MEMORANDUM IN SUPPORT OF JURISDICTION

IN THE SUPREME COURT OF OHIO- - -

Cheryl L. Swanson, 0 g-0786

Appellant, On Appeal from the VintonCounty Court of Appeals,

V. Fourth Appellate District

Boy Scouts of America, et al., Court of AppealsCase No. 07CA663

Defendants-Appellees.

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT CHERYL L. SWANSON

Cheryl Swanson, Pro SePO Box 20061Columbus, OH 43220(614) 282-1231

COUNSEL FOR APPELLANT, Cheryl Swanson, Pro Se

Theodore P. Mattis (0055229)Vorys, Sater, Seymour, and Pease LLP52 East Gay StreetP.O. Box 1008Columbus, OH 43216-1008Fax No. (614) 719-5031(614) 464-6468Tpmattis ,vss .p com

COUNSEL FOR APPELLEES

SUPREME COURT 00 ^0OHIO

TABLE OF CONTENTS

Page

EXPLANATION OF WHY TI3IS CASE IS A CASE OF PUBLICOR GREAT GENERAL INTEREST AND INVOLVES ASUBSTANTIAL CONSTITUTIONAL QUESTION AS TO THERIGHTS OF DISABLED TRAMATIC BRAIN INJURED VICTIMS ANDTHE DISCRIMINATION OF FEMALES IN THE BSA........... 1

STATEMENT OF THE CASE AND FACTS .. ....................... 3

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW..... 8

Proposition of Law No. I: American Disability Act 8

Proposition of Law No. H:Civ R 17 (B) due to a tramatic 8Brain injury

CONCLUSION .. ................................................................... 9

CERTIFICATE OF SERVICE ............................................ 10

APPENDIX Aoax. Page

Opinion of the Fourth Appellate District Court of AppealsVinton County (Apri12, 2008) 12

Judgment Entry of the Fourth AppeaRate District CourtOf Appeals, Vinton County (April 2,2008)

CASES 1

STATEMENT OF THE CASE AND FACTS

This cause presents critical issues for the future of Disabled Tramatic Brain

Injured Victims. I requested a jury trial for my case because of the extensive damage it

has left to myself and others. According to Mc Graw v Canton Drop Forging &

Manufacturing Co (5d) and Robinson v Cougar (3d), Denial of motion is not final

appealable order for a motion for jury trial. A Neuropsychologist without medical degree

not qualified to testify as to brain damage (Hicks v Cummings 6d). I finally am able to go

to this specialist for determine the extent of the damages after 5 years of trying to get a

doctor to evaluate the full damages of the TBI. "No just reason for delay" language

insufficient by itself to case entry to be appealable - order not final order (Todd v Sailing

(12D).

Issac, Brant, Ledman & Teetor LLP were the attorneys representing the Boy Scouts of

America at the time of my accident according to attachment 1 and they were the same

attorneys that illegally evicted me out of my apartment. This is why Stephen Schmidt

with Attomey General Dann office gave me $15,000 for my personal property damage

putting my household items in storage. Jeffrey A Stankunas was an associate of Issac,

Brant, Ledman & Teetor, LLP and he knew through the Civil Rights office that I had a

claim and

George Cronheim was the attorney who originally was representing me but withdrew

after mediation did not work. I was without an attorney when I discovered that they were

the same attonieys that represented BSA. Sam Baker is an attorney out of Cleveland

whoalso tried to trick me about a settlement about illegal eviction because I was disabled

whoalso tried to trick me about a settlement about illegal eviction because I was disabled

due to my TBI.

Vory, Sater, Seymour and Pease, LLP had attorneys monitoring me during my

involvement with Vaud-Villities to evaluate the extent of my damages without having a

medical degree. They are the attorneys representing the Boy Scouts of America that I am

sueing.

Peter Lusenhop also was an attorney with Vory, Sater, Seymour and Pease, LLP

That was involved in this issue.

Nonprofit corporations, liability for improper use of funds, judgment for plaintiff

affinned (Chaplain Keiffer Post 1081 v Wayne County Veterans Assn (9d). The Boy

Scouts of America have been using their funds to keep me afloat with their Alumni

Association due to their knowledge of this accident.

