[Cite as Pearsall v. Guernsey, 2017-Ohio-681.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY




SUSAN PEARSALL,

        PLAINTIFF-APPELLANT,                              CASE NO. 5-16-25

        v.

THOMAS C. GUERNSEY, DDS, ET AL.,                          OPINION

        DEFENDANTS-APPELLEES.




                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2016 CV 00067

                                      Judgment Affirmed

                          Date of Decision: February 27, 2017




APPEARANCES:

        Susan M. Pearsall, Appellant

        Paul R. Bonfiglio for Appellee
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PRESTON, P.J.

          {¶1} Plaintiff-appellant, Susan Pearsall (“Pearsall”), pro se, appeals the

judgment of the Hancock County Court of Common Pleas dismissing her complaint

against defendants-appellees, Thomas C. Guernsey, DDS (“Guernsey”) and Derik

E. Utz, DDS (“Utz”) (collectively “defendants”). For the reasons that follow, we

affirm.

          {¶2} This case stems from a medical-malpractice complaint filed on October

23, 2014 for injuries Pearsall suffered after seeking dental treatment from Guernsey

from February 14 through April 29, 2013.1 (Doc. Nos. 1, 54). Pearsall’s October

23, 2014 complaint was dismissed by the trial court without prejudice on February

25, 2015 because she failed to file an affidavit of merit. (Id.).2

          {¶3} Pearsall filed a second complaint on February 18, 2016, in which she

alleged medical negligence against Guernesy and Utz—that is, Pearsall alleged

Guernsey negligently performed dental work on her from February 14 through April

29, 2013 and alleged Utz negligently performed dental work on her on February 21,

2013. (Doc. No. 1). In her second complaint, Pearsall alleges that she discovered

defendants’ negligence in December 2015. (Doc. Nos. 1, 54). Pearsall further avers

in her second complaint that she sent defendants “180-day letters” on April 4, 2014.



1
  “The original complaint named only Guernsey as a defendant but mentioned Utz as a dentist and individual
who provided her dental care in February of 2013.” (Doc. No. 54).
2
  The record does not contain documents related to Pearsall’s October 23, 2014 complaint.

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(Doc. No. 1). Pearsall also averred that Guernsey received his 180-day letter on

April 9, 2014 and that Utz received his letter on April 24, 2014. (Id.).

           {¶4} Defendants filed their answer on April 25, 2016 after the trial court

granted defendants an extension of time to file their answer.3 (Doc. Nos. 14, 17).

On May 5, 2016, Pearsall filed a motion for default judgment alleging that

defendants failed to file their answer prior to April 21, 2016 as ordered by the trial

court. (Doc. No. 19). Defendants filed a memorandum in opposition to Pearsall’s

motion for default judgment on May 9, 2016. (Doc. No. 21). The trial court denied

Pearsall’s motion on June 23, 2016. (Doc. No. 34).

           {¶5} On July 27, 2016, Utz filed a motion to dismiss under Civ.R. 12(B)(6)

alleging that Pearsall’s complaint is barred by the statute of limitations. (Doc. No.

39). On August 17, 2016, Pearsall filed a memorandum in opposition to Utz’s

motion to dismiss and a motion for leave to amend her complaint. (Doc. No. 43).

Utz filed his reply to Pearsall’s memorandum in opposition to his motion to dismiss

on August 25, 2016. (Doc. No. 46). The trial court granted Utz’s motion to dismiss

on September 20, 2016 after concluding that Pearsall’s complaint is barred by the

statute of limitations, and denied Pearsall’s motion to amend her complaint. (Doc.




3
    The trial court extended the time for defendants to file their answer until April 21, 2016. (Doc. No. 14).

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No. 54). On September 26, 2016, the trial court dismissed Pearsall’s complaint

against Utz.4 (Doc. No. 57).

         {¶6} On October 26, 2016, Pearsall filed her notice of appeal of the trial

court’s September 26, 2016 order dismissing her complaint against Utz. (Doc. No.

64). She raises three assignments of error for our review, which we will discuss

together.

                                      Assignment of Error No. I

         The trial court erred in ordering the dismissal of the claim against
         Utz based on the trial court’s decision to reject Pearsall’s
         allegation of the date she discovered that the dental work Utz
         performed on her was unnecessary and improper, the trial court’s
         decision being supported by the trial court’s unmerited opinion
         that the allegations are inconsistent.

                                     Assignment of Error No. II

         The trial court erred in denying Pearsall’s motion for leave to
         amend complaint, the decision being supported by the trial
         court’s unmerited opinion that such leave would be futile and the
         trial court’s unmerited opinion that the allegations are
         inconsistent.

                                    Assignment of Error No. III

         The trial court erred in ordering the dismissal of the claim against
         Utz with prejudice when four years have not passed from the
         occurrence date and facts could be pleaded properly that
         determine the accrual date.



