Qualls v. Peregrine Health Servs.

[Cite as Qualls v. Peregrine Health Servs., 

.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Fabian L. Qualls, as Administrator                   :
of the Estate of Valarie T. Qualls,
Deceased,                                            :

                 Plaintiff-Appellant,                :             No. 21AP-473
                                                                (C.P.C. No. 20CV-3805)
v.                                                   :
                                                               (REGULAR CALENDAR)
Peregrine Health Services, Inc. et al.,              :

                 Defendants-Appellees.               :




                                            D E C I S I O N

                                   Rendered on December 22, 2022


                 On brief: Donnell & Thomas Law, LLC, and Titus G.
                 Donnell, for appellant. Argued: Titus G. Donnell.

                 On brief: Reminger Co., L.P.A., Robert V. Kish, and
                 Melvin J. Davis, for appellees Peregrine Health Services, Inc.,
                 and Edinburgh Care Resources, LLC d/b/a Echo Manor
                 Nursing & Rehabilitation Center. Argued: Melvin J. Davis.

                   APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
        {¶ 1} Plaintiff-appellant, Fabian L. Qualls, administrator of the Estate of Valarie T.
Qualls, deceased, appeals from a judgment of the Franklin County Court of Common Pleas
granting the motion for summary judgment filed by defendants-appellees Peregrine Health
Services, Inc. ("Peregrine") and Edinburgh Care Resources, LLC d/b/a Echo Manor
Nursing & Rehabilitation Center ("Echo Manor") (collectively, "appellees").              For the
reasons which follow, we reverse and remand.
No. 21AP-473                                                                                                2


I. Facts and Procedural History
        {¶ 2} On June 12, 2020, appellant filed a complaint against Peregrine, Echo
Manor, and 15 John Doe defendants alleging claims of negligence, violation of a nursing
home resident's rights under R.C. 3721.13, negligent infliction of emotional distress,
intentional infliction of emotional distress, assault, and battery. The complaint
demonstrates that Ms. Qualls was sexually assaulted sometime in April 2018. Appellant
alleged the sexual assault occurred while Ms. Qualls was a resident at Echo Manor, a long-
term care facility located in Pickerington, Ohio. Appellant asserted that Peregrine owns
and operates Echo Manor.
        {¶ 3} On September 10, 2016, Ms. Qualls suffered a debilitating middle cerebral
artery stroke which caused "severe damage to her brain." (McClary Aff. at ¶ 3; McClary
Depo. at 20.) The September 2016 stroke left Ms. Qualls paralyzed on her left side and
incapable of speaking or walking. Ms. Qualls' doctors recommended she be admitted to a
skilled nursing facility following the stroke as she was no longer able to care for herself. Ms.
Qualls' stepfather, Gerry1 McClary, moved Ms. Qualls into Echo Manor on September 23,
2016.
        {¶ 4} On March 24, 2018, Ms. Qualls was transported from Echo Manor to the Ohio
State University Hospital ("OSU") due to health concerns. Doctors at OSU prescribed
several antimicrobial medications, including a seven-day course of Flagyl, as treatment for
a suspected meningitis infection. On April 14, 2018, Ms. Qualls was discharged from OSU
and transported back to Echo Manor by the transport company Americare. On April 27,
2018, Ms. Qualls developed a high fever which persisted until April 29, 2018, when she was
again transported to OSU for treatment. Testing at OSU revealed Ms. Qualls was suffering
from a sexually transmitted disease ("STD") known as Trichomonas. Ms. Qualls' doctors
prescribed a one-time dose of Flagyl as treatment for the STD infection.
        {¶ 5} As a result of the STD diagnosis, OSU medical staff filed a report with the
Ohio State University police department indicating that Ms. Qualls had been sexually
assaulted.     Ms. Qualls' family reported the sexual assault to the Columbus Police
Department, the Fairfield County Sheriff's Office, the Ohio Attorney General's Office, and


