Smith v. Wal-Mart Stores E., LP

• Decision Date: 09 December 2019
• Docket Number: NO. 1-19-45,1-19-45
• Parties: Pamela K. SMITH, Plaintiff-Appellant, v. WAL-MART STORES EAST, LP, et al. Defendants-Appellees.
• Court: Ohio Court of Appeals

150 N.E.3d 499

2019 Ohio 5037

Pamela K. SMITH, Plaintiff-Appellant,

v.WAL-MART STORES EAST, LP, et al. Defendants-Appellees.

NO. 1-19-45

Court of Appeals of Ohio, Third District, Allen County.

Date of Decision: December 9, 2019

Matthew M. Mitchell, for Appellant

Taylor C. Knight and Brittany H. Asmus, Toledo, for Appellees

WILLAMOWSKI, J.

{¶1} Although originally placed on our accelerated calendar, we have elected pursuant to Loc.R. 12(5) to issue a full opinion in lieu of a summary judgment entry.

{¶2} Plaintiff-appellant Pamela K. Smith ("Smith") appeals the judgment of the Allen County Court of Common Pleas, alleging that the trial court erred in granting the defendants-appellees' motion for judgment on the pleadings. For the reasons set forth below, the judgment of the trial court is affirmed.

Facts and Procedural History

{¶3} Smith alleges that she was shopping in Wal-Mart Store #3206 on September 3, 2016 when she slipped on a wet spot on the floor and fell. Doc. 1. Smith further alleges that this fall resulted in injuries to her ankle

that required medical attention, including a surgical intervention in June of 2018. Doc. 1. Smith sought to raise a cause of action against Wal-Mart Stores East, LP and Wal-Mart Store #3206 (collectively "the defendants") for negligence. Doc. 1. Since the date of the alleged incident was September 3, 2016, the statute of limitations for this cause of action was set to run on September 3, 2018. Doc. 1. However, September 3, 2018 was Labor Day. Doc. 1. Since the final date of the statute of limitations period was a legal holiday, Smith had until September 4, 2018 to file her complaint under Civ.R. 6(A) and R.C. 1.14. Doc. 1.

{¶4} In her complaint, Smith admits that she did not file her complaint by the end of the business day on September 4, 2018, but she alleges that

[o]n September 4, 2018, Plaintiff's Complaint was prepared to be filed timely. At 5:30 p.m., after the Allen County Clerk of Court's office had closed for the business day, Plaintiff's counsel discovered that the Complaint did not get filed. Plaintiff's counsel immediately attempted to contact the Allen County Clerk of Courts. At 6:30 p.m. Plaintiff's counsel had a message left for the Clerk. At approximately 7:00 p.m. on September 4, 2018, Plaintiff's counsel discussed the matter with the Allen County Clerk and was told that the Clerk would consider the option and call back. At approximately 8:00 p.m., the Allen County Clerk of Court called Plaintiff's counsel and informed that she would not accept the Complaint for filing on September 4, 2018.

Doc. 1. At 12:17 P.M. on the following day, which was September 5, 2018, Smith filed a complaint ("September 5, 2018 Complaint") that named Wal-Mart Stores East, LP and Wal-Mart Store #3206 as defendants. Doc. 1, 4. Smith alleged that her injuries were caused by the negligence of the defendants. Doc. 1. On November 19, 2018, Smith's September 5, 2018 Complaint was voluntarily dismissed pursuant to Civ.R. 41(A).

{¶5} On March 15, 2019, Smith refiled her complaint ("March 15, 2019 Refiled Complaint") that named the same two defendants and alleged that the negligence of these defendants caused her injuries from September 3, 2016. Doc. 1. On April 15, 2019, the defendants filed an answer to Smith's complaint, asserting that Smith's claim was barred by the statute of limitations. Doc. 4. On April 22, 2019, the defendants filed a motion for judgment on the pleadings. Doc. 5. In this motion, the defendants argued that the September 5, 2018 Complaint was filed outside the applicable statute of limitations and that the March 15, 2019 Refiled Complaint should, therefore, be dismissed. Doc. 5. On May 13, 2019, Smith filed a response to the defendants' motion for a judgment on the pleadings. Doc. 8. On June 12, 2019, the trial court determined that Smith failed to file her original September 5, 2018 Complaint within the applicable statute of limitations; granted the defendants' motion for judgment on the pleadings; and dismissed this cause of action. Doc. 10.

{¶6} The appellant filed her notice of appeal on July 10, 2019. Doc. 11. On appeal, Smith raises the following two assignments of error:

First Assignment of Error

The Court erred in granting Appellees' Motion for Judgment on the Pleadings based on the finding that the Appellant did not ‘attempt to commence’ an action within the meaning of R.C. 2305.19.

Second Assignment of Error

The Court erred in finding that the after-hours activity of the Appellant did not constitute a legal attempt.

We will consider these two assignments of error in one analysis.

