

Marshall & Melhorn, L.L.C., Elizabeth E. Baer, and Kristen A. Connelly, Toledo, for appellant Associated Physicians of MCO, Inc.

Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borell, Assistant Prosecuting Attorney, for appellants Court of Common Pleas of Lucas County and Judge Gene A. Zmuda.

PER CURIAM.

{¶ 1} This is an appeal from a denial of a motion to intervene in a procedendo case and an appeal from a judgment granting a writ of procedendo to compel a common pleas court and its judge to vacate a stay and proceed in a pending medical-malpractice case. Because Associated Physicians of MCO, Inc. ("Associated") was denied intervention in the court of appeals, it lacks standing, and we dismiss the portion of its appeal that challenges the court's issuance of the writ. We affirm the judgment denying the motion to intervene. On the appeal by the Court of Common Pleas of Lucas County and Judge Gene A. Zmuda, because the court of appeals erred in granting summary judgment and issuing the writ of procedendo based upon an unargued and erroneous ground, we reverse the judgment of the court of appeals granting the writ of procedendo and remand the cause to that court for further proceedings upon the parties' motions for summary judgment.

Common Pleas Case, Sawicki v. Temesy-Armos

{¶ 2} The underlying case facts are alleged in the complaints filed by appellee, Henry J. Sawicki Jr. In early October 2003, Sawicki was referred to the former Medical College of Ohio Hospital¹ in Toledo by his primary-care physician after being diagnosed with atrial flutter. He was prescribed anticoagulant medication by Peter N. Temesy-Armos, M.D., but this therapy stopped when he complained of severe pain in his right groin. Sawicki's anticoagulant therapy was interrupted a couple more times but was finally discontinued after a CT scan of his abdomen revealed internal bleeding. Sawicki was then transferred to the hospital's intensive care unit, where a neurologist noted that he had developed an unstable gait, a loss of sensation over the anterolateral thigh, and a decreased sensation of the inner thigh on the right side. After being discharged from the hospital, Sawicki continued to experience severe pain, impairment of function, and significant numbness of the leg. He was eventually diagnosed with a proximal femoral nerve lesion causing atrophy of his leg.

{¶ 3} In September 2004, Sawicki filed a medical-malpractice action in the Lucas County Court of Common Pleas against Dr. Temesy-Armos and appellant Associated Physicians of MCO, Inc. ("Associated"). Sawicki's complaint alleged a claim of medical negligence against Dr. Temesy-Armos and a claim of respondeat superior against Associated for the doctor's alleged medical negligence. During Sawicki's treatment, Dr. Temesy-Armos was an employee of both the medical college and Associated.

{¶ 4} In 2006, Judge Thomas J. Osowik dismissed Sawicki's claims against Dr. Temesy-Armos because the doctor was a state employee at the time of the alleged malpractice, and the Court of Claims had exclusive jurisdiction to determine whether Dr. Temesy-Armos was immune from liability. Judge Osowik refused, however, to dismiss Associated from the case because even if Dr. Temesy-Armos was immune, Associated, which was his private employer, could still be liable for his actions under the doctrine of respondeat superior.

{¶ 5} The case was subsequently dismissed without prejudice and refiled in the common pleas court. On August 24, 2007, Judge Zmuda issued an entry staying the remaining respondeat superior claim against Associated "pending a ruling from the Ohio Court of Claims as to whether Dr. Temesy Armos was acting within the scope of employment with [the Medical College of Ohio] at the time he rendered treatment to [Sawicki] and subject to personal immunity as a state employee."

Procedendo Case

{¶ 6} In November 2007, Sawicki filed a complaint in the Court of Appeals for Lucas County for a writ of procedendo to compel appellants Lucas County Court of Common Pleas and Judge Zmuda to vacate the stay and proceed to judgment on his claim against Associated. The court of appeals denied Associated's motion to intervene. Sawicki filed a motion for summary judgment, and the common pleas court and Judge Zmuda filed a cross-motion for summary judgment.

{¶ 7} In May 2008, the court of appeals granted Sawicki's motion for summary judgment, denied the cross-motion for summary judgment, and granted a writ of procedendo ordering Judge Zmuda to vacate the stay and proceed in the underlying medical-malpractice case.

{¶ 8} This case is now before us upon Associated's appeal, the common pleas court and Judge Zmuda's appeal, and Sawicki's motion to dismiss Associated's appeal.

