[Cite as Berick v. Engwiller Properties, Inc., 2025-Ohio-1989.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
JEANNETTE BERICK, et al., : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiffs - Appellants : Hon. Robert G. Montgomery, J. : Hon. Kevin W. Popham, J. -vs- : : ENGWILLER PROPERTIES, INC, et al., : Case No. 2024 CA 0047 : 2024 CA 0088 : Defendants - Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2024 CV 0075 R.
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: June 2, 2025
APPEARANCES:
For Plaintiffs-Appellants For Defendant- Appellee Engwiller Properties, Inc. KYLE R. WRIGHT KEVIN C. QUINLAN MICHAEL J. MCLANETRENT M. THACKER OLIVIA M. TORISK 250 W. Old Wilson Bridge Rd. Kademenos, Wisehart, Hines, Suite 265 Doylyk & Wright Co LPA Columbus, Ohio 43085 502 W. Washington Street Sandusky, Ohio 44870 For Defendant- Appellee Swavory, LLC
TRENT M. THACKER Curry Roby, LLC 30 Northwoods Blvd., Suite 300 Columbus, Ohio 43235 Baldwin, P.J.
{¶1} The appellants, Jeanette Berick and her husband Daniel Berick, appeal the
judgment entries of the trial court granting appellee Engwiller Properties, Inc.’s Motion to
Dismiss and appellee Swavory, LLC’s Motion for Judgment on the Pleadings.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On August 26, 2022, appellant Jeannette Berick and her family were
attending an outdoor event in the City of Mansfield when she walked towards the
storefront window of appellee Swavory, a restaurant and store. As she approached the
window she fell into an uncovered window well and sustained significant bodily injuries.
Appellee Engwiller Properties owned and managed the property that was occupied by
appellee Swavory.
{¶3} On February 14, 2024, the appellants filed a Complaint against appellees
Engwiller and Swavory alleging negligence. Specifically, the appellants’ first cause of
action alleged that appellee Engwiller had a duty to use ordinary care for appellant
Jeannette Berick’s safety, and to provide notice of any latent dangers about which it knew
or should have known; that appellee Engwiller negligently created, maintained, failed to
remove, and failed to warn of a latent dangerous condition (i.e., the uncovered window
well); that appellee Engwiller’s negligence was the direct and proximate cause of
appellant Jeannette Berick’s injuries; and, that the appellants suffered damages as a
result of appellee Engwiller’s negligence. The appellants’ second cause of action alleged
that appellee Swavory had a duty to use ordinary care for appellant Jeannette Berick’s
safety, to keep the premises in a reasonably safe condition, and to provide notice of any
latent dangers about which appellee Swavory knew or should have known; that appellee Swavory negligently created, maintained, failed to remove, and failed to warn of a latent
dangerous condition; that appellee Swavory’s negligence was the direct and proximate
cause of appellant Jeannette Berick’s injuries; and, that appellants suffered damages as
a result of appellee Swavory’s negligence. The appellants’ third cause of action alleged
that appellant Daniel Berick had suffered the loss of his wife Jeannette’s consortium.
{¶4} On May 13, 2024, appellee Engwiller filed a Civ.R. 12(B)(6) Motion to
Dismiss in which it essentially argued that, because it owed no duty to warn of open and
obvious defects, the appellants failed to state a claim upon which relief could be granted.
The parties briefed the issue, and on June 17, 2024, the trial court issued a Judgment
Entry Granting Motion to Dismiss. The Judgment Entry stated that it was “a final
appealable order” and that “there was no just cause for delay.” On July 15, 2024, the
appellants filed a notice of appeal of the trial court’s June 17, 2024, Judgment Entry.1
{¶5} On August 5, 2024, appellee Swavory filed a Civ.R. 12(C) Motion for
Judgment on the Pleadings in which it essentially argued that, based upon the pleadings,
it owed no duty to the appellants, the Complaint failed on its face, and it was therefore
entitled to judgment. The parties briefed the issue, and on October 7, 2024, the trial court
issued a Judgment Entry Granting Motion for Judgment on the Pleadings. On November
5, 2024, the appellants filed a Notice of Appeal from the trial court’s October 7, 2024,
Judgment Entry.