1 Although Mr. McClary's affidavit states his name is "Terry McClary," at his deposition Mr. McClary explained
his name was "Gerry, with a G, McClary." (McClary Depo. at 5.)
No. 21AP-473                                                                             3


the Ohio Department of Health. Although these various agencies investigated the matter,
no suspect has been identified and no one has been criminally charged with the sexual
assault of Ms. Qualls. Ms. Qualls passed away unexpectedly on December 29, 2019.
      {¶ 6} On July 7, 2020, appellees filed a Civ.R. 12(B)(6) motion to dismiss the
complaint. Appellees asserted the first four claims in the complaint were medical claims
barred by the one-year statute of limitations in R.C. 2305.113(A). Appellees further
asserted that the one-year statute of limitations in R.C. 2305.111(B) barred the remaining
claims for assault and battery.    Appellees argued that R.C. 2305.16 did not toll the
applicable limitations period, as Ms. Qualls was not a person of unsound mind. The trial
court denied appellees' motion to dismiss on August 14, 2020.
      {¶ 7} Appellant filed an amended complaint on August 7, 2020. The amended
complaint asserted the same claims against the same defendants as the original complaint,
but specified that Ms. Qualls was suffering from "medical conditions" which caused her to
be "of unsound mind * * * while in the care and custody of Echo Manor." (Am. Compl. at
¶ 13.) Appellant also attached an affidavit of merit to the amended complaint. Appellees
filed an answer to the amended complaint on August 19, 2020.
      {¶ 8} On March 19, 2021, appellees filed a Civ.R. 56 motion for summary judgment.
Appellees asserted that, as Ms. Qualls was not exclusively present at Echo Manor during
the time within which she would have contracted the STD, and as no culprit had been
identified, it was "impossible to say without speculation that any additional measures,
including security or additional staffing, would have prevented the alleged assault from
being committed." (Mot. for Summ. Jgmt. at 2.) Appellees supported their motion for
summary judgment with an affidavit from their counsel and the depositions of appellant
and McClary.
      {¶ 9} On July 23, 2021, appellant filed a memorandum contra the motion for
summary judgment. Appellant asserted that, as Ms. Qualls was in a persistent vegetative
state when her claims accrued, Ms. Qualls was a person of unsound mind and R.C. 2305.16
therefore tolled the applicable limitations period. Appellant further asserted that who had
sexually assaulted Ms. Qualls and where the assault occurred were genuine issues of
material fact in the case. Appellant supported the memorandum contra with affidavits from
McClary and Dr. John Rocchi.
No. 21AP-473                                                                                               4


        {¶ 10} Dr. Rocchi averred that the STD Trichomonas is "transmitted through sexual
intercourse," and the disease has an incubation period of "4-28 days from exposure,
meaning a patient will have no symptoms prior to at least four days from exposure." (Dr.
Rocchi Aff. at ¶ 4.) McClary averred that, prior to Ms. Qualls death, her family was in the
process of having a guardian appointed for her person and estate. McClary stated that
Michael S. Witter, Psy.D., evaluated Ms. Qualls as part of the guardianship appointment
process, and McClary attached the statement of expert evaluation Dr. Witter completed on
November 21, 2019 to his affidavit.2 In the statement of expert evaluation, Dr. Witter found
Ms. Qualls to be mentally impaired, stated she was in a "Persistent Vegetative State – State
of partial arousal rather than true awareness," had "[b]rain damage from a series of strokes
and seizures in 2016," and that Ms. Qualls had "been in a vegetative state since late 2016."
(McClary Aff., Ex. at 2.)
        {¶ 11} The trial court issued a decision and entry granting appellees' motion for
summary judgment on August 26, 2021. The court found appellant's claims for negligence,
violation of R.C. 3721.13, negligent infliction of emotional distress, and intentional
infliction of emotional distress to be medical claims which were barred by the one-year
statute of limitations in R.C. 2305.113(A). The court determined appellant failed to
establish R.C. 2305.16 tolled the limitations period, as appellant failed to produce evidence
demonstrating Ms. Qualls was either adjudicated by a court as being of unsound mind or
confined in an institution under a diagnosed condition which rendered her of unsound
mind. The court found appellees entitled to summary judgment on appellant's assault and
battery claims, as appellant had "not presented evidence which would exclude OSU or the
transport company from consideration" in the sexual assault of Ms. Qualls. (Decision at
12.)
II. Assignments of Error
        {¶ 12} Appellant appeals and assigns the following two assignments of error for our
review:
                [I.] THE TRIAL COURT ERRED IN ITS DECISION AND
                ENTRY GRANTING DEFENDANTS' MOTION FOR

2 R.C. 2111.49(A)(1)(i) provides that a guardian's report must include a statement by a licensed physician or
clinical psychologist who "has evaluated or examined the ward." The statement of expert evaluation completed
by Dr. Witter is on a form from the Franklin County Probate Court which specifies that the statement "is
evidence to be considered by the [Probate] Court." (McClary Aff., Ex. at 1.)
No. 21AP-473                                                                                5


               SUMMARY JUDGEMENT BY HOLDING THAT THE
               STATUTES OF LIMITATIONS AS TO PLAINTIFF'S CLAIMS
               WERE NOT TOLLED PURSUANT TO R.C. § 2305.16.