Motion to Dismiss Associated's Appeal: Denial of Motion to Intervene

{¶ 9} On June 16, 2008, Associated filed a notice of appeal from both the court of appeals' January 14, 2008 entry denying its motion to intervene in the procedendo action and the May 22, 2008 judgment granting the writ of procedendo.

{¶ 10} Sawicki has filed a motion to dismiss Associated's appeal. He first argues that insofar as Associated challenges the entry denying its motion to intervene, Associated's appeal was not filed within the applicable period after the January 14, 2008 entry. The Supreme Court Rules of Practice govern appeals from a court of appeals to the Supreme Court. State ex rel. Sautter v. Grey, 117 Ohio St.3d 465, 2008-Ohio-1444, 884 N.E.2d 1062, ¶ 19. "To perfect an appeal from a court of appeals to the Supreme Court, * * * the appellant shall file a notice of appeal in the Supreme Court within 45 days from the entry of the judgment being appealed." S.Ct.Prac.R. II(2)(A)(1)(a). If an appeal is filed more than 45 days after the entry of the judgment being appealed, it is untimely and must be dismissed. See, e.g., State v. Williams, 116 Ohio St.3d 1516, 2008-Ohio-497, 880 N.E.2d 924.

{¶ 11} Appeals as a matter of right may be taken to the Supreme Court in cases originating in courts of appeals, including actions involving extraordinary writs. Section 2(B)(2)(a)(i), Article IV, Ohio Constitution; State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78, 2002-Ohio-5315, 776 N.E.2d 101, ¶ 4. "R.C. 2505.03 restricts the appellate jurisdiction of this court to the review of final orders, judgments, or decrees." State ex rel. Downs v. Panioto, 107 Ohio St.3d 347, 2006-Ohio-8, 839 N.E.2d 911, ¶ 17.

{¶ 12} Sawicki claims that because the court of appeals' denial of Associated's motion to intervene was a final, appealable order, Associated was required to appeal the court's decision within 45 days of its entry on January 14, 2008, but failed to do so. Sawicki contends that the denial of the motion to intervene is a final, appealable order because it affects a substantial right in an action that in effect determines the action.

{¶ 13} "R.C. 2505.02 defines a final order for purposes of appeal." Downs, 107 Ohio St.3d 347, 2006-Ohio-8, 839 N.E.2d 911, ¶ 18. Under R.C. 2505.02(B)(1), "[a]n order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is * * * [a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment."

{¶ 14} "There is no authority to support the general proposition that [the denial of a] motion to intervene always constitutes a final, appealable order." Gehm v. Timberline Post & Frame, 112 Ohio St.3d 514, 2007-Ohio-607, 861 N.E.2d 519, ¶ 36. Although intervention constitutes a substantial right under R.C. 2505.02(A)(1), "[t]he denial of a motion to intervene, when the purpose for which intervention was sought may be litigated in another action, does not affect a substantial right under R.C. 2505.02(B)(1) that determines the action and prevents the judgment." Id. at ¶ 29 and paragraph three of the syllabus.

{¶ 15} Associated sought to intervene in the procedendo case because "a decision in favor of [Sawicki] on his Complaint in Procedendo would impair or impede its ability to protect its interest in the underlying" medical-malpractice case. But Associated could litigate the substance of the medical-malpractice case in that case. In fact, in Sawicki's memorandum in opposition to Associated's motion to intervene, he conceded that resolution of the procedendo case would not "in [any way] impair or impede [Associated's] ability to protect its interests in the underlying litigation."

{¶ 16} In addition, "[f]or an order to determine the action, it must dispose of the merits of the cause or some separate and distinct branch thereof and leave nothing for the determination of the court." VIL Laser Sys., L.L.C. v. Shiloh Industries, Inc., 119 Ohio St.3d 354, 2008-Ohio-3920, 894 N.E.2d 303, ¶ 8. The court of appeals' denial of Associated's motion to intervene did not dispose of the merits of either the procedendo case or the underlying medical-malpractice case or a distinct branch of either.

{¶ 17} Therefore, because the entry denying its motion to intervene did not constitute a final, appealable order, Associated timely challenges that entry in its appeal. We thus deny Sawicki's motion to dismiss to the extent it challenges Associated's appeal from the denial of its motion to intervene.

Motion to Dismiss Associated's Appeal: Judgment on the Merits

{¶ 18} Sawicki also seeks to dismiss that portion of Associated's appeal that challenges the propriety of the court of appeals' issuance of the writ of procedendo. It is well settled that "an appeal from the denial of a motion to intervene is limited solely to the issue...