[Cite as Troyer v. Janis, 132 Ohio St.3d 229, 2012-Ohio-2406.] 

TROYER ET AL., APPELLANTS, v. JANIS, APPELLEE. 

[Cite as Troyer v. Janis, 132 Ohio St.3d 229, 2012-Ohio-2406.] 

Civil procedure—Civ.R. 10(D)(2)—Dismissals—Dismissal of medical claim for 

failure to attach required affidavit of merit is adjudication otherwise than 

on merits and is without prejudice by operation of law. 

(No. 2011-1162—Submitted April 3, 2012—Decided June 5, 2012.) 

APPEAL from the Court of Appeals for Franklin County, 

No. 10AP-434, 2011-Ohio-2538. 

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SYLLABUS OF THE COURT

A dismissal of a complaint for failure to attach the affidavit of merit required by 

Civ.R. 10(D)(2) is an adjudication otherwise than on the merits and is a 

dismissal without prejudice by operation of law. 

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LUNDBERG STRATTON, J. 

{¶ 1} We are asked to determine whether dismissal of a complaint for 

failure to file an affidavit of merit as required by Civ.R. 10(D)(2) results in a 

dismissal without prejudice by operation of law. For the reasons that follow, we 

hold that it does. Consequently, we reverse the judgment of the court of appeals 

and remand to the trial court for further proceedings in accordance with our 

opinion. 

Procedural History 

{¶ 2} On December 9, 2009, appellants, Donald and Tamara Troyer, filed 

a medical-malpractice complaint in the Franklin County Court of Common Pleas 

against appellee, Leonard J. Janis. In response, Janis filed a motion for summary 

judgment in which he alleged that the claims asserted against him in the 
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complaint had already been filed and dismissed in a previous action and were now 

barred by the doctrine of res judicata. In support of his motion, Janis attached a 

copy of the complaint in the prior case, the trial court’s decision granting his 

motion to dismiss under Civ.R. 12(B)(6) for failure to file an affidavit of merit, 

and the court’s judgment entry. 

{¶ 3} The Troyers opposed summary judgment on the basis that the 

previous dismissal for failure to attach an affidavit of merit was a dismissal 

without prejudice. The Troyers relied on Fletcher v. Univ. Hosps. of Cleveland, 

120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, which held that a 

dismissal for failure to file the required affidavit is an adjudication otherwise than 

on the merits and is therefore a dismissal without prejudice. Thus, the Troyers 

argued, dismissal of their previous complaint did not bar refiling under the saving 

statute, which permits refiling of an action that has failed otherwise than on the 

merits. R.C. 2305.19(A). 

{¶ 4} But the trial court construed the previous judgment entry, which did 

not specify whether the dismissal was with or without prejudice, as a dismissal 

with prejudice. The court relied on Nicely v. Ohio Dept. of Rehab. & Corr., 10th 

Dist. No. 09AP-187, 2009-Ohio-4386, which held that under Civ.R. 41(B)(3), 

dismissal is with prejudice unless the entry specifies otherwise. Consequently, 

the court concluded that the dismissal had been a final judgment and that the 

current complaint was barred by the doctrine of res judicata. The court granted 

summary judgment for Janis. 

{¶ 5} The Franklin County Court of Appeals affirmed. Troyer v. Janis,

10th Dist. No. 10AP-434, 2011-Ohio-2538. The cause is before this court upon 

our acceptance of a discretionary appeal. 129 Ohio St.3d 1504, 2011-Ohio-5358, 

955 N.E.2d 386. 

 
January Term, 2012 

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Analysis 

{¶ 6} In reviewing whether the trial court’s granting of summary judgment 

was proper, we apply a de novo review. Smith v. McBride, 130 Ohio St.3d 51, 

2011-Ohio-4674, 955 N.E.2d 954, ¶ 12. Thus, viewing the pleadings in the light 

most favorable to the Troyers, we must determine whether Janis was entitled to 

judgment as a matter of law. Civ.R. 56(C). 

{¶ 7} Civ.R. 10(D)(2) requires that every complaint containing a medical 

claim as defined in R.C. 2305.113 must include an affidavit of merit from an 

expert witness. We have held that the purpose of the affidavit of merit is to 

establish the adequacy of the complaint and thus deter the filing of frivolous 

medical-malpractice claims. Fletcher, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 

N.E.2d 147, ¶ 10. The rule also specifically provides that “[a]ny dismissal for the 

failure to comply with this rule shall operate as a failure otherwise than on the 

merits.” Civ.R. 10(D)(2)(d). We held in Fletcher that a dismissal for failure to 

comply with the rule is a dismissal without prejudice. Id. at paragraph two of the 

syllabus. 

{¶ 8} In this case, the parties agree that the complaint in the previous case 

was properly dismissed due to the Troyers’ failure to attach an affidavit of merit 

as required by Civ.R. 10(D)(2). The parties also agree that the trial court’s entry 

of dismissal was silent as to whether the dismissal was with or without prejudice. 

The Troyers contend that under Fletcher, the previous dismissal was an 

adjudication otherwise than on the merits and thus was without prejudice, by 

operation of law, regardless of the failure of the entry to so specify. Thus, they 

were permitted to refile the action using the saving statute, R.C. 2305.19(A). We 

agree. 

