[Cite as Schramm v. Appvion, Inc., 2017-Ohio-1390.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
DIANE L. SCHRAMM : : Plaintiff-Appellant : C.A. CASE NO. 27116 : v. : T.C. NO. 15CV3951 : APPVION, INC., et al. : (Civil Appeal from : Common Pleas Court) Defendants-Appellees : :
...........
OPINION
Rendered on the ___14th ___ day of _____April_____, 2017.
DIANE L. SCHRAMM, 2731 Wild Orchard Point, Dayton, Ohio 45458 Plaintiff-Appellant
DAVID C. KORTE, Atty. Reg. No. 0019382 and MICHELLE D. BACH, Atty. Reg. No. 0065313 and JOSHUA R. LOUNSBURY, Atty. Reg. No. 0078175, 33 W. First Street, Suite 600, Dayton, Ohio 45402 Attorneys for Defendants-Appellees, Appvion, Inc.
AMANDA BROWN, Atty. Reg. No. 0075651, 150 E. Gay Street, 22nd Floor, Columbus, Ohio 43215 Attorney for Defendant-Appellee, Bureau of Workers’ Compensation .............
DONOVAN, J.
{¶ 1} This matter is before the Court on the May 24, 2016 Notice of Appeal of
Diane L. Schramm. Schramm appeals from the trial court’s May 6, 2016 “Decision, -2-
Order and Entry Granting Nunc Pro Tunc Plaintiff’s Motion for Leave to File Second
Answer [Surreply] to Appvion’s Motion for Summary Judgment; Denying Defendant
Appvion, Inc.’s Motion to Strike Plaintiff’s Second Answer to Appvion’s Motion for
Summary Judgment; and Granting Defendant Appvion, Inc.’s Motion for Summary
Judgment.” We hereby affirm the judgment of the trial court.
{¶ 2} Schramm filed a pro se Complaint against Appvion and the Bureau of
Worker’s Compensation (“BWC”) on July 30, 2015, alleging that “on or about April 28,
2004, she was an employee of Appvion, * * * and during the course of [and] arising out of
her employment she sustained/contracted an accidental injury/occupation disease; that
on said date her employer was amenable to the provisions of the Workers’ Compensation
Act.” The complaint provides that in August 2012 the District Hearing Officer (“DHO”)
denied her first report of injury/occupational disease. Schramm further alleged that in
October 2012 the Staff Hearing Officer affirmed the DHO’s order. Finally, the complaint
alleged that she appealed to the Industrial Commission (“IC”), and that the IC refused the
appeal and denied her the right to participate in the benefits provided by the BWC fund.
{¶ 3} Appvion answered the complaint on August 24, 2015, and the Administrator
of the BWC did so on August 27, 2015. On September 14, 2015, the court issued an entry
that provides that at a telephonic scheduling conference on September 11, 2015,
Schramm requested a 60 day continuance of the conference to obtain legal
representation. The court granted the continuance and indicated that no further
continuances requested by Schramm would be granted for any reason.
{¶ 4} On February 22, 2016, Appvion moved for summary judgment, arguing that
Schramm “failed to timely file her Complaint in accordance with the savings statute.” The -3-
motion provides that Schramm “filed a Workers’ Compensation claim, assigned No. 04-
867884, alleging she sustained several medical conditions as a result of exposure to
chemicals while employed by Appvion,” and that the claim was denied administratively by
the IC. The motion provides as follows:
On 11/14/12, counsel for Schramm appealed the denial of the claim
to this Court by filing a Notice of Appeal and Petition and Complaint.
Affidavit of Julie A. Gunter1 dated February 22, 2016, Exhibits A and B
(“Gunter Affidavit”). The case was assigned No. 2012 CV 08099. On
7/7/14, Schramm, pro se, filed Plaintiff’s Notice of Voluntary Dismissal of
Proceeding pursuant to Rule 41(A)(1)(a) of the Ohio Rules of Civil
Procedure. Id., Exhibit C.
On 7/7/15, Schramm filed a Petition/Complaint specifically in Case
No. 2012 CV 08099, the previously dismissed case. Id., Exhibit D. On
7/27/15, this Court sua sponte filed an Order and Entry Striking
Plaintiff/Appellant’s July 7, 2015 Complaint because Schramm failed to file
a new action as required by the savings statute. Id., Exhibit E (hereinafter
“Order”); see also R.C. 2305.19(A). The Court stated that the Complaint
was stricken without prejudice to Schramm’s ability to re-commence the
same action under a new case number within the time permitted by R.C.
