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Eichenberger v. Woodlands Assisted Living Residence, LLC

Court of Appeals of Ohio, Tenth District

September 19, 2013

Raymond L. Eichenberger, Plaintiff-Appellant/ Cross-Appellee,
v.
Woodlands Assisted Living Residence, LLC et al., Defendants-Appellees/ Cross-Appellants.

APPEAL from the Franklin County Court of Common Pleas. C.P.C. No. 10CVC-06-8551

Raymond L. Eichenberger, pro se.

Dworken & Bernstein Co., L.PA., and Richard N. Selby, II, for appellees/cross-appellants.

DECISION

SADLER, J.

(¶ 1} Plaintiff-appellant/cross-appellee, Raymond L. Eichenberger, personal representative of Jane E. Eichenberger, deceased, appeals from a judgment of the Franklin County Court of Common Pleas granting the motion to dismiss filed by defendants-appellees/cross-appellants, Woodlands Assisted Living Residence, LLC ("Woodlands"), 7123 Industrial Park Blvd., Inc., Carol Ruff, and Laura Baugus (collectively "appellees"). For the following reasons, we reverse that judgment and remand the matter for further proceedings.

I. BACKGROUND

(¶ 2} On June 8, 2010, appellant filed a complaint alleging he had been "duly appointed by the Franklin County Probate Court as the Executor of the Estate of the late Jane E. Eichenberger" ("decedent"). (June 8, 2010 Complaint, 2.) According to the complaint, decedent was a resident of Woodlands, and on June 12, 2008, appellees "negligently failed to exercise control over" and "negligently failed to provide for" the decedent based upon her falling from a wheelchair being operated and controlled by appellees. (June 8, 2010 Complaint, 2-3.) The complaint also asserted that during 2009, appellees negligently lost or misplaced two sets of decedent's prescription eyeglasses and decedent's wheelchair.

(¶ 3} In addition to an answer, appellees filed a motion to dismiss the first claim of the complaint pursuant to Civ.R. 12(B)(6). Appellees argued appellant's first claim constituted a medical claim that was being asserted beyond the applicable one-year statute of limitations and without the requisite affidavit of merit. Appellant filed a memorandum contra. Attached to the memorandum contra was appellant's affidavit attesting to the circumstances surrounding decedent's fall from the wheelchair. Several procedural motions followed, and on April 7, 2011, appellant sought leave to amend the complaint in order to substitute appellee Baugus for defendant Jane Doe 1. Appellees filed a memorandum contra to appellant's motion, and appellant filed a reply brief in support of the motion to amend.

(¶ 4} Prior to receiving a ruling on either the motion to amend or the motion to dismiss, appellees filed a second motion to dismiss on May 16, 2011. The second motion to dismiss was filed, pursuant to Civ.R. 12(B)(1), and sought dismissal of the entire complaint for lack of standing. Specifically, appellees argued that, because appellant had not been appointed executor of the estate at the time he filed the complaint, he lacked standing to commence litigation, and the complaint had to be dismissed. In support, appellees submitted a copy of a docket sheet from the Franklin County Probate Court purporting to show appellant did not open the estate and become the appointed executor thereof until May 9, 2011.

(¶ 5} In response to the second motion to dismiss, appellant filed on June 1, 2011, a second motion to amend the complaint to reflect that he had now become the appointed executor of the estate. On the same date, appellant filed a memorandum contra to the dismissal motion wherein appellant admitted he was not appointed executor until May 9, 2011. Appellant also submitted an affidavit attesting to the reasons surrounding the same. In his memorandum contra, appellant argued that, if granted leave to file the second amended complaint, said complaint would relate back to the original filing to cure any quagmires caused by his delayed appointment.

(¶ 6} By entry dated June 15, 2011, the trial court granted appellant's April 7, 2011 motion to amend the complaint, and the amended complaint filed on April 7 was deemed filed instanter.[1] Subsequently, on June 24, 2011, appellant, apparently without leave of court, filed an amended complaint that appears to be identical to those amended complaints previously filed.

(¶ 7} On June 29, 2011, appellees filed a third motion to dismiss the complaint pursuant to Civ.R. 12(B)(1) and (6). Appellees argued (1) dismissal of the first claim was proper because it was a medical claim required to be filed within one year and with an affidavit of merit, (2) the entire complaint was required to be dismissed for lack of standing, and (3) Baugus was entitled to dismissal because appellant did not perfect service on her within one year. Appellees again submitted a copy of a docket sheet from the Franklin County Probate Court purporting to show appellant did not open the estate and become the appointed executor thereof until May 9, 2011.

(¶ 8} On October 21, 2011, appellees moved for summary judgment and asserted the same arguments that they asserted in their June 29 motion to dismiss. In support, appellees submitted appellant's deposition and the docket sheets from the Franklin County Probate Court.

(¶ 9} On June 11, 2012, after considering evidence beyond the allegations of the complaint, the trial court granted appellees' June 29, 2011 motion to dismiss the complaint. In that same decision, the trial court held moot all other pending motions. The trial court concluded the first claim asserted in the complaint was not a medical claim subject to a one-year statute of limitations, but, rather, was a negligence claim subject to a two-year statute of limitations and thus denied appellees' motion to dismiss the first claim of the complaint. The trial court next considered the issue of standing. Although the exact basis of its decision is somewhat unclear, the trial court appears to have granted the motion to dismiss, pursuant to Civ.R. 12(B)(1), after having ...


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