               [II.] THE TRIAL COURT ERRED IN ITS DECISION AND
               ENTRY GRANTING DEFENDANTS' MOTION FOR
               SUMMARY JUDGMENT AS TO PLAINTIFF/APPELLANT'S
               ASSAULT AND BATTERY CLAIMS BY IMPROPERLY
               APPLYING THE RULES AND STANDARDS GOVERNING
               SUMMARY JUDGEMENT CONTAINED IN CIV.R. 56 AND
               RELEVANT CASE LAW.

III. Standard of Review on Motions for Summary Judgment
       {¶ 13} An appellate court reviews a grant of summary judgment under a de novo
standard. Capella III, L.L.C. v. Wilcox, 

, 

, ¶ 16 (10th
Dist.), citing Andersen v. Highland House Co., 

 (2001). "[D]e novo
appellate review means that the court of appeals independently reviews the record and
affords no deference to the trial court's decision." (Internal quotations and citations
omitted.) Holt v. State, 10th Dist. No. 10AP-214, 

, ¶ 9. Summary judgment
is appropriate only when the moving party demonstrates: (1) no genuine issue of material
fact exists, (2) the moving party is entitled to judgment as a matter of law, and
(3) reasonable minds could come to but one conclusion and that conclusion is adverse to
the party against whom the motion for summary judgment is made. Civ.R. 56(C); State ex
rel. Grady v. State Emp. Relations Bd., 

 (1997). In ruling on a motion
for summary judgment, the court must resolve all doubts and construe the evidence in favor
of the non-moving party. Premiere Radio Networks, Inc. v. Sandblast, L.P., 10th Dist. No.
18AP-736, 

, citing Pilz v. Ohio Dept. of Rehab. & Corr., 10th Dist. No.
04AP-240, 

.
       {¶ 14} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of
informing the trial court of the basis for the motion and of identifying those portions of the
record demonstrating the absence of a genuine issue of material fact. Dresher v. Burt, 

 (1996). If the moving party fails to satisfy its initial burden, the court
must deny the motion for summary judgment; however, if the moving party satisfies its
initial burden, summary judgment is appropriate unless the non-moving party responds,
by affidavit or otherwise as provided under Civ.R. 56, with specific facts demonstrating a
No. 21AP-473                                                                                                     6


genuine issue exists for trial. Id.; Hall v. Ohio State Univ. College of Humanities, 10th Dist.
No. 11AP-1068, 

, ¶ 12, citing Henkle v. Henkle, 

(12th Dist.1991).
IV. First Assignment of Error – Tolling
        {¶ 15} Appellant's first assignment of error asserts the trial court erred by failing to
find that R.C. 2305.16 tolled the limitations period applicable to the first four claims in the
complaint. Appellant takes no issue with the court's conclusion that the first four claims in
the complaint were medical claims subject to the one-year statute of limitations in R.C.
2305.113(A).3 See R.C. 2305.113(E)(3) (defining a "[m]edical claim" for purposes of R.C.
2305.113). Appellant also acknowledges that, absent tolling, the limitations period would
have commenced in April 2018. See Harris v. Liston, 

 (1999)
(stating that generally, "a cause of action accrues at the time the wrongful act is
committed"); Akers v. Alonzo, 

 (1992). Accordingly, as appellant
filed the complaint on June 12, 2020, the first four claims in the complaint would be barred
by R.C. 2305.113(A) unless R.C. 2305.16 tolled the limitations period.
        {¶ 16} R.C. 2305.16 provides, in relevant part, as follows:
                 [I]f a person entitled to bring any action mentioned in [R.C.
                 2305.113], unless for penalty or forfeiture, is, at the time the
                 cause of action accrues, within the age of minority or of
                 unsound mind, the person may bring it within the respective
                 times limited by those sections, after the disability is removed.
                 When the interests of two or more parties are joint and
                 inseparable, the disability of one shall inure to the benefit of all.