4
  The trial court’s order dismissing Pearsall’s complaint against Utz is a final, appealable order because the
trial court specifically found that there is “no just reason for delay” in entering its final judgment under Civ.R.
54(B). (Doc. No. 57).

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       {¶7} In her assignments of error, Pearsall argues that the trial court erred in

dismissing her complaint against Utz because her complaint is barred by the statute

of limitations under R.C. 2305.113.          Specifically, in her first and second

assignments of error, Pearsall contends that the trial court erred by rejecting the date

she asserts she discovered her injury and erred by denying her motion to amend her

complaint to reflect that date of discovery. In her third assignment of error, Pearsall

contends the trial court erred by concluding that Ohio’s statute of repose does not

save her claim from being time barred.

       {¶8} “A [Civ.R. 12(B)(6)] motion to dismiss for failure to state a claim upon

which relief can be granted is procedural and tests whether the complaint is

sufficient.” Bd. of Health of Defiance Cty. v. McCalla, 3d Dist. Defiance No. 4-12-

07, 2012-Ohio-4107, ¶ 33, citing State ex rel. Hanson v. Guernsey Cty. Bd. Of

Commrs., 65 Ohio St.3d 545, 548 (1992). “In order for a trial court to grant a motion

to dismiss for failure to state a claim upon which relief can be granted, it must appear

‘beyond doubt from the complaint that the plaintiff can prove no set of facts entitling

her to relief.’” McBroom v. Safford, 10th Dist. Franklin No. 11AP-885, 2012-Ohio-

1919, ¶ 7, quoting Grey v. Walgreen Co., 8th Dist. Cuyahoga No. 96846, 2011-

Ohio-6167, ¶ 3, citing LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323,

2007-Ohio-3608, ¶ 14. “[A]s long as there is a set of facts, consistent with the

plaintiff’s complaint, which would allow the plaintiff to recover, the court may not


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grant a defendant’s motion to dismiss.” York v. Ohio State Hwy. Patrol, 60 Ohio

St.3d 143, 144 (1991).

       {¶9} “We review de novo a judgment on a Civ.R. 12(B)(6) motion to dismiss

for failure to state a claim upon which relief can be granted.” McCalla at ¶ 33, citing

Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, ¶ 5. “Under de

novo analysis, we are required to ‘accept all factual allegations of the complaint as

true and draw all reasonable inferences in favor of the nonmoving party.’”

McBroom at ¶ 9, quoting Grey at ¶ 3, citing Byrd v. Faber, 57 Ohio St.3d 56 (1991).

       {¶10} Under R.C. 2305.113(A), “an action upon a * * * dental * * * claim

shall be commenced within one year after the cause of action accrued.” A “dental

claim” is:

       any claim that is asserted in any civil action against a dentist, or

       against any employee or agent of a dentist, and that arises out of a

       dental operation or the dental diagnosis, care, or treatment of any

       person.

R.C. 2305.113(E)(6).

       {¶11} “A cause of action for medical malpractice accrues, and the one-year

statute of limitations commences to run when the patient discovers, or in the

exercise of reasonable care and diligence should have discovered, the resulting

injury or when the physician-patient relationship for that condition terminates,


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whichever occurs later.” Josolowitz v. Grant/Riverside Methodist Hosp. Corp., 10th

Dist. Franklin No. 99AP-1462, 2000 WL 861836, *2 (June 29, 2000), citing

Frysinger v. Leech, 32 Ohio St.3d 38 (1987), paragraph one of the syllabus. “In

making that determination, the court must look to the facts of the case in order to

find (1) when the injured party became aware, or should have become aware, of the

extent and seriousness of his condition, (2) whether the injured party was aware, or

should have been aware, that the condition was related to a specific medical service

previously rendered him, and (3) whether the condition would put a reasonable

person on notice of the need for further inquiry as to the cause of the condition.”

Tausch v. Riverview Health Inst., 187 Ohio App. 3d 173, 2010-Ohio-502, ¶ 39 (2d

Dist.), citing Hershberger v. Akron City Hosp., 34 Ohio St.3d 1 (1987).

       {¶12} “In determining the first prong of the Hershberger test regarding the

injured party’s awareness of the extent and seriousness of his condition, the court

must find that a ‘cognizable event’ occurred that put the party on notice that his

injury is related to a specific medical procedure and of the need to pursue his

possible remedies.”    Id. at ¶ 40, citing Allenius v. Thomas, 42 Ohio St.3d 131

(1989).

       “[C]onstructive knowledge of facts, rather than actual knowledge of

       their legal significance, is enough to start the statute of limitations

       running under the discovery rule.        A plaintiff need not have


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       discovered all the relevant facts necessary to file a claim in order to

       trigger the statute of limitations.”

