[Cite as Wenning v. Advanced Spine Joint & Wellness Ctr., L.L.C., 2018-Ohio-2798.]


STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

ALISE WENNING, et al.                                     C.A. No.         17CA0031-M

        Appellants

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
ADVANCED SPINE JOINT AND                                  COURT OF COMMON PLEAS
WELLNESS CENTER, et al.                                   COUNTY OF MEDINA, OHIO
                                                          CASE No.   16CIV0014
        Appellees

                                DECISION AND JOURNAL ENTRY

Dated: July 16, 2018



        CARR, Judge.

        {¶1}    Plaintiffs-Appellants Alise and David Wenning (collectively “the Wennings”)

appeal from the judgment of the Medina County Court of Common Pleas. This Court affirms.

                                                     I.

        {¶2}    In May 2014, Alise Wenning began receiving chiropractic care at Defendant-

Appellee Advanced Spine Joint and Wellness Center, LLC (“Advanced Spine”) in Medina.

Following a chiropractic treatment on November 13, 2014, while Mrs. Wenning was still in the

lobby, she began experiencing stroke-like symptoms.              An ambulance was called and Mrs.

Wenning was taken to a hospital. Subsequent testing determined that Mrs. Wenning had had

multiple strokes.

        {¶3}    In January 2016, the Wennings filed a complaint against Advanced Spine, Dr.

Matt Marr, D.C., Dr. John Kocka, M.D., and Dr. John Doe, D.C. (collectively “the Defendants”).

The Wennings alleged in the complaint that Dr. Doe was a chiropractor whose identity could not
                                                2


be determined from Advanced Spine’s records. They further asserted that, pursuant to R.C.

2305.113, they had sent a “180 day” letter to the Defendants on September 16, 2015, which was

received by the Defendants on September 18, 2015. The complaint contained four counts:

malpractice, lack of informed consent, spoliation of evidence, and loss of consortium and

emotional distress.   The complaint and accompanying affidavit reflect that Mrs. Wenning

believed that Dr. Marr adjusted her the day of her strokes. The Defendants answered the

complaint denying the majority of the allegations.

       {¶4}    On May 23, 2016, the Wennings filed a motion for leave to amend their

complaint. In the motion, the Wennings asserted that Mrs. Wenning only knew the doctor who

treated her in November 2014 as “Dr. Matt” and that, at the time the complaint was filed, she

believed that Dr. Marr was “Dr. Matt[.]” However, at a pretrial, counsel for the Defendants

revealed that Defendant-Appellee Matthew Meehan, D.C. was the chiropractor who treated Mrs.

Wenning the day of her strokes. Therefore, the Wennings sought to amend the complaint

pursuant to Civ.R. 15(D) in order to add Dr. Meehan as “a New Party Defendant.”

       {¶5}    On May 27, 2016, the trial court granted the Wennings’ motion. That same day,

an amended complaint was filed that included Dr. Meehan as a defendant, in addition to both Dr.

Marr and Dr. John Doe. The Wennings alleged that they had sent “180 day” letters to each of

the named defendants on September 16, 2015, which were received on September 18, 2015, and

that “Dr. Matt Meehan [wa]s a ‘John Doe’ who could not be identified prior to filing suit as his

identity could not be determined from the records produced by Defendants prior to suit, or

otherwise.” Defendants Advanced Spine, Dr. Marr, Dr. Kocka, and Dr. Doe answered generally

denying the allegations.
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       {¶6}    What appears to be the same amended complaint was again filed on June 15,

2016, and a summons was issued to Dr. Meehan. Dr. Meehan filed an answer denying the

majority of the allegations. Dr. Meehan raised the statute of limitations as an affirmative

defense. In February 2017, the Wennings dismissed Dr. Marr from the suit.

       {¶7}    In January 2017, Dr. Meehan moved for summary judgment arguing that the

Wennings’ claims against him were time barred. Dr. Meehan argued that the one-year statute of

limitations began to run on the Wennings’ claims as of November 13, 2014, and that because the

Wennings had not sent a letter to Dr. Meehan in compliance with R.C. 2305.113(B), the

limitations period expired on November 13, 2015, before the original complaint was even filed.

Further, Dr. Meehan noted that the Wennings had failed to comply with the requirements of

Civ.R. 15(D) and therefore their amended complaint did not relate back to the filing of their

original complaint. Accordingly, Dr. Meehan maintained that the Wennings’ claims against him

were time barred.

       {¶8}    In their brief in opposition, the Wennings argued that Civ.R. 15(C) applied, not

Civ.R. 15(D). In so doing, the Wennings seemed to implicitly acknowledge that their filings

were not in accordance with the requirements of Civ.R. 15(D). The Wennings argued that the

amended complaint did relate back to the filing of the original complaint.

       {¶9}    Dr. Meehan filed a reply brief maintaining that, irrespective of whether the

Wennings relied upon Civ.R. 15(C) or Civ.R. 15(D), the original complaint was not timely filed

as to Dr. Meehan because the Wennings did not send him a letter pursuant to R.C. 2305.113.