                 After the cause of action accrues, if the person entitled to bring
                 the action becomes of unsound mind and is adjudicated as such
                 by a court of competent jurisdiction or is confined in an
                 institution or hospital under a diagnosed condition or disease
                 which renders the person of unsound mind, the time during
                 which the person is of unsound mind and so adjudicated or so


3 As appellant does not challenge the trial court's conclusion that the first four claims asserted in the complaint
were medical claims, pursuant to R.C. 2305.113(E), we express no opinion regarding the trial court's
conclusion on this issue. Our expression of no opinion should not be construed as affirming the trial court's
conclusion that appellant's claims of negligence, violation of R.C. 3721.13, negligent infliction of emotional
distress, and intentional infliction of emotional distress were medical claims under R.C. 2305.113(E).
However, because appellant does not challenge the issue, for purposes of our present analysis we presume the
one-year statute of limitations in R.C. 2305.113(A) applied to the first four claims asserted in the complaint
without deciding the issue.
No. 21AP-473                                                                                                    7


                 confined shall not be computed as any part of the period within
                 which the action must be brought.

        {¶ 17} When assessing whether a person is of unsound mind for purposes of R.C.
2305.16, a court should consider whether there is " 'any evidence tending to show any
species of mental deficiency or derangement from which the plaintiff was suffering which
would prevent him from properly consulting with counsel, preparing and presenting his
case, and attending to his affairs, and preclude him from asserting his rights in a court of
justice.' " Drake v. Grant Med. Ctr., 10th Dist. No. 91AP-1216 (Apr. 9, 1992), quoting
Bowman v. Lemon, 

 (1926). See Nasser v. Orthopaedic Assn. of
Youngstown, 7th Dist. No. 01-CA-123, 

, ¶ 22 (stating that a "plaintiff who
is of unsound mind at the time [the plaintiff's] cause of action accrues generally does not
have the mental capability to recognize [their] cause of action or to secure counsel"). R.C.
1.02(C) generally defines "[o]f unsound mind" as including "all forms of derangement or
intellectual disability." See Fisher v. Ohio Univ., 

 (1992), citing
Webster's Third New International Dictionary 607 (1986) (equating derangement with
insanity).4
        {¶ 18} "Upon summary judgment by the defendant, the plaintiff bears the burden of
presenting evidence substantiating a claim that R.C. 2305.16 tolls the time in which the
plaintiff was required to bring [their] claims against a defendant." Boyd v. Elsamaloty,
10th Dist. No. 15AP-533, 

, ¶ 17, citing Nadra v. Mbah, 10th Dist. No. 06AP-
829, 

. Accord Thomas v. Progressive Cas. Ins. Co., 2d Dist. No. 24519,

. If the "evidence and pleadings do reveal a genuine issue of material
fact," the "question of appellant's unsoundness of mind at the time the cause of action
accrued is one for the jury and is not appropriate for summary judgment." Almanza v.
Kohlhorst, 

 (3d Dist.1992). See Bowman at paragraph three of the
syllabus (stating that whether the plaintiff was of unsound mind "should be submitted to


4 In Fisher, the court analyzed a prior version of R.C. 1.02(C), which defined of "[u]nsound mind" as including
"all forms of mental retardation or derangement." The Fisher court noted that former R.C. 5123.01(K) defined
a " 'mentally retarded person' * * * as 'a person having significantly subaverage general intellectual functioning
existing concurrently with deficiencies in adaptive behavior, manifested during the developmental period.' "
Id. at 488, quoting former R.C. 5123.01(K). See R.C. 5123.01(N) (defining "[i]ntellectual disability" currently
as a "disability characterized by having significantly subaverage general intellectual functioning existing
concurrently with deficiencies in adaptive behavior, manifested during the developmental period").
No. 21AP-473                                                                                                8


the jury, the same as any other issue of fact in the case"); Wells v. Bowie, 

 (5th Dist.1993).
        {¶ 19} As the plain language of R.C. 2305.16 demonstrates, the type of evidence
necessary to establish whether a person was of unsound mind differs "depending upon
whether it is claimed that [the person] was of unsound mind at the time the cause of action
accrued or that [they] became of unsound mind after accrual of the cause of action."
Bradford v. Surgical & Med. Neurology Assocs., Inc., 

 (9th
Dist.1994). Accord 

 (observing that the "first paragraph of R.C. 2305.16
applies to disabilities existing at the time the cause of action accrues, while the second
paragraph applies to disabilities arising after the cause of action accrues"); Thomas at ¶ 28.
See State ex rel. Peregrine Health Servs. of Columbus, L.L.C. v. Sears, Dir., Ohio Dept. of
Medicaid, 10th Dist. No. 18AP-16, 

, quoting State v. Bundy, 4th Dist.
No. 11CA818, 

 (stating that a court must " 'first look to the plain
language of the statute itself to determine the legislative intent' ").
        {¶ 20} If a plaintiff claims they were of unsound mind at the time the cause of action
accrued, "any otherwise admissible evidence tending to support that claim may be used to
establish [their] entitlement to tolling." 