(Emphasis sic.) Id., quoting Flowers v. Walker, 63 Ohio St.3d 546, 549 (1992).

       {¶13} However, “R.C. 2305.113(B) (formerly R.C. 2305.11(B)) ‘provides

an exception to [R.C. 2305.113(A)] by affording litigants the opportunity to extend

the one-year statute of limitations for an additional one hundred eighty days from

the time proper notice is given to potential defendants.’” Szwarga v. Riverside

Methodist Hosp., 10th Dist. Franklin No. 13AP-648, 2014-Ohio-4943, ¶ 8, quoting

Marshall v. Ortega, 87 Ohio St.3d 522, 523 (2000). R.C. 2305.113(B)(1) provides:

       If prior to the expiration of the one-year period specified in division

       (A) of this section, a claimant who allegedly possesses a * * * dental

       * * * claim gives to the person who is the subject of that claim written

       notice that the claimant is considering bringing an action upon that

       claim, that action may be commenced against the person notified at

       any time within one hundred eighty days after the notice is so given.

       {¶14} The trial court did not err by dismissing Pearsall’s complaint under

Civ.R. 12(B)(6). There is no set of facts, consistent with Pearsall’s complaint,

which would allow her to recover—that is, it is apparent from the face of Pearsall’s

complaint that her complaint against Utz is barred by the statute of limitations under

R.C. 2305.113. Pearsall did not file her complaint against Utz within one-year of


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when she discovered, or in the exercise of reasonable care and diligence should have

discovered, her injury or when her dentist-patient relationship ended, and no

exception extending the statute of limitations applies.

       {¶15} In this case, Pearsall alleges that she received dental care from Utz on

February 21, 2013, and that she terminated her relationship with the clinic at which

Utz is employed on April 29, 2013. Notwithstanding Pearsall’s allegation that she

did not discover that the dental care provided by Utz was “unnecessary and

improper” until December 2015, it is apparent from the face of the complaint that

April 29, 2013—the date which Pearsall terminated her relationship with the dental

clinic at which Utz is employed—is the cognizable event that put Pearsall on notice

of her cause of action against Utz. Indeed, Pearsall states in her complaint that she

sent 180-day letters to Guernsey and Utz “[p]rior to the expiration of the one-year

limitation of actions for malpractice” to ensure that “final notice was in effect given

to Utz and Guernsey each on April 29, 2014.” (Doc. No. 1 at Para. 15). Pearsall’s

letter to Utz, which is attached to her complaint, is captioned “Re: Notice that action

on claim may be commenced 180 days after April 29, 2014.” (Doc. No. 1, Ex. B).

In the letter, she informs Utz:

       This is a written notice to notify you that I am considering bringing

       an action upon a claim regarding the medical practice I was subject to

       as your patient at Tri-County Dental Center.


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         This notification extends the time period within [sic] the action may

         be commenced by one hundred eighty days past April 29, 2014.

(Id.).

         {¶16} Clearly, based on that letter, Pearsall’s cause of action was not

undiscovered by her until December 2015. Instead, by Pearsall’s own admission in

her complaint, the cognizable event triggering the commencement of the one-year

statute of limitations under R.C. 2305.113(A) occurred on April 29, 2013.

Accordingly, the one-year statute of limitations would have expired on April 29,

2014—as aptly pointed out in Pearsall’s complaint. Nonetheless, if we assume

without deciding that the letter Pearsall sent to Utz is a proper 180-day letter,

Pearsall would have extended the statute of limitations until October 24, 2014.5

         {¶17} Pearsall filed her first complaint on October 23, 2014; however, that

complaint was dismissed by the trial court without prejudice on February 25, 2015

because she failed to file an affidavit of merit. Yet, R.C. 2305.19, Ohio’s savings

statute, provides, in relevant part:

         In any action that is commenced or attempted to be commenced, [and]

         if in due time * * * the plaintiff fails otherwise than upon the merits,

         the plaintiff * * * may commence a new action within one year after

         the date of * * * the plaintiff’s failure otherwise than upon the merits


5
 Pearsall concedes in her complaint that Utz received his 180-day letter on April 24, 2014. (Doc. No. 1,
Para. 15).

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       or within the period of the original applicable statute of limitations,

       whichever occurs later.

       {¶18} Pearsall filed her second complaint on February 18, 2016. At first

glance, it would appear that Pearsall’s second complaint is timely under R.C.

2305.19. However, “R.C. 2305.19 will ‘save’ a re-filed action that would otherwise

be barred by a statute of limitations when the requirements of the rule have been

satisfied, and ‘when the original suit and the new action are substantially the same.’”