1 On August 7, 2024, the appellants filed a Motion to Remand and Dismiss for Lack of Jurisdiction, arguing that because the trial court’s June 17, 2024, entry did not dispose of all claims against all parties that it was not a final appealable order. The Motion has since been rendered moot, and is addressed by this Court in a separate entry. {¶6} The appellants set forth the following sole assignment of error with regard
to appellee Engwiller:
{¶7} “I. THE TRIAL COURT ERRED IN GRANTING ENGWILLER
PROPERTIES, INC.’S MOTION TO DISMISS BECAUSE IT IMPROPERLY
CONCLUDED THAT THE WINDOW WELL THAT JEANNETTE BERICK FELL
THROUGH WAS OPEN AND OBVIOUS, AND THEREFORE, ENGWILLER
PROPERTIES OWED NO DUTY TOWARDS JEANNETTE BERICK. SEE EXHIBIT A —
JUDGMENT ENTRY OF JUNE 17, 2024, AT 11.”
{¶8} The appellants set forth the following sole assignment of error with regard
to appellee Swavory:
{¶9} “I. THE TRIAL COURT ERRED IN GRANTING SWAVORY LLC’S MOTION
FOR JUDGMENT ON THE PLEADINGS BECAUSE IT IMPROPERLY CONCLUDED
THAT THE WINDOW WELL THAT JEANNETTE BERICK FELL THROUGH WAS OPEN
AND OBVIOUS. THEREFORE, IN DOING SO, THE TRIAL COURT IMPROPERLY
DETERMINED THAT SWAVORY LLC OWED NO DUTY TOWARDS JEANNETTE
BERICK. SEE EXHIBIT A JUDGMENT ENTRY OF OCTOBER 07, 2024.”
{¶10} The appellants submit in both assignments of error that the trial court erred
in determining that the appellees owned no duty to appellant Jeannette Berick. The issue,
however, is more properly framed as follows: whether the trial court erred in finding that
the appellants’ Complaint failed to state a claim upon which relief can be granted, and
failed on the pleadings. We find that the trial court erred in so finding. STANDARD OF REVIEW
{¶11} This Court addressed the standard of review in cases involving motions to
dismiss in L.E. Lowry Limited Partnership v. R&R JV LLC, 2022-Ohio-3109, (5th Dist.):
Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de
novo. Greeley v. Miami Valley Maintenance Contractors, Inc., 49 Ohio St.3d
228, 551 N.E.2d 981 (1990). 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. Hanson v. Guernsey County Board of
Commissioners, 65 Ohio St.3d 545, 605 N.E.2d 378 (1992). Under a de
novo analysis, we must accept all factual allegations of the complaint as
true and all reasonable inferences must be drawn in favor of the nonmoving
party. Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991).
A trial court should dismiss a complaint for failure to state a claim on
which relief can be granted pursuant to Civ.R. 12(B)(6) only when it
appears:
“beyond doubt * * * that the [plaintiff] can prove no set of facts
warranting relief.” State ex rel. Crabtree v. Franklin Cty. Bd. of Health
(1997), 77 Ohio St.3d 247, 248, 673 N.E.2d 1281. The court may
look only to the complaint itself, and no evidence or allegation outside
the complaint, when ruling on a Civ.R. 12(B)(6) motion. State ex rel.
Fuqua v. Alexander (1997), 79 Ohio St.3d 206, 680 N.E.2d 985.
Nevertheless, the court may consider material incorporated in the complaint as part of the complaint. State ex rel. Keller v. Cox (1999),
85 Ohio St.3d 279, 707 N.E.2d 931.”
Wolff v. Dunning Motor Sales, 5th Dist. Guernsey No. 20CA000011, 2021-
Ohio-740, 2021 WL 942858, ¶¶ 31-32.”