. Accord Robinson v. Kramer, 8th
Dist. No. 76643 (Dec. 9, 1999) (stating that, under the first paragraph of R.C. 2305.16, the
plaintiff needed to simply "present some evidence of [plaintiff's] state of mind at the time
the cause of action accrued"). In Almanza, the court found a genuine issue of material fact
regarding whether the plaintiff was of unsound mind when her cause of action accrued,5 as
the plaintiff had "suffered a severe closed head injury as a result of this accident, which left
her comatose for approximately three months." 

. The plaintiff in Almanza
submitted an affidavit from her physician stating the head injury "resulted in mental,
physical and emotional deficits and those deficits caused [the plaintiff] to be 'unable to care
for herself and to properly look into her business affairs for at least three years subsequent
to the accident.' " 

. See 

 (finding evidence from the plaintiff's


5 In Almanza, the injuries the plaintiff suffered in the motor vehicle accident which was at issue in the case
"simultaneously made her of unsound mind," and the court found that such scenario implicated the first
paragraph of R.C. 2305.16. 

. 

 (holding that, when the condition which
renders the plaintiff of unsound mind "occur[s] simultaneously with accrual of the cause of action," the
condition of unsound mind "may be found to have existed 'at the time the cause of action accrues' for purposes
of R.C. 2305.16").
No. 21AP-473                                                                                  9


physicians, neighbors, and wife describing the plaintiff's state of mind following an assault
sufficient to permit "the plaintiff to go to the jury" on the issue of whether he was of unsound
mind).
         {¶ 21} If the plaintiff claims they became of unsound mind after the cause of action
accrued, "the evidence on that issue must include either an adjudication by a court or
evidence that [the plaintiff] was institutionalized or hospitalized for a condition or disease
that caused her to be of unsound mind." 

. See Drake (holding that,
although testimony from the plaintiff's brother and friends demonstrated the plaintiff "may
have been 'of unsound mind' at some time," as the plaintiff sought tolling under the second
paragraph of R.C. 2305.16 the evidence failed to establish the plaintiff was "adjudicated as
such by a court * * * or that [the plaintiff] was confined in a[n] institution or hospital for a
condition which rendered [the plaintiff] 'of unsound mind' "); Robinson (noting the
"evidentiary requirements of the second paragraph of R.C. 2305.16 are much more
stringent than those of the first paragraph"); 

.
         {¶ 22} Appellant alleged that Ms. Qualls was of unsound mind at the time her cause
of action accrued in 2018, as she had been in a persistent vegetative state since September
2016. As such, appellant sought tolling under the first paragraph of R.C. 2305.16. The trial
court, however, stated appellant had to establish Ms. Qualls " '(1) became of unsound mind
and was adjudicated as such by a court, or (2) was confined in an institution or hospital
under a diagnosed condition or disease that rendered her of unsound mind.' " (Decision at
10, quoting 

.) The trial court concluded appellant failed to establish either
requirement.
         {¶ 23} Accordingly, the trial court erred by applying the second paragraph of R.C.
2305.16, rather than the first paragraph, to the tolling issue in the present case. To
determine whether the trial court's error was prejudicial, we consider whether any
admissible evidence demonstrated that Ms. Qualls was suffering from a condition of mental
deficiency or derangement which prevented her from properly consulting with counsel,
preparing her case, and attending to her affairs at the time the claims accrued. Drake,
quoting 

; 

. See Gunsorek v. Pingue, 

 (10th Dist.1999), quoting State v. Payton, 

 (12th
Dist.1997) (holding that " 'when a trial court has stated an erroneous basis for its judgment,
No. 21AP-473                                                                                 10


an appellate court must affirm the judgment if it is legally correct on other grounds, that is,
it achieves the right result for the wrong reason, because such an error is not prejudicial' ").
       {¶ 24} In resolving the tolling issue, the trial court noted that the statement of expert
evaluation executed by Dr. Witter was insufficient evidentiary material, as Dr. Witter had
not authenticated the statement and McClary was not a custodian of the record. The court
also found appellant's allegation in the amended complaint indicating that Echo Manor
found Ms. Qualls to be in a persistent vegetative state insufficient, as appellees denied this
allegation in their answer and the court believed appellant failed to "verify that allegation
in discovery." (Decision at 10.) The court did not address any other evidence bearing on
Ms. Qualls' mental state.
       {¶ 25} Even if we accept the court's conclusion that Dr. Witter's statement of expert
evaluation was inadmissible, and although we find potential evidentiary issues with some
No. 21AP-473                                                                                                   11


of the evidence appellant relies on to support tolling,6 we nevertheless find that other
summary judgment evidence properly before the trial court sufficiently addressed Ms.
Qualls' mental state at the time the claims accrued. See Murphy v. Reynoldsburg, 

 (1992) (stating that Civ.R. 56(C) "imposes an absolute duty upon a trial court
to read and consider all pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written stipulations of fact when ruling
on a motion for summary judgment").




