2022 Ohio 2228
Ohio Ct. App.2022Background
- James A. Brenson, Jr., an ODRC inmate convicted of aggravated murder (trial ~2000), sued Dr. Dorothy Dean (Franklin County coroner/medical examiner employee) for medical malpractice, alleging her autopsy testimony about time of death caused his wrongful conviction.
- Brenson attached a September 1, 2020 report by Dr. Todd C. Grey opining a different time of death than Dean's trial testimony and alleged he discovered Dean's conduct after receiving that report.
- Dean filed a pre-answer Civ.R. 12(B)(6) motion to dismiss (Sept. 28, 2021), asserting immunity as a political-subdivision employee under R.C. 2744.03(A)(6).
- The trial court granted the motion and dismissed the complaint on Oct. 18, 2021, before the 28-day window in Civ.R. 15(A) for Brenson to amend as a matter of course had expired.
- Brenson filed a post-judgment request for additional time; the trial court denied it as untimely and Brenson appealed.
- The Tenth District reversed, holding the dismissal was premature because Civ.R. 15(A) entitled Brenson to up to 28 days to amend after the filing of a pre-answer motion to dismiss, and Maternal Grandmother indicates notice pleading suffices to invoke exceptions to employee immunity under R.C. 2744.03(A)(6)(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court prematurely dismissed the complaint without allowing amendment under Civ.R. 15(A) | Brenson: dismissal was premature; Civ.R. 15(A) allowed 28 days to amend after a pre-answer motion to dismiss | Dean: dismissal proper because immunity insulated her; no amendment would overcome immunity | Court: Trial court erred; dismissal was premature because only 16 of 28 days elapsed and Brenson had right to amend as matter of course |
| Whether the dismissal was harmless because no set of facts could overcome immunity under R.C. 2744.03(A)(6) | Brenson: notice pleading may suffice to invoke exceptions; he should get chance to amend to allege exceptions | Dean: immunity defense cannot be overcome; dismissal harmless | Court: Not harmless; under Maternal Grandmother notice pleading can support exceptions to immunity, so plaintiff must be allowed to amend |
| Whether appellant’s other assignments (representation by county prosecutor; post-judgment motions) require relief | Brenson: trial court erred in allowing county representation and in denying/denying relief on post-judgment motions | Dean: those matters are moot after dismissal | Court: Moot — because reversal of dismissal controls disposition, first and third assignments need not be decided |
Key Cases Cited
- Maternal Grandmother, Admr. v. Hamilton Cty. Dept. of Job & Family Servs., Ohio St.3d 2021 (Ohio Supreme Court: notice pleading suffices to invoke exceptions to employee immunity under R.C. 2744.03(A)(6)(b))
- Argabrite v. Neer, Ohio St.3d 2016 (political subdivision immunity is an affirmative defense)
- Supportive Solutions, L.L.C. v. Electronic Classroom of Tomorrow, Ohio St.3d 2013 (affirmative defenses like immunity may be waived if not timely asserted)