[Cite as Liberty Retirement Community of Middletown, Inc. v. Hurston, 2013-Ohio-4979.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




LIBERTY RETIREMENT COMMUNITY                           :
OF MIDDLETOWN, INC.,
                                                       :          CASE NO. CA2013-01-006
        Plaintiff-Appellee,
                                                       :                  OPINION
                                                                           11/12/2013
   - vs -                                              :

                                                       :
BRENDA K. HURSTON,
                                                       :
        Defendant-Appellant.
                                                       :



            CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                              Case No. CV2012-05-1795



Freund, Freeze & Arnold, Wayne E. Waite, Adam C. Armstrong, Fifth Third Center, 1 South
Main Street, Suite 1800, Dayton, Ohio 45402, for plaintiff-appellee

Brenda K. Hurston, 1812 Grand Avenue, Middletown, Ohio 45044, defendant-appellant, pro
se



        RINGLAND, P.J.

        {¶ 1} Defendant-appellant, Brenda K. Hurston, appeals from a decision in the Butler

County Court of Common Pleas granting a motion by plaintiff-appellee, Liberty Retirement

Community of Middletown (Liberty), for judgment on the pleadings. For the reasons outlined

below, we affirm.
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       {¶ 2} On December 12, 2011, Liberty filed a complaint against Hurston in Middletown

Municipal Court alleging Hurston failed to pay a debt owed to Liberty following her stay in its

nursing home facility between October 1, 2010 and November 19, 2010. On February 17,

2012, Hurston filed several counterclaims against Liberty for alleged failure to validate her

debt, mistreatment in Liberty's care as a skilled-nursing facility, and falsification of medical

records. Hurston filed an amended complaint on April 23, 2012, naming the law firm

representing Liberty as a codefendant. The next day, Hurston filed a second amended

complaint with a prayer for relief exceeding $1 million. Due to the $1 million exceeding the

jurisdiction of Middletown Municipal Court, the case was transferred to the Butler County

Court of Common Pleas.

       {¶ 3} Following the transfer, Liberty moved for judgment on the pleadings, which the

common pleas court granted and filed an amended decision and entry on December 14,

2012. It is from this decision and entry Hurston now appeals, raising one assignment of error

for review.

       {¶ 4} "THE MIDDLETOWN TRIAL COURT ERRED BY TRANSFERRING

[HURSTON'S] COMPLAINT FOR DAMAGES TO THE COMMON PLEAS COURT OF

BUTLER COUNTY[,] OHIO."

       {¶ 5} Hurston sets forth several arguments. Specifically, Hurston argues it was error

for her counterclaim to be transferred to the court of common pleas and combined under the

same case number as Liberty's complaint. Hurston also argues that the common pleas court

erred by granting Liberty judgment on the pleadings. Hurston further asserts that the

municipal court erred by showing favoritism to Liberty's counsel and granting an extension of

time to Liberty to respond to Hurston's counterclaim. We address these arguments in turn.

       {¶ 6} First, we address the alleged error of transferring the case to the court of

common pleas. R.C. 1901.22(E) provides: "In any action in a municipal court in which the
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amount claimed by any defendant in any statement of counterclaim exceeds the jurisdictional

amount, the judge shall certify the proceedings in the case to the court of common pleas * *

*." The jurisdictional limit for a municipal court is $15,000. R.C. 1901.17. In this case,

Hurston sought relief in her counterclaim in the amount of $1 million. Consequently, the

municipal court no longer had jurisdiction over Hurston's claim and was required by statute to

certify the case to the common pleas court. Furthermore, we fail to see how Hurston was

prejudiced by the combination of Liberty's complaint and Hurston's counterclaim under one

case number when the matter was transferred to common pleas court. See R.C. 2309.59.

       {¶ 7} Next, we address whether the common pleas court improperly granted Liberty

judgment on the pleadings. An appellate court reviews a trial court's decision on a Civ.R.

12(C) motion for judgment on the pleadings de novo. J.H. v. Hamilton City School Dist., 12th

Dist. Butler No. CA2012-11-236, 2013-Ohio-2967, ¶ 8. Civ.R. 12(C) motions are specifically

reserved for resolving questions of law and may be filed "[a]fter the pleadings are closed but

within such time as not to delay the trial." Id. Judgment on the pleadings is appropriate

under Civ.R. 12(C) "where a court (1) construes the material allegations in the complaint, with

all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true, and

(2) finds beyond doubt, that the plaintiff could prove no set of facts in support of his claim that

would entitle him to relief." State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d

565, 570 (1996). Furthermore, in ruling on a Civ.R. 12(C) motion, a court is "limited solely to

the allegations in the pleadings and any writings attached to the pleadings." J.H. at ¶ 8, citing

Vinicky v. Pristas, 163 Ohio App.3d 508, 2005-Ohio-5196, ¶ 3 (8th Dist.).

       {¶ 8} A judgment on the pleadings is proper when the statute of limitations has run.

See McGlothin v. Schad, 194 Ohio App.3d 669, 2011-Ohio-3011 (12th Dist.). In determining

the proper statute of limitations for a cause of action, the court must review the complaint to

determine the essential character of the claim. Brittingham v. Gen. Motors Corp., 2d Dist.
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Montgomery No. 24517, 2011-Ohio-6488, ¶ 15, citing Love v. Port Clinton, 37 Ohio St.3d 98

(1988). "[I]n determining which limitation period will apply, courts must look to the actual

nature or subject matter of the case, rather than to the form in which the action is pleaded.

The grounds for bringing the action are the determinative factors, the form is immaterial."

Love at 99.

