Bullard v. McDonald's , 2021 Ohio 1505 ( 2021 )

[Cite as Bullard v. McDonald's, 2021-Ohio-1505.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Felicia R. Bullard, :
Plaintiff-Appellant, : No. 20AP-374
(C.P.C. No. 19CV-5165)
v. :
(REGULAR CALENDAR)
McDonald's, :
Defendant-Appellee. :
D E C I S I O N
Rendered on April 29, 2021
On brief: Felicia R. Bullard, pro se. Argued: Felicia R.
Bullard.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Plaintiff-appellant, Felicia R. Bullard, appeals from a judgment of the
Franklin County Court of Common Pleas dismissing with prejudice Bullard's amended
complaint against defendant-appellee, McDonald's. For the following reasons, we affirm.
I. Factual and Procedural Background
{¶ 2} On June 25, 2019, Bullard filed a complaint against "McDonald's" alleging
she became sick while eating a sandwich at the McDonald's restaurant at 619 Harrisburg
Pike, Columbus, Ohio. In March 2020, Bullard filed a motion for judgment on the
pleadings pursuant to Civ.R. 12(C), asserting that McDonald's "Answer [did] not deny any
of plaintiff's allegations."
{¶ 3} On June 16, 2020, the trial court ruled on Bullard's March 2020 motion for
judgment on the pleadings pursuant to Civ.R. 12(C). The trial court noted multiple
deficiencies as to Bullard's complaint. Instead of requesting the Clerk of Court issue service
No. 20AP-374 2
of process via certified mail, return receipt requested, Bullard requested ordinary mail
service when she filed her complaint. And Bullard requested a specific amount of damages
over $25,000, even though the case was not based on a contract or an instrument required
to be attached to the complaint. The trial court further noted that, while Bullard asserted
McDonald's did not deny any of her allegations in its answer, McDonald's did not file an
answer as it was not properly served with the complaint. Thus, the trial court denied
Bullard's request for judgment on the pleadings. In the trial court's June 16, 2020 entry, it
also provided notice to Bullard of its intent to sua sponte dismiss her complaint pursuant
to Civ.R. 12(B)(6) because the complaint failed to state a claim upon which relief can be
granted. Accordingly, the trial court directed Bullard to file an amended complaint curing
her June 2019 complaint's procedural and substantive deficiencies.
{¶ 4} In response to the trial court's directive, Bullard filed an amended complaint
on June 25, 2020, stating that all deficiencies had "been remediated." (Am. Compl. at 1.)
But the amended complaint does not state any factual allegation against McDonald's.
Instead, Bullard simply attached multiple documents to the amended complaint, including
bills for medical services rendered and a copy of the results of an electrocardiogram test
performed on her in December 2018. These attachments contain short handwritten
notations in the margins, such as "defect/inadequate," "negligence," "food poison," and
"McDonald's." (Am. Compl. at 4, 6-8.). Bullard also filed a successive motion for judgment
on the pleadings. In reviewing the amended complaint, the trial court determined the filing
did not state a claim upon which relief can be granted, and that it otherwise failed to comply
with all the requirements of Civ.R. 8(A). Consequently, the trial court denied Bullard's
successive motion for judgment on the pleadings and dismissed the amended complaint
with prejudice pursuant to Civ.R. 12(B)(6).
{¶ 5} Bullard timely appeals.
II. Assignment of Error
{¶ 6} Bullard assigns the following error for our review:
The court erred and abused its discretion, in denying
appellant's motion for judgement on the pleading (Civ.R.12 C).
and dismissing appellant's amended copmplaint (15).
Dismissed with prejudice pursuant to Civ R 12 (B)(6). The Ohio
Rules of Civil Procedure apply to all litigant's and pro litigant's:
No. 20AP-374 3
are presumed to have knowledge of the law and legal
procedures an ……… They are held to the same standard as
litigants who are represented by counsel "Sabouri v. Ohio Dept.
of Job and Family Services, 145 Ohio App. 3d 651,654,763 N.E
2d 1238 (10th Dist 2001). This court must apply all prcedural
rules to all parties equally, irrespective of whether a part is
represented by counsel or pro se.
(Sic passim.)
III. Discussion
{¶ 7} In her sole assignment of error, Bullard alleges the trial court erred in denying
her successive motion for judgment on the pleadings pursuant to Civ.R. 12(C) and sua
sponte dismissing her amended complaint pursuant to Civ.R. 12(B)(6). This assignment of
error is not well-taken.