Two of the Boy Scouts of America commissioners were videotaping the accident

and my son was taking pictures of the accident as it happened. Under the By Law of the

Boy Scouts of America the supervisor is to be in control AT ALL TIMES OF AN

ACTIVITY. Due to their neglect and creating the pocket of water that my foot went into

that caused the blow to my head, and the director of the camp, Tom Tweedle, trying to

trick me afterwards in signing a paper saying I was an employee of Boy Scouts of

America after the accident, so I would be covered under Workman's Comp. The Boy

Scouts pwposely destroyed the ground in which the property had the pocket of water, as

seen in the pictures my son was taking. Their where numerous law enforcement officials,

fire department, EMT, teachers and others trained in first aid and NOT ONE CALLED A

medic. NOT ONE took me to the hospital. It wasn't until I've had extensive MRI's

3

(SIX), CAT scans (four at least), and numerous XRAYS that the reasons for my irratic

behavior was apparent from the TBI.

The Civil Rights commission did not want a hearing because the truth of the

accident would have come out on television and the Boy Scouts did not want that.

Under due process my ternunation of parental rights were violated as grounds,

failure to provide court appointed psychiatric expert for indigent parent after six months

After the divorce of 24 and'/z years of marriage that ended due to the change in my

personality after the accident. (In re Brown (1d). My son lost the companionship as he

once knew after the accident. He said he did not want "EAGLE SCOUT" that all he

wanted was his mother back.

According to Dr. Cook, I lost a part of my brain that will never come back. How

do you put a price on that? Stephen Schmidt at the attorney general's office said my brain

was worth $13 million and he asked how I came up with a figure of $2 billion.

The Columbus Bar Association on April 19'h illegally escorted me out of their

building when I tried to file charges against the lawyers involved and at the same time on

the home telephone number is a record of the Attorneys office from Irving, Texas calling

within 2 minutes after my arrival to the CBA office.

I've had a tracking key stroke device put on my computer that the men at Best

Buy ask me if I was a CIA agent with that device on my home computer.

John R. Stevenson, Atty # 0023998 was disciplined (630 N>E> 2d 338) on

December 7, 1992 and he is the attorney who represented my husband in our divorce and

harassed me about my TBI and put it in writing as I previously first explained in my

4

original filing. My ex husband was a paralegal in the state of Virgina and also an

employee of the State correctional facilities and took advantage of my accident.

According to Clark, Perdue, Arnold & Scott - Holding the Wron dg oer legally accountable

by Dale K Perdue, Esq., which I received a copy and took their class at a brain injury

conference, on September 29, 2005, I re-read and re-read to absorb that the amount of

damages and after all of these MRI's of my brain, the last one January 2007.

I think that since I was protecting the children of BSA in the capacity as a

volunteer that I should have been covered under The Victims of Crime Act (Ohio Revised

Code 2930.04) and the Attorney General's Office should not have taken advantage of

Me in any settlement without appointing me an attorney or someone to act on my behalf.

According to Clark and Perdue, Brain Injury incompetence stops the running of the clock,

if an guardian is appointed then the clock starts running again. No one wanted to appoint

someone or help me because everyone knew they had screwed up from the beginning.

The day that I discovered that I had to file a sherriff report in Vinton County,

Homeland Security was there. And the sheriff's office did not want to take the report

without me having an attorney which is a violation of my own rights. I went to numerous

attorneys the first two years after my accident not know the extent of my TBI and none of

the attorneys wanted to take on BSA.

Pursuant to RC 2315.18(B)(2), the cap does not apply if the plaintiff has suffered

(1) "permanent and substantial physical deformity, loss of use of a limb, or loss of a

bodily organ system" or (2) "permanent physical functional injury that permanently

prevents the injured person from being able to independently care for self and perform

5

life-sustaining activities." R.C. 2315.18(B)(3). A BRAIN IS THIS.

In Morris v Savoy (1991), 61 Ohio St 3d 684, the court held a statue limiting non-

economic damages in medical malpractice cases to $200,000.00 unconstitutional as in

violation of the right to due process under both the state and federal constitutions.

The damages cap does not apply to (1) claims against the state brought in the Court of

Claims; (2) claims against a political subdivision under Chapter 2744.

Economic loss is not capped RC 2315-18(B)(1).