First and Second Assignments of Error

{¶7} Smith argues that her unsuccessful effort to file a complaint after the office of the clerk of courts had closed was an attempt to commence an action within the meaning of R.C. 2305.19(A). She further argues that her action does not run afoul of the applicable statute of limitations because she attempted to file her complaint before midnight on the final day of the statute of limitations period.

Legal Standard

{¶8} Under Civ.R. 12(C), "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Civ.R. 12(C). "In determining whether to grant a motion for judgment on the pleadings, a court must examine solely the pleadings." McComb v. Suburban Natural Gas Co. , 85 Ohio App.3d 397, 400, 619 N.E.2d 1109, 1111 (3d Dist.), citing Peterson v. Teodosio , 34 Ohio St.2d 161, 297 N.E.2d 113 (1973). If the trial court "finds beyond doubt, that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief," then the grant of the motion for judgment on the pleadings is proper. Reznickcheck v. North Cent. Correctional Institution , 3d Dist. Marion No. 9-07-22, 2007-Ohio-6425, 2007 WL 4225496, ¶ 12. "[T]he nonmoving party is entitled to have all material allegations in the complaint, with all reasonable inferences to be drawn therefrom, construed in his or her favor." Klever v. Sullivan , 3d Dist. Crawford No. 3-07-33, 2008-Ohio-1784, 2008 WL 1700433, ¶ 4. On appeal, " Civ.R. 12(C) * * * presents only questions of law * * *. Peterson at 166, 297 N.E.2d 113.

{¶9} If the complaint, on its face, indicates that the applicable statute of limitations for a particular cause of action has run, then a motion for judgment on the pleadings may be granted. Peterson at 174-175, 297 N.E.2d 113. The statute of limitations for "an action for bodily injury * * * [is] two years after the cause of action accrues." R.C. 2305.10(A). However, under R.C. 1.14 and Civ.R. 6(A), if the final day of a statute of limitations period "falls on Sunday or a legal holiday," a litigant may file his or her cause of action "on the next succeeding day that is not Sunday or a legal holiday" without running afoul of the statute of limitations. R.C. 1.14. Civ.R. 6(A). Labor Day is listed as a legal holiday under R.C. 1.14. R.C. 1.14.

{¶10} Further, Ohio's general saving statute, which is found in R.C. 2305.19(A), may be applicable when deciding whether a refiled claim is barred by the statute of limitations. R.C. 2305.19(A).

R.C. 2305.19(A) allows an original action that has either been properly commenced or ‘attempted to be commenced’ to be voluntarily dismissed and then refiled or replaced with an amended complaint against the same defendant based on the same injury, even if the applicable statute of limitations has expired at the time of the refiling.

LaNeve v. Atlas Recycling, Inc ., 119 Ohio St.3d 324, 2008-Ohio-3921, 894 N.E.2d 25, ¶ 13. Under R.C. 2305.19(A), (1) "if [a] plaintiff fails otherwise than upon the merits" (2) "[i]n any action that" the plaintiff "commenced or attempted to * * * commence[ ]," the plaintiff "may commence a new action within one year after * * * the plaintiff's failure otherwise than upon the merits." R.C. 2305.19(A). "Thus, the legislature has liberally allowed a plaintiff a one-year extension of time to refile a complaint when the statute of limitations has been originally complied with, but has expired after the filing of the complaint." McCullough v. Budd Co. , 3d Dist. Wyandot No. 16-92-12, 1992 WL 180096, *2 (July 23, 1992).

Legal Analysis

{¶11} In her March 15, 2019 Refiled Complaint, Smith admits that the statute of limitations expired on September 4, 2018 and that she did not successfully file her complaint with the clerk of courts until September 5, 2018. Doc. 1. However, Smith argues that this cause of action is not barred by the statute of limitations because she made an effort to file her complaint before midnight on September 4, 2018 by contacting the clerk of courts after office hours. Smith asserts that her effort to file her complaint on September 4, 2018 constitutes an attempt to commence an action within the meaning of R.C. 2305.19(A) and that her cause of action, therefore, falls within the exception to the statute of limitations provided in R.C. 2305.19(A).

{¶12} We note that Smith has not identified any legal authority that supports her novel interpretation of R.C. 2305.19(A). Under the Ohio Rules of Civil Procedure,

A civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing upon a named defendant, or upon an incorrectly named defendant whose name is later corrected pursuant to Civ.R. 15(C), or upon a defendant identified by a fictitious name whose name is later corrected pursuant to Civ.R. 15(D).

Civ.R. 3(A). Thus, under Civ.R. 3(A), " ‘commencement’ * * * [is] ‘(1) filing a complaint with the court and (2) obtaining service within one year from the filing.’ " Portee v. Cleveland Clinic Foundation , 155 Ohio St.3d 1, 2018-Ohio-3263, 118 N.E.3d 214, ¶ 12, quoting Howard v. Allen , 30 Ohio St.2d 130, 132, 283 N.E.2d 167 (1972). However, the Ohio Rules of Civil Procedure do not provide a definition for an attempt to commence an action.

{¶13} Similarly, R.C. 2305.17 states that "[a]n action...