[Cite as Carbone v. Austintown Surgery Ctr., L.L.C., 2010-Ohio-1314.]

 STATE OF OHIO, MAHONING COUNTY 

 IN THE COURT OF APPEALS 

 SEVENTH DISTRICT 

MARIO CARBONE, ) 

 ) CASE NO. 09 MA 35 

 PLAINTIFF-APPELLANT, ) 

 ) 

 - VS - ) OPINION 

 ) 

AUSTINTOWN SURGERY CENTER, ) 

LLC, aka AUSTINTOWN HEALTHCARE) 

CENTER, INC., et al., ) 

 ) 

 DEFENDANTS-APPELLEES. ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas 

Court, Case No. 07CV2327. 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellant: Attorney William C.H. Ramage 

4822 Market Street, Suite 220 

Youngstown, OH 44512 

For Defendants-Appellees: Attorney Steven G. Janik 

Attorney Kelly Rogers 

Attorney Jason Winter 

Janik, Dorman & Winter LLP 

9200 South Hills Blvd., Suite 300 

Cleveland, OH 44147-3521 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Dated: March 25, 2010 

DeGenaro, J. 
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{¶1} This timely appeal comes for consideration upon the record in the trial court, 

the parties' briefs, and their oral arguments before this court. Plaintiff-Appellant, Mario 

Carbone, appeals the decision of the Mahoning County Court of Common Pleas denying 

his Civ.R. 60(B) motion to vacate the court's order granting summary judgment in favor of 

Defendants-Appellees, Austintown Surgery Center, and Diane M. Lefoer, R.N. in a 

medical malpractice action. 

{¶2} On appeal, Carbone argues that the court abused its discretion by denying 

the Civ.R. 60(B) motion for several reasons. First, he claims the summary judgment 

motion filed by Appellees was never properly before the trial court because Appellees did 

not request leave to file the motion and because the trial court never ruled on Carbone's 

motion to enlarge discovery. Carbone contends the court should have vacated its order 

granting summary judgment for these reasons. However, these arguments were never 

raised in the trial court and in any event are wholly meritless. 

{¶3} Second Carbone argues that the trial court abused its discretion in denying 

Carbone's Civ.R. 60(B) motion because his failure to attend the summary judgment 

hearing was due to excusable neglect and because he has a meritorious claim against 

Appellees. However, Carbone's failure to attend the hearing does not constitute 

excusable neglect, and moreover Carbone failed to give any reason as to why he failed to 

file a response brief to Appellees' motion for summary judgment. In addition, Carbone 

does not have a meritorious claim because his complaint was untimely re-filed pursuant 

to Ohio's savings statute, R.C. 2305.19. The trial court properly denied Carbone's Civ.R. 

60(B) motion, and accordingly, the judgment of the trial court is affirmed. 

Facts and Procedural History 

{¶4} On July 14, 2005, Carbone filed a complaint against the Surgery Center and 

Lefoer in the Mahoning County Court of Common Pleas. Carbone alleged that while he 

was a patient at the Surgery Center on July 30, 2004, Lefoer negligently placed an 

intravenous needle into the radial nerve of his left wrist, rather than in a vein, thereby 

causing him pain, numbness and loss of function of his left hand. On April 18, 2006, 

Carbone voluntarily dismissed his complaint, pursuant to Civ.R. 41(A)(1), without 
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prejudice, but "reserving all rights to refile within cause within one (1) year of the date of 

this filing." The trial court journalized a dismissal order on July 28, 2006. 

{¶5} Carbone refiled his complaint on June 28, 2007, attaching an affidavit of 

merit in support of his claims. Appellees filed a joint answer. On April 9, 2008, the case 

was called for a pre-trial conference, and the magistrate issued a pre-trial order setting a 

September 8, 2008 discovery deadline for Carbone and an October 1, 2008 discovery 

deadline for Appellees. In addition, the order specified that the identity of experts, along 

with a report of their testimony must be disclosed to opposing counsel by those dates. 

Further, it ordered all dispositive motions be filed by November 1, 2008. Final pre-trial 

and trial dates were also set. 