Non-Economic loss is defined as "Non-pecuniary harm that results from an injury

or loss to person or property that is a subject of a torn action, including, but not limited to,

Pain and suffering, loss of society, consortium, companionship, care, assistance, attention,

protection, advice, guidance, counsel, instruction, training or education, disfigurement,

mental anguish and any other intangible loss RC 2315.18 (A)(4).

Ohio Rev Code 23:16 deal with an unsound mind and Ohio Revised Code

2305.16 cf moninee v Scherbarth, supra.

Under Ohio CIV R, Rule 60, (B) Mistake, inadvertence, excusable neglect; newly

discovered evidence; fraud, etc. the court my relieve a part or his legal representtive

from a final judgement, order or procedding for the following reasons: (1) mistake,

inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due

diligence could not have been discovered in time to move for a new trial under Rule

59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic),

misrepresentation or other misconduct of an adverse party or (5) ANY OTHER

REASON justifying relief from judgment.

6

I also agree with Civ R 17 (B) and the court's inherent duty to protect pro se

litigants. (Quill v Elrich, Montgomery Co. App No 15608, 1996 Ohio App Lexis 2565.

My statute of limitations is not expired and because this suit is against the non profit

organization of Boy Scouts of America, this is why I am being discriminated against as a

disabled Tramatic Brain Injured person.

If I did not have this brain injury, then why did the Veteran's Affair spend all this

money on the (6) SIX MRI's on my BRAIN, the x-ray's, 4 (FOUR) CAT scans and all the

other test and painful therapy that I have to undergo???

Why Would Terry Sanese from the Equal Justice Foundation say that ALL

attomey's in town would not help me in this case? Could it be that her EX husband is

Ralph Sanese and Sanese services were covering the contract where I was volunteering

when I got hurt??

I would like the first paperwork that I filed in this lawsuit to be included in this

claim to the Ohio US Supreme court. (US Const. Amend XIV) Stone vs. Stone, - Ohio

App 3d, 2006 Ohio 3420, NE 2d-, 2006 Ohio App Lewis 3350 (June 30, 2006).

ARGUMENT IN SUPPORT OF PROPOSTIONS OF LAW

Proposition of Law No. 1: Nonprofit corporations, liability for improper use of funds,

(Chaplain Keiffer Post 1081 v Wayne County Veterans Assn (9d).

Proposition of Law No. 2: RC 2315.18 (B)(2) Plaintiff suffered "permanent loss of a

bodily organ system" the brain totally.

Proposition of Law 3: Ohio Civ R, Rule 60 (B) Newly discovered medical evidence,

Last MRl Jan 2007.

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT INTERESTAND INVOLVES A SUBSTANTTAL CONSTITUTIONAL OUESTION AS TO THE

RIGHTS OF DISABLED TRAMATIC BRAIN INJURED VICTIMS AND THEDISCRIMINATION OF FEMALES IN THE BOY SCOUTS OF AMERICA

This cause presents critical issues for the futu.re of Disabled Tramatic Brain Injured

Victims. I requested ajury trial for my case because of the extensive damage it has left to

myself and others. According to McGraw v Canton Drop Forgoing & Manufactuming C

(5d) and Robinson v Cougar (3D), Denial of motion in not final appealable order for a

motion for jury trial.

I do not want any other mother who is protecting her son and the son of others to

have to go through the depth of what I have had to endure since July 4, 2002.

Four judges have ruled that a TBI occurred on that date and now the main

evidence needs to be heard to the public to let them know how this organization has

discriminated against a person after that have inflicted damage upon them. In 1986

women were supposedly accepted into the Boy Scouts of America, but they do not want

them in the Boy Scout end of scouting, they would like to keep the mothers in the lower

levels of scouting in the Cub Scout end. (Swanson vs. Swanson, US Bankruptcy Court,

Southem District of Oh, Western Div. Case 04-12211, Adv. No. 04-01143, Chapter 7).

I asked for a trial by jury and I know that without a doubt that the evidence that I

have to present to the jury trial will undoubtly change the course of the way things are

handled in the future with the children at BSA camp.

The fraud and misconduct of the Boy Scouts of America is one that is

unforgivable and one that mothers of their young boys should be made aware of.

Honesty, loyalty and integrity are not the true meaning of this organization.

Under the American Disability Act changes should be made to cover victims like

myself and others. Under Civ R 17 (B) helped should be given to TBI victims.

