COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73350 ARMINTA BELL : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION BRUCE MITTLEMAN, D.P.M. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT NOVEMBER 12, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CCV-307563 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellant: F M APICELLA, ESQ. MARY JANE TRAPP, ESQ. Apicella & Trapp 1200 Bond Court Building Cleveland, Ohio 44114 For Defendant-Appellee: DOUGLAS K. FIFNER, ESQ. ELAINE S. FIFNER, ESQ. 24500 Center Ridge Road Suite 390 Westlake, Ohio 44145 PATRICIA ANN BLACKMON, A.J.: Plaintiff-appellant Arminta Bell appeals a decision by the trial court in favor of defendant-appellee Bruce Mittleman, D.P.M. -2- in her medical malpractice action. Bell assigns the following three errors for our review: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT ON THE GROUNDS THAT PLAINTIFF'S MEDICAL MALPRACTICE COMPLAINT WAS NOT TIMELY FILED NOR WAS THE TIME PERIOD EXTENDED BY THE PLAINTIFF'S 180 DAY NOTICE TO DEFENDANT ALTHOUGH A GENUINE ISSUE OF MATERIAL FACT REMAINS AS TO WHEN THE DEFENDANT RECEIVED SUCH NOTICE SENT TO HIM BY ORDINARY MAIL ON NOVEMBER 24, 1995, FOUR DAYS PRIOR TO THE EXPIRATION OF THE STATUTE OF LIMITATIONS, AS ESTABLISHED BY A COGNIZABLE EVENT. II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN FAILING TO GRANT PLAINTIFF'S MOTION FOR CONTINUANCE TO PERMIT ADDITIONAL AFFIDAVITS AND/OR DISCOVERY PURSUANT TO OHIO CIVIL RULE 56(F) PRIOR TO RULING ON THE MOTION FOR SUMMARY JUDGMENT THEREBY DENYING PLAINTIFF THE OPPORTUNITY TO OBTAIN AND PRESENT TO THE COURT ANY NECESSARY EVIDENCE AS TO WHEN THE DEFENDANT ACTUALLY RECEIVED THE 180 DAY NOTICE BY ORDINARY MAIL TO COUNTER ARGUMENTS RAISED BY THE DEFENDANT FOR THE FIRST TIME IN HIS REPLY BRIEF. THE EFFECT OF THIS ERROR IS A DENIAL OF PLAINTIFF'S RIGHT TO A JURY TRIAL AND RIGHT TO REDRESS PURSUANT TO ARTICLE, SECTIONS 5 AND 16 OF THE OHIO CONSTITUTION. III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT ON THE GROUNDS THAT PLAINTIFF'S COMPLAINT WAS NOT TIMELY FILED AS DEFENDANT-APPELLEE DID NOT RAISE THE ISSUE OF THE TIMELINESS OF THE 180 DAY NOTICE IN HIS MOTION, BUT RAISED IT FOR THE FIRST TIME IN HIS REPLY BRIEF WITHOUT FIRST SEEKING LEAVE TO FILE SUCH BRIEF PURSUANT TO LOCAL RULE 11(D). Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On April 26, 1996, Bell filed a medical malpractice action against her podiatrist, Bruce Mittleman, D.P.M. Bell alleged that -3- Mittleman negligently treated her right heel pain by performing surgery on her right heel without proper diagnostic testing. Bell alleged that, as a result of the January 29, 1993 surgery, she suffered nerve entrapment and/or a tarsal tunnel syndrome and/or reflex sympathetic dystrophy of her right foot. Bell alleged that she did not discover that the surgery was the cause of her injuries until November 28, 1994, when another podiatrist, Dr. Robert Dushin, diagnosed her condition as nerve entrapment. The complaint further alleged that, on November 24, 1995, Bell sent Mittleman a 180 day notice that she was contemplating bringing a medical malpractice action against him. Bell also alleged that Mittleman received the letter on December 1, 1995. In his answer to the complaint, Mittleman raised the following affirmative defenses -- that the claim was barred by the applicable statute of limitations and that the claim was barred by comparative negligence. Mittleman later moved for summary judgment claiming Bell's claim was barred by the one year statute of limitations set forth in R.C. 2305.11(A). Mittleman argued that Bell first became aware of stiffness in her toes and numbness on the outside of her right foot in early 1993. According to Mittleman, Bell was advised by her doctor, John Nickels that the problems she was experiencing were due to reflex sympathetic dystrophy syndrome (RSDS). Mittleman claimed that the numbness and stiffness in Bell's toes and foot were cognizable events which triggered the start of the statute of limitations. Since Bell's complaint was not filed until May 8, 1996, Mittleman claimed it was time barred. -4- Bell argued the statute of limitations did not begin to run until November 28, 1994, when Dr. Robert Dushin diagnosed Bell's condition as nerve entrapment. The trial court granted Mittleman's motion for summary judgment. The court reasoned that, even if November 28, 1994 is viewed as the date Bell's cause of