6 Appellant asserts that Dr. Rocchi's affidavit and the medical records attached thereto demonstrated Ms.
Qualls was of unsound mind at the time the claims accrued. Dr. Rocchi averred the September 2016 stroke
left Ms. Qualls "in a nearly unresponsive state," and that this "status continued through the relevant dates
hereto and until her ultimate death." (Dr. Rocchi Aff. at ¶ 3.) Ms. Qualls' medical records from OSU attached
to Dr. Rocchi's affidavit demonstrate that, as of April 14, 2018, Ms. Qualls' "mental status was non-verbal,
minimally interactive," and that as of May 25, 2018, Ms. Qualls suffered from "neurologic dysfunction." (Dr.
Rocchi Aff., Exs. B-1, B-2.) However, these medical records were not properly authenticated or admitted. See
Evid.R. 901(B)(10) (providing for "[a]ny method of authentication or identification provided by statute"); R.C.
2317.422(A) (stating that medical records "may be qualified as authentic evidence" if the custodian of the
records, person who made them, or person under whose supervision they were made, "endorses thereon the
person's verified certification identifying such records, giving the mode and time of their preparation, and
stating that they were prepared in the usual course of the business of the institution"); Evid.R. 803(6) (stating
that records of a regularly conducted business activity, "as shown by the testimony of the custodian or other
qualified witness or as provided by Rule 901(B)(10)," will not be excluded by the hearsay rule); Gabriel v. Ohio
State Univ. Med. Ctr., 10th Dist. No. 14AP-870, 

, ¶ 24. Civ.R. 56(E) requires that affidavits be
made on personal knowledge. Although Dr. Rocchi, who is the medical director of a nursing home in
Pennsylvania, incorporated Ms. Qualls' medical records by reference into his affidavit, Dr. Rocchi did not have
personal knowledge of the medical records generated at OSU. See State ex rel. Shumway v. State Teachers
Retirement Bd., 

 (10th Dist.1996). While an expert's affidavit may rely "upon facts
shown by admissible evidence," the medical records attached to Dr. Rocchi's affidavit were not properly
admitted. Frederick v. Vinton Cty. Bd. of Edn., 4th Dist. No. 03CA579, 

, ¶ 23-24 (Internal
citations omitted.). Accord State v. Chapin, 

 (1981), paragraph two of the syllabus.
Nevertheless, as no party moved to strike or objected to Dr. Rocchi's affidavit, the medical records attached to
Dr. Rocchi's affidavit, or Dr. Witter's statement of expert evaluation, the court could have considered these
documents in its discretion. See State ex rel. Spencer v. E. Liverpool Planning Comm., 

(1997), citing Bowmer v. Dettelbach, 

 (1996) (stating that a court "may consider
evidence other than that listed in Civ.R. 56 when there is no objection," although "it need not do so"); Martin
v. Cent. Ohio Transit Auth., 

 (10th Dist.1990) (stating that "[i]f there is no objection [to
evidentiary materials not listed in Civ.R. 56(C)], then the court in its discretion may consider the material");
Stegawski v. Cleveland Anesthesia Group, Inc., 

 (8th Dist.1987). Notably, the trial court
did rely on Dr. Rocchi's statements pertaining to Ms. Qualls' medical history when identifying the facts of the
case. (Decision at 3-4.) Similarly, although appellees improperly attempted to admit unauthenticated copies
of Ms. Qualls' medical records through the affidavit of their attorney, as neither party objected to these medical
records, the court could have considered the records in its discretion. See 

 (stating that a "party's
attempt to certify the genuineness of medical records by submitting his attorney's affidavit stating that the
documents are accurate copies of the originals is insufficient"); Sweatman v. Yellow Freight Sys., Inc., 10th
Dist. No. 96APE03-329 (Aug. 29, 1996). The medical records appellees submitted from Ms. Qualls' March 24
to April 14, 2018 admission at OSU demonstrate that Ms. Qualls had a history of strokes and seizures, a
"[c]ognitive deficit due to old cerebrovascular accident," was "unable to speak or follow commands" and she
did "not have capacity for complex medical decision-making." (Mot. for Summ. Jgmt., Ex. A-1.)
No. 21AP-473                                                                                 12


