Jones v. UptonJones v. Upton
Rendered on the 20th day of March, 2015.
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FLORA B. JONES, 916 Leland Avenue, Dayton, Ohio 45402 Plaintiff-Appellee, pro se
ROBERT B. SUTHERLAND, Atty. Reg. No. 0063691, and LAVELL O. PAYNE, Atty. Reg. No. 0092545, 50 South Main Street, Suite 502, Akron, Ohio 44308 Attorneys for Defendants-Appellees, Patricia Upton and Augustus Rosemont III
DAVID K. FRANK, Atty. Reg. No. 0022925, and ROBERT H. STOFFERS, Atty. Reg. No. 0024419, Mazanec, Raskin & Ryder Co., L.P.A., 175 South Third Street, Suite 1000, Columbus, Ohio 43215 Attorneys for Defendant-Appellee, Project CURE, Inc.
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{¶ 1} Plaintiff-appellee Flora Jones appeаls from a judgment of the Montgomery County Court of Common Pleas dismissing her complaint. She contends that the trial court erred by granting the motions to dismiss filed by the defendants.
{¶ 2} We conclude that the trial court did err by dismissing the сomplaint with regard to defendants-appellees Augustus Rosemont and Patricia Upton, because the trial court converted the motion to dismiss into a motion for summary judgment without providing notice оr a chance to respond to Ms. Jones. However, the trial court did not err by dismissing the action as to defendant-appellee Project CURE, Inc., because the claims against Project CURE are time-barred. Accordingly, the judgment of the trial court dismissing the claims against Rosemont and Upton is Reversed; the judgment of the trial court dismissing the claims against Project CURE is Affirmed, and this cause is Remanded for further proceedings.
I. The Claims
{¶ 3} This case arises from a motor vehicle accident that occurred in January 2005, when a vehicle driven by Augustus Rosemont collided with another vehicle, which then collided with a vehicle operated by Michael Jones. On June 9, 2014, Flora Jones, as administrator of the estate of her son Michael Jones, filed this action for personal injury and wrongful death against Rosemont, Upton, and Project CURE, Inc. The entirety of the handwritten complaint is as follows:
I Flora B. Jones is [sic] filing a complaint against Patricia Upton, August J. Rosemont III and project cure. On January 16, 2005 my son Michael E.
Jones was on his way to work and was setting [sic] at a stop sign at Walton Ave. and James H. McGee Blvd. when a three car collistion [sic] took place. Augustus J. Rosemont III was at fault Patricia A. Upton owner of the car negligently allowed Augustus Rosemont III to use her car to go to project cure which is a drug rehab center, where they administer daily dosed [sic] of methadone, which makes you high and impairs your ability to drive. Project cure wrongfully and negligently let August J. Rosemont III, a impaired [sic] driver leave there [sic] facility.
II. The Course of Proceedings
{¶ 4} On June 17, 2014, Rosemont and Upton moved to dismiss. Attached to their motion were documents from previous cаses, which revealed the following history. In February 2006, Michael Jones filed a lawsuit against Upton and Rosemont for personal injuries stemming from the auto accident. Michael Jones died in 2007. His mother, Flora Jones, was appointed administrator of his estate. In October 2010, Ms. Jones filed a dismissal of the civil action pursuant to
{¶ 5} The documents further reveal that on October 5, 2011, Flora Jones, as administrator, filed a civil action for personal injury and wrongful death against Rosemont and Upton. The case was dismissed on June 8, 2012, for failure to prosecute. No appeal was filed. Ms. Jones filed a motion to reactivate the case in April of 2014. In the motion to reactivate, Ms. Jones made mention of wanting to include Project CURE, Inc. as a defendant. The motion was denied. No appeal was filed.
{¶ 6} The documents attached to the motion to dismiss also show that on June
{¶ 7} In granting the motion to dismiss the action to which this appeal relates, the trial cоurt found that the matters raised in the complaint had been previously adjudicated, and that Ms. Jones had failed to appeal from the previous judgment. Ms. Jones filed a notice of appeаl on July 15, 2014, which was designated as Case Number CA 26311.
