LaMusga v. Summit Square Rehab, LLC

• Decision Date: 18 December 2015
• Docket Number: No. 26641.,26641.
• Parties: Judith LaMUSGA, Esquire, Plaintiff–Appellant v. SUMMIT SQUARE REHAB, LLC, et al., Defendant–Appellee.
• Court: Ohio Court of Appeals

43 N.E.3d 504

Judith LaMUSGA, Esquire, Plaintiff–Appellant

v.SUMMIT SQUARE REHAB, LLC, et al., Defendant–Appellee.

No. 26641.

Court of Appeals of Ohio, Second District, Montgomery County.

Dec. 18, 2015.

Sam G. Caras, Mitchell J. Anderson, David M. Deutsch, Dayton, OH, for Plaintiff–Appellant.

Ray C. Freudiger, Cincinnati, OH, for Defendant–Appellee–Dayton Metropolitan Housing Authority.

Christopher W. Carrigg, Michael C. Mahoney, Dayton, OH, for Defendant–Appellee–Ranger Security, LLC.

Fredric L. Young, Jared A. Wagner, Dayton, OH, for Defendant–Appellee–Summit Square Rehab, LLC.

Brian L. Wildermuth, Lauren K. Epperly, Dayton, OH, for Defendant–Appellee–Tactical Solutions Group, LLC, Christina Burke, and Ivan Burke.

John C. Scott, Cincinnati, OH, Robert J. Janes, Dayton, OH, for Defendant–Appellee–The Wallick Companies, LLC/Wallick Asset Management, LLC/Wallick Properties Midwest, LLC/Wallick–Hendy Development Co., LLC.

Joseph W. Pappalardo, Colleen A. Mountcastle, Markus Apelis, Cleveland, OH, for Defendant–Appellee–Justin Wissinger.

Georgia Foerstner, Cherry Hill, NJ, Michael Dewitt, Gahanna, OH, for Defendant–Appellee–Christopher Tarbert.

OPINION

WELBAUM

, J.

{¶ 1} In this case, Plaintiff–Appellant, Judith LaMusga, Esquire, as Administrator of the Estate of Dant'e L. Price, Deceased (“LaMusga”), appeals from a trial court judgment dismissing Counts I, II, and IV of her Complaint and Count IV of her Amended Complaint, and from a motion denying reconsideration of the judgment of dismissal. The dismissal was entered in favor of the following Defendants–Appellees: Summit Square Rehab, L.L.C. (“Summit”); Wallick Companies, L.L.C., dba Wallick Communities; Wallick–Hendy Properties; Wallick Properties; Wallick Properties Midwest, L.L.C., dba CJ McLin Apartments; Wallick–Hendy Development Co., L.L.C., dba CJ McLin Senior Apartments; Wallick Asset Management, L.L.C. (collectively “Wallick Companies”); Ranger Security, L.L.C.; Ivan Burke; Christina Burke (collectively, “Ranger”); Justin Wissinger; and Christopher Tarbert.¹

{¶ 2} We conclude that the trial court did not err in holding that the survivorship claims of the Estate of Dant'e Price are barred by the statute of limitations. The Estate's claims for Assault and Battery, False Imprisonment, and Intentional Infliction of Emotional Distress were not timely filed, and the tolling provisions in R.C. 2305.16

that preserve parental loss of consortium claims of the decedent's minor child do not apply to the Estate's survivorship claims. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} For purposes of our discussion, we will assume that the allegations in the Complaint and Amended Complaint are true. On January 21, 2014, LaMusga filed a complaint against Summit, the Wallick Companies, Ranger, Wissinger, and Tarbert, based on the death of Dant'e Price, who was shot and killed in the parking lot of Summit Square Apartments in Dayton, Ohio, on March 1, 2012. According to the Complaint, Price drove to Summit Square Apartments on that date to visit his girlfriend and minor son. While Price was attempting to park his car, he was confronted by Tarbert and Wissinger, who were employed by Ranger and were working as security guards at the apartment complex.

{¶ 4} Tarbert and Wissinger surrounded Price's vehicle with their guns raised and ordered him to exit the vehicle. Although Price offered to leave and asked them to lower their guns, they refused to do so. Price then said he would remain in his vehicle until officers from the City of Dayton Police Department arrived.

{¶ 5} However, Tarbert and Wissinger continued to shout orders and point their guns at the car. Price then attempted to drive away because he feared for his life. The officers subsequently approached the vehicle and shot at or into it approximately 17 times. Price died after being hit by at least three of these shots.

{¶ 6} The Complaint contained seven counts. The first four were labeled “survivorship claims,” and included: Assault and Battery (Count I); False Imprisonment (Count II); Improper Hiring, Training, Retention, and Supervision (Count III); and Intentional and Reckless Infliction of Emotional Distress (Count IV). Count V was based on Wrongful Death; Count VI requested punitive damages and attorney fees in connection with Counts I–VI; and Count VII was based on vicarious and statutory liability. The prayer for relief asked for joint and several judgments against the Defendants for compensatory and punitive damages in an amount exceeding $25,000, reasonable attorney fees and costs, and pre-judgment and post-judgment interest.