{¶ 9} Fletcher examined the proper procedural remedy when a plaintiff 

fails to attach an affidavit of merit to a complaint. The trial court had granted a 

defense motion to dismiss for failure to state a claim under Civ.R. 12(B)(6) and 
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dismissed the case with prejudice. The court of appeals reversed, concluding that 

the proper remedy for a defendant under these circumstances was to request a 

more definite statement. Id. at ¶ 5. 

{¶ 10} In Fletcher, we held that the trial court properly dismissed the case, 

but that the dismissal should have been without prejudice. Id. at ¶ 15-18. 

Because Civ.R. 10(D)(2) requires an affidavit of merit to be attached to the 

complaint, when one is not attached, the proper remedy is to dismiss the 

complaint for failure to state a claim. Such a dismissal is not based on the merits 

of the case, but on the insufficiency of the complaint. Id. at ¶ 18. We held that 

“[a] dismissal of a complaint for failure to file the affidavit required by Civ.R. 

10(D)(2) is an adjudication otherwise than on the merits. The dismissal, 

therefore, is without prejudice.” 120 Ohio St.3d 167, 2008-Ohio-5379, 897 

N.E.2d 147, at paragraph two of the syllabus. 

{¶ 11} In this case, because the previous dismissal entry did not specify 

whether it was with or without prejudice (unlike the entry in Fletcher, which 

erroneously stated that it was with prejudice), the trial court applied Nicely, 2009-

Ohio-4386, and Civ.R. 41(B)(3) in support of its conclusion that the previous 

dismissal entry was with prejudice. But a close reading of Nicely demonstrates 

that it further supports the Troyers’ position that a court’s dismissal of a 

complaint for lack of an affidavit of merit is without prejudice. 

{¶ 12} In Nicely, the trial court dismissed the complaint for failure to 

attach an affidavit of merit, but the court’s entry did not specify whether the 

dismissal was with, or without, prejudice. Id., 2009-Ohio-4386, ¶ 3. On appeal, 

Nicely argued that the dismissal must be considered as having been without 

prejudice, citing Fletcher. The Nicely court of appeals found that the trial court 

properly had dismissed the complaint for lack of a Civ.R. 10(D)(2) affidavit of 

merit, id. at ¶ 6, but agreed that under Fletcher, it was error to dismiss the case 

with prejudice. Id. at ¶ 14. The appellate court acknowledged that generally, 
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under Civ.R. 41(B)(3), when the entry is silent, the dismissal is with prejudice. 

But when the dismissal is for failure to attach the affidavit required by Civ.R. 

10(D)(2), Fletcher and Civ.R.10(D)(2)(d) dictate that the dismissal must be 

without prejudice. Nicely at ¶ 14. 

{¶ 13} Janis urges us to affirm the judgment of the court of appeals. He 

argues that the Troyers did nothing to correct the previous judgment entry to 

include the phrase “without prejudice,” that they did not appeal, and that, as a 

result, the previous entry became a final judgment. Thus, Janis urges, the refiled 

claim is precluded by the doctrine of res judicata. 

{¶ 14} We need not reach the issue of res judicata because, applying 

Civ.R. 10(D)(2)(d) and Fletcher, we conclude that the previous dismissal was an 

adjudication otherwise than on the merits and thus, without prejudice by operation 

of law. First, Civ.R. 10(D)(2)(d) expressly provides that “[a]ny dismissal for the 

failure to comply with this rule shall operate as a failure otherwise than on the 

merits.” (Emphasis added.) Second, Fletcher recognized that this language can 

mean only that such dismissals are without prejudice. A close reading of Nicely

only confirms the correctness of Fletcher’s application of the rule. 

{¶ 15} Here, we have a specific rule, Civ.R. 10(D)(2), which applies only 

to cases involving a medical claim, requires an affidavit of merit in these cases, 

and explicitly provides that any dismissal for failure to comply shall be a 

dismissal otherwise than on the merits. Under these circumstances, it is 

customary to apply the more specific provision, the one meant to govern the 

particular situation involved, rather than the more general rule. Moreover, we 

must construe the Civil Rules “to effect just results” and promote “the expeditious 

administration of justice.” Civ.R. 1(B). Thus, the previous entry’s silence on the 

matter of prejudice does not affect the application of Civ.R. 10(D)(2)(d). 

{¶ 16} Finally, Janis argues that the Troyers should have appealed the 

previous judgment—as the plaintiff did in Nicely—thereby giving the appellate 
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court an opportunity to correct the error. But we have held that the previous 

dismissal was, by operation of law under Civ.R. 10(D)(2)(d), without prejudice. 

Thus, the Troyers’ failure to appeal that dismissal was irrelevant. They reserved 

their right to continue their suit by refiling their complaint within the time period 

set forth in R.C. 2305.19(A). This approach has the additional advantage of 

avoiding the delay engendered by yet another unnecessary procedural hurdle. 

Conclusion 

{¶ 17} Based on the clear language of Civ.R. 10(D)(2) and Fletcher, we 

hold that a dismissal of a complaint for failure to attach the affidavit of merit 

required by Civ.R. 10(D)(2) is an adjudication otherwise than on the merits and is 

a dismissal without prejudice by operation of law. 

{¶ 18} The judgment of the court of appeals is reversed, and the matter is 

remanded to the trial court for further proceedings. 

Judgment reversed 

and cause remanded. 

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, CUPP, and 

MCGEE BROWN, JJ., concur. 

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 Leeseberg & Valentine, Anne M. Valentine, and Susie L. Hahn, for 

appellants. 

Lane, Alton & Horst, L.L.C., Gregory D. Rankin, and Ray S. Pantle, for 

appellee. 

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