Albert v. Patton

[Cite as Albert v. Patton, 

.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

REVONE ALBERT,                                      :

                 Plaintiff-Appellant,               :
                                                             No. 111054
                 v.                                 :

MICHAEL PATTON,                                     :

                 Defendant-Appellee.                :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED AND REMANDED
                 RELEASED AND JOURNALIZED: May 12, 2022


              Civil Appeal from the Cuyahoga County Common Pleas Court
                                 Case No. CV-21-946792


                                              Appearances:

                 Oscar Trivers, for appellant.

                 Gallagher Sharp LLP, and Chloe C. Deangelis, Maia E.
                 Jerin, and Richard C. O. Rezie, for appellee.


SEAN C. GALLAGHER, A.J.:

                   This cause came to be heard on the accelerated calendar pursuant to

App.R. 11.1 and Loc.App.R. 11.1. By designating this as an accelerated appeal, it has

been “agreed that we may render a decision in ‘brief and conclusionary form’

consistent with App.R. 11.1(E).” State v. D.F., 8th Dist. Cuyahoga No. 104410, 2017-
Ohio-534, ¶ 1; Shaker Hts. v. Brandon Profit El-Bey, 8th Dist. Cuyahoga Nos.

105701 and 105702, 

. For the following reasons, we reverse and

remand for further proceedings.

              Revone Albert appeals the trial court’s decision dismissing his tort

action against Michael Patton as being precluded under Ohio’s two-year statute of

limitation on tort actions, R.C. 2305.10(A). The parties’ dispute arose from a motor

vehicle accident that occurred in April 2017.

              The underlying action was filed in April 2021; however, according to

the allegations in the amended complaint and a journal entry docketed by the trial

court, this was not the original action. An earlier case had been filed and dismissed

without prejudice. On August 24, 2021, the trial court recognized the earlier action,

Cuyahoga C.P. No. CV-19-913105, and under “Superintendence Rule 36,” the matter

was reassigned to the original court by the administrative judge for the Cuyahoga

Court of Common Pleas because the refiled case had been initially assigned through

the random draw procedure. The reference to Superintendence Rule 36 appears to

be an outdated citation to Sup.R. 36.017,1 which provides that “if a previously filed

and dismissed case is refiled, the case shall be reassigned to the judge originally

assigned by lot to hear it unless, for good cause shown, that judge is precluded from

hearing the case.” Loc.R. 15(I) of the Court of Common Pleas of Cuyahoga County,

General Division, also provides that all “cases re-filed with the Clerk’s Office which



      1Sup.R. 36(D), which provided authority for reassigning refiled cases, was
amended to its current form under Sup.R. 36.017 effective March 1, 2017.
were dismissed without prejudice pursuant to Civil Rule 41(A) on a previous

occasion shall be immediately assigned to the original docket ….”

               Thus, at the least, as of August 24, 2021, the trial court and Patton

were aware of the previously filed and dismissed action according to the trial court’s

docket. At no time did Patton object or otherwise contest the reassignment to the

original trial court’s docket based on the previous filing. See, e.g., Mun. Constr.

Equip. Operators’ Labor Council v. Cleveland, 8th Dist. Cuyahoga No. 96738, 2011-

Ohio-5507, ¶ 14 (objection to reassignment of case based on previous filing

sustained because the administrative reassignment did not arise from a refiled

action). Sup.R. 36.017, and its local counterpart Loc.R. 15(I), only apply to cases

that were dismissed without prejudice and refiled. 

 Despite the fact of the refiling

of the previous action, the trial court dismissed the action with prejudice upon

Patton’s motion, concluding that “[f]rom the face of the complaint, plaintiff’s claims

are barred by the statute of limitations, and plaintiff has failed to allege any

exceptions to the statute in her complaint.” This timely appeal followed.

               A “‘motion to dismiss for failure to state a claim upon which relief can

be granted is procedural and tests the sufficiency of the complaint.’” State ex rel.

Belle Tire Distribs. v. Indus. Comm. of Ohio, 

, 

,

, quoting State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs.,

, 

 (1992). A court may grant a Civ.R. 12(B)(6)

motion to dismiss “only when the complaint, when construed in the light most

favorable to the plaintiff and presuming all the factual allegations in the complaint
are true, demonstrates that the plaintiff can prove no set of facts entitling him to

relief.” 

 citing Mitchell v. Lawson Milk Co., 

, 

 (1988). Appellate courts review an order granting a Civ.R. 12(B)(6) motion to

dismiss de novo. Perrysburg Twp. v. Rossford, 

, 2004-Ohio-

4362, 

, ¶ 5. Thus, the sole inquiry is whether on the face of the

complaint, it can be determined that the tort cause of action was precluded under

the statute of limitations.

               Under Ohio law, the statute of limitations is an affirmative defense.

