Brenson v. DeanBrenson v. Dean
On brief: G. Gary Tyack, Prosecuting Attorney, and Andrea C. Hofer, for appellee.
APPEAL from the Franklin County Court of Common Pleas
D E C I S I O N
Rendered on June 28, 2022
JAMISON, J.
{¶ 1} Plaintiff-appellant, James A. Brenson, Jr., pro se, appeals from a judgment of the Franklin County Court of Common Pleas, dismissing his complaint against defendant-appellee, Dorothy Dean, M.D., for failure to state a claim upon which relief may be granted. For the reasons that follow, we reverse.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant is an inmate in the custody of the Ohio Department of Rehabilitation and Correction (“ODRC“) serving a prison term for the aggravated murder of Norman Herrell in June 2000. According to the complaint, appellee was employed as a medical doctor by the Franklin County Coroner on or about the time of his trial, she performed the autopsy on Herrell, and she issued a report including her opinion as to the time of death. The gravamen of appellant‘s complaint for medical malpractice is that
{¶ 3} Appellant‘s complaint seeking compensatory and punitive damages alleges appellee “violated the hipacratic [sic] oath * * * when giving testimony in relation to performing the autopsy of Norman Herrell [and] failed to adhere to basic algorithms of pathology that has caused plaintiff incomprehensible loss to person or property or injury due to such medical malpractice.” (Sept. 2, 2021 Compl. at ¶ 2.) The complaint further alleges that appellant “did not discover the conduct of defendant until after September 1, 2020, when plaintiff received Dr. Todd Grey‘s notarized [sic] report.” (Compl. at ¶ 4.)
{¶ 4} On September 28, 2021, appellee filed a motion to dismiss the complaint, pursuant to
{¶ 5} On October 18, 2021, the trial court issued a decision and entry granting appellee‘s motion to dismiss. The following day, October 19, 2021, appellant filed a motion, pursuant to
{¶ 6} On October 21, 2021, the trial court issued an entry denying appellant‘s motion. The trial court concluded that because the October 18, 2021 decision and entry was a final appealable order that disposed of all the claims in the complaint, the court no longer had authority to entertain appellant‘s motion for an extension of time. The trial court further found that even if it construed appellant‘s motion as a motion for relief from judgment pursuant to
{¶ 7} Appellant timely appealed to this court from the October 21, 2021 judgment.
II. ASSIGNMENTS OF ERROR
{¶ 8} Appellant assigns the following as trial court error:
- The trial court erred in finding Dr. Dean immune from liability as an employee of a political subdivision and entitled to representation by the Franklin County Prosecutor‘s Office, when Dr. Dean failed to submit any evidence that she is a Franklin County, Ohio, employee and entitled to such representation.
- The trial court erred by prematurely dismissing Brenson‘s complaint, denying him the right to amend his complaint if so desired.
- The trial court erred and should have jointly construed Brenson‘s two (2) post-judgment motions as a motion for relief from judgment; granting such prior to the institution of appeal.
III. LEGAL ANALYSIS
A. Appellant‘s Second Assignment of Error
{¶ 9} Because our resolution of appellant‘s second assignment of error disposes of this appeal, we shall consider it first. In appellant‘s second assignment of error, appellant contends the trial court erred when it prematurely granted appellee‘s motion to dismiss the complaint without providing appellant the required time to amend. We agree.
{¶ 10}
(A) Amendments. A party may amend its pleading once as a matter of course within twenty-eight days after serving it or, if the pleading is one to which a responsive pleading is required within twenty-eight days after service of a responsive pleading or twenty-eight days after service of a motion under
Civ.R. 12(B) , (E), or (F), whichever is earlier. In all other cases, a party may amend its pleading only with the opposing party‘s written consent or the court‘s leave. The court shall freely give leave when justice so requires.
(Emphasis added.)
{¶ 11} Appellant‘s complaint was a pleading to which a responsive pleading was required within 28 days after service of a motion under
{¶ 12} Appellee argues that even if the trial court prematurely dismissed appellant‘s complaint, he was not prejudiced by the error because he could plead no set of facts that would defeat appellee‘s claim of immunity. We find no merit in appellee‘s argument in light of Ohio‘s notice pleading rule.
