[Cite as Wenning v. Advanced Spine Joint & Wellness Ctr., L.L.C., 2018-Ohio-2798.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
ALISE WENNING, et al. C.A. No. 17CA0031-M
Appellants
v. APPEAL FROM JUDGMENT ENTERED IN THE ADVANCED SPINE JOINT AND COURT OF COMMON PLEAS WELLNESS CENTER, et al. COUNTY OF MEDINA, OHIO CASE No. 16CIV0014 Appellees
DECISION AND JOURNAL ENTRY
Dated: July 16, 2018
CARR, Judge.
{¶1} Plaintiffs-Appellants Alise and David Wenning (collectively “the Wennings”)
appeal from the judgment of the Medina County Court of Common Pleas. This Court affirms.
I.
{¶2} In May 2014, Alise Wenning began receiving chiropractic care at Defendant-
Appellee Advanced Spine Joint and Wellness Center, LLC (“Advanced Spine”) in Medina.
Following a chiropractic treatment on November 13, 2014, while Mrs. Wenning was still in the
lobby, she began experiencing stroke-like symptoms. An ambulance was called and Mrs.
Wenning was taken to a hospital. Subsequent testing determined that Mrs. Wenning had had
multiple strokes.
{¶3} In January 2016, the Wennings filed a complaint against Advanced Spine, Dr.
Matt Marr, D.C., Dr. John Kocka, M.D., and Dr. John Doe, D.C. (collectively “the Defendants”).
The Wennings alleged in the complaint that Dr. Doe was a chiropractor whose identity could not 2
be determined from Advanced Spine’s records. They further asserted that, pursuant to R.C.
2305.113, they had sent a “180 day” letter to the Defendants on September 16, 2015, which was
received by the Defendants on September 18, 2015. The complaint contained four counts:
malpractice, lack of informed consent, spoliation of evidence, and loss of consortium and
emotional distress. The complaint and accompanying affidavit reflect that Mrs. Wenning
believed that Dr. Marr adjusted her the day of her strokes. The Defendants answered the
complaint denying the majority of the allegations.
{¶4} On May 23, 2016, the Wennings filed a motion for leave to amend their
complaint. In the motion, the Wennings asserted that Mrs. Wenning only knew the doctor who
treated her in November 2014 as “Dr. Matt” and that, at the time the complaint was filed, she
believed that Dr. Marr was “Dr. Matt[.]” However, at a pretrial, counsel for the Defendants
revealed that Defendant-Appellee Matthew Meehan, D.C. was the chiropractor who treated Mrs.
Wenning the day of her strokes. Therefore, the Wennings sought to amend the complaint
pursuant to Civ.R. 15(D) in order to add Dr. Meehan as “a New Party Defendant.”
{¶5} On May 27, 2016, the trial court granted the Wennings’ motion. That same day,
an amended complaint was filed that included Dr. Meehan as a defendant, in addition to both Dr.
Marr and Dr. John Doe. The Wennings alleged that they had sent “180 day” letters to each of
the named defendants on September 16, 2015, which were received on September 18, 2015, and
that “Dr. Matt Meehan [wa]s a ‘John Doe’ who could not be identified prior to filing suit as his
identity could not be determined from the records produced by Defendants prior to suit, or
otherwise.” Defendants Advanced Spine, Dr. Marr, Dr. Kocka, and Dr. Doe answered generally
denying the allegations. 3
{¶6} What appears to be the same amended complaint was again filed on June 15,
2016, and a summons was issued to Dr. Meehan. Dr. Meehan filed an answer denying the
majority of the allegations. Dr. Meehan raised the statute of limitations as an affirmative
defense. In February 2017, the Wennings dismissed Dr. Marr from the suit.
{¶7} In January 2017, Dr. Meehan moved for summary judgment arguing that the
Wennings’ claims against him were time barred. Dr. Meehan argued that the one-year statute of
limitations began to run on the Wennings’ claims as of November 13, 2014, and that because the
Wennings had not sent a letter to Dr. Meehan in compliance with R.C. 2305.113(B), the
limitations period expired on November 13, 2015, before the original complaint was even filed.
Further, Dr. Meehan noted that the Wennings had failed to comply with the requirements of
Civ.R. 15(D) and therefore their amended complaint did not relate back to the filing of their
original complaint. Accordingly, Dr. Meehan maintained that the Wennings’ claims against him
were time barred.
{¶8} In their brief in opposition, the Wennings argued that Civ.R. 15(C) applied, not
Civ.R. 15(D). In so doing, the Wennings seemed to implicitly acknowledge that their filings
were not in accordance with the requirements of Civ.R. 15(D). The Wennings argued that the
amended complaint did relate back to the filing of the original complaint.
{¶9} Dr. Meehan filed a reply brief maintaining that, irrespective of whether the
Wennings relied upon Civ.R. 15(C) or Civ.R. 15(D), the original complaint was not timely filed
as to Dr. Meehan because the Wennings did not send him a letter pursuant to R.C. 2305.113.
Further, Dr. Meehan asserted that the amended complaint was not properly filed pursuant to
Civ.R. 15(C) as the Wennings did not substitute Dr. Meehan for another party; instead, they
added Dr. Meehan in addition to all of the previous parties. 4
{¶10} Ultimately, the trial court concluded that the statute of limitations expired on
November 13, 2015 as to Dr. Meehan, and thus, the trial court granted Dr. Meehan’s motion for
summary judgment. Subsequently, the Wennings moved the trial court to add a certification
pursuant to Civ.R. 54(B), which the trial court did.
{¶11} The Wennings have appealed, raising a single assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING SUMMARY JUDGMENT TO DEFENDANT MATTHEW MEEHAN, D.C. AS CIVIL RULE 15(C), AND NOT 15(D), APPLIES HERE, AND THE CLAIMS AGAINST DR. MEEHAN IN THE AMENDED COMPLAINT RELATE BACK TO THE TIMELY FILED ORIGINAL COMPLAINT[.]
{¶12} The Wennings argue in their sole assignment of error that the trial court erred in
granting summary judgment to Dr. Meehan because Civ.R. 15(C) applied, not Civ.R. 15(D).
They argue that if the trial court had properly applied Civ.R. 15(C), it would have concluded that
their amended complaint did relate back to the filing of their original complaint.
{¶13} This Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court applies the same standard as the trial
court, viewing the facts in the case in the light most favorable to the non-moving party and
resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio
App.3d 7, 12 (6th Dist.1983).
{¶14} Pursuant to Civ.R. 56(C), summary judgment is proper if:
No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. 5
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
{¶15} The party moving for summary judgment bears the initial burden of informing the
trial court of the basis for the motion and pointing to parts of the record that show the absence of
a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996).
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Wenning v. Advanced Spine Joint & Wellness Ctr., L.L.C., 2018-Ohio-2798.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
ALISE WENNING, et al. C.A. No. 17CA0031-M
Appellants
v. APPEAL FROM JUDGMENT ENTERED IN THE ADVANCED SPINE JOINT AND COURT OF COMMON PLEAS WELLNESS CENTER, et al. COUNTY OF MEDINA, OHIO CASE No. 16CIV0014 Appellees
DECISION AND JOURNAL ENTRY
Dated: July 16, 2018
CARR, Judge.
{¶1} Plaintiffs-Appellants Alise and David Wenning (collectively “the Wennings”)
appeal from the judgment of the Medina County Court of Common Pleas. This Court affirms.
I.
{¶2} In May 2014, Alise Wenning began receiving chiropractic care at Defendant-
Appellee Advanced Spine Joint and Wellness Center, LLC (“Advanced Spine”) in Medina.
Following a chiropractic treatment on November 13, 2014, while Mrs. Wenning was still in the
lobby, she began experiencing stroke-like symptoms. An ambulance was called and Mrs.
Wenning was taken to a hospital. Subsequent testing determined that Mrs. Wenning had had
multiple strokes.
{¶3} In January 2016, the Wennings filed a complaint against Advanced Spine, Dr.
Matt Marr, D.C., Dr. John Kocka, M.D., and Dr. John Doe, D.C. (collectively “the Defendants”).
The Wennings alleged in the complaint that Dr. Doe was a chiropractor whose identity could not 2
be determined from Advanced Spine’s records. They further asserted that, pursuant to R.C.
2305.113, they had sent a “180 day” letter to the Defendants on September 16, 2015, which was
received by the Defendants on September 18, 2015. The complaint contained four counts:
malpractice, lack of informed consent, spoliation of evidence, and loss of consortium and
emotional distress. The complaint and accompanying affidavit reflect that Mrs. Wenning
believed that Dr. Marr adjusted her the day of her strokes. The Defendants answered the
complaint denying the majority of the allegations.
{¶4} On May 23, 2016, the Wennings filed a motion for leave to amend their
complaint. In the motion, the Wennings asserted that Mrs. Wenning only knew the doctor who
treated her in November 2014 as “Dr. Matt” and that, at the time the complaint was filed, she
believed that Dr. Marr was “Dr. Matt[.]” However, at a pretrial, counsel for the Defendants
revealed that Defendant-Appellee Matthew Meehan, D.C. was the chiropractor who treated Mrs.
Wenning the day of her strokes. Therefore, the Wennings sought to amend the complaint
pursuant to Civ.R. 15(D) in order to add Dr. Meehan as “a New Party Defendant.”
{¶5} On May 27, 2016, the trial court granted the Wennings’ motion. That same day,
an amended complaint was filed that included Dr. Meehan as a defendant, in addition to both Dr.
Marr and Dr. John Doe. The Wennings alleged that they had sent “180 day” letters to each of
the named defendants on September 16, 2015, which were received on September 18, 2015, and
that “Dr. Matt Meehan [wa]s a ‘John Doe’ who could not be identified prior to filing suit as his
identity could not be determined from the records produced by Defendants prior to suit, or
otherwise.” Defendants Advanced Spine, Dr. Marr, Dr. Kocka, and Dr. Doe answered generally
denying the allegations. 3
{¶6} What appears to be the same amended complaint was again filed on June 15,
2016, and a summons was issued to Dr. Meehan. Dr. Meehan filed an answer denying the
majority of the allegations. Dr. Meehan raised the statute of limitations as an affirmative
defense. In February 2017, the Wennings dismissed Dr. Marr from the suit.
{¶7} In January 2017, Dr. Meehan moved for summary judgment arguing that the
Wennings’ claims against him were time barred. Dr. Meehan argued that the one-year statute of
limitations began to run on the Wennings’ claims as of November 13, 2014, and that because the
Wennings had not sent a letter to Dr. Meehan in compliance with R.C. 2305.113(B), the
limitations period expired on November 13, 2015, before the original complaint was even filed.
Further, Dr. Meehan noted that the Wennings had failed to comply with the requirements of
Civ.R. 15(D) and therefore their amended complaint did not relate back to the filing of their
original complaint. Accordingly, Dr. Meehan maintained that the Wennings’ claims against him
were time barred.
{¶8} In their brief in opposition, the Wennings argued that Civ.R. 15(C) applied, not
Civ.R. 15(D). In so doing, the Wennings seemed to implicitly acknowledge that their filings
were not in accordance with the requirements of Civ.R. 15(D). The Wennings argued that the
amended complaint did relate back to the filing of the original complaint.
{¶9} Dr. Meehan filed a reply brief maintaining that, irrespective of whether the
Wennings relied upon Civ.R. 15(C) or Civ.R. 15(D), the original complaint was not timely filed
as to Dr. Meehan because the Wennings did not send him a letter pursuant to R.C. 2305.113.
Further, Dr. Meehan asserted that the amended complaint was not properly filed pursuant to
Civ.R. 15(C) as the Wennings did not substitute Dr. Meehan for another party; instead, they
added Dr. Meehan in addition to all of the previous parties. 4
{¶10} Ultimately, the trial court concluded that the statute of limitations expired on
November 13, 2015 as to Dr. Meehan, and thus, the trial court granted Dr. Meehan’s motion for
summary judgment. Subsequently, the Wennings moved the trial court to add a certification
pursuant to Civ.R. 54(B), which the trial court did.
{¶11} The Wennings have appealed, raising a single assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING SUMMARY JUDGMENT TO DEFENDANT MATTHEW MEEHAN, D.C. AS CIVIL RULE 15(C), AND NOT 15(D), APPLIES HERE, AND THE CLAIMS AGAINST DR. MEEHAN IN THE AMENDED COMPLAINT RELATE BACK TO THE TIMELY FILED ORIGINAL COMPLAINT[.]
