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Smith v. Wal-Mart Stores East, LP

Court of Appeals of Ohio, Third District, Allen

December 9, 2019

PAMELA K. SMITH, PLAINTIFF-APPELLANT,
v.
WAL-MART STORES EAST, LP, ET AL. DEFENDANTS-APPELLEES.

          Appeal from Allen County Common Pleas Court Trial Court No. CV 2019 0105

          Matthew M. Mitchell for Appellant

          Taylor C. Knight and Brittany H. Asmus for Appellees

          OPINION

          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 ...

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