{¶6} On September 16, 2008, Carbone filed a motion to enlarge discovery time, 

and on September 30, 2008, Appellees filed a brief in opposition thereto. On September 

17, 2008, Appellees filed a motion to extend all remaining case management dates with 

the exception of the final pre-trial and trial, for at least ninety days. Appellees noted that 

as of September 8, 2008, Carbone's discovery cut-off date, Carbone had failed to 

propound any discovery requests on them nor had he requested the deposition of Lefoer 

or any other defense witnesses. Further, they noted that Carbone had failed to identify 

any expert witnesses of his own or submit any expert reports. From the docket, it does 

not appear that the court ever specifically ruled on these two motions. 

{¶7} On September 18, 2008, Appellees filed a motion pursuant to Civ.R. 35(A) 

requesting an order compelling Carbone to submit to an independent medical 

examination. That same day, Appellees filed a motion for summary judgment, on two 

separate grounds: (1) that Carbone failed to refile his action in a timely manner pursuant 

to Ohio's savings statute, R.C. 2305.19; and (2) that by failing to provide expert testimony 

as required in a medical malpractice action Carbone had failed to satisfy his burden of 

proof. 

{¶8} On October 2, 2008, the trial court granted Appellees' motion for an order 

compelling Carbone to submit to an independent medical exam. The court ordered 

Carbone to submit to this examination by October 17, 2008. 
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{¶9} On October 14, 2008, Carbone filed a motion for extension of time to obtain 

and provide an expert report. For cause, Carbone stated "that the medical expert who 

reviewed his case, Dr. Janice Katz, was in the process of moving cross-country during the 

time frame in which her report was to be obtained." Appellees opposed this request. It 

does not appear from the docket that the trial court specifically ruled on this motion. 

{¶10} A summary judgment hearing was twice set for hearing, but continued at the 

request of Carbone until December 8, 2008. 

{¶11} On December 17, 2008, the trial court granted Appellees' motion for 

summary judgment. The court noted that Carbone failed to file a response to the motion, 

and moreover, that neither Carbone nor his counsel had appeared at the summary 

judgment hearing. 

{¶12} On December 26, 2008, Carbone filed a motion to vacate pursuant to Civ.R. 

60(B). Carbone claimed that he had inadvertently failed to appear at the motion hearing 

because "the calendar of Plaintiff's attorney for that date was marked in such a way that it 

appeared the hearing had been cancelled or postponed, and, by mistake, counsel for 

Plaintiff misread the calendar and believed that the hearing had been cancelled or 

postponed." Carbone further asserted that he has a valid defense to the motion for 

summary judgment and a valid claim against Appellees on the merits of the case. 

Carbone attached a brief in opposition to Appellees' motion for summary judgment. This 

belated response was the first response Carbone had made to Appellees' summary 

judgment motion. Carbone also attached his own affidavit in support, along with an 

expert report authored by Kenneth Cowens M.D. that was critical of the medical treatment 

provided to Carbone by Appellees. 

{¶13} Appellees filed a brief in opposition to the motion to vacate, arguing that 

Carbone's counsel's failure to attend the hearing on the motion for summary judgment did 

not constitute excusable neglect, nor was it the sole basis of the trial court's grant of 

summary judgment in favor of Appellees. Appellees also argued that Carbone did not 

have a meritorious claim to support vacation of the grant of summary judgment because 

the complaint was not timely refiled pursuant to Ohio's savings statute. Finally, Appellees 
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argued that Dr. Cowens's expert report was insufficient to establish a prima facie case of 

medical malpractice. Carbone filed a reply brief in support of his Civ.R. 60(B) motion 

which merely reiterated the arguments set forth in the original motion. 

{¶14} By entry of January 28, 2009, after considering the arguments and the 

relevant case law and statutory law, the trial court overruled Carbone's motion to vacate 

and dismissed Carbone's claim. 

Ruling on the Civ.R. 60(B) Motion 

{¶15} Both of Carbone's assignments of error challenge the trial court's ruling on 

his motion to vacate, pursuant to Civ.R. 60(B), which states, in pertinent part: 

{¶16} "On motion and upon such terms as are just, the court may relieve a party 

or his legal representative from a final judgment, order or proceeding for the following 

reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered 

evidence which by due diligence could not have been discovered in time to move for a 

new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or 

extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment 

has been satisfied, released or discharged, or a prior judgment upon which it is based has 

been reversed or otherwise vacated, or it is no longer equitable that the judgment should 

have prospective application; or (5) any other reason justifying relief from the judgment. 

