[Cite as Smart v. Aultman Hosp., 2011-Ohio-1318.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


                                                    :   JUDGES:
MORESETTA SMART                                     :   W. Scott Gwin, P.J.
                                                    :   Sheila G. Farmer, J.
                        Plaintiff-Appellant         :   Julie A. Edwards, J.
                                                    :
-vs-                                                :   Case No. 2010CA00206
                                                    :
                                                    :
AULTMAN HOSPITAL, et al.,                           :   OPINION

                  Defendants-Appellees




CHARACTER OF PROCEEDING:                                 Civil Appeal from Stark County
                                                         Court of Common Pleas Case No.
                                                         2010CV00631

JUDGMENT:                                                Affirmed

DATE OF JUDGMENT ENTRY:                                  March 17, 2011

APPEARANCES:

For Plaintiff-Appellant                                  For Defendants-Appellees

MORESETTA AND WILLIAM SMART                              ARETTA K. BERNARD
1527 27th Street, N.W.                                   KAREN D. ADINOLFI
Canton, Ohio 44709                                       Roetzel & Andress
                                                         222 South Main Street
                                                         Akron, Ohio 44308

For Dr. Michael Rich, M.D.                               For Dr. Ike Nkanginieme

W. BRADFORD LONGBRAKE, Esq.                              DEIRDRE G. HENRY, Esq.
DAVID M. KRUEGER, Esq.                                   WESTON HURD, LLP
Reminger Co., LPA                                        The Tower at Erieview
200 South Summit Street                                  1301 East Ninth Street, Ste. 1900
80 South Summit Street                                   Cleveland, Ohio 44114-1862
Akron, Ohio 44308
[Cite as Smart v. Aultman Hosp., 2011-Ohio-1318.]


Edwards, J.

        {¶1}    Plaintiff-appellant, Moresetta Smart, appeals from the June 30, 2010,

Judgment Entries of the Stark County Court of Common Pleas.

                               STATEMENT OF THE FACTS AND CASE

        {¶2}    On February 16, 2010, appellant and her husband filed a complaint

against appellees Aultman Hospital, Dr. Michael Rich and Dr. Ike Nkanginieme based

on care that she had received while a patient at appellee Aultman Hospital in February

of 2008. Appellant, in her complaint, alleged causes of action for intentional infliction of

emotional distress, false imprisonment, negligent infliction of emotional distress,

discrimination/retaliation/race/harassment in violation of R.C. 4112.02 and fraud.

Appellant and her husband filed an amended complaint on February 17, 2010.

        {¶3}    Thereafter, on March 17, 2010, appellee Dr. Michael Rich filed a Motion

for Judgment on the Pleadings pursuant to Civ.R. 12(C). Appellee Dr. Rich, in his

motion, argued that appellant’s claims were medical claims under R.C. 2305.113 and

were not filed within the one year statute of limitations. Appellee Dr. Rich further argued

that appellant had failed to file an affidavit of merit as required by Civ.R. 10(D)(2). On

March 22, 2010, appellee Dr. Nkanginieme filed a Motion to Dismiss appellant’s

amended complaint pursuant to Civ.R. 12(B)(6), 12(C) and Civ.R. 10(D)(2), alleging that

appellant’s medical claims were barred by the one year statute of limitations in R.C.

2305.113 and that appellant and her husband failed to attach an affidavit of merit to

their amended complaint as required by Civ.R. 10(D)(2).

        {¶4}    Subsequently, on March 23, 2010, appellee Aultman Hospital filed a

Motion to Dismiss appellant’s amended complaint pursuant to Civ.R. 12(B)(6) and
Stark County App. Case No. 2010CA00206                                                3


Civ.R. 11. Appellee Aultman Hospital, in its motion, alleged that while appellant signed

the amended complaint, “the allegations and legal arguments are clearly authorized by

her husband,” a non-attorney. In short, appellee Aultman Hospital alleged that

appellant’s husband was acting as appellant’s attorney in this case. Appellee Aultman

Hospital further argued that appellant’s amended complaint failed to comply with Civ.R.

10(B) and Civ.R. 10(D)(2) and that the amended complaint should be dismissed for

failure to state a claim upon which relief can be granted.