2305.19(A). Order, p. 3.
On 7/30/15, namely beyond the one year refiling period, Schramm
1 The attached affidavit provides that Julie Gunter is the Workers’ Compensation Litigation Paralegal for Coolidge Wall. She authenticated the remaining exhibits attached to the motion for summary judgment. -4-
filed a Petition/Complaint that was assigned Case No. 2015 CV 03951.
Gunter Affidavit, Exhibit F. Appvion asserts that it is entitled to summary
judgment due to Schramm’s failure to timely refile her Complaint as a new
action pursuant to the savings statute.
{¶ 5} On March 7, 2016 Schramm filed “Plaintiff’s Answer to Appvion’s Motion for
Summary Judgment.” Therein she asserted as follows:
***
The Workers’ Compensation Case (04-867884) was
refiled/reopened on July 7, 2015, within the savings statute.
The closed case (2012 CV 08099) was documented at the top of the
electronic reopening/refiling entry of July 7, 2015, for the purpose of
identifying the case, which are customary procedures.
The Montgomery County Clerk of Courts was informed on July 7,
2015, of this case being “reopened” or “refiled” within the savings statute
(See Attached Exhibit 1 of Plaintiff). I specifically informed the clerk it had
to be reopened on this date. It was quite obvious the clerk was confused
and not educated on the procedures for reopening/refiling this document.
She kept asking a co-worker questions about the procedure. She then
reassured me it had been done correctly.
In response to “Exhibit A” and “Exhibit B” of defendant regarding the
“Record of Proceedings” hearing officer relying on Dr. DeHart’s report that
specific multiple chemicals were not identified to cause plaintiff’s injuries.
[sic.] Plaintiff has the documentation from reports of two medical experts -5-
and three neuropsychologists who completed thorough examinations and
had examined MSDS’s and medical history. Specific toxic chemicals were
identified, proven in the plaintiff’s blood tests results performed at AXYS
Laboratory in Sidney, British Columbia. Blood tests do not lie.
Defendant has not cooperated under OSHA Law to provide my
medical experts with the trade secrets and proprietary information needed
to complete their diagnosis and my treatment.
{¶ 6} The sole attachment to Schramm’s “Answer” is a copy of the July 7, 2015
“Petition/Complaint,” which reflects Case No. “2102 [sic] CV 08099.”
{¶ 7} “Defendant, Appvion, Inc.’s Reply in Support of Summary Judgment” was
filed on March 23, 2016. Appvion asserted that as a pro se litigant, Schramm was not
entitled to special treatment, and that her complaint in Case No. 2012 CV 08099 failed to
comply with the savings statute. Appvion asserted that the doctrine of res judicata
barred Schramm from arguing that her complaint was timely refiled on July 7, 2015.
Appvion argued that it was entitled to summary judgment because Schramm’s July 30,
2015 complaint was filed more than one year after her original case was dismissed.
Finally, Appvion asserted that Schramm’s comments regarding the merits of her claims
and OSHA requirements are irrelevant.
{¶ 8} On March 29, 2016, Schramm filed “Plaintiff’s Second Answer to Appvion’s
Motion for Summary Judgment.” Therein she asserted that she has been diagnosed
with “Toxic Encephalopathy,” which “is permanent brain damage.” She repeated her
arguments about the employee in the clerk’s office. She asserted that due to the deaths
of two relatives, she was “not physically able to make the trip down to the courthouse to -6-
refile until July 7, 2015.” She argued that Appvion failed to provide necessary
information to her treating physician.
{¶ 9} Schramm’s “Second Answer” is notarized, and she attached her July 7,
2015 “Petition/Complaint”; a portion of text from an unknown source that provides in part,
“When safety data sheets do not list all chemicals present, the physician, nurse, or
industrial hygienist should contact the manufacturer directly, because OSHA regulation
1910.1200 allows health professionals access to trade-secret information when needed
to care for an individual”; May 6, 2008 correspondence from Dr. Allan Lieberman of the
“Center for Occupational & Environmental Medicine, P.A.,” (“COEM”) to an unidentified
recipient, requesting “proprietary ingredients and trade secrets” for the care of Schramm
and two other Appleton Paper Co. employees; a May 10, 2012 “Updated Medical Report
on Diane Schramm” on COEM letterhead; and a “Preliminary Statement: Neurobehavioral
Toxicology Assessment: Diane L. Schramm,” dated May 23, 2012, and signed by
Raymond Singer, Ph.D.
