Smart v. Aultman Hosp. ( 2011 )

[Cite as Smart v. Aultman Hosp., 2011-Ohio-1318.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
MORESETTA SMART : W. Scott Gwin, P.J.
: Sheila G. Farmer, J.
Plaintiff-Appellant : Julie A. Edwards, J.
:
-vs- : Case No. 2010CA00206
:
:
AULTMAN HOSPITAL, et al., : OPINION
Defendants-Appellees
CHARACTER OF PROCEEDING: Civil Appeal from Stark County
Court of Common Pleas Case No.
2010CV00631
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 17, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
MORESETTA AND WILLIAM SMART ARETTA K. BERNARD
1527 27th Street, N.W. KAREN D. ADINOLFI
Canton, Ohio 44709 Roetzel & Andress
222 South Main Street
Akron, Ohio 44308
For Dr. Michael Rich, M.D. For Dr. Ike Nkanginieme
W. BRADFORD LONGBRAKE, Esq. DEIRDRE G. HENRY, Esq.
DAVID M. KRUEGER, Esq. WESTON HURD, LLP
Reminger Co., LPA The Tower at Erieview
200 South Summit Street 1301 East Ninth Street, Ste. 1900
80 South Summit Street Cleveland, Ohio 44114-1862
Akron, Ohio 44308
[Cite as Smart v. Aultman Hosp., 2011-Ohio-1318.]
Edwards, J.
{¶1} Plaintiff-appellant, Moresetta Smart, appeals from the June 30, 2010,
Judgment Entries of the Stark County Court of Common Pleas.
STATEMENT OF THE FACTS AND CASE
{¶2} On February 16, 2010, appellant and her husband filed a complaint
against appellees Aultman Hospital, Dr. Michael Rich and Dr. Ike Nkanginieme based
on care that she had received while a patient at appellee Aultman Hospital in February
of 2008. Appellant, in her complaint, alleged causes of action for intentional infliction of
emotional distress, false imprisonment, negligent infliction of emotional distress,
discrimination/retaliation/race/harassment in violation of R.C. 4112.02 and fraud.
Appellant and her husband filed an amended complaint on February 17, 2010.
{¶3} Thereafter, on March 17, 2010, appellee Dr. Michael Rich filed a Motion
for Judgment on the Pleadings pursuant to Civ.R. 12(C). Appellee Dr. Rich, in his
motion, argued that appellant’s claims were medical claims under R.C. 2305.113 and
were not filed within the one year statute of limitations. Appellee Dr. Rich further argued
that appellant had failed to file an affidavit of merit as required by Civ.R. 10(D)(2). On
March 22, 2010, appellee Dr. Nkanginieme filed a Motion to Dismiss appellant’s
amended complaint pursuant to Civ.R. 12(B)(6), 12(C) and Civ.R. 10(D)(2), alleging that
appellant’s medical claims were barred by the one year statute of limitations in R.C.
2305.113 and that appellant and her husband failed to attach an affidavit of merit to
their amended complaint as required by Civ.R. 10(D)(2).
{¶4} Subsequently, on March 23, 2010, appellee Aultman Hospital filed a
Motion to Dismiss appellant’s amended complaint pursuant to Civ.R. 12(B)(6) and
Stark County App. Case No. 2010CA00206 3
Civ.R. 11. Appellee Aultman Hospital, in its motion, alleged that while appellant signed
the amended complaint, “the allegations and legal arguments are clearly authorized by
her husband,” a non-attorney. In short, appellee Aultman Hospital alleged that
appellant’s husband was acting as appellant’s attorney in this case. Appellee Aultman
Hospital further argued that appellant’s amended complaint failed to comply with Civ.R.
10(B) and Civ.R. 10(D)(2) and that the amended complaint should be dismissed for
failure to state a claim upon which relief can be granted.
