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Evans v. Henderson

Court of Appeals of Ohio, Tenth District

June 28, 2018

Vernon M. Evans, Plaintiff-Appellant,
v.
Randall E. Henderson, Defendant-Appellee.

          APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 17CV-6819)

         On brief:

          Vernon M. Evans, pro se.

          Carpenter Lipps & Leland LLP, Theodore M. Munsell, and Karen M. Cadieux, for appellee.

         Argued:

          Vernon M. Evans.

          Karen M. Cadieux.

          DECISION

          LUPER SCHUSTER, J.

         {¶ 1} Plaintiff-appellant, Vernon M. Evans, appeals from a decision and entry of the Franklin County Court of Common Pleas granting the Civ.R. 12(B)(6) motion to dismiss of defendant-appellee, Randall E. Henderson. For the following reasons, we affirm.

         I. Facts and Procedural History

         {¶ 2} On August 1, 2017, Evans filed a complaint purporting to assert claims of assault and battery against Henderson, who is a medical doctor. Pursuant to the allegations contained in the complaint, Evans was admitted to St. Ann's Hospital for surgery from May 10 to 11, 2014. While he was in the hospital, Evans alleges Dr. Henderson committed assault and battery against him while he was in the operating room and the recovery room. Evans alleged he sustained injuries to his teeth, head, mouth, lips, gums, tongue, jaw, face, chest, stomach, and groin as a result of the alleged assault and battery. Evans did not file an accompanying affidavit of merit for a medical claim along with the complaint. On the complaint, Evans listed his address as "457 Rutherford Ave., Delaware, Ohio 43015-1129."

         {¶ 3} On August 30, 2017, Dr. Henderson filed a motion to dismiss pursuant to Civ.R. 12(B)(6). Dr. Henderson argued that if the trial court construed Evans' complaint as a medical claim, Dr. Henderson was entitled to dismiss both because Evans did not file the required affidavit of merit and because the medical claim was time-barred by the applicable statute of limitations. Alternatively, Dr. Henderson argued that if the trial court construed the complaint as one for assault and battery, he was still entitled to dismissal because the complaint was time-barred by the statute of limitations applicable to claims of assault and battery. The certificate of service accompanying Dr. Henderson's motion to dismiss stated the motion was filed with the court's electronic filing system and was served by United States mail upon "Vernon M. Evans, 457 Rutherford Avenue, Delaware, Ohio 43015."

         {¶ 4} Evans did not file a response to Dr. Henderson's motion to dismiss. On October 6, 2017, the trial court issued a decision and entry granting Dr. Henderson's motion to dismiss for failure to state a claim. The trial court concluded that, whether it construes Evans' complaint as one for assault and battery or one for a medical claim, the statute of limitations for both of those claims is one year. On the face of the complaint, Evans stated his injuries occurred between May 10 and 11, 2014, but he did not file his complaint until August 1, 2017. Thus, the trial court concluded the statute of limitations barred Evans' complaint, and it granted Dr. Henderson's motion to dismiss. Evans timely appeals.

         II. ...


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