[Cite as Mims v. Univ. of Toledo Med. Ctr., 2017-Ohio-8979.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


Marie Boyd Mims, Individually, and as                  :
Legal Guardian of Daniel Boyd,
                                                       :
                Plaintiff-Appellant,
                                                       :                 No. 17AP-203
v.                                                                 (Ct. of Cl. No. 2016-00680)
                                                       :
University of Toledo Medical Center,                           (ACCELERATED CALENDAR)
                                                       :
                Defendant-Appellee.
                                                       :




                                           D E C I S I O N

                                   Rendered on December 12, 2017


                On brief: Reminger Co., L.P.A., Brian D. Sullivan, and
                Clifford C. Masch, for appellant. Argued: Clifford C.
                Masch.

                On brief: Michael DeWine, Attorney General, and Anne
                Berry Strait, for appellee. Argued: Anne Berry Strait.


                             APPEAL from the Court of Claims of Ohio

KLATT, J.

        {¶ 1} Plaintiff-appellant, Marie Boyd Mims, individually and as legal guardian of
Daniel Boyd, appeals from the judgment of the Court of Claims of Ohio dismissing her
complaint pursuant to Civ.R. 12(B)(6). Because appellant's medical negligence claim is
barred by res judicata, we affirm.
No. 17AP-203                                                                                      2

FACTS AND PROCEDURAL HISTORY
       {¶ 2} Appellant alleges that on July 17, 2012, Dr. Elsamaloty misread a CT scan of
Daniel Boyd, appellant's son.        As a result of that alleged negligence, Boyd suffered
hemorrhaging of the brain and cardiac arrest leaving him in a persistent vegetative state.
Appellant contends that had Dr. Elsamaloty properly read the CT scan, he would have
recognized the malfunctioning shunt that caused the hemorrhaging and action could have
been taken to avoid Boyd's injuries.
       {¶ 3} On December 12, 2013, Boyd timely filed an action in the Lucas County
Court of Common Pleas asserting a medical negligence claim against Dr. Elsamaloty and
the University of Toledo Medical Center ("UT").1 Dr. Elsamaloty and UT jointly moved to
dismiss the action arguing that only the Court of Claims has jurisdiction over a claim for
medical negligence seeking money damages against a state university medical center and
its employee.     Apparently in response to the filing of the motion to dismiss, on
February 27, 2014, Boyd filed a medical negligence action against UT and Dr. Elsamaloty
in the Court of Claims based upon the same factual allegations contained in the Lucas
County case. It is undisputed that the Court of Claims complaint contained no indication
that Boyd was seeking an immunity determination for Dr. Elsamaloty. Boyd also sought
and obtained a stay of the Lucas County case.
       {¶ 4} UT filed a Civ.R. 12(B)(6) motion to dismiss/motion for summary judgment
in the Court of Claims case arguing that Boyd's medical negligence claim is barred by the
one-year statute of limitations contained in R.C. 2743.16 and 2305.113(A). The Court of
Claims granted this motion and entered summary judgment for UT. The Court of Claims
also found that the statute of limitations was not extended by R.C. 2305.19(A), the savings
statute, because the Lucas County case, although stayed, was still pending. Therefore, the
savings statute was inapplicable. The Court of Claims further determined that the statute
of limitations was not tolled because Boyd had not been adjudicated incompetent nor did
Boyd present proper Civ.R. 56 evidence indicating that he had been confined in a hospital
under a diagnosed condition rendering him of unsound mind. Boyd did not appeal this
judgment. Instead, Boyd filed a Civ.R. 60(B) motion for relief from judgment. That

1 The Lucas County action was brought in the name of Daniel Boyd apparently because Mims had not yet

been named as Boyd's legal guardian.
No. 17AP-203                                                                            3

motion was denied.      Boyd then appealed the denial of the motion for relief from
judgment.
       {¶ 5} On appeal, Boyd asserted two assignments of error: (1) the Court of Claims
erred in granting summary judgment for UT based on the expiration of the statute of
limitations; and (2) the Court of Claims erred in denying Boyd's motion for relief from
judgment. This court overruled Boyd's first assignment of error on res judicata grounds
because Boyd had not appealed the summary judgment in favor of UT. This court
overruled Boyd's second assignment of error because he failed to present any admissible
evidence from which the Court of Claims could infer that the statute of limitations should
have been tolled. Therefore, this court concluded that the Court of Claims did not abuse
its discretion in denying Boyd's motion for relief from judgment.
       {¶ 6} Thereafter, appellant, as Boyd's guardian, petitioned the Court of Claims for
an immunity determination for Dr. Elsamaloty.          The Court of Claims found that
Dr. Elsamaloty was entitled to personal immunity, and therefore, the Lucas County Court
of Common Pleas lacked jurisdiction over Boyd's still pending claims against Dr.
Elsamaloty. As a result of this decision, appellant dismissed the Lucas County case on
July 27, 2016.
       {¶ 7} On September 12, 2016, appellant filed an action in the Court of Claims that
is the subject of this appeal. Appellant asserted medical negligence claims based upon the
same facts that were the basis for the Lucas County case and the previously-filed Court of
Claims case. However, appellant also asserted a loss of consortium claim not presented in
the previous two actions. In response, UT filed a Civ.R. 12(B)(6) motion to dismiss
arguing that appellant's action is barred by res judicata because appellant's medical
negligence claim was previously adjudicated based upon the expiration of the applicable
statute of limitations. Because summary judgment had previously been entered in UT's
favor based upon the expiration of the statute of limitations, res judicata barred
appellant's reassertion of the same claim against UT. The Court of Claims also dismissed
appellant's loss of consortium claim as barred by the statute of limitations. In granting
UT's motion to dismiss, the Court of Claims rejected appellant's argument that res
judicata did not apply because the dismissal of the Lucas County case triggered the
application of the savings statute.
No. 17AP-203                                                                               4

       {¶ 8} Appellant appeals assigning the following error:
              The Court of Claims incorrectly dismissed Ms. Mims'
              complaint.

