Court of Appeals of Ohio, Eighth District, Cuyahoga
RICHARD J. PAZDERNIK, Plaintiff-Appellant,
ANGELA WELLS, Defendant-Appellee.
Appeal from the Cuyahoga County Court of Common Pleas Case
Swencki & Associates, L.L.C., and Ronald C. Swencki, for
Ankuda, Stadler and Moeller, Ltd., and Colin P. Moeller, for
JOURNAL ENTRY AND OPINION
A. JONES, SR, JUDGE
1} In his sole assignment of error,
plaintiff-appellant Richard Pazdernik ("Pazdernik")
challenges the trial court's February 19, 2019 judgment
granting the motion of defendant-appellee Angela Wells
("Wells") to dismiss the case under Civ.R.
12(B)(6). For the reasons that follow, we affirm.
and Procedural History
2} On November 16, 2018, Pazdernik filed this
action, alleging personal injuries he suffered as a result of
a November 2, 2016 motor vehicle accident he had with Wells.
Wells filed a motion to dismiss based on the expiration of
the two-year statute of limitations. Pazdernik opposed the
motion contending that he was not aware until December 1,
2016, that his injuries were caused by the November 2
accident. Pazdernik argued that, under the "discovery
rule," the two-year statute of limitations was tolled.
3} The record shows that shortly before the November
2 accident at issue here, in September 2016, Pazdernik was
involved in another motor vehicle accident. As a result of
the September accident, he began treating with Dr. Todd
Hochman ("Dr. Hochman"). During the course of his
treatment, Pazdernik had an MRI on November 4, 2016, two days
after the subject incident. He continued his treatments
during the month of November; the notes from the treatments
do not mention the November 2 accident.
4} On December 1, 2016, Pazdernik had another
appointment with Dr. Hochman, at which time Pazdernik
informed the doctor about the November 2 accident. Also at
that visit, Dr. Hochman informed Pazdernik that, based on the
results of the MRI, Pazdernik had cervical and lumbar
degenerative disc diseases, which were aggravated by the
September and November 2016 accidents.
5} In January 2017, Pazdernik visited Dr. Hochman
again. After that visit, Dr. Hochman issued a report stating
that Pazdernik's condition was complicated by the
November accident. The report described the November
accident, based on Pazdernik's reporting, as follows:
Pazdernik "was proceeding with the right of way when
another vehicle ran a red light, striking the rear
driver's side of his car. He described a fairly
significant impact. He experienced a significant increase in
his pain." Evidence in the record shows that Pazdernik
was transported from the accident scene to the hospital.
6} We review a judgment granting a Civ.R. 12(B)(6)
motion to dismiss for failure to state a claim de novo.
Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79,
2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. In reviewing a
motion to dismiss for failure to state a claim, we accept as
true all factual allegations in the complaint. Mitchell
v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d
753 (1988). A complaint should not be dismissed unless it
appears "beyond doubt from the complaint that the
plaintiff can prove no set of facts entitling him [or her] to
recovery." O'Brien v. Univ. Community Tenants
Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975),
syllabus. A motion to dismiss based upon a statute of
limitations may be granted only when the complaint shows
conclusively on its face that the action is time-barred.
Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio
St.2d 376, 433 N.E.2d 147 (1982), paragraph three of the
7} R.C. 2305.10 governs the statute of limitations
for personal injuries and provides in relevant part that
"an action for bodily injury * * * shall be brought
within two years after the cause of action accrues. * * * [A]
cause of action accrues under this division when the injury
or loss to person * * * occurs." R.C. 2305.10(A). It is
a long-established rule that a "[s]tatute of limitations
commences to run so soon as the injurious act complained of
is perpetrated, although the actual injury is subsequent * *
*." Kerns v. Schoonmaker,4 Ohio 331 (1831),
syllabus; O'Strickerv. Jim Walter
Corp.,4 Ohio St.3d 84, ...