{¶ 10} Appvion moved to strike Schramm’s “Second Answer” on March 31, 2016,
asserting that pursuant “to Local Rule 2.05(B)(2), Plaintiff was permitted to file one
memorandum in opposition to Appvion’s Motion for Summary Judgment.” On April 11,
2016, Schramm filed a document captioned, “Respectfully Apologize to the Court and the
Honorable Judge Mary Wiseman,” in which she sought “permission from the court and
the judge to submit my second response to Summary Judgment to correct statements of
inaccuracies and misstatements made by Appvion’s counsel.” On April 18, 2016,
Schramm filed “Plaintiff’s Request for Mediation,” which the court denied on April 28,
2016, noting that since “mediation is not appropriate in this matter, Plaintiff’s Request for -7-
Mediation hereby is DENIED with prejudice.”
{¶ 11} On May 6, 2016, at 12:44:48 p.m., Schramm filed a “Motion Requesting
Judge for Recusal from Case,” which provides that “Judge Wiseman was employed at
Coolidge Law Firm with opposing attorneys and also was an attorney and shareholder in
Coolidge Wall Law Firm.” Schramm asserted that “Coolidge Wall Law Firm” contributed
to Judge Wiseman’s campaign for judge. She argued that she “lost my last legal
representation due to Judge Wiseman’s refusal to permit my counsel adequate time * * *
to review and respond to my case. I then had to file a voluntary dismissal (41)(A)
Document for case 2012 CV 08099 because of not having sufficient time to find new
counsel.” Schramm argued that the trial court refused to reschedule a conference call on
September 11, 2015 “[d]ue to an out of state death in [Schramm’s] family.” Schramm
asserted that the “judge’s most current ruling against me denying me mediation ‘with
prejudice’ * * * has forced me to ask for her to recuse herself from this case.” Schramm
asserted that she is “in the process of filing an American Disabilities Act Complaint with
the U.S. Department of Justice against Judge Wiseman for discriminating against a
person protected under the American Disabilities Act * * *.” Schramm argued that “Judge
Wiseman has been biased and shown favoritism toward the defendant and their counsel.”
Schramm attached 19 Exhibits to her motion.
{¶ 12} In ruling on the motion for summary judgment, also on May 6, 2016, at
3:24:33 p.m., the court first addressed Appvion’s motion to strike Schramm’s “Second
Answer” as follows:
As Defendant Appvion aptly notes * * * Plaintiff neither requested nor
was granted leave by this Court before filing her Second Answer to -8-
Appvion’s Motion for Summary Judgment [i.e., “Surreply”]. Nevertheless,
Plaintiff promptly attempted to rectify that omission by requesting such leave
after Defendant’s motion to strike apprised her of the need to acquire the
Court’s permission. * * * Because Plaintiff’s surreply is proffered to correct
a serious defect in her original memorandum – i.e., that Plaintiff’s first
response to the summary judgment motion did not include an affidavit or
any other cognizable evidence to justify her opposition * * *, while her
surreply bears a notary seal * * * ̶ the Court in the exercise of its discretion
is inclined to extend that limited degree of latitude to Plaintiff. Accordingly,
Plaintiff’s Motion for Leave to File Surreply will be granted nunc pro tunc,
and Defendant Appvion’s motion to strike that surreply will be denied.