       {¶ 9} Typically, an action upon a medical claim must be commenced within one year

after the cause of action accrued. R.C. 2305.113(A). It is well-established that a cause of

action for medical malpractice accrues and the statute of limitations commences to run upon

the latter of either: (1) the termination of the physician-patient relationship for that condition,

or (2) a patient discovers, or, in the exercise of reasonable care and diligence, should have

discovered, the resulting injury. Hans v. Ohio State Univ. Med. Ctr., 10th Dist. Franklin No.

07AP-10, 2007-Ohio-3294, ¶ 10, citing Oliver v. Kaiser Community Health Found., 5 Ohio

St.3d 111(1983), syllabus. Under the discovery rule, a "cognizable event" triggers the statute

of limitations. A "cognizable event" is defined as "some noteworthy event * * * which does or

should alert a reasonable person-patient that an improper medical procedure, treatment or

diagnosis has taken place." Allenius v. Thomas, 42 Ohio St.3d 131, 134 (1989). "The

occurrence of a cognizable event imposes upon the plaintiff the duty to (1) determine

whether the injury suffered is the proximate result of malpractice and (2) ascertain the identity

of the tortfeasor or tortfeasors." Flowers v. Walker, 63 Ohio St.3d 546 (1992), paragraph one

of the syllabus.

       {¶ 10} Hurston's claims are not clearly set forth. However, Hurston does specifically

list a breach of contract count in her second amended complaint and initially claimed Liberty

failed to validate a debt by filing its complaint "too soon" and that the documents submitted to

her medical insurance company by Liberty during her stay were fraudulent. It is "well-settled"

that medical claims constitute malpractice "regardless of whether such misconduct is framed
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in terms of negligence or breach of contract." Knepler v. Cowden, 2d Dist. Montgomery No.

17473, 1999 WL 1243349, *8 (Dec. 23, 1999). See Robb v. Community Mut. Ins. Co., 63

Ohio App.3d 803, 805 (1st Dist.1989); Brittingham at ¶ 19. Additionally, the statutory

definition of "medical claim" does not permit a theory of fraud to be split from a theory

involving medical treatment. Harris v. Ohio State Univ. Hosp. Med. Ctr., 10th Dist. Franklin

No. 06AP-1092, 2007-Ohio-1812, ¶ 10. Furthermore, "'medical claim' means any claim that

is asserted in any civil action against a * * * home * * * and that arises out of the medical

diagnosis, care, or treatment of any person." R.C. 2305.113(E)(3). "Medical claim" also

includes such claims that result "from acts or omissions in providing medical care" or "from

the hiring, training, supervision, retention, or termination of caregivers providing medical

diagnosis, care, or treatment." Id.

       {¶ 11} In this case, Hurston's contentions relate to medical claims. Hurston states that

she was not seen by any assigned physicians at the "skilled-nursing home facility" and was

unable to choose her own physician. Hurston also claims that Liberty illegally transferred her

to a different room, denying her right to adequate physical therapy, indoor space, and

wheelchair compatible bathroom. She argues these actions led to a slip and fall resulting in

a head injury and leg contusion. Hurston also claims that she was not given her pain

medication in a timely manner and physical therapy aggravated a preexisting condition.

Hurston asserts that she was placed in a deliberate position to hurt herself when the wheels

on her hospital bed were not firmly locked.

       {¶ 12} All of Hurston's alleged injuries occurred while she was being treated at Liberty.

These conditions, including the alleged slip and fall, failure to provide medication in a timely

matter, and aggravation of a preexisting condition by physical therapy, all could have been

reasonably discovered while Hurston was a patient at Liberty. Hurston's last day of care at

Liberty was November 19, 2010. Hurston filed her initial counterclaim on February 17, 2012,
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which is well outside of the one-year statute of limitations for a medical claim. Consequently,

the granting of Liberty's motion for judgment on the pleadings was proper.

       {¶ 13} Last, we address Hurston's claim that favoritism was shown by the municipal

court to Liberty's counsel. After a case is transferred from municipal court to a court of

common pleas, "[t]he case shall then proceed as if it had been commenced originally in the

court of common pleas." R.C. 1901.22(G). It appears Hurston is arguing that favoritism was

shown to Liberty's counsel because the municipal court granted Liberty an extension of time

to file an answer to Hurston's counterclaims. Liberty filed a motion for an extension of time to

reply to Hurston's counterclaims within the time frame allotted to respond. Pursuant to Civ.R.

6 (B), "[w]hen by these rules or by a notice given thereunder or by order of court an act is

required or allowed to be done at or within a specified time, the court for cause shown may at

any time in its discretion (1) with or without motion or notice order the period enlarged if

request therefor is made before the expiration of the period originally prescribed or as

extended by a previous order * * *." While Hurston appears to argue that she was not

afforded the same courtesy, the municipal court granted Hurston leave to file two amended

counter complaints. Furthermore, Hurston does not assert any prejudice regarding any late

filing by Liberty. See Estate of Williams v. Deutsche Bank Trust Co. Am., 8th Dist. Cuyahoga

No. 90967, 2008-Ohio-3981, ¶ 15-16. Accordingly, it was in the court's discretion to allow an

extension of time and we do not see how the court impermissibly showed favoritism to

Liberty.

       {¶ 14} In light of the foregoing, we fail to see how the municipal court erred by

transferring the case to the common pleas court. Additionally, the common pleas court did

not err in granting Liberty judgment on the pleadings.            Furthermore, neither court

impermissibly showed favoritism to Liberty's counsel. Hurston's sole assignment of error is

overruled.
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                                      Butler CA2013-01-006

{¶ 15} Judgment affirmed.


PIPER and M. POWELL, JJ., concur.




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