Id. at ¶¶ 12-14. The court in Bethel Oil and Gas, LLC v. Redbird Development, LLC, 2024-
Ohio-5285 (7th Dist.) stated further:
“Thus, to survive a motion to dismiss for failure to state a claim upon
which relief can be granted, a pleader is ordinarily not required to allege in
the complaint every fact he or she intends to prove ...” State ex rel. Hanson,
65 Ohio St.3d at 549, 605 N.E.2d 378, citing York, 60 Ohio St.3d at 144–
145, 573 N.E.2d 1063; see York, 60 Ohio St.3d at 146, 573 N.E.2d 1063
(Moyer, J., concurring) (stating that complaint need not contain more than
“brief and sketchy allegations of fact to survive a motion to dismiss under
the notice pleading rule”); City of Willoughby Hills v. Cincinnati Ins. Co., 9
Ohio St.3d 177, 180, 459 N.E.2d 555 (1984) (“No longer must a complaint
set forth specific factual allegations.”); see also Civ.R. 8(E) (averments
contained in a pleading “shall be simple, concise, and direct”). A complaint
must, however, “ ‘contain allegations from which an inference fairly may be
drawn that evidence on these material points will be introduced at trial.’ ”
Schlenker Ents., L.P. v. Reese, 2010-Ohio-5308, 2010 WL 4323662, ¶29
(3d Dist.), quoting Fancher v. Fancher, 8 Ohio App.3d 79, 83, 455 N.E.2d
1344 (1st Dist. 1982). “Consequently, ‘as long as there is a set of facts,
consistent with the plaintiff's complaint, which would allow the plaintiff to recover, the court may not grant a defendant's motion to dismiss.’ ” Beretta,
2002-Ohio-2480, 768 N.E.2d 1136, at ¶ 29, quoting York, 60 Ohio St.3d at
145, 573 N.E.2d 1063.
Moreover, a plaintiff is “not required to plead the legal theory” of the
case at the pleading stage. Illinois Controls, Inc. v. Langham, 70 Ohio St.3d
512, 526, 639 N.E.2d 771 (1994). Instead, the complaint “need only give
reasonable notice of the claim.” State ex rel. Harris v. Toledo, 74 Ohio St.3d
36, 37, 656 N.E.2d 334 (1995). Furthermore, “a plaintiff is not required to
prove his or her case at the pleading stage.” York, 60 Ohio St.3d at 144-
145, 573 N.E.2d 1063. And notably, “Civ.R. 8(A) does not contemplate
evidentiary pleading.” Collins v. National City Bank, 2003-Ohio-6893, 2003
WL 22971874, ¶ 58 (2d Dist.). Indeed, “[v]ery often, the evidence necessary
for a plaintiff to prevail is not obtained until the plaintiff is able to discover
materials in the defendant's possession.” York, 60 Ohio St.3d at 145, 573
N.E.2d 1063; accord State ex rel. Hanson, 65 Ohio St.3d at 549, 605 N.E.2d
378 (citing York and noting that the facts necessary to prove claims alleged
in a complaint “may not be available until after discovery”).
Moreover, Civ.R. 8(F) provides that courts should construe the
pleadings so as to do substantial justice. The object is not absolute
technical conformity with arcane rules of pleading but rather simply
to see whether the plaintiffs’ wording provides the defendants with
notice of the claim and the opportunity to defend it. Ogle v. Ohio Power Co., 180 Ohio App.3d 44, 2008-Ohio-7042, 903 N.E.2d
1284, ¶ 9 (4th Dist.) (concluding “that delving into the nuances of absolute
versus qualified nuisance should be reserved for discovery and summary
judgment”).
The foregoing “simplified notice-pleading standard relies on liberal
discovery rules and summary-judgment motions to define disputed facts
and to dispose of nonmeritorious claims.” Id. at ¶ 5 (4th Dist.); McCormac
at 222, § 10.01 (“discovery, rather than pleadings, is used to clarify and
narrow the issues”). In fact, “ ‘[b]ecause it is so easy for the pleader to satisfy
the standard of Civ.R. 8(A), few complaints are subject to dismissal.’ ” Ogle,
2008-Ohio-7042, 903 N.E.2d 1284, at ¶ 5 (4th Dist.), quoting Leichtman v.
WLW Jacor Communications, Inc., 92 Ohio App.3d 232, 234, 634 N.E.2d
697 (1st Dist. 1994). Additionally, “[a] motion to dismiss for failure to state a
claim is viewed with disfavor and is rarely granted.” Wilson v. Riverside
Hosp., 18 Ohio St.3d 8, 10, 479 N.E.2d 275 (1985) (citations omitted).
Consequently, Civ.R. 12(B)(6) dismissals are “reserved for the rare case
that cannot possibly succeed.” Tri–State Computer Exchange, Inc. v. Burt,
2003-Ohio-3197, 2003 WL 21414688, ¶ 12 (1st Dist.).
Id. at ¶¶41-43. Similarly, when reviewing a trial court’s decision to grant a motion for
judgment on the pleadings an appellate court must construe the material allegations in
the complaint with all reasonable inferences to be drawn therefrom in favor of the
nonmoving party as true; and, find beyond doubt that the plaintiff could prove no set of
facts in support of his claim that would entitle him to relief. Gingrich v. Otter Fork Equestrian Complex, LLC, 2024-Ohio-2775, ¶ 28 (5th Dist.), appeal not allowed, Gingrich
v. Otter Fork Equestrian Complex, L.L.C., 2024-Ohio-4534.
