PAMELA K. SMITH, PLAINTIFF-APPELLANT,
WAL-MART STORES EAST, LP, ET AL. DEFENDANTS-APPELLEES.
from Allen County Common Pleas Court Trial Court No. CV 2019
Matthew M. Mitchell for Appellant
C. Knight and Brittany H. Asmus for Appellees
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.
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.
and Procedural History
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.
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).
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.
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 ...