{¶ 13} Regarding Appvion’s motion for summary judgment, the court noted that
“Defendant has sustained its initial burden under Civ.R. 56(C) of demonstrating that no
genuine issue of material fact exists as to Plaintiff’s untimely filing of her current complaint
more than one year after her July 7, 2014 dismissal of the same claim in Case No. 2012
CV 8099.” The court noted that Schramm, “however, has not fulfilled her reciprocal
burden under Civ.R. 56(E) by showing the existence of a legitimate factual dispute as to
the timeliness of that reinstituted complaint.” The court determined as follows:
Although Plaintiff suggests that her complaint should be deemed
timely filed because her pro se status led her to rely on the Clerk’s office to
assure that her complaint was re-filed correctly on July 7, 2015 * * *, the fact
that Plaintiff has chosen to proceed without the benefit of legal counsel does
not excuse her failure to properly file her complaint as a new action rather -9-
than attempting to re-open the previously-dismissed case. Pro se status
does not relieve a party of the obligation to comply with applicable litigation
deadlines. * * * Furthermore, the function of the office of the Clerk of Courts
is not to provide litigants with legal advice. * * *. As a result, Plaintiff’s
professed reliance on the Clerk of Courts to assure that her complaint was
correctly and timely filed does not excuse Plaintiff’s own failure to timely re-
file her claim as a new action in accordance with the requirements of the
Ohio savings statute. * * *
Additionally, as Defendant aptly notes * * *, the evidence of record
indicates that the Petition/Complaint Plaintiff presented to the Clerk’s office
on July 7, 2015 – at the very end of the savings statute’s one-year window
for re-filing – already bore the type-written prior case number. * * * The
evidence thus suggests that Plaintiff herself, without prompting by any
Clerk’s office employee, already had prepared her complaint for re-filing
under the old case number when she arrived at the Court on the very last
day of the saving’s statute re-filing period. Plaintiff’s claimed inability to
travel to the courthouse earlier in June or July of 2015 * * * does not explain
why she failed to undertake any effort to determine the proper procedure
for reinstituting her voluntarily dismissed case before the final waning hours
when her opportunity to do so was set to expire.
Accordingly, all evidence of record indicates that Plaintiff herself
mistakenly failed to recognize the need to reinstitute her worker’s
compensation appeal under a new case number by no later than July 7, -10-
2015. Under the applicable law of this state, Plaintiff’s current complaint
therefore is time barred, and she is unable to escape the consequences of
her own mistake.
Defendants’ Civ.R.56(C) motion for judgment in its favor as a matter
of law therefore is well taken.
{¶ 14} On May 19, 2016 the trial court issued a “Decision, Order and Entry Denying
with Prejudice Plaintiff’s Motion for Recusal of Judge.” The Decision provides in part as
follows:
This Court believes that Plaintiff Schramm’s request that Judge
Wiseman remove herself from this case is moot in light of the fact that final
judgment now has been entered as to Plaintiff’s action in its entirety * * *,
with Plaintiff appearing to have waived any objection to Judge Wiseman
presiding over this case by failing to timely file an affidavit of disqualification
in accordance with R.C. § 2701.03. * * * Nevertheless, because Plaintiff
filed the motion seeking recusal shortly before the final judgment entry
actually was docketed, and because a challenge to her fairness and
impartiality is a matter not taken lightly by this Judge, the Court has
proceeded to consider the merits of Plaintiff Schramm’s request.
{¶ 15} The court noted that judges are presumed to be impartial, and that
“[m]yriad decisions of the Ohio Supreme Court make clear that a judge is not required to
refrain from presiding over cases in which some party happens to be represented by a
law firm or attorney with whom the judge long ago had a professional relationship.” The
court noted that her relationship with the Coolidge Wall law firm ended in 2007, “five years -11-
before Plaintiff filed her original appeal in this Court.” The court noted that “while the
Judge did recuse herself from all matters in which Coolidge Wall attorneys were
appearing for a period of two years after taking the bench, case law confirms that
permanent recusal is unnecessary.”
{¶ 16} The court determined that “the rules governing judicial conduct in this state
require a judge to disqualify himself or herself due to a financial conflict of interest only
when a current economic interest exists as to ‘the subject matter in controversy or in a
party to the proceeding.’ Ohio Jud.R.2.11(A)(3).” The court determined that
Schramm’s “intimation that Judge Wiseman should recuse herself due to a past financial
interest is therefore rejected.” The court further “decline[d] to recuse herself based upon
non-existent knowledge of Plaintiff’s case before that case was assigned to her.”