       {¶5}   Pursuant to a Judgment Entry filed on June 30, 2010, the trial court

granted appellee Dr. Rich’s Motion for Judgment on the Pleadings. The trial court found

that appellant and her husband had not demonstrated that they could prove any set of

facts entitling them to relief, that their claim against appellee Dr. Rich was a medical

claim that was barred by the one year statute of limitations in R.C. 2305.113, and that

they had failed to comply with Civ.R. 10(D)(2). As memorialized in a separate Judgment

Entry filed on June 30, 2010, the trial court granted the Motions to Dismiss filed by

appellee Aultman Hospital and appellee Dr. Nkanginieme for the same reasons.

       {¶6}   Appellant now appeals from the trial court’s two June 30, 2010, Judgment

Entries, raising the following assignments of error on appeal:

       {¶7}   “I. WHETHER THE JUDGE ABUSE [SIC] IT [SIC] DECESTION [SIC] TO

MAKE KNOWN CONFLICTS OF INTEREST.

       {¶8}   “II. WHETHER THE JUDGE ABUSE [SIC] ITS [SIC] DISCRECTION [SIC]

WHEN IT [SIC] FAILED TO DISQUALIFY ITS [SIC] SELF [SIC] IN ANY PROCEEDING

IN   WHICH     THE    JUDGE      [SIC]   IMPARTIALITY        MIGHT   REASONABLY     BE

QUESTIONED.
Stark County App. Case No. 2010CA00206                                                    4


       {¶9}   “III. WHETHER THE JUDGE LABORS UNDER A CONFLICT OF

INTEREST OR BIAS TOWARDS THE PLAINTIFF.”

                                              I, II, III

       {¶10} Appellant, in her three assignments of error, essentially states that the trial

court was not impartial, was biased against her and had undisclosed conflicts of interest

and that, on such basis, the judgment of the trial court should be reversed.

       {¶11} “The Chief Justice of the Supreme Court of Ohio, or his designee, has

exclusive jurisdiction to determine a claim that a common pleas judge is biased or

prejudiced.” Jones v. Billingham (1995), 105 Ohio App.3d 8, 11, 663 N.E.2d 657, citing,

Section 5(C), Article IV, Ohio Constitution, and Adkins v. Adkins (1988), 43 Ohio App.3d

95, 539 N.E.2d 686.

       {¶12} R.C. 2701.03 provides the exclusive means by which a litigant can assert

that a common pleas judge is biased or prejudiced. Id. Specifically, R.C. 2701.03(A)

provides, in relevant part:

       {¶13} “If a judge of the court of common pleas allegedly is interested in a

proceeding pending before the court, allegedly is related to or has a bias or prejudice for

or against a party to a proceeding pending before the court or a party's counsel, or

allegedly otherwise is disqualified to preside in a proceeding pending before the court,

any party to the proceeding or the party's counsel may file an affidavit of disqualification

with the clerk of the supreme court in accordance with division (B) of this section.” R.C.

2701.03(A).
Stark County App. Case No. 2010CA00206                                                            5


       {¶14} Thus, an appellate court lacks the authority to pass upon the

disqualification of a common pleas court judge or to void the judgment of a trial court on

that basis. State v. Ramos (1993), 88 Ohio App.3d 394, 398, 623 N.E.2d 1336

       {¶15} Accordingly, this Court is without the authority to determine the

disqualification of a common pleas court judge. Nor is this Court the proper forum in

which to litigate whether the trial court judge should have disqualified herself.                In

addition, the appellant does not point to anywhere in the record where she claims that

the trial court judge acted in a prejudicial way against the appellant. The arguments

presented by the appellant in her brief filed September 20, 2011, set forth that it was the

appellees and appellees’ attorneys, not the trial court judge, who engaged in

misconduct. Appellant’s three assignments of error are, therefore, overruled.1




1
 The statement of the assignments of error were not supported by the discussion which followed those
assignments.
Stark County App. Case No. 2010CA00206                                          6


      {¶16} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed.




By: Edwards, J.

Gwin, P.J. and

Farmer, J. concur

                                              ______________________________



                                              ______________________________



                                              ______________________________

                                                          JUDGES

JAE/d0203
[Cite as Smart v. Aultman Hosp., 2011-Ohio-1318.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


MORESETTA SMART                                     :
                                                    :
                           Plaintiff-Appellant      :
                                                    :
                                                    :
-vs-                                                :       JUDGMENT ENTRY
                                                    :
AULTMAN HOSPITAL, et al.,                           :
                                                    :
                     Defendants-Appellees           :       CASE NO. 2010CA00206




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to

appellant.




                                                        _________________________________


                                                        _________________________________


                                                        _________________________________

                                                                     JUDGES
