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

COURT OF APPEALS 

 STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

MORESETTA SMART 

 Plaintiff-Appellant 

-vsAULTMAN HOSPITAL, et al., 

 

 Defendants-Appellees 

: JUDGES: 

: W. Scott Gwin, P.J. 

: Sheila G. Farmer, J. 

: Julie A. Edwards, J. 

: 

: Case No. 2010CA00206 

: 

: 

: O P I N I O N

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