{¶5} Pursuant to a Judgment Entry filed on June 30, 2010, the trial court
granted appellee Dr. Rich’s Motion for Judgment on the Pleadings. The trial court found
that appellant and her husband had not demonstrated that they could prove any set of
facts entitling them to relief, that their claim against appellee Dr. Rich was a medical
claim that was barred by the one year statute of limitations in R.C. 2305.113, and that
they had failed to comply with Civ.R. 10(D)(2). As memorialized in a separate Judgment
Entry filed on June 30, 2010, the trial court granted the Motions to Dismiss filed by
appellee Aultman Hospital and appellee Dr. Nkanginieme for the same reasons.
{¶6} Appellant now appeals from the trial court’s two June 30, 2010, Judgment
Entries, raising the following assignments of error on appeal:
{¶7} “I. WHETHER THE JUDGE ABUSE [SIC] IT [SIC] DECESTION [SIC] TO
MAKE KNOWN CONFLICTS OF INTEREST.
{¶8} “II. WHETHER THE JUDGE ABUSE [SIC] ITS [SIC] DISCRECTION [SIC]
WHEN IT [SIC] FAILED TO DISQUALIFY ITS [SIC] SELF [SIC] IN ANY PROCEEDING
IN WHICH THE JUDGE [SIC] IMPARTIALITY MIGHT REASONABLY BE
QUESTIONED.
Stark County App. Case No. 2010CA00206 4
{¶9} “III. WHETHER THE JUDGE LABORS UNDER A CONFLICT OF
INTEREST OR BIAS TOWARDS THE PLAINTIFF.”
I, II, III
{¶10} Appellant, in her three assignments of error, essentially states that the trial
court was not impartial, was biased against her and had undisclosed conflicts of interest
and that, on such basis, the judgment of the trial court should be reversed.
{¶11} “The Chief Justice of the Supreme Court of Ohio, or his designee, has
exclusive jurisdiction to determine a claim that a common pleas judge is biased or
prejudiced.” Jones v. Billingham (1995), 105 Ohio App.3d 8, 11, 663 N.E.2d 657, citing,
Section 5(C), Article IV, Ohio Constitution, and Adkins v. Adkins (1988), 43 Ohio App.3d
95, 539 N.E.2d 686.
{¶12} R.C. 2701.03 provides the exclusive means by which a litigant can assert
that a common pleas judge is biased or prejudiced. Id. Specifically, R.C. 2701.03(A)
provides, in relevant part:
{¶13} “If a judge of the court of common pleas allegedly is interested in a
proceeding pending before the court, allegedly is related to or has a bias or prejudice for
or against a party to a proceeding pending before the court or a party's counsel, or
allegedly otherwise is disqualified to preside in a proceeding pending before the court,
any party to the proceeding or the party's counsel may file an affidavit of disqualification
with the clerk of the supreme court in accordance with division (B) of this section.” R.C.
2701.03(A).
Stark County App. Case No. 2010CA00206 5
{¶14} Thus, an appellate court lacks the authority to pass upon the
disqualification of a common pleas court judge or to void the judgment of a trial court on
that basis. State v. Ramos (1993), 88 Ohio App.3d 394, 398, 623 N.E.2d 1336{¶15} Accordingly, this Court is without the authority to determine the
disqualification of a common pleas court judge. Nor is this Court the proper forum in
which to litigate whether the trial court judge should have disqualified herself. In
addition, the appellant does not point to anywhere in the record where she claims that
the trial court judge acted in a prejudicial way against the appellant. The arguments
presented by the appellant in her brief filed September 20, 2011, set forth that it was the
appellees and appellees’ attorneys, not the trial court judge, who engaged in
misconduct. Appellant’s three assignments of error are, therefore, overruled.1
1
The statement of the assignments of error were not supported by the discussion which followed those
assignments.
Stark County App. Case No. 2010CA00206 6
{¶16} Accordingly, the judgment of the Stark County Court of Common Pleas is
affirmed.
By: Edwards, J.
Gwin, P.J. and
Farmer, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/d0203
[Cite as Smart v. Aultman Hosp., 2011-Ohio-1318.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MORESETTA SMART :
:
Plaintiff-Appellant :
:
:
-vs- : JUDGMENT ENTRY
:
AULTMAN HOSPITAL, et al., :
:
Defendants-Appellees : CASE NO. 2010CA00206
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to
appellant.
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JUDGES