The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not 

more than one year after the judgment, order or proceeding was entered or taken. A 

motion under this subdivision (B) does not affect the finality of a judgment or suspend its 

operation." Civ.R. 60(B). 

{¶17} "In order to prevail on a motion for relief from judgment pursuant to Civ.R. 

60(B), the movant must demonstrate: (1) a meritorious claim or defense; (2) entitlement 

to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) timeliness 

of the motion." Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20, 520 N.E.2d 

564, citing GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, 1 O.O.3d 

86, 351 N.E.2d 113, at paragraph two of the syllabus. See, also, Strack v. Pelton (1997), 

70 Ohio St.3d 172, 174, 637 N.E.2d 914. "These requirements are independent and in 
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the conjunctive; thus the test is not fulfilled if any one of the requirements is not met." Id. 

{¶18} When reviewing a trial court's decision regarding a Civ.R. 60(B) motion an 

appellate court will not reverse that decision unless the trial court abuses its discretion. 

State ex rel. Russo v. Deters (1997), 80 Ohio St.3d 152, 153, 684 N.E.2d 1237. An 

abuse of discretion implies that the trial court acted unreasonably, arbitrarily, or 

unconscionably. Id. 

{¶19} In his first of two assignments of error, Carbone asserts: 

{¶20} "The trial court committed error prejudicial to the Appellant when it failed to 

vacate its judgment which was filed on December 17, 2008 for the reason that the 

Plaintiff's summary judgment motion which was the basis of the order was not properly 

before the court." 

{¶21} Carbone claims that, pursuant to Civ.R. 56(A), Appellees' summary 

judgment motion was never properly before the trial court, and that the court abused its 

discretion in denying his motion to vacate for this reason. However, Carbone failed to 

raise this issue within his Civ.R. 60(B) motion to the trial court. Rather, in that motion he 

argued, pursuant to Civ.R. 60(B)(1), that the court should vacate its order granting 

summary judgment because his failure to attend the summary judgment hearing was 

purportedly due to excusable neglect, and because he alleged to have a meritorious claim 

against Appellees. As such, the Civ.R. 56(A) argument is waived absent plain error. See, 

e.g., Gentile v. Ristas, 160 Ohio App.3d 765, 2005-Ohio-2197, 828 N.E.2d 1021, at ¶74; 

Vermeer of S. Ohio, Inc. v. Argo Constr. Co. (2001), 144 Ohio App.3d 271, 275, 760 

N.E.2d 1. The plain error doctrine is rarely invoked in civil cases and moreover is 

discretionary on the part of the reviewing court. 

{¶22} "In appeals of civil cases, the plain error doctrine is not favored and may be 

applied only in the extremely rare case involving exceptional circumstances where error, 

to which no objection was made at the trial court, seriously affects the basic fairness, 

integrity, or public reputation of the judicial process, thereby challenging the legitimacy of 

the underlying judicial process itself." Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 

679 N.E.2d 1099, at paragraph one of the syllabus. In Goldfuss, the Court explained that 
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the doctrine shall only be applied in extremely unusual circumstances where the error 

complained of, if left uncorrected, would have a material adverse effect on the character 

of and public confidence in judicial proceedings. Id. at 121. The Court continued that the 

public's confidence is rarely upset merely by forcing civil litigants to live with the errors 

they themselves or the attorney chosen by them committed at trial. Id. at 121-122. 

{¶23} We conclude that the trial court committed no error, let alone plain error, in 

this instance. Civ.R. 56(A) provides in part that "[i]f the action has been set for pretrial or 

trial, a motion for summary judgment may be made only with leave of court." Carbone 

contends that because final pretrial and trial dates had been set and Appellees failed to 

obtain leave prior to filing their motion for summary judgment, the motion was never 

properly before the trial court pursuant to Civ.R. 56(A). 

{¶24} Carbone is incorrect for several reasons. First, although trial and pre-trial 

dates were set during the initial pretrial scheduling order, in that same order the court also 

designated November 1, 2008 as the deadline for filing dispositive motions. Appellee's 

motion for summary judgment was filed on September 18, 2008, well before the deadline. 