action accrued, R.C. 2305.11 required her to give Mittleman notice of her intent to sue by November 28, 1995. The court opined that, since Mittleman did not receive the 180 day notice letter until December 1, 1995, Bell did not give timely notice of her intent to sue. This appeal followed. In her first assignment of error, Bell argues the trial court erred in granting Mittleman's motion for summary judgment because there remained a genuine issue of material fact as to when Mittleman received the 180 day notice letter. R.C. 2305.11(B)(1) provides: Subject to division (B)(2) of this section, an action upon a medical, dental, optometric, or chiropractic claim shall be commenced within one year after the action accrued, except that, if prior to the expiration of that one- year period, a claimant who allegedly possesses a medical, dental, optometric, or chiropractic claim gives to the person who is the subject of that claim written notice that the claimant is considering bringing an action upon that claim, that action may be commenced against the person notified at any time within one hundred eighty days after the notice is so given. For purposes of appeal, both parties accept the trial court's determination that Bell's cause of action accrued on November 28, 1994, when Bell was diagnosed with nerve entrapment. Accordingly, -5- Bell had until November 28, 1995 to file her complaint or to extend the time period by giving Mittleman a 180 day notice. Ohio courts have held that the relevant date for assessing the 180 day notice is the date the notice is received, not the date it was sent. See Edens v. Barberton Family Practice (1989), 43 Ohio St.3d 176, 180; Woods v. Dutta (April 18, 1997), Jackson App. No. 96CA784, unreported; Day v. McDonald (1990), 67 Ohio App.3d 240, 249. See also State v. Durbin (1992), 83 Ohio App.3d 156, 162 ( [I]n the absence of custom, statute, or express contract, a notice sought to be served by mail is not effective until it comes into the hands of the one sought to be served. ) Bell argues she sent Mittleman the 180 day notice by certified mail and regular mail on November 24, 1995. The regular mail notice was not returned but Mittleman was unable to remember when he received it. The certified mail return receipt indicated that Mittleman did not receive that notice until December 1, 1995, after the November 28, 1995 expiration of the one year statute of limitations. As a result, the trial court held that the 180 day notice did not extend the time for Bell to file her complaint. However, Bell argues that, because Mittleman cannot remember when he received the regular mail service of the 180 day notice, it is possible that it was received on or before November 28, 1995. She maintains that Mittleman has the burden of proving he did not receive the ordinary mail letter until after November 28, 1995 and that since he did not meet this burden, summary judgment was improperly granted. -6- Mittleman bore the initial burden of demonstrating that the Bell's claims were barred by that statute of limitations. See Heskett v. Roberts (Apr. 27, 1995), Franklin App. No. 94APE09-1411, unreported (citing Rainey v. Shaffer (1983), 8 Ohio App.3d 262, 263. Mittleman met this burden by going forward with evidence that the one year statute of limitations expired on November 28, 1995 and that Bell's complaint was not filed until April 26, 1996. Mittleman also went forward with evidence in the form of a certified mail return receipt which indicated that Mittleman did not receive Bell's 180 day notice letter until December 1, 1996, after the expiration of the statute of limitations. Once Mittleman met his burden, the burden shifted to Bell to go forward with evidence that the statute of limitations was extended by Mittleman's receipt of her 180 day notice prior to November 28, 1995. See Heskett, supra [citing Wright v. Univ. Hosp. Of Cleveland (1989), 55 Ohio App.3d 227, jurisdictional motions overruled (1989), 43 Ohio St.3d 712.] Because Bell failed to meet this burden, summary judgment was properly granted; Bell's first assigned error is overruled. In her second assignment of error, Bell argues the trial court erred in failing to grant her Civ.R. 56(F) motion for continuance to permit additional affidavits and/or discovery on the issue of when Mittleman actually received the 180 day notice. She argues that she needed additional time to obtain information on when the notice was