Civ.R. 8(C). “[T]he difficulty of successfully asserting an affirmative defense in a

Civ.R. 12(B)(6) motion to dismiss” has been “long recognized” based on the fact that

“affirmative defenses typically rely on matters outside the complaint, they normally

cannot be raised successfully in a Civ.R. 12(B)(6) motion.” Schmitz v. NCAA, 

, 

, 

 (Kennedy, J., concurring

in part), quoting Main v. Lima, 3d Dist. Allen No. 1-14-42, 

, ¶ 14,

and Savoy v. Univ. of Akron, 10th Dist. Franklin No. 11AP-183, 

,

¶ 6-7 (noting that “the better procedure is to address affirmative defenses by way of

a motion for summary judgment that will allow introduction of additional facts

beyond the complaint”).       When reviewing a motion to dismiss based on the

affirmative defense of the statute of limitations, all factual allegations in a complaint

are presumed to be true and all reasonable inferences must be made in the plaintiff’s

favor. 

, citing 

.
               “A motion to dismiss based upon a statute of limitations[, however]

may be granted when the complaint shows conclusively on its face that the action is

time-barred.” (Emphasis added.) Doe v. Archdiocese of Cincinnati, 

, 

, 

, citing Velotta v. Leo Petronzio

Landscaping, Inc., 

, 

 (1982), paragraph three of

the syllabus; see also Maitland v. Ford Motor Co., 

, 2004-Ohio-

5717, 

, ¶ 11; Peterson v. Teodosio, 

, 

 (1973). As a general rule, a plaintiff is not required to plead with specificity to

avoid application of the statute of limitations. Warren v. Estate of Durham, 9th

Dist. Summit No. 25624, 

, citing Irvin v. Am. Gen. Fin., Inc., 5th

Dist. Muskingum No. CT2004-0046, 

. The party

asserting an affirmative defense bears the burden to demonstrate the applicability

of the defense before the nonmoving party’s reciprocal burden arises. Todd Dev. Co.

v. Morgan, 

, 

, 

, syllabus.

               The sole issue in this case, at this time, is whether the refiled action is

precluded based on the statute of limitations or for failure to comply with Ohio’s

savings statute. Under R.C. 2305.10(A), an action for bodily injury arising under

tort law shall be commenced within two years after the cause of action accrued.

There is an exception. R.C. 2305.19, in pertinent part, provides that if the plaintiff’s

claims fail otherwise than on the merits, the plaintiff may “commence a new action

within one year after the date of the reversal of the judgment or the plaintiff’s failure

otherwise than upon the merits or within the period of the original applicable statute
of limitations, whichever occurs later.” It is the latter of the two statutes that is more

relevant in light of the reassignment of the refiled case and the allegation within the

body of the amended complaint reiterating the refiled nature of the action.

               Patton, as the party who requested affirmative relief from the trial

court, bears the burden of demonstrating the basis of the motion to dismiss. He did

not meet that burden, nor did he even attempt to disclose the full nature of the

procedural posture of the refiled action. As Patton conceded in his motion to dismiss

the amended complaint, “[plaintiff’s] Amended Complaint references a prior filing

but does not reference when the prior filing was dismissed or assert any exceptions

to the statute of limitations.” (Emphasis added.) Thus, according to Patton, Albert’s

failure to include the dismissal date and a specific reference to R.C. 2305.19 was

dispositive, but he failed to undertake any inquiry into the previous action despite

claiming that the underlying action was precluded under both R.C. 2305.10(A) and

2305.19. There is no requirement under Ohio law that a plaintiff must plead with

specificity to avoid application of the statute of limitations or cite specific statutory

sections upon which any claims are based. In the absence of any requirement for

pleading with specificity to circumvent potential affirmative defenses, notice

pleading suffices. Civ.R. 8(A).

               The amended complaint does not contain information about the

dismissed filing that would permit any court to conclude that the complaint,

conclusively on its face, demonstrates that the action was filed outside the yearlong

grace period under R.C. 2305.19. At the least, there is a factual question presented
by the administrative reassignment of the case citing the earlier case, especially

when coupled with the allegation in the complaint reasserting that same factual

allegation.

               Patton was also aware of the dismissed CV-19-913105 action and

failed to take any steps to contest the reassignment of the refiled case or disclose the

dismissal date of the original action in support of his motion. Accordingly, and

based on the allegation of the amended complaint, we must presume that the

current action stemmed from that earlier action, which necessarily implicates the

savings statute under R.C. 2305.19, otherwise the trial court lacked authority to

reassign the case to the trial court under Loc.R. 15(I) and Sup.R. 36.017. See

generally Mun. Constr. Equip. Operators’ Labor Council, 8th Dist. Cuyahoga No.

96738, 

.       Without considering facts outside the record, it is

impossible to determine whether the current action is precluded under R.C. 2305.10

and 2305.19 solely based on the allegations in the complaint and the limited

arguments presented by Patton. Further, this is not a situation in which the

complaint or the record is completely silent as to the statute of limitations or the

savings statute issues, so any discussion of that narrow facet of the law is beyond the

scope of our review. See, e.g., Omobien v. Flinn, 9th Dist. Summit No. 29841, 2021-

Ohio-2096, ¶ 13.

               Based on a de novo review of the trial court proceedings, the trial

court erred in dismissing the action. Judgment is reversed, and case is remanded

for further proceedings.
      It is ordered that appellant recover from appellee costs 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

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.


                                      __
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE

EILEEN T. GALLAGHER, J., and
MARY J. BOYLE, J., CONCUR