Carl L. Brown, Inc. v. Lincoln Nat. Life Ins., 10th Dist. Franklin No. 02AP-225,

2003-Ohio-2577, ¶ 42, quoting Children’s Hospital v. Ohio Dept. of Pub. Welfare,

69 Ohio St.2d 523, 525 (1982). Under R.C. 2305.19, “‘actions are not substantially

the same, however, when the parties in the original action and those in the new

action are different.’” Id., quoting Children’s Hospital at 525. Pearsall’s first

complaint, as Pearsall concedes, did not name Utz as a defendant—it named only

Guernsey as a defendant. (See Doc. Nos. 1, 54); (Appellant’s Brief at 3). Because

Utz was not a party to Pearsall’s original action, Pearsall cannot take advantage of

the one-year “grace period” under R.C. 2305.19. Id. at ¶ 43. As such, Pearsall’s

February 18, 2016 complaint against Utz is untimely and barred by the statute of

limitations.

       {¶19} Nonetheless, Pearsall argues in her second assignment of error that the

trial court erred by denying her motion for leave to amend her complaint to reflect


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that she discovered her injury in December 2015. “Pursuant to Civ.R. 15(A), after

responsive pleadings have been served, ‘a party may amend his pleading only by

leave of court or by written consent of the adverse party,’ and according to the rules,

‘[l]eave of court shall be freely given when justice so requires.’” Dublin v.

Wirchanski, 3d Dist. Union No. 14-10-22, 2011-Ohio-2461, ¶ 16, quoting Civ.R.

15(A). “While the rule allows for liberal amendment, motions should be refused if

there is a showing of bad faith, undue delay, or undue prejudice to the opposing

party.” Howick v. Lakewood Village Ltd. Partnership, 3d Dist. Mercer No. 10-06-

25, 2007-Ohio-4370, ¶ 37, citing Turner v. Cent. Local School Dist., 85 Ohio St.3d

92, 99 (1999). A trial court’s decision to grant or deny a motion for leave to amend

a pleading is discretionary and will not be reversed absent an abuse of discretion.

Id. at ¶ 37, citing State ex rel. Askew v. Goldhart, 75 Ohio St.3d 608, 610 (1996).

“An abuse of discretion connotes a decision that is unreasonable, arbitrary, or

unconscionable.” Id., citing State ex rel. Askew at 610. As we discussed above, the

face of Pearsall’s complaint alleges that she was on notice of her cause of action

prior to December 2015. As such, the trial court did not abuse its discretion by

denying her motion for leave to amend her complaint.

       {¶20} Furthermore, it appears that Pearsall is arguing in her third assignment

of error that, notwithstanding the one-year statute of limitations imposed under R.C.

2305.113(A), she should have been permitted four years to file her complaint under


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R.C. 2305.113(C). Pearsall is mistaken. R.C. 2305.113(C), Ohio’s statute of

repose, provides:

       (C) Except * * * as provided in division (D) of this section, both of

       the following apply:

       (1) No action upon a medical, dental, optometric, or chiropractic

       claim shall be commenced more than four years after the occurrence

       of the act or omission constituting the alleged basis of the medical,

       dental, optometric, or chiropractic claim.

       (2) If an action upon a medical, dental, optometric, or chiropractic

       claim is not commenced within four years after the occurrence of the

       act or omission constituting the alleged basis of the medical, dental,

       optometric, or chiropractic claim, then, any action upon that claim is

       barred.

“Simply stated, regardless of the applicable statute of limitations, ‘a person must

file a medical claim no later than four years after the alleged act of malpractice

occurs or the claim will be barred.’” York v. Hutchins, 12th Dist. Butler No.

CA2013-09-173, 2014-Ohio-988, ¶ 10, quoting Ruther v. Kaiser, 134 Ohio St.3d

408, 2012-Ohio-5686, ¶ 2 (“The statute establishes a period beyond which medical

claims may not be brought even if the injury giving rise to the claim does not accrue

because it is undiscovered until after the period has ended.”). R.C. 2305.113(D)(1)


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and (2) provides limited exceptions to the four-year limitation “for malpractice

discovered during the fourth year after treatment and for malpractice that leaves a

foreign object in a patient’s body.” Ruther at ¶ 2. Under those exceptions, plaintiffs

have an additional year following the discovery of their injury to file a claim. Id.

Ohio’s statute of repose is inapplicable to Pearsall’s claim to extend the one-year

statute of limitations because her injury was not undiscovered. Stated differently,

Ohio’s statute of repose forever bars any claim after the four-year period provided

by R.C. 2305.113(C) expires, while R.C. 2305.113(A) bars claims not commenced

within one year of “discovery.”

       {¶21} For these reasons, the trial court did not err in granting Utz’s motion

to dismiss under Civ.R. 12(B)(6).

       {¶22} As such, Pearsall’s assignments of error are overruled.

       {¶23} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




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