{¶ 8} We first address Bullard's challenge to the trial court's denial of her motion
for judgment on the pleadings. Pursuant to Civ.R. 12(C), "[a]fter the pleadings are closed
but within such time as not to delay the trial, any party may move for judgment on the
pleadings." When presented with such a motion, a court must construe all the material
allegations of the complaint as true and must draw all reasonable inferences in favor of the
nonmoving party. Zhelezny v. Olesh, 10th Dist. No. 12AP-681, 2013-Ohio-4337, ¶ 8.
Therefore, a Civ.R. 12(C) motion "tests the allegations of the complaint and presents a
question of law." Id. at ¶ 9.
{¶ 9} Here, when Bullard filed her successive motion for judgment on the
pleadings, the pleadings were not closed because McDonald's had not filed an answer to the
amended complaint. See JP Morgan Chase Bank, N.A. v. Belden Oak Furniture Outlet,
Inc., 5th Dist. No. 2010 CA 00049, 2010-Ohio-4444, ¶ 21 (pleadings were not closed
because an answer had not been filed). Consequently, Bullard's motion was premature,
and the trial court properly denied it. Id.{¶ 10} We also reject Bullard's contention that the trial court erred in sua sponte
dismissing her amended complaint with prejudice. Under Civ.R. 12(B)(6), a defendant may
move to dismiss a complaint for failure to state a claim upon which relief can be granted.
Although this rule neither expressly permits nor forbids courts to sua sponte dismiss
complaints for failure to state a claim upon which relief can be granted, generally a court
No. 20AP-374 4
may dismiss a complaint on its own motion only after the parties are given notice of the
court's intention to dismiss and an opportunity to respond. State ex rel. Edwards v. Toledo
City School Dist. Bd. of Edn., 72 Ohio St.3d 106, 108 (1995). A sua sponte dismissal without
notice may be warranted if the complaint is frivolous or the claimant obviously cannot
prevail on the facts alleged. State ex rel. Bunting v. Styer, 147 Ohio St.3d 462, 2016-Ohio-
5781, ¶ 12.
{¶ 11} A Civ.R. 12(B)(6) motion to dismiss tests the sufficiency of the complaint.
O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245 (1975). A court
may dismiss a complaint pursuant to Civ.R. 12(B)(6) only if it appears beyond a doubt that
the plaintiff can prove no set of facts entitling the plaintiff to recovery. O'Brien at syllabus.
The court must presume all factual allegations contained in the complaint to be true and
must make all reasonable inferences in favor of the plaintiff. Jones v. Greyhound Lines,
Inc., 10th Dist. No. 11AP-518, 2012-Ohio-4409, ¶ 31, citing Mitchell v. Lawson Milk Co., 40
Ohio St.3d 190 (1988). The court need not, however, accept as true any unsupported and
conclusory legal propositions advanced in the complaint. Morrow v. Reminger &
Reminger Co. LPA, 183 Ohio App.3d 40, 2009-Ohio-2665, ¶ 7 (10th Dist.). Additionally,
"[a]n amended complaint supplants the original complaint, so the allegations in an
amended complaint supersede those in the original complaint." DSS Servs., LLC v. Eitel's
Towing, LLC, 10th Dist. No. 18AP-567, 2019-Ohio-3158, ¶ 6; see Hidey v. Ohio State Hwy.
Patrol, 116 Ohio App.3d 744, 748 (10th Dist.1996) ("An amended complaint supersedes
and replaces the original complaint."). When reviewing a Civ.R. 12(B)(6) dismissal, this
court's standard of review is de novo. Foreman v. Ohio Dept. of Rehab. & Corr., 10th Dist.
No. 14AP-15, 2014-Ohio-2793, ¶ 9.
{¶ 12} Bullard's June 2019 complaint alleged that she became sick while eating a
sandwich at McDonald's, and she suggested her sudden illness was the result of food
poisoning. In June 2020, the trial court notified Bullard of its intention to sua sponte
dismiss the matter pursuant to Civ.R. 12(B)(6) unless she filed an amended complaint
stating a claim upon which relief can be granted. In response to this notice, Bullard filed
an amended complaint, which superseded and replaced the original complaint, containing
no factual allegation of misconduct by McDonald's. Instead, she attached copies of
numerous documents, including copies of medical bills and an electrocardiogram report
No. 20AP-374 5
with handwritten notations of "defect/inadequate," "negligence," "food poison," and
"McDonald's" in the margins, purporting to correct the inadequacies of her original
complaint. Because Bullard's amended complaint and its attachments do not present
factual allegations against McDonald's that state a claim upon which relief can be granted,
the trial court did not err in sua sponte dismissing the amended complaint pursuant to
Civ.R. 12(B)(6).
{¶ 13} Accordingly, we overrule Bullard's sole assignment of error.
IV. Disposition
{¶ 14} Having overruled Bullard's sole assignment of error, we affirm the judgment
of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER and BEATTY BLUNT, JJ., concur.