 Further, a trial court's grant of a motion for summary judgment, which was filed without 

first obtaining leave, indicates the court implicitly granted leave. Coney v. Youngstown 

Metro. Hous. Auth., 7th Dist. No. 00-C.A.-251, 2002-Ohio-4371, at ¶42. See, also, 

Juergens v. Strang, Klubnik & Assoc., Inc. (1994), 96 Ohio App.3d 223, 234, 644 N.E.2d 

1066 (holding that "[t]he acceptance of the motion by the court after the case has been 

set for pretrial is in itself by leave of court albeit without the formal writing saying 'I seek 

the leave of court.'"). Accordingly, Appellees' motion for summary judgment was properly 

before the trial court and Carbone's first assignment of error is meritless. 

{¶25} In his second assignment of error, Carbone asserts: 

{¶26} "The trial court committed error prejudicial to Appellant when it failed to 

vacate its order filed on December 17, 2008 because Appellant had presented substantial 

evidence in a timely motion that established that it had a valid claim against Appellees, 

that its failure to attend a hearing on Appellee's motion was due to excusable neglect, and 

that Appellees motion for summary judgment which was the basis of the court's ruling was 
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premature and should have been overruled on its face." 

{¶27} Carbone makes two distinct arguments within this assignment of error. 

First, he contends the trial court erred in denying his Civ.R. 60(B) motion because the 

court never ruled on his motion to extend the discovery deadlines prior to granting 

summary judgment. In essence, he contends that the trial court's ruling on Appellees' 

motion for summary judgment was premature. Again, Carbone failed to raise this 

argument in the trial court and we review for plain error only. 

{¶28} The trial court committed no error by ruling on the summary judgment 

motion without ruling on Carbone's motion to extend discovery. The court's ruling on the 

summary judgment motion was not premature, because Carbone failed to avail himself of 

the procedures contained in Civ.R. 56(F). 

{¶29} As this court held in Kristian v. Youngstown Orthopedic Assoc., 7th Dist. No. 

03 MA 189, 2004-Ohio-7064: 

{¶30} "Civ.R. 56 does not mandate that full discovery be completed before a 

motion for summary judgment may be granted. * * * If a motion for summary judgment 

has been filed before the plaintiff has an opportunity to learn the facts of the case 

sufficient to oppose a motion for summary judgment, Civ.R. 56(F) provides a specific 

remedy: 

{¶31} "'Should it appear from the affidavits of a party opposing the motion for 

summary judgment that the party cannot for sufficient reasons stated present by affidavit 

facts essential to justify the party's opposition, the court may refuse the application for 

judgment or may order a continuance to permit affidavits to be obtained or discovery to 

be had or may make such other order as is just.' (Emphasis added.)" Id. at ¶14-17. 

{¶32} Importantly, "an appellant who failed to seek relief under Civ.R. 56(F) in the 

trial court has not preserved his rights thereto for purposes of appeal." Petty v. Mahoning 

Women's Centre, Inc. (Feb. 15, 1995), 7th Dist. No. 93 C.A. 32, at *3-4, quoting 

Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78, 523 N.E.2d 

902, at paragraph four of the syllabus. 

{¶33} In the present case, Carbone failed to seek relief under Civ.R. 56(F). He did 
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not file an affidavit alleging he lacked sufficient evidence to oppose Appellees' summary 

judgment motion and requesting that the trial court either delay deciding the motion or 

refuse to decide it. In fact, Carbone failed to file any response to Appellees' motion for 

summary judgment. He finally attempted to file such a brief but this was not until after the 

trial court had granted summary judgment and Carbone had filed his Civ.R. 60(B) motion. 

Thus, Carbone cannot now claim on appeal that trial court prematurely granted summary 

judgment. 

{¶34} Second, Carbone contends the trial court abused its discretion in denying 

his Civ.R. 60(B) motion because his failure to appear at the summary judgment hearing 

was due to excusable neglect, and because he has a meritorious claim against 

Appellees. 

{¶35} Both contentions are meritless. The trial court did not abuse its discretion 

by finding there was no excusable neglect. Carbone claims he did not attend the hearing 

because he was confused about the date due to some sort of mishap with his calendar. 

He also seems to blame his confusion on the fact that the hearing date had been 

rescheduled several times. However, it was Carbone who requested those continuances. 

Further, even if Carbone's reason for failing to attend the summary judgment hearing 

could be considered excusable neglect, Carbone failed to explain his failure to file a 

responsive brief to Appellees' motion for summary judgment. 

{¶36} Moreover, as indicated, in order to succeed on a Civ.R. 60(B) motion, the 

movant must also demonstrate that he has a meritorious claim or defense. See Strack, 

supra, at 174. In this case, Carbone has not satisfied this requirement, because his 

refiled complaint was untimely, pursuant to R.C. 2305.19(A). 