{¶ 13}
(A) In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability:
* * *
(6) In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division or sections
3314.07 and3746.24 of the Revised Code, the employee is immune from liability unless one of the following applies:* * *
(b) The employee‘s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner[.]
(Emphasis added.)
{¶ 14} In Maternal Grandmother, Admr. v. Hamilton Cty., Dept. of Job & Family Servs., __ Ohio St.3d __, 2021-Ohio-4096, the Supreme Court of Ohio weighed in on the pleading requirements with respect to the defense of personal immunity under
{¶ 15} Political subdivision immunity is an affirmative defense that prevents a judgment against a political subdivision or an employee of the political subdivision in some circumstances. Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, ¶ 44. Because political subdivision immunity is an affirmative defense it may be waived if not timely asserted in a pleading or in a pre-answer motion. Supportive Solutions, L.L.C. v. Electronic Classroom of Tomorrow, 137 Ohio St.3d 23, 2013-Ohio-2410, ¶ 19. Appellee raised the immunity defense in a pre-answer motion to dismiss. In ruling on appellee‘s motion to dismiss, the trial court concluded the allegations in the complaint left no doubt that appellee was entitled to personal immunity under
{¶ 16} We have determined that the trial court erred when it granted appellee‘s motion to dismiss without giving appellant the required time to amend his complaint. We cannot agree that this error was harmless in light of the liberal notice pleading standard applicable to exceptions to personal immunity under
{¶ 17} Based on the foregoing, we hold the trial court committed reversible error when it granted appellee‘s motion to dismiss without providing appellant the required time to amend his complaint under
B. Appellant‘s First and Third Assignments of Error
{¶ 18} In appellant‘s first assignment of error, he alleges trial court error with regard to appellee‘s legal representation in light of appellee‘s claim of immunity, and in appellant‘s third assignment of error appellant alleges error with regard to certain post-judgment motions. Because we have sustained appellant‘s second assignment of error upon finding the trial court committed reversible error, appellant‘s first and third assignments of error are moot.
IV. CONCLUSION
{¶ 19} Having sustained appellant‘s second assignment of error, and having found appellant‘s first and third assignments of error moot, we reverse the judgment of the Franklin County Court of Common Pleas and remand this matter to that court for further proceedings consistent with this decision.
Judgment reversed; cause remanded.
LUPER SCHUSTER, P.J., concurs in judgment only.
NELSON, J., concurs in judgment only.
NELSON, J., retired, of the Tenth Appellate District, assigned to active duty under authority of Ohio Constitution, Article IV, Section 6(C).
{¶ 20} I concur in the judgment of this court that the trial court erred by dismissing Mr. Brenson‘s case prematurely without allowing him full opportunity to amend his complaint within the time established by Civil Rule 15(A). I write separately because I think that determination should conclude the matter, without any need to engage in “harmless error” analysis.
{¶ 21} Here, as in Bunting v. Watts, 5th Dist. No. 2017CA00161, 2017-Ohio-9121, “the trial court‘s ruling was premature and denied [appellant] the opportunity to amend his complaint if he so desired as a matter of course under
{¶ 22} Busy Bee Nursery & Preschool, Inc. v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 15AP-1036, 2018-Ohio-1158, as cited by Dr. Dean, see Appellee‘s Brief at 11, is not to the contrary. There, the trial court did not grant the relevant motion to dismiss until some 44 days after it had been filed, with no intervening amendment. Busy Bee at ¶ 5-6. That period was longer than the minimum of 28 days required by the text of the rule. See also Staff Notes to July 1, 2013 Amendments to
{¶ 23} I therefore agree with the lead opinion that Mr. Brenson “should have had an opportunity in this case to amend his complaint * * * to * * * assert any additional facts relevant to an [immunity] exception.” See Lead Opinion at ¶ 16. I would not want this court‘s decision to be understood to suggest that “merely invok[ing]” an immunity exception as a legal conclusion divorced from any alleged facts would be sufficient to satisfy notice pleading requirements, and I do not read Maternal Grandmother, Admr. v. Hamilton Cty. Dept. of Job & Family Servs., ___ Ohio St.3d ___, 2021-Ohio-4096, to say that a complaint need not allege sufficient facts to support some theory of recovery. See
{¶ 24} I concur in sustaining appellant‘s second assignment of error, and in the judgment of the court.