[Cite as Evans v. Henderson, 2018-Ohio-2531.]

                            IN THE COURT OF APPEALS OF OHIO

                                 TENTH APPELLATE DISTRICT


Vernon M. Evans,                                 :

                Plaintiff-Appellant,             :               No. 17AP-765
                                                             (C.P.C. No. 17CV-6819)
v.                                               :
                                                       (ACCELERATED CALENDAR)
Randall E. Henderson,                            :

                Defendant-Appellee.              :



                                          D E C I S I O N

                                     Rendered on June 28, 2018


                On brief: Vernon M. Evans, pro se. Argued: Vernon M.
                Evans.

                On brief: Carpenter Lipps & Leland LLP, Theodore M.
                Munsell, and Karen M. Cadieux, for appellee. Argued:
                Karen M. Cadieux.

                 APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
        {¶ 1} Plaintiff-appellant, Vernon M. Evans, appeals from a decision and entry of
the Franklin County Court of Common Pleas granting the Civ.R. 12(B)(6) motion to dismiss
of defendant-appellee, Randall E. Henderson. For the following reasons, we affirm.
I. Facts and Procedural History
        {¶ 2} On August 1, 2017, Evans filed a complaint purporting to assert claims of
assault and battery against Henderson, who is a medical doctor. Pursuant to the allegations
contained in the complaint, Evans was admitted to St. Ann's Hospital for surgery from
May 10 to 11, 2014. While he was in the hospital, Evans alleges Dr. Henderson committed
assault and battery against him while he was in the operating room and the recovery room.
Evans alleged he sustained injuries to his teeth, head, mouth, lips, gums, tongue, jaw, face,
No.17AP-765                                                                                2


chest, stomach, and groin as a result of the alleged assault and battery. Evans did not file
an accompanying affidavit of merit for a medical claim along with the complaint. On the
complaint, Evans listed his address as "457 Rutherford Ave., Delaware, Ohio 43015-1129."
       {¶ 3} On August 30, 2017, Dr. Henderson filed a motion to dismiss pursuant to
Civ.R. 12(B)(6). Dr. Henderson argued that if the trial court construed Evans' complaint as
a medical claim, Dr. Henderson was entitled to dismiss both because Evans did not file the
required affidavit of merit and because the medical claim was time-barred by the applicable
statute of limitations. Alternatively, Dr. Henderson argued that if the trial court construed
the complaint as one for assault and battery, he was still entitled to dismissal because the
complaint was time-barred by the statute of limitations applicable to claims of assault and
battery. The certificate of service accompanying Dr. Henderson's motion to dismiss stated
the motion was filed with the court's electronic filing system and was served by United
States mail upon "Vernon M. Evans, 457 Rutherford Avenue, Delaware, Ohio 43015."
       {¶ 4} Evans did not file a response to Dr. Henderson's motion to dismiss. On
October 6, 2017, the trial court issued a decision and entry granting Dr. Henderson's motion
to dismiss for failure to state a claim. The trial court concluded that, whether it construes
Evans' complaint as one for assault and battery or one for a medical claim, the statute of
limitations for both of those claims is one year. On the face of the complaint, Evans stated
his injuries occurred between May 10 and 11, 2014, but he did not file his complaint until
August 1, 2017. Thus, the trial court concluded the statute of limitations barred Evans'
complaint, and it granted Dr. Henderson's motion to dismiss. Evans timely appeals.
II. Assignments of Error
       {¶ 5} Evans assigns the following errors for our review:
              [1.] The court erred by not giving plaintiff/appellant "service of
              motion to dismiss."

              [2.] The court erred by not giving plaintiff/appellant "the
              opportunity to respond to motion to dismiss."