{¶ 17} The court noted that “[a]mple Ohio Supreme Court jurisprudence advises
that having accepted campaign support from a particular law firm or attorney is not
grounds for an elected judge’s recusal from cases in which such firm or attorney
participates.” The court noted, “[a]ccording to the Ohio Supreme Court, the mere fact
that a judge has issued rulings adverse to a party in a pending case is not grounds for
disqualification.” The court noted that its “unwillingness to refer the present case to
mediation was premised on the Court’s recognition that Plaintiff’s latest complaint was
filed after the applicable statute of limitations had run, and that her entire cause of action
thus was subject to dismissal for that reason.” The court determined that “the record
dictates an inescapable conclusion that the unfavorable disposition of her case is a
product of Plaintiff’s own mistakes and not of any bias or prejudice harbored by the
undersigned Judge.” The court finally determined that “Plaintiff’s efforts to have the -12-
undersigned removed from presiding over this case appear to be less about any objective
indicia that this Judge is biased or prejudiced against Plaintiff and/or in favor of Defendant
Appleton/Appvion or its counsel than about the fact that Plaintiff simply ‘is unhappy about
a series of rulings’ that have not gone her way.” The court denied the motion “with
prejudice.”
{¶ 18} We initially note that Schramm’s brief does not comply with App.R. 16; for
instance, she failed to set forth a specific assignment of error for our review. In a section
entitled “Argument,” Schramm asserts that she “did not ask clerk of courts personnel
advice on how to file a document but instructed them on what was needed.” She argues
that the “Clerk of Courts is not taking the responsibility of incorrectly reopening the case
they are trained to do putting the blame on a person because they are acting ProSe [sic].
They should have admitted their mistake.” Schramm asserts that “Judge Wiseman’s
[sic] commented that Appellant was unhappy about a series of rulings is correct. She
should have recused herself from the beginning of these cases because of previously
being employed and a shareholder of Coolidge Wall. The fact that she ruled with
prejudice in her recusal and mediation motions is not normal as other worker’s
compensation attorneys have advised.” Schramm asserts that “[t]hese cases as well as
other Appvion employees were very active while her employment with Coolidge Wall [sic].
It would have been discussed openly in staff meetings.” Schramm argued that “[i]n Judge
Wiseman’s decision denying Appellant’s motion for recusal she obviously retaliated
against Appellant by granting Summary Judgment for Appellee shows her prejudice,
impartiality [sic] and the conflict of interest.”
{¶ 19} Finally, Schramm asserts as follows: -13-
This case has been going on for twelve years. Half of the co-
workers (over 200 of 425 employees from Appvion) are ill or deceased from
many medical problems such as cancers, heart problems, diabetes,
neuropsychological problems, endocrine disorders, intestinal and airway
diseases, etc. It is upsetting that Judge Wiseman has no compassion or
value for injured employees of Appvion but to support her former law firm
[sic]. Appellant needs compensation for numerous permanent medical
conditions and care.
{¶ 20} Appvion responds that the trial court properly granted its motion for
summary judgment because Schramm failed to timely re-file her appeal in accordance
with the savings statute. Appvion argues that Schramm is not entitled to special treatment
as a pro se litigant. According to Appvion, res judicata “operates to preclude the
relitigation of a point of law or fact that was at issue in a former action between the same
parties and was passed upon by a court of competent jurisdiction.” Appvion asserts that
“Schramm is barred from arguing that the Complaint was properly and timely filed on July
7, 2015.” Appvion asserts that Schramm failed to support her complaint with competent
Civ.R. 56(C) summary judgment evidence. Appvion argues that Schramm’s brief
“discusses many matters that are completely irrelevant to the issue at hand.” Appvion
asserts that Schramm “failed to file an affidavit of disqualification with the Ohio Supreme
Court as required by R.C. § 2701.03(A). In addition, the matter was pending before Judge
Wiseman for almost two years under Case No. 2012 CV 08099 and Schramm never
sought recusal.” Appvion asserts that “Judge Wiseman later issued a detailed Decision
order denying the recusal motion, but even if she had not, the recusal motion would have -14-
been impliedly overruled by the grant of summary judgment.”
{¶ 21} In Reply, Schramm asserts in part as follows:
It is clearly evident that the two employees of the clerk of courts did
not know the correct procedure of refiling a case. Why did it take three
weeks to discover it had been filed wrong? The reason for this appeal is
because of Judge Wiseman’s ruling of summary judgment and ignoring a
disabled person (recognized by the ADA) of trying to cooperate with the
court by trying to get accommodations for mediation for her condition. It
was easier for Judge Wiseman to rule summary judgment and clear her
court docket than accommodate a disabled person, who was able to finally
secure legal [sic] for mediation after twelve years of litigation and not waste
taxpayers’ money on a trial. Appellee’s counsel can cite all the cases they
want but the truth is the truth.