The trial court erred by granting Defendants motion of all Defendants to dismiss was not

date stamped or signed by an attomey in time allowed by law, granting final judgement

for motion to dismiss in favor of defendants, overlooking Pro Se standards of review and

various genuine issues of material fact that demand resolution by trial in fact. The Statute

of liniitations are not barred under Ohio Civil Rights Procedures which states that they

are a law enforcement agency and must remain neutral. It states that they are NOT

attorneys which in fact they are attorneys (Stephan Schmidt). The Attorney's General

Office should have issued a Finding of Fact and Final Order, but due to the political

arena, advantage was taken of the plaintiff due to her TBI which was videoed by BSA

employees and photographed by the plaintiffs son. Also plaintiff is a Ohio Victim of

Crime due to protecting the children who worked for her while at Chief Logan, Ray,

Ohio. Ohio Legal Rights say the government cannot discriminate against the plaintiff

because of her disability. The Attorney's General Office told the plaintiff that her brain

was worth $13 million but the eviction was a separate issue. Under Federal Law, Chapter

10, Procedures in District Courts, 69A Rule 11, Attorney's who willfully violate my

rights might be subject to appropriate disciplinary actions.

The Supreme Court Case of Ohnstead v LC, 527 US 581 (1999( contains authority which

govecns and guides this case. Americans with Disabilities Act of 1990, 42 USC & 12131

et seq defines public entities of ODMR/DD. ODMR/DD are public entities for the

purpose of "Community integration" as defined by 28 C.F.R. & 35.130(d).

CONCLUSION

For the reasons discussed above, this case involves matters of public and great

general interest and a substantial constitutional question. The appellant requests that this

court accept jurisdiction in this case so that the important issues presented will be

reviewed on the merits.

Respectfully submitted,

Cheryl Swatfsbn, Pro SePO Box 20061Columbus, OH 43220

Certificate of Service

I certify that copy of this Memorandum in Support of Jurisdiction was sent by ordinaryU.S. Mail to counsel for appellees, Theodore P. Mattis, c/o Vorys, Sater, Seymour andPease LLP, 52 East Gay Street, PO Box 1008, Columbus, OH 43216-1008 onApril 25, 2008.

Cheryl Sidanson, Pro ScPO Box 20061Columbus, OH 43220

L,1SA Gt'^ts^ Ar9^

IN THE COURT OF APPEALS OF OHIOFOURTH APPELLATE DISTRICT

VINTON COUNTY

Cheryl L. Swanson,

Plaintiff-Appellant,

V.

Boy Scouts of America, et al.,

Defenda nts-Appel lees.

^,J-JL-,

`^ osaiocc^i^^e^®a^\1 tN^+oN

Case No. 07CA663

DECISION ANDJUDGMENT ENTRY

APPEARANCES:

Cheryl L. Swanson, pro se, Columbus, Ohio, for appellant.

Theodore P. Mattis, Vorys, Sater, Seymour and Pease LLP, Columbus, Ohio, forappellees.

Kline, J.:

{71} Cheryl L. Swanson appeals the judgment of the Vinton County Court of

Common Pleas, dismissing her complaint, pursuant to Civ.R. 12(B)(6), against the Boy

Scouts of America, Simon Kenton Council, Tom Tweedle, Dr. Stephen Markovich,

Charles E. Brant, Charles R. Swanson, Chris Rohr, and Chuck Howard (hereinafter

collectively "Boy Scouts"). The court found that all of Swanson's claims against the Boy

Scouts were time barred by the applicable statutes of limitations. On appeal, Swanson

contends that the trial court erred when it dismissed all of her claims. Because after

presuming that all of the facts alleged in Swanson's complaint are true and construing

all reasonable inferences in favor of Swanson (as the non-moving party), and because it

APR 2 2^d$

Vinton App. No. 07CA663 2

appears beyond doubt that no provable set of facts would entitle Swanson to relief, we

disagree. Accordingly, we affirm the judgment of the trial court.

1.