{¶37} Carbone originally filed a complaint against Appellees in this matter on July 

14, 2005. Carbone filed a notice of voluntary dismissal of the case, which he titled a 

"Motion to Dismiss," on April 18, 2006 which stated as follows: 

{¶38} "Now Comes the Plaintiff, MARIO CARBONE, only, by and through his 

counsel, Mark A. Hanni, pursuant to Ohio Civil Rule 41(A)(1), and voluntarily dismisses 

his claim without prejudice, reserving all rights to refile within cause within one (1) year of 
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the date of this filing." 

{¶39} Pursuant to the savings statute, Carbone could refile within one year after 

the date his claim failed "otherwise than upon the merits," or in other words, within one 

year after the date he dismissed his complaint pursuant to Civ.R. 41(A)(1). See R.C. 

2305.19(A). Appellees contend that the operative date for savings statute purposes is 

April 18, 2006, when Carbone filed his motion for voluntary dismissal. Therefore, 

Appellees argue that Carbone had until April 18, 2007 to refile his complaint. Carbone 

insists that the operative date was July 28, 2006, the date the trial court journalized an 

entry indicating the matter had been voluntarily dismissed. Thus, according to Carbone, 

he had until July 28, 2007 to refile the action. 

{¶40} Appellees are correct. The savings statute begins to run at the time the 

plaintiffs file a notice of voluntary dismissal. See Gardner v. Gleydura (1994), 98 Ohio 

App.3d 277, 279, 648 N.E.2d 537. In Gardner, the plaintiffs filed a Civ.R. 41(A)(1) 

voluntary dismissal notice on January 1, 1992, and the trial court journalized an entry 

indicating the matter had been voluntarily dismissed on February 11, 1992. On January 

5, 1993, the plaintiffs refiled the action. The defendant filed a motion to dismiss and 

alternative motion for summary judgment, asserting that the action was not timely refiled, 

pursuant to the savings statute. The trial court granted dismissal and the plaintiffs 

appealed, arguing, as Carbone does here, that the savings statute began to run on the 

date the voluntary dismissal was journalized by the trial court. The Eighth District rejected 

this argument, holding that the savings statute began to run when the plaintiffs filed their 

notice of dismissal: 

{¶41} The court reasoned that "[d]ismissals pursuant to Civ.R. 41(A)(1) are 

effectuated upon filing by the plaintiff; approval by the court is not necessary. 1 Baldwin's 

Ohio Civil Practice (1988) 317, Section T25.03. That is, '[t]he filing of the notice of 

dismissal automatically terminates the case without any intervention by the court. 

Absolutely no court approval is necessary.' Id. at 319. See, also, Perdue v. Handelman

(1980), 68 Ohio App.2d 240, 241, 22 O.O.3d 398, 398-399, 429 N.E.2d 165, 166. The 

rule therefore contemplates unilateral action on the part of the plaintiff. Clay Hyder 
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Trucking Lines, Inc. v. Riley (1984), 16 Ohio App.3d 224, 225, 16 OBR 240, 240-241, 475 

N.E.2d 183, 184-185." Gardner at 278-279. 

{¶42} Thus, the fact that the trial court in the instant case journalized Carbone's 

voluntary dismissal notice on July 28, 2006 served to merely reiterate the fact that the 

case had been voluntarily dismissed. Id. Further, the fact Carbone titled his dismissal 

notice a "motion to dismiss" is immaterial. In Perdue, supra, the court held that a 

plaintiff's motion to dismiss without prejudice should have been treated as a voluntary 

dismissal, terminating the action immediately. Id. at 241. 

{¶43} Thus, the deadline for Carbone to refile under the savings statute in this 

case was April 18, 2007, one year after he filed his motion for voluntary dismissal. 

However, Carbone did not refile his complaint until June 28, 2007, thus making it 

untimely. Therefore, Carbone cannot demonstrate he has a meritorious claim against 

Appellees. Carbone's second assignment of error is meritless. 

{¶44} Based on the foregoing, the trial court's decision to deny Carbone's Civ.R. 

60(B) motion was not an abuse of discretion. Accordingly, the judgment of the trial court 

is affirmed. 

Donofrio, J., concurs. 

Waite, J., concurs.