{¶12} Thus, as we conduct our de novo review of the trial court’s June 17, 2024,
Judgment Entry we look to the face of the appellants’ Complaint and accept the
allegations set forth therein as true, with all reasonable inferences drawn in the appellants’
favor. As we review the court’s October 7, 2024, Judgment Entry, we look to the
appellants’ Complaint and appellee Swavory’s Answer to determine if there are no set of
facts that would support the appellants’ claim.
ANALYSIS
{¶13} The appellants’ Complaint sets forth a premises liability claim, which sounds
in negligence. In order to prevail on a premises liability claim, the appellants are required
to prove (1) the existence of a duty, (2) a breach of that duty, and (3) an injury proximately
resulting from the breach. Menifee v. Ohio Welding Prods., Inc., 15 Ohio St.3d 75, 77,
472 N.E.2d 707 (1984). The appellants’ Complaint sets forth an allegation as to each of
these elements.
{¶14} The appellees submit that the photographs embedded in the appellants’
Complaint are fatal to their case, and that the inclusion of the photos illustrates the open
and obvious nature of the allegedly hazardous window well. We disagree. Civ.R. 10(D)
addresses attachments to pleadings, and states:
(1) Account or Written Instrument. When any claim or defense is
founded on an account or other written instrument, a copy of the account or
written instrument must be attached to the pleading. If the account or written instrument is not attached, the reason for the omission must be stated in
the pleading.
(2) Affidavit of Merit; Medical, Dental, Optometric, and
Chiropractic Liability Claims.
(a) Except as provided in division (D)(2)(b) of this rule, a
complaint that contains a medical claim, dental claim, optometric claim, or
chiropractic claim, as defined in R.C. 2305.113, shall be accompanied by
one or more affidavits of merit relative to each defendant named in the
complaint for whom expert testimony is necessary to establish liability.
Affidavits of merit shall be provided by an expert witness meeting the
requirements of Evid.R. 702 and, if applicable, also meeting the
requirements of Evid.R. 601(B)(5). Affidavits of merit shall include all of the
following:
(i) A statement that the affiant has reviewed all medical records
reasonably available to the plaintiff concerning the allegations contained in
the complaint;
(ii) A statement that the affiant is familiar with the applicable standard
of care;
(iii) The opinion of the affiant that the standard of care was breached
by one or more of the defendants to the action and that the breach caused
injury to the plaintiff.
(b) The plaintiff may file a motion to extend the period of time to file
an affidavit of merit. The motion shall be filed by the plaintiff with the complaint. For good cause shown and in accordance with division (c) of this
rule, the court shall grant the plaintiff a reasonable period of time to file an
affidavit of merit, not to exceed ninety days, except the time may be
extended beyond ninety days if the court determines that a defendant or
non-party has failed to cooperate with discovery or that other circumstances
warrant extension.
(c) In determining whether good cause exists to extend the period of
time to file an affidavit of merit, the court shall consider the following:
(i) A description of any information necessary in order to obtain
an affidavit of merit;
(ii) Whether the information is in the possession or control of a
defendant or third party;
(iii) The scope and type of discovery necessary to obtain the
information;
(iv) What efforts, if any, were taken to obtain the information;
(v) Any other facts or circumstances relevant to the ability of the
plaintiff to obtain an affidavit of merit.
(d) An affidavit of merit is required to establish the adequacy of the
complaint and shall not otherwise be admissible as evidence or used for
purposes of impeachment. Any dismissal for the failure to comply with this
rule shall operate as a failure otherwise than on the merits.
(e) If an affidavit of merit as required by this rule has been filed as to
any defendant along with the complaint or amended complaint in which claims are first asserted against that defendant, and the affidavit of merit is
determined by the court to be defective pursuant to the provisions of division
(D)(2)(a) of this rule, the court shall grant the plaintiff a reasonable time, not
to exceed sixty days, to file an affidavit of merit intended to cure the defect.
Civ.R. 10(D) does not provide for the attachment and incorporation of unauthenticated
photographs to the pleadings.