{12} Swanson volunteered as a Boy Scout leader. She filed a complaint against

the Boy Scouts on March 16, 2007. She alleged that on or about July 4, 2002, while

participating in a 'Slip n' Slide' Boy Scout activity, she fell and sustained a traumatic

brain injury. She alleged that she sustained a bodily injury because the Boy Scouts

negligently failed to: (1) adequately supervise the activity; (2) provide proper safety

equipment such as helmets in the activity; (3) instruct participants in the activity; and (4)

train and supervise the organizers of the activity. In addition to her negligence claim,

Swanson asserted claims of intentional tort, deception, respondeat superior and loss of

consortium. Swanson prayed for damages in an amount greater than two billion dollars

($2,000,000,000.00)1 plus attorney fees and costs.

(13) On April 13, 2007, the Boy Scouts moved the trial court to dismiss the

complaint, pursuant to Civ.R. 12(B)(6), for failure to state a claim upon which relief could

be granted. The Boy Scouts asserted that Swanson's claims are barred by the

applicable two-year statute of limitations contained in R.C. 2305.10. Swanson failed to

file a direct response to the motion to dismiss, and she never asserted any argument

that her claims were timely filed. Instead, Swanson filed a "Motion for Memorandum of

Decision," in which Swanson argued that she is entitled to judgment for the full amount

1 Swanson's money request does not comport with Civ.R. 8(A).

Vinton App. No. 07CA663 3

sought in her complaint. Eventually, the court granted the Boy Scouts' Civ.R. 12(B)(6)

motion to dismiss.

{14} Swanson appeals and asserts one assignment of error. She contends that

the trial court erred when it granted the Boy Scouts' motion to dismiss.

11,

{75} A dismissal for failure to state a claim upon which relief can be granted is a

question of law which we review de novo. Cleveland Elec. lllum. Co. v. Pub. Util.

Comm. (1996), 76 Ohio St.3d 521, 523. In determining whether a complaint states a

claim upon which relief may be granted, all factual allegations are presumed to be true

and all reasonable inferences are made in favor of the nonmoving party. State ex rel.

Talwar v. State Med. Bd. of Ohio, 104 Ohio St.3d 290, 2004-Ohio-6410, ¶ 5; Perez v.

Cteveland (1993), 66 Ohio St.3d 397, 399; Mitchell v. Lawson Milk Co. (1988), 40 Ohio

St.3d 190, 192. However, unsupported conclusions are not considered admitted and

are insufficient to withstand a motion to dismiss. State ex rel. Hickman v. Capots

(1989), 45 Ohio St.3d 324. (Citations omitted.) In order for a court to dismiss a

complaint pursuant to Civ.R. 12(B)(6), for failure to state a claim upon which relief can

be granted, it must appear beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief. Maitland v. Ford Motor Co., 103

Ohio St.3d 463, 2004-Ohio-5717, ¶ 11; York v. Ohio State Highway Patrol (1991), 60

Ohio St.3d 143, 144; O'Brien v. University Community Tenants Union, Inc. (1975), 42

Ohio St.2d 242, syllabus.

Vinton App. No. 07CA663 4

{16} Ohio courts have noted that "[o]ften, the application of a statute of limitations

involves a mixed question of law and fact" and "[t]herefore, the court may dismiss the

complaint pursuant to Civ.R. 12(B)(6) only if it can determine from the face of the

complaint that the action is barred by the statute of limitations." Doe v. Robinson, Lucas

App. No. L-07-1051, 2007-Ohio-5746, ¶ 17, citing Doe v. Rrchdiocese of Cincinnati, 109

Ohio St.3d 491, 2006-Ohio-2625, ¶ 11. Further, "[a] Civ.R. R. 12(B)(6) motion to

dismiss based upon a statute of limitations should be granted only where the complaint

conclusively shows on its face that the action is so barred." Jackson v. Sunnyside

Toyota, Inc., Cuyahoga App. No. 89503, 2008-Ohio-687, ¶ 15, citing Doe v. Catholic

Diocese, 158 Ohio App.3d 49, 55, 2004-Ohio-3470.

{17} Before we begin our analysis, we note that Swanson is a pro se litigant.

Typically, "pro se litigants are, 'presumed to have knowledge of the law and of correct

legal procedure and [are] held to the same standard as all other litigants." (Cites

omitted.) Kier v. Kier, Highland App. No. 06CA35, 2007-Ohio-4190, ¶ 13. However,

"this court has long had a policy of affording 'considerable leniency' to pro se litigants."