{¶ 7} On February 20, 2014, Ranger filed a Civ.R. 12(B)(6)

motion to dismiss, contending that the claims for Assault and Battery and False Imprisonment were barred by the statute of limitations. Ranger also included the statute of limitations as an affirmative defense in its answer, which was filed the same day. On February 24, 2014, Tarbert filed an answer to the Complaint, raising the statute of limitations as an affirmative defense.

{¶ 8} Subsequently, on February 28, 2014, LaMusga filed an Amended Complaint, adding the following Defendants: Dayton Metropolitan Housing Authority dba Greater Dayton Premier Management (“DMHA”) and Tactical Solutions Group (“TSG”). The amended complaint also added additional counts, including a “survivorship claim,” which alleged, among other things, that DMHA and TSG, as well as the other Defendants, knew or should have known that guards employed by Ranger had a reputation or history of acting unlawfully or violently towards residents, invitees, and others on the premises of private residences, Summit Square, and other properties subsidized by federal funds (Count VIII). With specific reference to TSG, the amended complaint alleged that Ivan and Christina Burke were the sole officers and members, and that TSG had negligently, recklessly, and wantonly trained and certified Wissinger and Tarbert in the use of firearms and had provided firearms to them.

{¶ 9} The Amended Complaint also added the following counts: Intentional Infliction of Serious Emotional Distress (Count IX); Wrongful Death (Count X); punitive damages (Count XI); and vicarious and statutory liability (Count XII). Again, punitive damages and attorney fees were requested in connection with all claims, and the prayer for relief requested a joint and several judgment of compensatory and punitive damages in amounts exceeding $25,000, reasonable attorney fees and costs, and pre-judgment and post-judgment interest.

{¶ 10} On March 11, 2014, Summit filed a Civ.R. 12(C)

motion for judgment on the pleadings with respect to Counts I, II, and IV of the Complaint and Count IX of the Amended Complaint, based on the statute of limitations. The Wallick Companies then filed a Civ.R. 12(B)(6) motion to dismiss Counts I, II, and IV of the Complaint and Count IX of the Amended Complaint, also based on the statute of limitations.

{¶ 11} On March 27, 2014, DMHA filed an answer and cross-claims against several Defendants, including TSG, Ranger, Wissinger, Tarbert, and two of the Wallick Companies (Wallick–Hendy Development, L.L.C. dba CJ McLin Senior Apartments and Wallick Asset Management, L.L.C.). The cross-claims were based on contribution and/or indemnification. All the pertinent defendants filed answers to DMHA's cross-claims. Subsequently, on May 12, 2014, Wissinger also filed a Civ.R. 12(C)

motion for partial judgment on the pleadings, asserting that Counts I, II, and IV of the Complaint and Count IX of the Amended Complaint were barred by the statute of limitations.

{¶ 12} The trial court granted the motions for dismissal and/or partial judgment on the pleadings on June 28, 2014, and ordered Counts I, II, IV, and IX dismissed with prejudice. First, the court held that the benefit of the tolling provisions in R.C. 2305.16

, which apply to a potential loss of consortium claim of Price's minor son, would not extend the time for filing the Estate's claims for Assault and Battery and False Imprisonment (Counts I and II), which were required to be brought within one year of the injury. The court also held that the claims for Intentional Infliction of Emotional Distress and Intentional Infliction of Serious Emotional Distress (Counts IV and IX) were grounded in the alleged offensive physical contact on March 1, 2012, and the one-year statute of limitations should apply to those claims as well.

{¶ 13} The trial court did not include a Civ.R. 54(B)

certification with its decision. Subsequently, in July 2014, LaMusga voluntarily dismissed TSG, without prejudice, and DMHA also dismissed its cross-claim against TSG. On July 17, 2014, DMHA filed a Civ.R.12(C) motion for judgment on the pleadings, asserting, as others had, that the statute of limitations barred Counts I, II, IV, and IX.

{¶ 14} On July 24, 2014, LaMusga filed a motion for reconsideration, asking the trial court to reconsider its decision dismissing Counts I, II, IV, and IX. The court overruled this motion on January 31, 2015, and added a Civ.R. 54(B)

certification. However, a Civ.R. 58(B) notice was not issued until March 5, 2015. On January 31, 2015, the court also granted the motion for judgment on the pleadings that DMHA had filed. However, this decision, which was filed separately, did not contain a Civ.R. 54(B) certification.

{¶ 15} On April 3, 2015, LaMusga appealed from the June 28, 2014 order dismissing Counts I, II, IV, and IX, and from the January 31, 2015 order overruling the motion for reconsideration.

II. Discussion of Preliminary Matters

{¶ 16} On appeal, LaMusga has raised two assignments of error. The first contends that the trial court erred in failing to consider the minor child's legal and equitable interests in the survival claims, which trigger the tolling provisions in R.C. 2305.16

. The second alleges that the minor's joint and inseparable tort claim for loss of parental consortium, also...