[Cite as Ander v. Clark, 2014-Ohio-4449.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Michelle Ander et al.,                             :

                Plaintiffs-Appellants,             :                 No. 14AP-426
                                                                   (C.P.C. No. 14CV-753)
v.                                                 :
                                                              (REGULAR CALENDAR)
Todd Clark, O.D. et al.,                           :

                Defendants-Appellees.              :



                                            D E C I S I O N

                                     Rendered on October 7, 2014


                Donahey Defossez & Beausay, and T. Jeffrey Beausay, for
                appellants.

                Freund, Freeze & Arnold, and Mark A. MacDonald, for
                appellees.

                  APPEAL from the Franklin County Court of Common Pleas


LUPER SCHUSTER, J.
        {¶ 1} Plaintiffs-appellants, Michelle and Tom Ander, appeal from a decision and
entry of the Franklin County Court of Common Pleas granting the Civ.R. 12(B)(6) motion
to dismiss of defendants-appellees, Todd Clark, O.D. and Image Optical, LLC. For the
reasons that follow, we reverse and remand with instructions to vacate.
I. Facts and Procedural History
        {¶ 2} On October 21, 2013, appellants filed a complaint for optometric negligence
against appellees (the "first complaint"). The complaint alleged Dr. Clark, a licensed
optometrist, recognized an abnormality in Michelle's eyes known as "Kruckenberg
spindles" in July 2003 but failed to perform any additional studies or refer Michelle to an
No. 14AP-426                                                                             2


ophthalmologist. As a result of Dr. Clark's alleged negligence, the complaint further
alleged Michelle did not receive a correct diagnosis and treatment for glaucoma until
November 2012 when Michelle sought treatment from another optometrist. Further, the
complaint alleged Michelle suffered permanent loss of vision caused by Dr. Clark's alleged
negligence.
       {¶ 3} Dr. Clark and his employer, Image Optical, LLC, filed a Civ.R. 12(B)(6)
motion to dismiss for failure to state a claim upon which relief can be granted, arguing
appellants' complaint was barred by the four-year statute of repose in R.C. 2305.113(C).
The trial court granted appellees' motion to dismiss and appellants appealed the dismissal
to this court. Ander v. Clark, 10th Dist. No. 14AP-65, 2014-Ohio-2664.
       {¶ 4} On January 23, 2104, the same day appellants filed their notice of appeal in
Ander and before this court rendered a decision in Ander, appellants filed a new
complaint in the trial court (the "second complaint").        The second complaint again
asserted claims for optometric negligence and for loss of consortium, but included
additional dates of continued treatment with Dr. Clark: July 31, 2003, September 15,
2005, October 19, 2007, May 12, and July 11, 2011. Appellees responded with a February
20, 2014 motion to dismiss the second complaint, this time arguing both the statute of
repose in R.C. 2305.113(C) and res judicata barred appellants' second complaint. In a
May 13, 2014 decision and entry, the trial court granted appellees' Civ.R. 12(B)(6) motion
to dismiss the second complaint. The trial court concluded that although the statute of
repose was not a bar to the second claims, the dismissal of the first complaint was a
decision on the merits, so res judicata operated to bar the second complaint. On May 27,
2014, appellants filed a timely notice of appeal.
       {¶ 5} On June 19, 2014, after appellants filed their notice of appeal from the
dismissal of their second complaint, but before the parties filed their briefs, this court
issued its decision in Ander. On appeal, we determined dismissal of appellants' first
complaint was premature because the complaint did not specify when the alleged
negligence took place. Ander at ¶ 8. We recognized that "further discovery might show
the claim to be time barred, but at this stage of the litigation it cannot be said that
[Michelle] can prove no set of facts entitling her to recovery." Id. at ¶ 10. Accordingly, we
reversed and remanded to the trial court for further proceedings.
No. 14AP-426                                                                                3


         {¶ 6} Following our decision in Ander, appellants filed their merit brief for their
appeal of the dismissal of their second complaint on June 26, 2014, and appellees filed a
responsive brief on July 2, 2014.
II. Assignment of Error
         {¶ 7} Appellants assign the following assignment of error for our review:
                The lower court erred in dismissing [appellants'] complaint
                pursuant to Civ.R. 12(B)(6) on the basis of res judicata.

III. Appeal is Moot
         {¶ 8} In their sole assignment of error, appellants argue the trial court erred in
dismissing their second complaint. However, after appellants filed their notice of appeal
but before they filed their merit brief in this matter, this court issued our opinion in Ander
reversing the dismissal of appellants' first complaint. Because that matter has been
remanded to the trial court for further proceedings, both parties agree that this appeal is
now moot. Nonetheless, appellants ask the court to reverse and remand the decision
below.
         {¶ 9} An action is moot when it involves " ' "no actual genuine, live controversy,
the decision of which can definitely affect existing legal relations." ' " State ex rel.
Lancaster School Dist. Support Assn. v. Bd. of Edn. Lancaster City School Dist., 10th
Dist. No. 06AP-305, 2006-Ohio-5520, ¶ 12, quoting Lingo v. Ohio Cent. RR., Inc., 10th
Dist. No. 05AP-206, 2006-Ohio-2268, ¶ 20, quoting Grove City v. Clark, 10th Dist. No.
01AP-1369, 2002-Ohio-4549, ¶ 11. As relevant here, an action is moot "when a litigant
receives the relief sought before the completion of the lawsuit." Robinson v. Indus.
Comm., 10th Dist. No. 04AP-1010, 2005-Ohio-2290, ¶ 6.
         {¶ 10} The relief appellants seek here is the ability to proceed on the merits of their
claims against appellees. This court's decision in Ander reversing the dismissal of the first
complaint and remanding to the trial court for further proceedings provides appellants
with that relief. However, the decision below dismissing the second complaint due to res
judicata could arguably limit or even bar review on the merits of the first complaint,
rendering the relief granted to appellants in Ander less than the complete relief they seek.
         {¶ 11} Because allowing the trial court's decision and entry dismissing the second
complaint on grounds of res judicata to stand could have an adverse effect on the
No. 14AP-426                                                                         4


proceedings on remand in Ander, we therefore reverse the decision and entry dismissing
the second complaint and remand with instructions to vacate the decision and entry. On
remand, the parties can file the appropriate motions to consolidate the second complaint
with the remanded complaint in Ander.
IV. Disposition
      {¶ 12} Based on the foregoing reasons, we reverse and remand this matter to the
Franklin County Court of Common Pleas with instructions to vacate the decision and
entry dismissing appellants' second complaint.
                                                                 Judgment reversed;
                                                     cause remanded with instructions.


                           BROWN and KLATT, JJ., concur.