(Cites omitted.) Robb v. Smallwood, Meigs App. No. 05CA4, 2005-Ohio-5863, ¶ 5. As

such, this court has not "held pro se litigants to the same standard as attorneys." Id.

Despite this court's long standing rule, we will not "'conjure up questions never squarely

asked or construct full-blown claims from convoluted reasoning."' Id. In other words,

pro se litigants are "required to at least submit a brief that contains some cognizable

assignment of error." Id. Thus, we will address only those cognizable portions of

Swanson's assignment of error.

Vinton App. No.07CA663 5

A.

{18} Swanson first contends that the Boy Scouts did not timely file their motion to

dismiss and did not have their attorney sign the same as required by law. The record

does not show that Swanson raised these arguments in the trial court. Thus, she

forfeited raising them in this appeal. Regardless, her contentions are without merit.

1.

{19} Civ.R. 12(A) provides that "The defendant shall serve his answer within

twenty-eight days after service of the summons and complaint upon him[.]" Civ.R.

12(A). However, a motion to dismiss for failure to state a claim for relief may be made

by motion, rather than by answer, "at the option of the pleader[.]" Civ.R. 12(B). Here,

on March 16, 2007, Swanson had the clerk send the complaint and summons by

certified mail for service on defendants. One of the defendants signed for the certified

mail on March 17, 2007. The Boy Scouts filed their motion to dismiss on April 13, 2007,

exactly 28 days following the filing of the complaint, and thus, within 28 days following

the service of process on defendants. As such, we find that the Boy Scouts timely filed

their motion to dismiss.

2.

{110} "All motions shall be signed in accordance with Rule 11." Civ.R. 7(B)(4).

"Every pleading, motion, or other document of a party represented by an attorney shall

be signed by at least one attorney of record in the attorney's individual name, whose

address, attorney registration number, telephone number, telefax number, if any, and

business e-mail address, if any, shall be stated." Civ.R. 11. Further, "[i]f a document is

Vinton App. No. 07CA663 6

not signed or is signed with intent to defeat the purpose of this rule, it may be stricken

as sham and false and the action may proceed as though the document had not been

served." Id.

{111} Here, the defendants' attorney signed the front page of the motion to dismiss

and the certificate of service. However, the attorney did not sign the last page of the

motion memorandum, i.e., the signature line is blank. Thus, it appears that the lack of a

signature on the last page of the motion is an oversight. Further, the rule does not

provide where exactly on the motion the attorney must sign, just that the motion must be

signed by the attorney of record. As such, we see no reason why an attorney's

signature on the front page of a motion would not satisfy Civ.R. 11. Consequently, we

find that the Boy Scouts' attorney of record complied with the applicable law.

B. Applicable Statutes of Limitation

{112} We now examine Swanson's contention that she timely filed her complaint.

1. Claims of Negligence and Intentional Tort (Including Respondeat Superior)

{113} R.C. 2305.10 provides that "an action for bodily injury * * * shall be brought

within two years after the cause of action accrues." R.C. 2305.10 "governs all actions

whose real purpose is to recover damages for injury to the person and losses incident to

that injury." 66 Ohio Jur.3d §49, Limitations and Laches. The two-year statute of

limitations in R.C. 2305.10 also applies generally to bodily injury claims that arise as the

result of an intentional tort. See Funk v. Rent-All Mart, Inc., 91 Ohio St.3d 78, 2001-

Ohio-270, syllabus; see, also, 66 Ohio Jur.3d §50, Limitations and Laches.

Vinton App. No. 07CA663 7

{114} Here, Swanson's complaint asserts that she suffered a traumatic brain injury

as a result of a fall that occurred on July 4, 2002. However, she failed to file her

complaint until March 16, 2007, which was well after the two-year statute of limitations.

As such, the applicable statute of limitations bars Swanson's negligence and intentional

tort claims. Consequently, we find that the trial court did not err in dismissing those

claims pursuant to Civ.R. 12(B)(6).

2. Claim for Loss of Consortium

{115} Swanson asserted a claim for loss of consortium. She alleged that she

"suffered mental anguish and severe [e]motional distress and has lost the emotional

support, society, [c]ompanionship and consortium of her son, Raymond Swanson."

Swanson did not name her son as a party to the original complaint. Even assuming

Swanson's consortium claim is viable, it is barred by the applicable statute of limitations.