received. -7- Under Civ.R. 56(F), if a party opposing judgment submits an affidavit setting forth sufficient reasons why he cannot present by affidavits facts essential to justify his opposition, the court may order a continuance so that affidavits may be obtained, discovery may be had, or any other order as is just may be made. Murray v. Bank One (1994), 99 Ohio App.3d 89, 101. See also Lillback v. Metro. Life Ins. Co. (1994), 94 Ohio App.3d 100, 103. However, the decision whether to grant such a continuance rests within the discretion of the trial court and will not be disturbed unless the trial court is shown to have abused its discretion. Clark Cty. Solid Waste Mgt. Dist. v. Danis Clarkco Landfill Co. (1996), 109 Ohio App.3d 19, 38. In this case, the trial court properly exercised its discretion in denying the motion for continuance. In an affidavit in support of the motion, Bell's trial counsel averred only that he was unable to determine when the ordinary mail notice was received. He did not give reasons why he could not obtain the factual affidavits necessary to support his opposition to Mittleman's motion for summary judgment nor did he explain how additional time for discovery would enable him to obtain the necessary information. Civ.R. 56(F) requires the opposing party to submit affidavits with sufficient reasons stating why it cannot present by affidavit facts sufficient to justify its opposition. Mere allegations requesting a continuance or deferral of action for the purpose of discovery are not sufficient reasons why a party cannot present affidavits in opposition to the motion for summary judgment. There must be a factual basis stated and the reasons given why it cannot present facts essential to its opposition of the motion. -8- Schuerger v. Wehner (June 25, 1998), Cuyahoga App. No. 72477, unreported [citing Gates Mills Investment Co. v. Pepper Pike (1978), 59 Ohio App.2d 155, 169.] Because the affidavit failed to advance any explanation for Bell's failure to obtain the necessary affidavits, the trial court properly denied her request for Civ.R. 56(F) continuance. Bell's second assigned error is overruled. In her third assignment of error, Bell argues the trial court erred in granting Mittleman's motion for summary judgment because Mittleman raised the issue of the timeliness of the 180 day notice for the first time in his reply brief. She also argues the reply brief was filed without leave of court as required by Loc.R. 11(D). In Dunfee v. Midwestern Indemn. Co. (1990), 70 Ohio App.3d 301, 304, the court held that Civ.R. 56 did not direcly preclude a party seeking summary judgment from filing a reply brief. Although not specifically provided for in the Civil Rules, common practice allows the moving party to reply to the brief opposing his motion for summary judgment. P & O Containers, Ltd. v. Jamelco, Inc. (1994), 94 Ohio App.3d 726, 731. Civ.R. 8(C) provides that in pleading to a preceding pleading, a party shall set forth affirmatively *** any other matter constituting an avoidance or affirmative defense. A failure to raise an affirmative defense whether by a Civ.R. 12(b) motion to dismiss, in a responsive pleading, or by a Civ.R. 15 amendment has been held to constitute a waiver of such affirmative defense. Spence v. Liberty Twp. Trustees (1996), 109 Ohio App.3d 357, 366. -9- It has been held that an affirmative defense cannot be asserted for the first time in a motion for summary judgment. Carmen v. Link (1997), 119 Ohio App.3d 244, 250. However, our review of the record indicates that Mittleman raised the affirmative defense of the statute of limitations in his answer to Bell's complaint. Though the defense was not argued in detail, the Ohio Supreme Court has held that generally raising the defense is sufficient to be effective. Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St.3d 427, 433, fn. 3, reconsideration denied (1996), 75 Ohio St.3d 1412. Because Mittleman properly raised the affirmative defense of the statute of limitations in his answer to Bell's complaint, the trial court did not err in granting summary judgment based upon that defense. Bell's third assigned error is overruled. Judgment affirmed. It is ordered that appellee recover of appellant his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. -10- A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. PORTER, J., and TIMOTHY E. McMONAGLE, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .