[Cite as Smith v. Wal-Mart Stores E., LP , 2019-Ohio-5037.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

PAMELA K. SMITH, CASE NO. 1-19-45 PLAINTIFF-APPELLANT,

v. WAL-MART STORES EAST, LP, ET AL. O P I N I O N

DEFENDANTS-APPELLEES.

Appeal from Allen County Common Pleas Court Trial Court No. CV 2019 0105 Judgment Affirmed Date of Decision: December 9, 2019

APPEARANCES:

Matthew M. Mitchell for Appellant Taylor C. Knight and Brittany H. Asmus for AppelleesCase No. 1-19-45

-2- WILLAMOWSKI, J. {¶1} Although originally placed on our accelerated calendar, we have elected pursuant to Loc.R. 12(5) to issue a full opinion in lieu of a s ummary judgment entry. {¶2} Plaintiff-appellant Pamela K. Smith (“Smith”) appeals the judgm ent of the Allen County Court of Common Pleas, alleging that the trial court erred in granting the defendants-appellees’ motion for judgment on the p leadings. For the reasons set forth below, the judgment of the trial court is aff irmed. Facts and Procedural History {¶3} Smith alleges that she was shopping in Wal-Mart Store #3206 on September 3, 2016 when she slipped on a wet spot on the floor a nd fell. Doc. 1. Smith further alleges that this fall resulted in injuries to he r ankle that required medical attention, including a surgical intervention in June of 2018. Doc. 1. Smith sought to raise a cause of action against Wal-Mart Stores East, LP and Wal-Mart Store #3206 (collectively “the defendants”) for negligence. Do c. 1. Since the date of the alleged incident was September 3, 2016, the statute of l imitations for this cause of action was set to run on September 3, 2018. Doc. 1. However, September 3, 2018 was Labor Day. Doc. 1. Since the final date of the st atute of limitations period was a legal holiday, Smith had until September 4, 2018 t o file her complaint under Civ.R. 6(A) and R.C. 1.14. Doc. 1. {¶4} In her complaint, Smith admits that she did not file her compla int by the end of the business day on September 4, 2018, but she alleg es thatCase No. 1-19-45

-3- [o]n September 4, 2018, Plaintiff’s Complaint was prepared to b e filed timely. At 5:30 p.m., after the Allen County Clerk of Co urt’s office had closed for the business day, Plaintiff’s counsel discovered that the Complaint did not get filed. Plaintiff’s c ounsel immediately attempted to contact the Allen County Clerk of Courts. At 6:30 p.m. Plaintiff’s counsel had a message left fo r the Clerk. At approximately 7:00 p.m. on September 4, 2018, Plaintiff’s counsel discussed the matter with the Allen County Clerk and was told that the Clerk would consider the option and call back. At approximately 8:00 p.m., the Allen County Clerk of Court called Plaintiff’s counsel and informed that she would no t accept the Complaint for filing on September 4, 2018. Doc. 1. At 12:17 P.M. on the following day, which was Septembe r 5, 2018, Smith filed a complaint (“September 5, 2018 Complaint”) that named Wa l-Mart Stores East, LP and Wal-Mart Store #3206 as defendants. Doc. 1, 4. S mith alleged that her injuries were caused by the negligence of the defendants. Doc. 1. On November 19, 2018, Smith’s September 5, 2018 Complaint was voluntarily d ismissed pursuant to Civ.R. 41(A). {¶5} On March 15, 2019, Smith refiled her complaint (“March 15, 2019 Refiled Complaint”) that named the same two defendants and alle ged that the negligence of these defendants caused her injuries from Septemb er 3, 2016. Doc. 1. On April 15, 2019, the defendants filed an answer to Smith’ s complaint, asserting that Smith’s claim was barred by the statute of limitations. D oc. 4. On April 22, 2019, the defendants filed a motion for judgment on the pleadin gs. Doc. 5. In this motion, the defendants argued that the September 5, 2018 Compla int was filed outside the applicable statute of limitations and that the Marc h 15, 2019 RefiledCase No. 1-19-45

-4- Complaint should, therefore, be dismissed. Doc. 5. On May 13, 2019, Smith filed a response to the defendants’ motion for a judgment on the plea dings. Doc. 8. On June 12, 2019, the trial court determined that Smith failed to file her original September 5, 2018 Complaint within the applicable statute of li mitations; granted the defendants’ motion for judgment on the pleadings; and dismi ssed this cause of

action. Doc. 10. {¶6} The appellant filed her notice of appeal on July 10, 2019. Doc . 11. On appeal, Smith raises the following two assignments of error: First Assignment of Error The Court erred in granting Appellees’ Motion for Judgment on the Pleadings based on the finding that the Appellant did not ‘attempt to commence’ an action within the meaning of R.C. 2305.19. Second Assignment of Error The Court erred in finding that the after-hours activity of the Appellant did not constitute a legal attempt. We will consider these two assignments of error in one analysis

. First and Second Assignments of Error {¶7} Smith argues that her unsuccessful effort to file a complaint a fter the office of the clerk of courts had closed was an attempt to comm ence an action within the meaning of R.C. 2305.19(A). She further argues that her ac tion does not run afoul of the applicable statute of limitations because she atte mpted to file her complaint before midnight on the final day of the statute of li mitations period.Case No. 1-19-45

-5- Legal Standard {¶8} Under Civ.R. 12(C), “[a]fter the pleadings are closed but withi n such time as not to delay the trial, any party may move for judgment on the pleadings.” Civ.R. 12(C). “In determining whether to grant a motion for ju dgment on the pleadings, a court must examine solely the pleadings.” McComb v. Suburban

Natural Gas Co ., 85 Ohio App.3d 397, 400, 619 N.E.2d 1109, 1111 (3d Dist.), c iting

Peterson v. Teodosio , 34 Ohio St.2d 161, 297 N.E.2d 113 (1973). If the trial court “finds beyond doubt, that the plaintiff could prove no set of f acts in support of his claim that would entitle him to relief,” then the grant of the motion for judgment on the pleadings is proper. Reznickcheck v. North Cent. Correctional Institution , 3d Dist. Marion No. 9-07-22, 2007-Ohio-6425, ¶ 12. “[T]he nonmovi ng party is entitled to have all material allegations in the complaint, wit h all reasonable inferences to be drawn therefrom, construed in his or her favor .” Klever v. Sullivan , 3d Dist. Crawford No. 3-07-33, 2008-Ohio-1784, ¶ 4. On appeal, “Civ.R. 12(C) * * * presents only questions of law * * *. Peterson at 166. {¶9} If the complaint, on its face, indicates that the applicable st atute of limitations for a particular cause of action has run, then a mo tion for judgment on the pleadings may be granted. Peterson at 174-175. The statute of limitations for “an action for bodily injury * * * [is] two years after the cau se of action accrues.” R.C. 2305.10(A). However, under R.C. 1.14 and Civ.R. 6(A), if the final day of a statute of limitations period “falls on Sunday or a legal holid ay,” a litigant may fileCase No. 1-19-45

-6- his or her cause of action “on the next succeeding day that is not Sunday or a legal holiday” without running afoul of the statute of limitations. R.C. 1.14. Civ.R. 6(A). Labor Day is listed as a legal holiday under R.C. 1.14. R.C. 1 .14. {¶10} Further, Ohio’s general saving statute, which is found in R.C. 2305.19(A), may be applicable when deciding whether a refiled c laim is barred by the statute of limitations. R.C. 2305.19(A). R.C. 2305.19(A) al lows an or iginal action that has either been properly commenced or ‘attempted to be commenced’ to be voluntarily dismissed and then refiled or replaced with an amended complaint against the same defendant based on the same injury, even if the applicable statute of limitations has expir ed at the time of the refiling. LaNeve v. Atlas Recycling, Inc ., 119 Ohio St.3d 324, 2008-Ohio-3921, 894 N.E.2d 25, ¶ 13. Unde r R.C. 2305.19(A), (1) “ if [a] pla intiff fails o therwise than upon the merits” (2) “[i]n any action that” the plaintiff “commenced or attempted to * * * commence[],” the plaintiff “may commence a new action within on e year after * * * the plaintiff’s failure otherwise than upon the merits.” R.C . 2305.19(A). “Thus, the legislature has liberally allowed a plaintiff a one-year ex tension of time to refile a complaint when the statute of limitations has been originally complied with, but has expired after the filing of the complaint.” McCullough v. Budd Co ., 3d Dist. Wyandot No. 16-92-12, 1992 WL 180096, *2 (July 23, 1992).Case No. 1-19-45

-7- Legal Analysis {¶11} In her March 15, 2019 Refiled Complaint, Smith admits that the statute of limitations expired on September 4, 2018 and that she did no t successfully file her complaint with the clerk of courts until September 5, 2018. Doc. 1. However, Smith argues that this cause of action is not barred by the sta tute of limitations because she made an effort to file her complaint before midnigh t on September 4, 2018 by contacting the clerk of courts after office hours. Smi th asserts that her effort to file her complaint on September 4, 2018 constitutes a n attempt to commence an action within the meaning of R.C. 2305.19(A) and th at her cause of action, therefore, falls within the exception to the statute of limitations provided in R.C. 2305.19(A). {¶12} We note that Smith has not identified any legal authority that supports her novel interpretation of R.C. 2305.19(A). Under the Ohio Ru les of Civil Procedure, A civil action is commenced by filing a complaint with the cour t, if service is obtained within one year from such filing upon a named defendant, or upon an incorrectly named defendant whose name is later corrected pursuant to Civ.R. 15(C), or upon a defendant identified by a fictitious name whose name is later corrected pursuant to Civ.R. 15(D). Civ.R. 3(A). Thus, under Civ.R. 3(A), “‘commencement’ * * * [i s] ‘(1) filing a complaint with the court and (2) obtaining service within one y ear from the filing.’”

Portee v. Cleveland Clinic Foundation , 155 Ohio St.3d 1, 2018-Ohio-3263, 118Case No. 1-19-45

-8- N.E.3d 214, ¶ 12, quoting Howard v. Allen , 30 Ohio St.2d 130, 132, 283 N.E.2d 167 (1972). However, the Ohio Rules of Civil Procedure do not prov ide a definition for an attempt to commence an action. {¶13} Similarly, R.C. 2305.17 states that “[a]n action is commenced * * * by filing a petition in the office of the clerk of the proper cour t together with a praecipe demanding that summons issue or an affidavit for service by pub lication, if service is obtained within one year.” R.C. 2305.17. However, the curr ent version of R.C. 2305.17 does not include a definition for an attempt to commenc e an action. R.C.

2305.17. The former version of R.C. 2305.17 did define an atte mpt to commence an action, providing that “an attempt to commence an action is equivalent to its

commencement.” Whitt v. Hayes , 4th Dist. Scioto No. 02CA2856, 2003-Ohio2337, ¶ 10, quoting former R.C. 2305.17. Thus, “[u]nder prior statutory and case law, the concepts ‘commence’ and ‘attempt to commence’ were dee med to be the

same.” Sorrell v. Estate of Datko , 147 Ohio App.3d 319, 2001-Ohio-3460, 770 N.E.2d 608, ¶ 17 (7th Dist.). {¶14} Since the current version of R.C. 2305.17 no longer expressly d efines the attempt to commence an action as the equivalent of the comm encement of an action, appellate courts in Ohio have reasoned that the revisio n of R.C. 2305.17 indicates that the language “‘attempted to be commenced,’ as us ed in R.C. 2305.19, has a meaning other than commencement itself.” Id . at ¶ 18, citing Husarcik v. Levy ,Case No. 1-19-45

-9- Cuyahoga App. No. 75114, 1999 WL 1024135 (Nov. 10, 1999); Schneider v.

Steinbrunner , Montgomery App. No. 15257, 1995 WL 737480 (Nov. 8, 1995). {¶15} In the absence of a statutory definition, a number of appellate districts in the State of Ohio have held “that an action is attempted to be commenced, as contemplated by R.C. 2305.19, when a party files a complaint wi th the clerk of the

court within the applicable statute of limitations and demands service on t hat complaint.” (Emphasis added.) Sorrell at ¶ 22. See also Frazier v. Owens , 1st Dist. Hamilton No. C-970487, 1998 WL 315923, *3 (June 12, 1998); Schneider at *3;

Whitt at ¶ 13; Husarcik at *3; Rossiter v. Smith , 9th Dist. Wayne No. 12CA0023, 2012-Ohio-4434, ¶ 14; Shanahorn v. Sparks , 10th Dist. Franklin No. 99AP-1340, 2000 WL 861261, *5 (June 29, 2000). {¶16} Thus, if a plaintiff (1) files a complaint “ within the applicable statute of limitations * * *,” (2) demands service on the defendants an d (3) the complaint subsequently fails otherwise than on the merits, that plaintiff may avail himself or herself of the general savings statute because he or she attemp ted to commence an

action within the meaning of R .C. 2305.19(A) . (Emphasi s added. ) Sorrell at ¶ 22.

See R.C. 2305.19(A). Thus, an attempt to commence an action requi res a plaintiff to successfully file a complaint within the applicable statute of limitations. For this reason, an unsuccessful effort to file a complaint within the s tatute of limitations cannot be an attempt to commence an action. At best, an unsucc essful effort to file a complaint is an attempt to attempt to commence an action.Case No. 1-19-45

-10- {¶17} In this case, the basis of the appellees’ motion for a judgment on the pleadings was that the complaint was not filed within the appli cable statute of limitations. Doc. 4. The file stamp on Smith’s complaint demo nstrates that this document was not filed until 12:17 P.M. on September 5, 2018. Doc. 4. See Ins. Co. of N. Am. v. Reese Refrig ., 89 Ohio App.3d 787, 627 N.E.2d 637 (3d Dist. 1993). Further, Smith admits that she did not file her complaint until September 5, 2018.

Doc. 1. See Brown v. Holiday Inn Express & Suites , 2018-Ohio-3281, 118 N.E.3d 1021, ¶ 8 (10th Dist.). The appellees relied on these facts to argue that Smith’s cause of action was barred by the statute of limitations and th at a judgment on the pleadings was appropriate. Doc. 4. {¶18} However, Smith asserts in response that she had “a right to fil e an action until midnight on September 4, 2018” and that the clerk of courts, therefore, denied her the right to file her complaint within the “time leg ally afforded by the statute of limitations * * *.” Appellant’s Brief, 12. Thus, s he argues that her complaint does not violate the statute of limitations. Asserti ng that she had a right to file her complaint until midnight, Smith argues that her uns uccessful effort to file a complaint after the office of the clerk of courts had closed constitutes an attempt to commence an action under R.C. 2305.19(A). {¶19} R.C. 1.14 governs the computation of time. The logic of this p rovision does not support the appellant’s argument as to the statute of limitations. R.C. 1.14 reads, in its relevant part, as follows:Case No. 1-19-45

-11- When a public office in which an act, required by law, is to be performed is closed to the public for the entire day that const itutes the last day for doing the act or before its usual closing time on that day , the act may be performed on the next succeeding day that is not a Sunday or a legal holiday as defined in this section. (Emphasis added.) R.C. 1.14. 1 Thus, a person seeking to perform a required act is given additional time if, on the final day of the relevant peri od, the essential public office is closed for the entire day or departs from its regular business hours. R.C.

1.14. See Hackett v. Kibbee , 4 Ohio App.2d 246, 248, 211 N.E.2d 892, 893-894 (9th Dist. 1965); Robertson v. Yates , 2d Dist. Montgomery No. 22006, 2008-Ohio616, ¶ 9. {¶20} However, a person does not receive additional time if he or she simply fails to perform a required act when a public office has been o pen during its regular hours on the final day of the relevant period. R.C. 1.14. See Hull v. J.C. Penny Co.,

Inc ., 5th Dist. Stark No. 2007-CA-00183, 2008-Ohio-1073, ¶ 25 (hol ding that the trial court did not err in finding a complaint was not timely f iled when the appellant “did not attempt to present her complaint to the clerk of court during its posted business hours” and did not “offer the appropriate filing fee * * *.”). Further, no additional time is given to a person who is seeking to perform a required act if the essential public office closes before midnight. R.C. 1.14.

