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Pazdernik v. Wells

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 26, 2019

RICHARD J. PAZDERNIK, Plaintiff-Appellant,
v.
ANGELA WELLS, Defendant-Appellee.

         JUDGMENT: AFFIRMED

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-18-907126

          R.C. Swencki & Associates, L.L.C., and Ronald C. Swencki, for appellant.

          Ankuda, Stadler and Moeller, Ltd., and Colin P. Moeller, for appellee.

          JOURNAL ENTRY AND OPINION

          LARRY 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.

         Factual 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.

         Law and Analysis

         {¶ 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 syllabus.

         {¶ 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, ...


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