{116} This court has noted that the statute of limitations for a claim of loss of

consortium is four-years as codified in R.C. 2305.09." Venkam v. Astrolite Alloys

(1991), 73 Ohio App.3d 90, 98 fn. 6, citing Hershberger v. Akron City Hosp. (1987), 34

Ohio St.3d 1. Swanson filed her complaint four years and eight months after the July 4,

2002 fall. As such, the applicable statute of limitations bars her consortium claim.

Consequently, the trial court did not err when it dismissed this claim.

3. Claim of Deception

{117} Finally, Swanson asserts a claim of "disseption," which we believe that she

means deception. She alleges in her complaint that the Boy Scouts deceived her by

Vinton App. No. 07CA663 8

acts of preying on her alleged disabilities and causing her extreme emotional distress.

The following are the allegations under this cause of action:

31. The acts of all Defendants in deceiving the PlaintiffCheryl Swanson [i]n doing acts and contracts withknowledge of her handicap capabilities [o]f knowing whatwas correct and incorrect and trying to trick her into[u]ntruths.

32. As a direct and proximate result of the intentionaldeception of all [o]f the Defendants, Plaintiff Cheryl Swansonsuffered extreme emotional [s]tress both to her mental andphysical wellbeing.

The only conceivable cause of action this could be is a claim of fraud. See 3 O.J.I.

§307.01 (stating that fraud "is a deception practiced with a view to gaining an unlawful

or unfair advantage).z

a. Statute of Limitations for Fraud

{¶18} The statute of limitations governing fraud claims is four-years as set forth in

R.C. 2305.09. Jackson, supra, at 114.

{¶19} Here, Swanson's fraud claim fails to set forth with any specificity or

particularity when the acts of deception took place or what the wrongful acts were. We

can reasonably infer from the allegations that the acts occurred after Swanson suffered

her alleged injury on July 4, 2002. As such, we cannot conclusively determine from the

allegations in the complaint when the alleged deceptive or fraudulent acts occurred.

2 To prevail on a claim of fraud, one must prove the following elements: "(a) a representation or, wherethere is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c)made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether itis true or false that knowledge may be inferred, (d) with the intent of misleading another into relying uponit, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximatelycaused by the reliance." Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54, 55, citing Burr v.Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69; Cohen v. Lamko, Inc. (1984), 10 Ohio St.3d 167.

Vinton App. No. 07CA663 9

Thus, we cannot determine when the cause of action accrued. Consequently, we find

that the trial court erred when it found that the statute of limitations barred Swanson's

fraud claim.

b. Particularity Requirement of Civ.R. 9(B)

{120} Boy Scouts argue that Swanson failed to assert any fraud claim with sufficient

particularity as required by Civ.R. 9(B).

{121} "In all averments of fraud or mistake, the circumstances constituting fraud or

mistake shall be stated with particularity. Malice, intent, knowledge, and other condition

of mind of a person may be averred generally." Civ.R. 9(B).

{122} As we stated earlier, Swanson has alleged fraud but has not stated with

particularity the circumstances surrounding her allegation. Therefore, we find that

Swanson has not complied with Civ.R. 9(B). Consequently, the trial court did not err

when it dismissed this claim.

{123} We note that in the trial court the Boy Scouts based their motion to dismiss on

the Statute of Limitations, not failure to comply with Civ.R. 9(B). As such, the trial court

granted the motion to dismiss based on the statute of limitations. We have reached the

same result as the trial court but for a different reason. However, the Supreme Court of

Ohio has held that a reviewing court is not authorized to reverse a correct judgment

because of a trial court's erroneous basis for the judgment. Myers v. Garson (1993), 66

Ohio St.3d 610, 614; Joyce v. General Motors Corp. (1990), 49 Ohio St.3d 93, 96.

4. Conclusion

Vinton App. No. 07CA663 10

{124} After presuming that all of the facts alleged in Swanson's complaint are true

and construing all reasonable inferences in favor of Swanson (as the non-moving party),

we find that it appears beyond doubt that no provable set of facts would entitle Swanson

to relief.

{125} Accordingly, we overrule Swanson's sole assignment of error and affirm the

judgment of the trial court.

JUDGMENT AFFIRMED.