Further, Dr. Meehan asserted that the amended complaint was not properly filed pursuant to

Civ.R. 15(C) as the Wennings did not substitute Dr. Meehan for another party; instead, they

added Dr. Meehan in addition to all of the previous parties.
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       {¶10} Ultimately, the trial court concluded that the statute of limitations expired on

November 13, 2015 as to Dr. Meehan, and thus, the trial court granted Dr. Meehan’s motion for

summary judgment. Subsequently, the Wennings moved the trial court to add a certification

pursuant to Civ.R. 54(B), which the trial court did.

       {¶11} The Wennings have appealed, raising a single assignment of error for our review.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING
       SUMMARY JUDGMENT TO DEFENDANT MATTHEW MEEHAN, D.C. AS
       CIVIL RULE 15(C), AND NOT 15(D), APPLIES HERE, AND THE CLAIMS
       AGAINST DR. MEEHAN IN THE AMENDED COMPLAINT RELATE BACK
       TO THE TIMELY FILED ORIGINAL COMPLAINT[.]

       {¶12} The Wennings argue in their sole assignment of error that the trial court erred in

granting summary judgment to Dr. Meehan because Civ.R. 15(C) applied, not Civ.R. 15(D).

They argue that if the trial court had properly applied Civ.R. 15(C), it would have concluded that

their amended complaint did relate back to the filing of their original complaint.

       {¶13} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court applies the same standard as the trial

court, viewing the facts in the case in the light most favorable to the non-moving party and

resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio

App.3d 7, 12 (6th Dist.1983).

       {¶14} Pursuant to Civ.R. 56(C), summary judgment is proper if:

       No genuine issue as to any material fact remains to be litigated; (2) the moving
       party is entitled to judgment as a matter of law; and (3) it appears from the
       evidence that reasonable minds can come to but one conclusion, and viewing such
       evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.
                                                 5


Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

       {¶15} The party moving for summary judgment bears the initial burden of informing the

trial court of the basis for the motion and pointing to parts of the record that show the absence of

a genuine issue of material fact.      Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996).

Specifically, the moving party must support the motion by pointing to some evidence in the

record of the type listed in Civ.R. 56(C). Id. Once a moving party satisfies its burden of

supporting its motion for summary judgment with acceptable evidence pursuant to Civ.R. 56(C),

Civ.R. 56(E) provides that the non-moving party may not rest upon the mere allegations or

denials of the moving party’s pleadings. Id. at 293. Rather, the non-moving party has a

reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine

triable issue” exists to be litigated at trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d

447, 449 (1996).

       {¶16} We begin by noting that the Wennings do not appear to challenge that the

timeliness of their claims against Dr. Meehan is governed by the statute of limitations set forth in

R.C. 2305.113. Nor do they appear to dispute that the statute of limitations began to run on

November 13, 2014, the day that Mrs. Wenning suffered her strokes. Thus, absent proper

utilization of the extension provided for in R.C. 2305.113(B)(1), the statute of limitations on

their claims against Dr. Meehan expired in November 2015.

       {¶17} From the trial court’s judgment entry, it is clear that the trial court found that, as

to Dr. Meehan, the Wennings did not make appropriate use of R.C. 2305.113(B)(1), and, thus,

the statute of limitations expired in November 2015. Given the foregoing, as the Wennings did

not file their original complaint until January 2016, the trial court concluded that, as to Dr.

Meehan, the Wennings’ claims were untimely and awarded summary judgment to Dr. Meehan.
                                                6


       {¶18} On appeal, the Wennings focus their argument on the trial court’s failure to

conclude that the amended complaint did relate back to the filing of the original complaint

pursuant to Civ.R. 15(C). However, there is nothing in the trial court’s entry that indicates that

the trial court even considered whether the amended complaint did or did not relate back to the

filing of the original complaint under any provision of Civ.R. 15. Because the trial court

determined that the Wennings did not comply with R.C. 2305.113(B)(1), the trial court

concluded that the statute of limitations was not extended as to Dr. Meehan and that it expired

before the Wennings even filed their original complaint. Thus, in light of the trial court’s

conclusion, there would be no reason to consider whether the amended complaint did relate back

to the filing of the original complaint because the trial court found that the original complaint

itself was untimely filed as to Dr. Meehan. Said differently, whether the amended complaint

related back would only become important if it was first determined that the original complaint

was timely filed as to Dr. Meehan.

       {¶19} Here, on appeal, the Wennings have failed to actually challenge the basis of the

trial court’s judgment. The Wennings have not argued that the trial court erred in determining

that, as to Dr. Meehan, the Wennings failed to comply with R.C. 2305.113(B)(1). While they

mention in passing that the original complaint was timely filed, they have developed no

argument explaining the same, nor have they set forth an assignment of error addressing that

issue. See App.R. 16(A)(7); see also Hall v. Silver, 9th Dist. Summit No. 28798, 2018-Ohio-

1706, ¶ 13. Because the Wennings have failed to adequately challenge the basis of the trial

court’s judgment on appeal, their assignment of error is overruled.
                                                 7


                                                III.

       {¶20} The Wennings’ assignment of error is overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                       DONNA J. CARR
                                                       FOR THE COURT



SCHAFER, P. J.
TEODOSIO, J.
CONCUR.
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APPEARANCES:

KEVIN T. ROBERTS, Attorney at Law, for Appellants.

VICTORIA L. VANCE and CHRISTINA E. MARINO, Attorneys at Law, for Appellee.

THOMAS B. KILBANE, Attorney at Law, for Appellee.