{¶12} The Wennings argue in their sole assignment of error that the trial court erred in
granting summary judgment to Dr. Meehan because Civ.R. 15(C) applied, not Civ.R. 15(D).
They argue that if the trial court had properly applied Civ.R. 15(C), it would have concluded that
their amended complaint did relate back to the filing of their original complaint.
{¶13} This Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court applies the same standard as the trial
court, viewing the facts in the case in the light most favorable to the non-moving party and
resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio
App.3d 7, 12 (6th Dist.1983).
{¶14} Pursuant to Civ.R. 56(C), summary judgment is proper if:
No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. 5
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).
{¶15} The party moving for summary judgment bears the initial burden of informing the
trial court of the basis for the motion and pointing to parts of the record that show the absence of
a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996).
Specifically, the moving party must support the motion by pointing to some evidence in the
record of the type listed in Civ.R. 56(C). Id. Once a moving party satisfies its burden of
supporting its motion for summary judgment with acceptable evidence pursuant to Civ.R. 56(C),
Civ.R. 56(E) provides that the non-moving party may not rest upon the mere allegations or
denials of the moving party’s pleadings. Id. at 293. Rather, the non-moving party has a
reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine
triable issue” exists to be litigated at trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d
447, 449 (1996).
{¶16} We begin by noting that the Wennings do not appear to challenge that the
timeliness of their claims against Dr. Meehan is governed by the statute of limitations set forth in
R.C. 2305.113. Nor do they appear to dispute that the statute of limitations began to run on
November 13, 2014, the day that Mrs. Wenning suffered her strokes. Thus, absent proper
utilization of the extension provided for in R.C. 2305.113(B)(1), the statute of limitations on
their claims against Dr. Meehan expired in November 2015.
{¶17} From the trial court’s judgment entry, it is clear that the trial court found that, as
to Dr. Meehan, the Wennings did not make appropriate use of R.C. 2305.113(B)(1), and, thus,
the statute of limitations expired in November 2015. Given the foregoing, as the Wennings did
not file their original complaint until January 2016, the trial court concluded that, as to Dr.
Meehan, the Wennings’ claims were untimely and awarded summary judgment to Dr. Meehan. 6
{¶18} On appeal, the Wennings focus their argument on the trial court’s failure to
conclude that the amended complaint did relate back to the filing of the original complaint
pursuant to Civ.R. 15(C). However, there is nothing in the trial court’s entry that indicates that
the trial court even considered whether the amended complaint did or did not relate back to the
filing of the original complaint under any provision of Civ.R. 15. Because the trial court
determined that the Wennings did not comply with R.C. 2305.113(B)(1), the trial court
concluded that the statute of limitations was not extended as to Dr. Meehan and that it expired
before the Wennings even filed their original complaint. Thus, in light of the trial court’s
conclusion, there would be no reason to consider whether the amended complaint did relate back
to the filing of the original complaint because the trial court found that the original complaint
itself was untimely filed as to Dr. Meehan. Said differently, whether the amended complaint
related back would only become important if it was first determined that the original complaint
was timely filed as to Dr. Meehan.
{¶19} Here, on appeal, the Wennings have failed to actually challenge the basis of the
trial court’s judgment. The Wennings have not argued that the trial court erred in determining
that, as to Dr. Meehan, the Wennings failed to comply with R.C. 2305.113(B)(1). While they
mention in passing that the original complaint was timely filed, they have developed no
argument explaining the same, nor have they set forth an assignment of error addressing that
issue. See App.R. 16(A)(7); see also Hall v. Silver, 9th Dist. Summit No. 28798, 2018-Ohio-
1706, ¶ 13. Because the Wennings have failed to adequately challenge the basis of the trial
court’s judgment on appeal, their assignment of error is overruled. 7
III.
{¶20} The Wennings’ assignment of error is overruled. The judgment of the Medina
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
DONNA J. CARR FOR THE COURT
SCHAFER, P. J. TEODOSIO, J. CONCUR. 8
APPEARANCES:
KEVIN T. ROBERTS, Attorney at Law, for Appellants.
VICTORIA L. VANCE and CHRISTINA E. MARINO, Attorneys at Law, for Appellee.
THOMAS B. KILBANE, Attorney at Law, for Appellee.