              [3.] The court erred by ruling against (pro se litigant)
              plaintiff/appellant: not on courts e-filing system; didn't receive
              at home.
No.17AP-765                                                                                3


              [4.] The court erred by granting defendant/appellee "motion to
              dismiss" because it was not time-barred, by Revised Code
              2305.113(C)(1)(2) which states an four (4) year statute of
              limitations; an toll on the statute of limitations motion (due to
              plaintiff/appellant being totally and permanently disabled
              since 2007), that plaintiff/appellant did not get to file since
              plaintiff/appellant did not receive "service of motion to
              dismiss"; "the opportunity to respond"; the level/degree of
              assault and battery that carries an six (6) year statute of
              limitations, deemed by police department investigation.

(Emphasis sic.)
III. First, Second, and Third Assignments of Error – Service
       {¶ 6} Evans' first, second, and third assignments of error are interrelated and we
address them jointly. In these assignments of error, Evans asserts that he was not served
with a copy of the motion to dismiss prior to the trial court's ruling. Taken together, these
three assignments of error assert the trial court erred in granting Dr. Henderson's motion
to dismiss because Evans did not receive the motion to dismiss.
       {¶ 7} Pursuant to Civ.R. 5(B)(2)(c), a party may be served with a motion by mailing
it to the person's last known address by United States mail. If service by United States mail
is used, service is complete upon mailing. Civ.R. 5(B)(2)(c). " 'Where a party follows the
Ohio Civil Rules of Procedure, courts presume proper service unless the presumption is
rebutted with sufficient evidence.' " Edney v. Life Ambulance Serv., Inc., 10th Dist. No.
11AP-1090, 2012-Ohio-4305, ¶ 7, quoting Paasewe v. Wendy Thomas 5 Ltd., 10th Dist. No.
09AP-510, 2009-Ohio-6852, ¶ 22. "This presumption of proper service 'may only be
rebutted by producing sufficient evidence, such as an affidavit, that the responding party
never received service.' " Fifth Third Bank v. Schaffer, 10th Dist. No. 13AP-118, 2013-Ohio-
5702, ¶ 7, quoting White v. Stotts, 3d Dist. No. 1-10-44, 2010-Ohio-4827, ¶ 45. " '[U]nsworn
statements, such as bare allegations in an appellate brief, do not constitute evidence and
are not sufficient to rebut the presumption of proper service.' " Edney at ¶ 7, quoting
Paasewe at ¶ 22.
       {¶ 8} Here, Dr. Henderson filed his motion to dismiss on August 30, 2017. The
filing included a certificate of service signed by counsel for Dr. Henderson attesting that a
copy of the motion was sent to Evans by United States mail at the address that Evans had
No.17AP-765                                                                                  4


listed on the complaint as his own. Evans makes no allegation that he no longer resides at
the address he listed on the complaint. We additionally note that on October 16, 2017, after
the trial court rendered judgment dismissing the complaint, Evans filed an untimely
response to Dr. Henderson's motion to dismiss. In this untimely response, Evans made no
allegation that he did not receive service of the motion; instead, he argued only that the
statute of limitations had not yet run. Instead, he asserts for the first time in his appellate
brief that he did not receive a copy of the motion to dismiss. This type of allegation is
insufficient to rebut the presumption of proper mail service. Edney at ¶ 7; Schaffer at ¶ 7.
       {¶ 9} Because there is no evidence in the record to rebut the presumption that
Evans received proper service of the motion to dismiss, we overrule Evans' first, second,
and third assignments of error.
IV. Fourth Assignment of Error – Motion to Dismiss
       {¶ 10} In his fourth and final assignment of error, Evans argues the trial court erred
in granting Dr. Henderson's motion to dismiss. More specifically, Evans argues the trial
court erroneously concluded that Evans' claims were time-barred by the applicable statute
of limitations.
       {¶ 11} Under Civ.R. 12(B)(6), a defendant may move to dismiss a complaint for
failure to state a claim upon which relief can be granted. A Civ.R. 12(B)(6) motion to
dismiss tests the sufficiency of the complaint. O'Brien v. Univ. Community Tenants Union,
Inc., 42 Ohio St.2d 242, 245 (1975). In ruling on a motion to dismiss pursuant to Civ.R.
12(B)(6), the court must construe the complaint in the light most favorable to the plaintiff,
presume all factual allegations in the complaint are true, and make all reasonable
inferences in favor of the plaintiff. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192
(1988). The dismissal of a complaint for failure to state a claim is proper when it appears,
beyond doubt, that the plaintiff can prove no set of facts entitling him to relief. Celeste v.
Wiseco Piston, 151 Ohio App.3d 554, 2003-Ohio-703, ¶ 12 (11th Dist.). Furthermore, a
motion to dismiss based upon the application of a statute of limitations may be granted
when the complaint shows conclusively on its face that the action is time barred. See
Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376 (1982), paragraph three of
the syllabus. When reviewing a decision on a Civ.R. 12(B)(6) motion to dismiss for failure
No.17AP-765                                                                                   5