Vinton App. No. 07CA663 11

Harsha, J., dissenting:

{126} I dissent on the basis of Civ.R. 17(B) and the court's inherent duty to

protect incompetent pro se litigants. Civ.R. 17(B) requires the court to appoint a

guardian ad litem or take other appropriate action to protect the interests of an

incompetent unrepresented party. Moreover, a court has an affirmative duty to

investigate any reasonable indication that a pro se party may be incompetent. Quill v.

Efrich, Montgomery Co. App. No. 15608, 1996 Ohio App. Lexis 2565. The record in this

case mandates an investigation of the plaintiff's capacity and its impact on possible

tolling of the statute of limitations.

{127} Ms. Swanson's pro se complaint affirmatively alleges that she suffers from

a traumatic brain injury. She also alleges that this injury occurred while she was

participating in a "slip 'n' slide" recreational activity being conducted by the defendants.

And she alleges the defendants' acts of negligence resulted in causing her closed head

injury, which has manifested itself in cognitive, behavioral and emotional impairments.

{128} These allegations, combined with the rambling and disjointed nature of her

complaint, should have raised questions about her competency and the potential tolling

of the statute of limitations. Given this state of the pleadings and the reasonable

inferences arising from it, I believe the court should have appointed a guardian ad litem

or at least inquired about her competency before concluding beyond a doubt that her

complaint was barred by the statute of limitations.

CLERKLlgq G1LLILAND^

Vinton App. No. 07CA663 ApR ^2M2

JUDGMENT ENTRY -"t^CiJR UN7Y ®NIOCO

It is ordered that the JUDGMENT BE AFFIRMED, and Aant shall pay thep^^ellcosts herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing.the VintonCounty Court of Common Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 ofthe Rules of Appellate Procedure. Exceptions.

Abele, P.J.: Concurs in Judgment and Opinion.Harsha, J.: Dissents with Dissenting Opinion.

For the Court

BY: ' ( ''lh--C._ . I (^ f^-Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgmententry and the time period for further appeal commences from the date of filingwith the clerk.

CASES

Swanson v Swanson, Case No 07-CV03-028, Court of Conunon Pleas, Vinton Co.Oh

Martin v Strickland, Case No. 89-CV-00362, US Dist, Southern Dis, Eastern Div

Swanson v Swanson, Case No.04-12211, Adv No. 04-01143, Chap 7, US Bankraptcy

Court, Southern Div of Ohio, Western Division

Swanson V Swanson, Case No. 03DM000540, Clerk of Courts, Scioto County, OH

Brookover v. Flexmag Ind., Inc., 2002-Ohio-2004; 2404

Griffith v.. Wausau Bus. Ins. Co., 2003-Ohio-995;

Simpson v. Big Bear Stores Co. (1995), 73 Ohio St. 3d 130

Scott v. Yates (1994), 71 Ohio St. 3d 219

Hillman v. Hastings Mut Ins. Co. (1994), 69 Ohio St 3 D 1203

Hicks v. Consolidated Rail Corp. (1993), 92 Ohio App13d 636

Woods vs. Cincinnati Ins. Co, 63 Ohio St. 3D 639 (1992);

Ross vs. Nationalwide Mut. Ins. Co., 63 Ohio St 3d 33, 1992

Senig vs. Nationwide Mut Ins. Co., 76 Ohio App. 3d 565 (1992);

Buckeye Federal Savings & Loan Assn vs. Guirlinger, 62 Ohio St 3d 312 (1991)

Adkins vs. Republic Franklin Ins. Co., 76 Ohio App 3d 611 (1991)

Nationwide Mu. Ins. Co. vs. Chivington, 72 Ohio App. 3d700

Demetry vs. Kim, 72 Ohio App 3d 692 (1991)

Barr vs. Ins Co of North America, 72 Ohio App. 3d 595 (1991)

Stonerock vs. Miller Bros. Paving, Inc, 72 Ohio App 3d 123 (1991)

Tritt vs. Judd's Moving & Storage, Inc., 62 Ohio App 3d 206 (1990)

Omni-Food and Fashion, Inc vs. Smith, 38 Ohio St 3d 385 (1998)

Tardy v. Norfold S. Corp, 103 Ohio App 3d 372, 1995

Truck Ins. Exchange v Superior Count (1998) 67 Cal App 4"' 142