1 Civ.R. 6(A) reads, in its relevant part, as follows: “When a p ublic office in which an act, required by law, rule, or order of court, is to be performed is closed to the pu blic for the entire day which constitutes the last day for doing such an act, or before its usual closing time on such day, then such act may be performed on the next succeeding day which is not a Saturday, a Sunday, or a legal holiday.” Civ.R. 6(A). R.C. 1.14 and Civ.R. 6(A) have several differences but are identical as they apply to the issues presented in this case. For this reason, we need only to review the facts of this case unde r one of these two provisions.Case No. 1-19-45

-12- {¶21} R.C. 1.14 does not operate on the assumption that a person has until midnight of the final day of the relevant period to perform a r equired act that must be done in a public office. Rather, R.C. 1.14 ensures only tha t the final day of the relevant period will be a day on which the essential public off ice is open and maintains its regular business hours. See Van Meter v. Segal-Schadel Co ., 5 Ohio St.2d 185, 214 N.E.2d 664 (1966) (holding that R.C. 1.14 evince s the legislature’s intent that “‘the last day for’ doing an act required by law sh all be a full work day.”). {¶22} Thus, the logic of R.C. 1.14 would not necessarily forbid a cle rk of courts from accepting a complaint after business hours on the f inal day of the applicable statute of limitations. However, when the office of the clerk of courts has been open during the entirety of its regular business hours on the final day of the statute of limitations period, a person does not have a rig ht to require the clerk of courts to accept a complaint after the office of the clerk o f courts has closed. {¶23} In this case, Smith received the benefit of one additional day to file her complaint under R.C. 1.14 because the office of the clerk of co urts was closed for Labor Day on September 3, 2018. Doc. 1. For this reason, Smit h already had until September 4, 2018 to file her complaint within the statute of l imitations. Smith has not alleged that the office of the clerk of courts closed early on September 4, 2018.

See Parks v. Board of Elections , Jefferson County, 7th Dist. Belmont No. 79-B-27, 1979 WL 207507, *1 (Dec. 21, 1979). Smith has not alleged that the clerk of courts impeded her, in any way, from filing a complaint during the off ice’s normal hoursCase No. 1-19-45

-13- of operation. Smith also has not identified circumstances outs ide of her control that prevented her from filing a complaint during business hours on September 4, 2018. {¶24} Moreover, Smith has not provided any legal authority that sugge sts the clerk of courts was required to accept this complaint after reg ular office hours. Smith also has not provided any legal authority that suggests s he had until midnight on September 4, 2018 to file her complaint within the statute o f limitations. For these reasons, we find that Smith’s argument as to the statute of limitations is

without merit. The evidence in the record indicates that the a ppellant simply failed to file a complaint within the applicable statute of limitation s. See Reese, supra , at 793 (holding that “[i]t is incumbent upon parties in a lawsuit to ensure their pleadings and other documents are timely delivered and accepted by the clerk for filing.”). {¶25} Since Smith’s complaint was filed after the applicable statute of limitations had run, Smith’s actions cannot constitute an attem pt to commence an action within the meaning of R.C. 2305.19(A). Doc. 1. In the end, a plaintiff must

do more than successfully file a complaint within the applicable statu te of limitations in order to attempt to commence an action. See Rossiter, supra , at ¶ 7, quoting Motorists Mut. Ins. Co. v. Huron Rd. Hosp ., 73 Ohio St.3d 391, 653 N.E.2d 235 (1995), paragraph two of the syllabus (holding that “[t]he mere filing of a complaint does not constitute an attempted commencement of an a ction * * *.”). In this case, however, the plaintiff has done less than successfully file a complaintCase No. 1-19-45

-14- within the applicable statute of limitations. Because Smith fa iled to file a complaint before the statute of limitations had expired, there is no acti on—commenced or attempted—for the savings statute to save. See Rosendale v. Ohio Dept. of Transp ., 10th Dist. Franklin No. 08AP-378, 2008-Ohio-4899, ¶ 11. {¶26} We conclude that the trial court was correct in determining tha t Smith’s actions did not constitute an attempt to commence an ac tion within the meaning of R.C. 2305. 19(A). Further, because Smith admitted, in her March 15, 2019 Refiled Complaint, that she did not successfully file her September 5, 2018 Complaint until after the statute of limitations had expired, t he trial did not err in granting the appellees’ motion for a judgment on the pleadings. Thus, Smith’s first and second assignments of error are overruled.

Conclusion {¶27} Having found no error prejudicial to the appellant in the parti culars assigned and argued, the judgment of Allen County Court of Comm on Pleas is

affirmed. Judgment Affirmed ZIMMERMAN, P.J. and PRESTON, J., concur.

/hls