LEGAL ANALYSIS
       {¶ 9} We review a trial court's grant of a Civ.R. 12(B)(6) motion to dismiss de
novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, ¶ 5. "A motion
to dismiss for failure to state a claim upon which relief can be granted is procedural and
tests the sufficiency of the complaint." 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 may be granted, it must appear
beyond doubt from the complaint that the plaintiff can prove no set of facts entitling the
plaintiff to recovery. Id., O'Brien v. Univ. Community Tenants Union, 42 Ohio St.2d 242
(1975), syllabus. In construing a complaint upon a Civ.R. 12(B)(6) motion to dismiss, the
court must presume the truth of all the allegations of the complaint and make all
reasonable inferences in favor of the nonmoving party. York v. Ohio State Hwy. Patrol,
60 Ohio St.3d 143, 144 (1991).
       {¶ 10} In her sole assignment of error, appellant contends that the Court of Claims
erred when it dismissed her complaint based on res judicata. We disagree.
       {¶ 11} The doctrine of res judicata stands for the principle that a valid, final
judgment rendered on the merits bars all subsequent actions based on any claim arising
out of the transaction or occurrence that was the subject matter of the previous action.
Grava v. Parkman Twp., 73 Ohio St.3d 379 (1995), syllabus. There are four requirements
for res judicata to apply: (1) there is a proper valid judgment on the merits; (2) the second
action involved the same parties or their privies as the first action; (3) the second action
raises claims that were or could have been litigated in the prior action; and (4) both
actions arose out of the same transaction or occurrence. Meyer v. Chieffo, 193 Ohio
App.3d 51, 2011-Ohio-1670, ¶ 13 (10th Dist.).
       {¶ 12} The requirements for the application of res judicata are present in this case.
It is undisputed that in Boyd's first Court of Claims case, summary judgment was entered
in favor of UT based upon the expiration of the applicable statute of limitations. A
judgment premised on the expiration of the statute of limitations is a judgment on the
No. 17AP-203                                                                               5

merits. LaBarbera v. Batsch, 10 Ohio St.2d 106 (1967), syllabus; Lewis v. Hayes, 10th
Dist. No. 08AP-574, 2009-Ohio-640, ¶ 26. Therefore, the judgment entered in favor of
UT in the first Court of Claims action is a judgment on the merits. Moreover, Boyd did
not appeal this judgment.
       {¶ 13} It is also undisputed that the case at bar involves the same parties or their
privies as the first Court of Claims case. The first Court of Claims case was brought in the
name of Daniel Boyd, apparently because appellant had not yet been appointed his
guardian. Appellant filed the instant case in her capacity as guardian of Daniel Boyd. It is
also undisputed that appellant alleges the identical medical negligence claim against UT
in the case at bar as alleged in the first Court of Claims case and that both cases arise out
of the same set of operative facts. As noted above, summary judgment was granted in
UT's favor on this claim based upon the expiration of the statute of limitations. Therefore,
the parties are in privity, and the requirements for res judicata have been satisfied. As a
consequence, res judicata bars appellant's medical negligence claim.
       {¶ 14} In an effort to avoid the application of res judicata, appellant argues that
because she filed the instant action within one year of dismissing the Lucas County case,
the savings statute precludes the application of res judicata. Again, we disagree.
       {¶ 15} The Supreme Court of Ohio in LaBarbera expressly rejected the argument
that the savings statute, R.C. 2305.19, permits the relitigation of a claim that would
otherwise be barred by res judicata. LaBarbera at 113 (noting that the application of the
savings statute would be directly contrary to the policy of res judicata and statutes of
limitations). We also note that under the savings statute, the prior dismissal must be
"otherwise than upon the merits." R.C. 2305.19. Appellant's focus on her dismissal of the
Lucas County case is misplaced. As previously noted, the judgment rendered in favor of
UT in the first Court of Claims case was on the merits. That judgment was entered and
affirmed on appeal before appellant dismissed the Lucas County case. Therefore, res
judicata applies and the savings statute is inapplicable. LaBarbera.
       {¶ 16} Appellant also argues that the interests of fairness and justice mitigate
against the application of res judicata to preclude her otherwise timely refiled lawsuit.
However, the premise of appellant's argument is false. As previously noted, the first Court
of Claims case was filed after the applicable statute of limitations had expired. To accept
No. 17AP-203                                                                                            6

appellant's argument would eviscerate the policies underlying statute of limitations and
res judicata. LaBarbera at 113. We also note that nothing prevented appellant from
timely filing a complaint in the first Court of Claims action.
        {¶ 17} For these reasons, we overrule appellant's assignment of error and affirm
the judgment of the Court of Claims of Ohio.2
                                                                                  Judgment affirmed.

                             TYACK, P.J., and DORRIAN, J., concur.




2 We recognize that the case at bar contains a loss of consortium claim that was not asserted in the first
Court of Claims suit. Noting that a loss of consortium claim is a derivative claim of appellant's medical
negligence claim, the Court of Claims dismissed it as barred by the statute of limitations. Appellant has
not challenged this aspect of the lower court's judgment.