{¶ 22} As this Court has previously noted:
When reviewing a summary judgment, an appellate court conducts
a de novo review. Village of Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,
105, 671 N.E.2d 241 (1996). “De Novo review means that this court uses
the same standard that the trial court should have used, and we examine
the evidence to determine whether as a matter of law no genuine issues
exist for trial.” Harris v. Dayton Power & Light Co., 2d Dist. Montgomery No.
25636, 2013–Ohio–5234, ¶ 11 (quoting Brewer v. Cleveland City Schools
Bd. Of Edn., 122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997)
(citing Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 413 N.E.2d 1187 -15-
(1980)). Therefore, the trial court's decision is not granted any deference by
the reviewing appellate court. Brown v. Scioto Cty. Bd. Of Commrs., 87 Ohio
App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993).
Civ. R. 56 defines the standard to be applied when determining
whether a summary judgment should be granted. Todd Dev. Co., Inc. v.
Morgan, 116 Ohio St.3d 461, 463, 880 N.E.2d 88 (2008). Summary
judgment is proper when the trial court finds: “(1) that there is no genuine
issue as to any material fact; (2) that the moving party is entitled to judgment
as a matter of law; and (3) that reasonable minds can come to but one
conclusion, and that conclusion is adverse to the party against whom the
Motion for Summary Judgment is made, who is entitled to have the
evidence construed most strongly in his favor.” Fortune v. Fortune, 2d Dist.
Greene No. 90–CA–96, 1991 WL 70721, *1 (May 3, 1991) (quoting Harless
v. Willis Day Warehous[ing] Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 45
(1978)). The initial burden is on the moving party to show that there is no
genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292–93,
662 N.E.2d 264 (1996). Once a moving party satisfies its burden, the
nonmoving party may not rest upon the mere allegations or denials of the
party's pleadings. Dotson v. Freight Rite, Inc., 2d Dist. Montgomery No.
25495, 2013–Ohio–3272, ¶ 41 (citation omitted).
Cincinnati Ins. Co. v. Greenmont Mut. Hous. Corp., 2d Dist. Montgomery No. 25830,
2014-Ohio-1973, ¶17-18.
{¶ 23} As this Court has previously noted: -16-
* * * “[I]t is well-established that pro se litigants are held to the same
rules, procedures, and standards as litigants represented by counsel.”
Goodrich v. Ohio Unemp. Comp. Rev. Comm., 10th Dist. Franklin No.
11AP–473, 2012–Ohio–467, ¶ 25, citing Zukowski v. Brunner, 125 Ohio
St.3d 53, 2010–Ohio–1652, 925 N.E.2d 987. (Other citations omitted.)
Accord Cox v. Oliver, 2d Dist. Montgomery No. 26515, 2015–Ohio–3384, ¶
20. “It is true that a court may, in practice, grant a certain amount of latitude
toward pro se litigants. * * * However, the court cannot simply disregard the
rules in order to accommodate a party who fails to obtain counsel.” (Citation
omitted.) Goodrich at ¶ 25. Accord Cox at ¶ 22.
In Karnofel v. Kmart Corp., 11th Dist. Trumbull No. 2007–T–0036,
2007–Ohio–6939, the court of appeals affirmed a grant of summary
judgment to two defendants, based on a pro se litigant's failure to submit
proper evidentiary materials in response to their summary judgment
motions. Id. at ¶ 21–30. The court stressed that “[a]though this may seem
to be a technicality to a non-attorney, the Ohio Rules of Civil Procedure
must be followed regardless of whether the litigant is represented by
counsel or appears pro se.” Id. at ¶ 27. In this regard, the court stressed
that “ ‘[i]f the courts treat pro se litigants differently, the court begins to
depart from its duty of impartiality and prejudices the handling of the case
as it relates to other litigants represented by counsel.’ ” Id., quoting State
v. Pryor, 10th Dist. Franklin No. 07–AP–90, 2007–Ohio–4275, ¶ 9. (Other
citation omitted.) -17-
Winkle v. Co, 2d Dist. Montgomery No. 27066, 2016-Ohio-6957, ¶ 37-38.
{¶ 24} Here, the trial court granted Schramm a certain amount of leeway in
allowing her to file her second “Answer” to Appvion’s motion for summary judgment.