{¶15} The Third District Court of Appeals addressed the use of photographs in a
complaint and the consideration of same in the context of a 12(B)(6) motion for dismissal,
stating:
On the other hand, “accounts” and “written instruments” (usually
contracts) that are attached to a complaint are incorporated into the
complaint pursuant to Civ.R. 10(C) and (D), and the trial court may consider
them for purposes of a Civ.R. 12(B)(6) motion. Keenan, 2006-Ohio-3633,
2006 WL 1975871, at ¶ 8–9, citing Slife v. Kundtz Properties, Inc. (1974),
40 Ohio App.2d 179, 185–186, 69 O.O.2d 178, 318 N.E.2d 557; Civ.R.
10(C) and (D). Photographs are not “account[s]” or “written instruments” that
are incorporated into the complaint pursuant to Civ.R. 10(C) and (D); and
therefore, the Widmans' reliance upon these for dismissal is inappropriate.
See, e.g., Resch v. Roy, 9th Dist. No. 24481, 2009-Ohio-2458, 2009 WL
1478713 (trial court erred by relying upon attached copy of a partial e-mail,
copy of document from Internet search, and an affidavit).”
Davis v. Widman, 2009-Ohio-5430, ¶ 18 (3rd Dist.). {¶16} Similarly, the Ninth District Court of Appeals disallowed consideration of an
attachment that was not specifically referenced in Civ.R. 10(C) or (D) in the case of State
ex rel. Maynard v. Medina Courthouse Steering Committee, 2020-Ohio-5562 (9th Dist.),
in which it held that an email attached as an exhibit to an answer filed by a party was not
a “written instrument” permitted by pleadings rules, and thus should have been excluded
from the record in determining a motion for judgment on the pleadings:
Respondents argue that an email attached as Exhibit 1 to the answer
filed by the Steering Committee, Hutson, Miller, Bastean and Judge Dunn
“shows that BCI created the Steering Committee, meaning that [the
committee is] not a public body.” Steering Committee's Brief 4. The exhibit,
however, is not a “written instrument” under Civ.R. 10(C), so it was, or
should have been, excluded from the record pursuant to Civ.R. 12(C).
Greer, 2020-Ohio-3951, 156 N.E.3d 1005.
Id. at ¶ 15.
{¶17} Finally, the court in Jones v. Gilbert, 2023-Ohio-754 (3rd Dist.), provided
that, as a general rule, photographs are neither accounts nor written instruments as
contemplated by Civ.R. 10(D), and as such should not be incorporated into a complaint
under the rule, and should not be considered when deciding whether to grant a motion
for judgment on the pleadings. Id. at footnote 3.2
2 The Jones court noted, however, that the photographs at issue therein “were included in the inspection report, which was itself incorporated into the purchase agreement,” which was attached to the answer in compliance with Civ.R. 10(D). The photographs were therefore part of a ‘written instrument’ and could be considered in that case. Id. {¶18} In the case sub judice, the photographs included in the appellants’
Complaint were not authenticated, nor were they incorporated into a document that would
otherwise satisfy the requirements of Civ.R. 10(D). Accordingly, the photographs may not
be considered in determining whether the appellants’ Complaint properly set forth their
negligence claims.
{¶19} In order to affirm the decision of the trial court we must determine, beyond
a doubt, that the appellants can prove no set of facts warranting relief. However, in
conducting our review we must accept all factual allegations of the Complaint as true, and
all reasonable inferences must be drawn in favor of the appellants as nonmoving parties.
The appellants’ Complaint contains sufficient allegations as to each element of their
negligence cause of action. Furthermore, in reviewing the trial court’s decision on
appellee Swavory’s motion for judgment on the pleadings, we must construe the material
allegations in the appellants’ Complaint, with all reasonable inferences to be drawn
therefrom as true, and find beyond a doubt that they can prove no set of facts in support
of their claims.
{¶20} The appellants’ Complaint properly set forth all elements of their negligence
claims. The photographs embedded in the Complaint may not be considered, as they do
not comply with the civil rules. At this juncture, we cannot conclusively say that the
appellants’ Complaint failed to state a claim upon which relief could be granted. Nor can
we say that the appellants can prove no set of facts warranting relief. Accordingly, the
appellants’ assignments of error are sustained. CONCLUSION
{¶21} Based upon the foregoing, the assignments of error set forth by the
appellants are sustained, and the June 17, 2024, and October 7, 2024, decisions of the
Richland County Court of Common Pleas are hereby reversed and remanded.
By: Baldwin, P.J.
Montgomery, J. and
Popham, J. concur.