to state a claim upon which relief can be granted, this court's standard of review is de novo.
Foreman v. Dept. of Rehab. & Corr., 10th Dist. No. 14AP-15, 2014-Ohio-2793, ¶ 9.
       {¶ 12} In the trial court and on appeal, Dr. Henderson asserts it is unclear from
Evans' complaint whether Evans intended to assert a medical claim or a claim for assault
and battery. However, as the trial court noted in its decision and entry granting Dr.
Henderson's motion to dismiss, Evans' complaint is time-barred under the applicable
statute of limitations for either claim.
       {¶ 13} Pursuant to R.C. 2305.111, the statute of limitations for a claim of assault and
battery is one year. Zhelezny v. Olesh, 10th Dist. No. 12AP-681, 2013-Ohio-4337, ¶ 14,
citing Stafford v. Columbus Bonding Ctr., 177 Ohio App.3d 799, 2008-Ohio-3948, ¶ 15
(10th Dist.). Similarly, R.C. 2305.113(A) provides the statute of limitations for a medical
claim is one year. Szwarga v. Riverside Methodist Hosp., 10th Dist. No. 13AP-648, 2014-
Ohio-4943, ¶ 8; Adams v. Midtown Obstetrics & Gynecology, Inc., 10th Dist. No. 08AP-
737, 2009-Ohio-1564, ¶ 14. On the face of the complaint, Evans alleges his injuries occurred
sometime between May 10 and 11, 2014. Thus, whether his claim is one for assault and
battery or one for a medical claim, Evans would need to have brought his claim within one
year of those injuries, by May 11, 2015 at the latest, in order for it to be timely under either
statute of limitations. Here, Evans did not file his complaint until August 1, 2017, more
than two years after the one-year statute of limitations had expired.
       {¶ 14} Evans argues the trial court erroneously concluded the statute of limitations
was one year and that his claims instead should be subject to a six-year statute of
limitations, citing an alleged conversation he had with a police officer. It appears Evans
may be referencing the criminal statute of limitations for felonious assault contained in R.C.
2901.13(A)(1)(a), which is, indeed, six years. See generally State v. Cook, 128 Ohio St.3d
120, 2010-Ohio-6305 (felony offenses have a six-year statute of limitations). However,
Evans' complaint asserts a civil action seeking money damages for alleged injuries he
sustained. As we explained above, the statute of limitations applicable to a civil claim of
assault and battery is one year. Love v. Port Clinton, 37 Ohio St.3d 98, 98 (1988) ("when
bodily injury results from an assault o[r] battery, the one-year statute of limitations, R.C.
2305.111, is applicable"). Accordingly, the trial court did not err when it concluded the
applicable statute of limitations is one year and granted Dr. Henderson's Civ.R. 12(B)(6)
No.17AP-765                                                                               6


motion to dismiss based on the statute of limitations. We, therefore, overrule Evans' fourth
and final assignment of error.
V. Disposition
       {¶ 15} Based on the foregoing reasons, Evans does not present sufficient evidence
to rebut the presumption of proper service of the motion to dismiss, and the trial court did
not err in granting Dr. Henderson's Civ.R. 12(B)(6) motion to dismiss. Having overruled
Evans' four assignments of error, we affirm the judgment of the Franklin County Court of
Common Pleas.
                                                                       Judgment affirmed.

                            KLATT and HORTON, JJ., concur.