Schramm failed to support either “Answer,” however, with competent summary judgment
evidence. While the second “Answer” is notarized, the documents attached are not
properly authenticated pursuant to Civ.R. 56.
{¶ 25} As the trial court noted, Civ.R. 41(A)(1) provides that “a plaintiff, without
order of court, may dismiss all claims asserted by that plaintiff against a defendant by * *
* filing a notice of dismissal at any time before the commencement of trial * * *.” The rule
further provides that “[u]nless otherwise stated in the notice of dismissal * * * the dismissal
is without prejudice * * *.” “ ‘A voluntary dismissal pursuant to Civ.R. 41(A)(1) constitutes
a “failure otherwise than upon the merits,” for purposes of the savings statute.’ Wenzel
v. Al Castrucci, Inc. (June 18, 1999), Montgomery App. No. 17485, [1999 WL 397366],
citing Frysinger v. Leech (1987), 32 Ohio St.3d 38, 512 N.E.2d 337, paragraph two of the
syllabus.” Korn v. Mackey, 2d Dist. Montgomery No. 20727, 2005-Ohio-2768, ¶ 20.
{¶ 26} Further, Ohio’s “savings statute,” R.C. 2305.19(A), provides that in “any
action that is commenced * * * if 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 * * *.” R.C. 2305.17 provides: “An
action is commenced within the meaning of sections 2305.03 to 2305.22 * * * by filing a
petition in the office of the clerk of the proper court * * *.”
{¶ 27} As this Court has previously noted:
In [Zimmie v. Zimmie, 11 Ohio St.3d 94, 464 N.E.2d 142 (1984)], the -18-
Ohio Supreme Court stated a voluntary dismissal deprives the court of
jurisdiction over the matter dismissed. Judge Brown noted at page 95 of
the opinion:
It is axiomatic that such a dismissal deprives the trial court of
jurisdiction over the matter dismissed. After its voluntary dismissal, an
action is treated as [if] it had never been commenced. Goldstein v. Klivans,
Inc. (App. 1931), 10 Ohio Law Abs. 133. Jurisdiction cannot be reclaimed
by the court.
Hamilton Die Cast, Inc. v. Brunswick Administrative Services, Inc., 2d Dist.
Montgomery No. 10287, 1987 WL 15244, *3 (Aug. 4, 1987).
{¶ 28} There is no genuine issue of material fact that Schramm filed the complaint
herein on July 30, 2015, and that the period of time for doing so expired on July 7, 2015.
Her July 7, 2015 Petition/Complaint, bearing case number 08099, was stricken since that
matter is to be treated as if it had never been commenced upon Schramm’s Civ.R. 41(A)
dismissal thereof. Since Schramm’s complaint was untimely filed, the trial court correctly
granted summary judgment in favor of Appvion. In other words, since Schramm filed her
complaint outside of the time period provided by the savings statute, she failed to
commence a new action within the meaning of the savings statute as a matter of law.
See Perkins v. Falke & Dunphy, LLC, 2d Dist. Montgomery No. 25162, 2012-Ohio-5799,
¶ 8-9 (granting summary judgment in favor of Falke & Dunphy, LLC, since the Perkinses’
refiling of their legal-malpractice claim occurred outside the limitations period pursuant to
R.C. 2305.11(A), and while under R.C. 2305.19(A), “the Perkinses claim would still be
timely if filed within one year of their voluntary dismissal of the first complaint,” the -19-
Perkinses voluntarily dismissed their first malpractice complaint on April 12, 2010 and
“refiled the claim on May 3, 2011, outside of the one year period provided for in R.C
2305.19(A).”)
{¶ 29} We conclude that since Appvion is entitled to summary judgment as a
matter of law based upon Schramm’s untimely filing, we need not address Schramm’s
arguments regarding the trial court’s failure to recuse itself. In other words, we conclude
that even if the court had recused itself, the outcome herein would have been the same
in another court as a matter of law.
{¶ 30} Schramm’s arguments are overruled, and the judgment of the trial court is
affirmed.
.............
FROELICH, J. and WELBAUM, J., concur.
Copies mailed to:
Diane L. Schramm David C. Korte Michelle D. Bach Joshua R. Lounsbury Amanda Brown Hon. Mary L. Wiseman