       {¶ 26} Appellant alleged in the amended complaint that Ms. Qualls was suffering
from "mental conditions" which caused her to be "of unsound mind" while at Echo Manor,
and that Echo Manor had evaluated Ms. Qualls and found her to be "in a 'persistent
vegetative state.' " (Am. Compl. at ¶ 13, 53.) "Pleadings" are specifically identified in Civ.R.
56(C) as proper summary judgment material. See State ex rel. Spencer v. E. Liverpool
Planning Comm., 

 (1997) (stating that pursuant to Civ.R. 56(C)
"[s]worn pleadings constitute evidence for purposes of Civ.R. 56"); Dombelek v. Admr.,
Bur. of Workers' Comp., 

, 

 (7th Dist.). McClary
averred in his affidavit that he moved Ms. Qualls into Echo Manor and that Echo Manor
"performed various evaluations of [Ms. Qualls] and they determined that she was in a
'persistent vegetative state.' " (McClary Aff. at ¶ 4.) McClary further averred that the stroke
Ms. Qualls suffered in September 2016 rendered her incapable of "speaking, walking and
extremely limited her ability to interact with others in the room." (McClary Aff. at ¶ 3.)
       {¶ 27} McClary explained in his deposition that, following the September 2016
stroke, Ms. Qualls' speech was "incoherent," she did not "understand what was going on,"
and did not react consistently when spoken to. (McClary Depo. at 18-20.) McClary, who
visited Ms. Qualls often, stated that her condition remained "[t]he same" from September
2016 through 2018. (McClary Depo. at 21.) Appellant, Ms. Qualls' brother, indicated he
did not believe Ms. Qualls "knew what was going on" when she arrived at Echo Manor in
September 2016. (Appellant Depo. at 8.) Appellant visited Ms. Qualls two or three times
while she was at Echo Manor, and affirmed that Ms. Qualls' mental condition remained the
same from the time she was admitted to the facility through April 2018.
       {¶ 28} Appellees incorporated the arguments set forth in their motion to dismiss
into their motion for summary judgment. In their motion to dismiss, appellees argued Ms.
Qualls was not of unsound mind for purposes of R.C. 2305.16, because the complaint
alleged she had experienced pain and suffering, emotional distress, and fear. Appellees did
not present any additional evidence to support their contention that Ms. Qualls was of
sound mind. See Civ.R. 56(C) and (E). A person's mere ability to experience sensations or
emotions fails to establish that such person has the mental capacity to consult with counsel,
prepare their case, or otherwise attend to their affairs. See Drake, quoting Bowman at 329-
30.
No. 21AP-473                                                                                  13


       {¶ 29} Viewing the evidence in a light most favorable to appellant, the evidence
demonstrates a genuine issue of material fact regarding whether Ms. Qualls was of unsound
mind at the time the claims accrued. As such, the limitations period applicable to the first
four claims in the complaint was potentially tolled by R.C. 2305.16. The trial court therefore
erred by granting appellees summary judgment based on the statute of limitations bar. As
the trial court did not address the merits of appellant's first four claims, we will not do so in
the first instance on appeal. See Ochsmann v. Great Am. Ins. Co., 10th Dist. No. 02AP-
1265, 

, ¶ 21, citing Mills-Jennings, Inc. v. Dept. of Liquor Control, 

 (1982) (holding it is "well-established that questions not considered by a trial
court will not be ruled upon by [the appellate] court"); Min You v. N.E. Ohio Med. Univ.,
10th Dist. No. 19AP-733, 

, ¶ 31.
       {¶ 30} Based on the foregoing, we sustain appellant's first assignment of error.
V. Second Assignment of Error – Assault & Battery Claims
       {¶ 31} Appellant's second assignment of error asserts the trial court failed to
properly apply the rules and standards governing summary judgment when ruling on the
assault and battery claims. In tort, an assault is "the willful threat or attempt to harm or
touch another offensively, which threat or attempt reasonably places the other in fear of
such contact." Smith v. John Deere Co., 

 (10th Dist.1993). Accord
Bauman v. Bob Evans Farms, Inc., 10th Dist. No. 06AP-737, 

.
To establish the tort of battery, a plaintiff "must demonstrate that the defendant acted
intending to cause a harmful or offensive contact and, in fact, a harmful contact resulted."
McRae v. Icon Entertainment Group, Inc., 10th Dist. No. 08AP-820, 