{¶ 8} On July 7, 2014, Project CURE, Inc. moved to dismiss, arguing that the claims against it were time-barred and that the complaint failed to state a claim upon which relief could be granted. The trial court granted that motion on August 14, 2014, upon a finding that the claims were time-barred and a finding that the complaint was not sufficient to state a claim for relief. Ms. Jones appealed this dismissal on Sеptember 4, 2014. This appeal was designated as Case Number CA 26375. By decision and entry dated October 10, 2014, we consolidated the two appeals.
III. By Relying Upon Facts Outside the Pleadings, the Trial Court Improperly Converted Rosemont and Upton‘s Motion to Dismiss into a Motion for Summary Judgment, without the Required Notice to Jones.
{¶ 9} Ms. Jones‘s First Assignment of Error states:
THE TRIAL COURT ERRED BY GRANTING THE MOTION TO DISMISS FILED BY ROSEMONT AND UPTON.1
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{¶ 11} In determining that the action against Rosemont and Upton was barred by the doctrine of res judicata, the trial court relied upon matters outside the pleadings. Because the trial court considered matters beyond the face of the complaint, the court effectively converted the appеllees’ motion into a motion for summary judgment. The
{¶ 12} The doctrine of res judicata does preclude a party from relitigating issues already decided by a court, or from raising matters that the рarty should have brought in a prior action. State v. Harris, 2d Dist. Montgomery No. 24739, 2012–Ohio–1853, ¶ 14. While we conclude that the trial court‘s ruling was correct, given the apparent history of this case, the trial court failed to provide Ms. Jones with the notiсe she was entitled to as well as the appropriate time within which to respond. Therefore, the trial court erred in dismissing the action against Rosemont and Upton.
{¶ 13} Accordingly, the First Assignment of Error is sustained.
IV. The Trial Court Did Not Err in Dismissing the Complaint Against Project CURE Upon the Ground that it Was Time-Barred
{¶ 14} Ms. Jones’ Second Assignment of Error states:
THE TRIAL COURT ERRED BY GRANTING THE MOTION TO DISMISS FILED BY PROJECT CURE, INC.
{¶ 15} In its
{¶ 16} We begin with the statute of limitations issue. Claims for personal injury and wrongful death are subject to a two-year statute of limitations.
{¶ 17} With regard to the wrongful death portion of the complaint, we note that Ms. Jones failed to set forth a date of death in the complaint. And she failed to file a response rebutting the statute of limitations claim laid out in the motion to dismiss filed by Projeсt CURE, Inc. despite having more than a month to do so prior to entry of judgment. Since we cannot take notice of the extraneous filings attached to Upton and Rosemont‘s motion, which indicate the actual date of death, we must limit our review to the allegations in the complaint. Thus, upon the face of the complaint, it would appear that the date of death was the date of thе accident. Based upon the record properly before us, we cannot conclude that the trial court erred in dismissing the action against Project CURE, Inc. as time-barred.
{¶ 18} Furthermore, we note that there is no allegation in the complaint to indicate that Mr. Jones‘s death was in any way connected to any act, or omission, on the part of Project CURE, Inc. Thus, we conclude that the trial court did not err by dismissing this claim for failure to state a claim. Accordingly, the Second Assignment of Error is overruled.
V. Conclusion
{¶ 19} The First Assignment of Error being sustained, and the Second Assignment of Error being overruled, the judgment of the trial court dismissing the claims against
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DONOVAN, J., concurs.
HALL, J., concurring:
{¶ 20} Defendants Upton and Rosemont filеd their Motion to Dismiss in the trial court on June 17, 2014. The court order sustaining that motion was filed one week later on June 24, 2014. Montgomery County Local Rule 2.05 (B)(2)(b) allows parties opposing a motion to file a memоrandum in opposition within 14 days of service of the motion. “[I]f no memorandum is filed within this time limit, the motion may be decided forthwith.” Id. Because the time for response had not expired when the trial court ruled, I cоncur that the case should be remanded for further proceedings.
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Copies mailed to:
Flora B. Jones
Robert B. Sutherland
Lavell O. Payne
David K. Frank
Robert H. Stoffers
Hon. Gregory F. Singer