, ¶ 8,
citing Love v. Port Clinton, 

 (1988). Accord Stafford v. Clever
Investigations, Inc., 10th Dist. No. 06A

.
       {¶ 32} Appellant's assault claim alleged that "John Does 1 - 15 intentionally, without
consent or authority, engaged in sexual intercourse with Ms. Qualls," and reasonably placed
Ms. Qualls in fear of such offensive contact. (Am. Compl. at ¶ 99-101.) Appellant's battery
claim alleged that "John Does 1 - 15 intended to cause," and caused "a harmful and/or
offensive contact with Ms. Qualls when forcing her to engage in sexual intercourse." (Am.
Compl. at ¶ 104-05.) Appellant identified John Does 1 through 5 as employees or agents of
Echo Manor, John Does 6 through 10 as residents of Echo Manor, and John Does 11
No. 21AP-473                                                                                                 14


through 15 as unknown individuals who had contact with Ms. Qualls at Echo Manor.
Appellant alleged he would amend the complaint "[w]hen the true names and identity of
said Defendants John Does 1 through 15 have been ascertained," but appellant never
identified any of the John Doe defendants. (Am. Compl. at ¶ 12.) Furthermore, while
appellant alleged that Peregrine and Echo Manor were "vicariously liable for the negligent
actions of their employees [and/or] agents," appellant did not allege that appellees were
vicariously liable for intentional torts committed by their employees or agents. (Am. Compl.
at ¶ 43.)
        {¶ 33} In moving for summary judgment, appellees argued the assault and battery
claims were time barred by R.C. 2305.111. The trial court concluded that, while the assault
and battery claims were not barred by the applicable statute of limitations,7 the evidence
failed to demonstrate a genuine issue of material fact with respect to the claims. The court
noted that Ms. Qualls was not exclusively present at Echo Manor during the 24-day period
within which she would have contracted the STD, as she had also been at OSU and in the
transport vehicle during the relevant time span. As appellant had not produced evidence
excluding OSU or the transport vehicle as potential places where the assault occurred, the
court found appellees entitled to summary judgment on appellant's assault and battery
claims.
        {¶ 34} Although appellant contends the trial court erred in its summary judgment
analysis, we note a more fundamental problem with the court's ruling on the assault and
battery claims. Echo Manor and Peregrine sought summary judgment on the assault and
battery claims, but appellant filed the assault and battery claims solely against the 15 John




7 An action for assault or battery generally accrues on the "date on which the alleged assault or battery
occurred." R.C. 2305.111(B)(1). However, if the plaintiff does not know the identity of the assailant, the claim
accrues either on the "date on which the plaintiff learns the identity of that person" or the "date on which, by
the exercise of reasonable diligence, the plaintiff should have learned the identity of that person." R.C.
2305.111(B)(2)(a). The trial court acknowledged that appellant did not know the identity of the alleged
assailant and stated, in response to the question of "when should [appellant] have learned the identity," that
the court could not "determine when the statute of limitations began to run on the assault and battery claims."
(Decision at 11.) Although the court stated the assault and battery claims were "not time barred," the court's
findings arguably demonstrate that the assault and battery claims have yet to accrue. (Decision at 11.) See
Tabbaa v. Nouraldin, 8th Dist. No. 110737, 

 (stating that, as there was not "sufficient
information in the record to make a determination as to whether this cause of action has accrued and, if so,
when it accrued," the trial court "erred in granting summary judgment on that claim without sufficient
evidence to make such a determination").
No. 21AP-473                                                                                         15


Doe defendants.8 As the assault and battery claims were not alleged against Echo Manor
or Peregrine, the trial court could not grant appellees summary judgment as to these claims.
Compare Byers v. Robinson, 10th Dist. No. 08AP-204, 

.
Accordingly, we find the trial court erred by granting appellees summary judgment on the
assault and battery claims, albeit for different reasons than those asserted by appellant.
        {¶ 35} Based on the foregoing, we sustain appellant's second assignment of error.
VI. Conclusion
        {¶ 36} Having sustained appellant's first and second assignments of error, the
judgment of the Franklin County Court of Common Pleas is reversed and this case is
remanded to that court for further proceedings consistent with law and this decision.
                                                            Judgment reversed, cause remanded.
                      LUPER SCHUSTER, P.J., and SADLER, J., concur.




8There is no indication in the record that appellant effectuated personal service on any of the John Doe
defendants. See Civ.R. 15(D).