[Cite as Kuczirka v. Ellis, 2018-Ohio-728.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
PETER KUCZIRKA C.A. No. 28599
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE CECILIA A. ELLIS, D.O., et al. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellees CASE No. CV-2012-08-4483
DECISION AND JOURNAL ENTRY
Dated: February 28, 2018
SCHAFER, Judge.
Plaintiff-Appellant, Peter Kuczirka, Administrator of the Estate of Trina Kuczirka,
appeals from the judgment of the Summit County Court of Common Pleas dismissing his claims
against Defendants-Appellees, Cecilia A. Ellis, D.O. and Obstetrical and Gynecological
Associates of Akron, Inc. We reverse, albeit on grounds other than those raised on appeal.
I.
{¶1} Peter Kuczirka, as administrator of the estate of Trina Kuczirka, (“Kuczirka”)
filed the refiled complaint in this action on August 3, 2012. After receiving service of the
complaint by certified mail, Defendants-Appellees, Cecilia A. Ellis, D.O. and Obstetrical and
Gynecological Associates of Akron, Inc. (“Dr. Ellis and OBGYN Associates”), each filed a
separate answer on August 31, 2012.
{¶2} On August 2, 2013, Dr. Ellis and OBGYN Associates filed a “motion to dismiss”
pursuant to Civ.R. 3(A) and Civ.R. 4.1. Dr. Ellis and OBGYN Associates argued that Kuczirka 2
improperly served them, not in the current action, but rather in the initial action filed August 31,
2009. They asserted that service of the original complaint by Federal Express was an improper
method of service under the version of Civ.R. 4.1 then in effect, that Kuczirka never perfected
service within one year of filing the original complaint, and the failure to commence the suit
warranted dismissal of the action with prejudice. The trial court initially denied the motion on
August 22, 2013.
{¶3} On September 11, 2013 Dr. Ellis and OBGYN Associates moved for
reconsideration or, in the alternative, to stay the case. They urged that a case of similar
circumstance was pending on appeal, and a stay was appropriate while awaiting a decision in that
case. The trial court stayed the proceedings on September 25, 2013. Upon motion, the trial
court reactivated the case on March 7, 2017, and permitted the parties to submit additional
briefing in light of this Court’s rulings in Hubiak v. Ohio Family Practice Ctr., 9th Dist. Summit
No. 26949, 2014-Ohio-3116 and Suiter v. Karimian, 9th Dist. Summit App. No. 27496, 2015-
Ohio-3330.
{¶4} The trial court granted the motion and dismissed the matter with prejudice.
Kuczirka filed this timely appeal.
II.
Assignment of Error
The trial court erred in dismissing the Plaintiff-Appellant’s case for failure to obtain proper service within one year of filing of the initial complaint.
{¶5} In the sole assignment of error, Kuczirka argues that the trial court erred by
granting the motion to dismiss. However, neither the motion itself nor the trial court’s decision
identify the procedural foundation for the motion to dismiss. “A reviewing court must examine
the entire journal entry and the proceedings below where necessary to ascertain the precise basis 3
of a lower court’s judgment.” State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d
565, 569 (1996). Accordingly, we must conduct a preliminary review of the proceedings below
to determine the standard of review and the appropriate legal framework to analyze the
argument.
{¶6} In its March 14, 2017 judgment entry, the trial court characterized the motion to
dismiss as having been brought pursuant to case law, and held:
Upon review of the Motion and Brief in Opposition, the Court finds Defendants in this matter never waived the affirmative defense of insufficient service and Plaintiff failed to obtain proper service within one year of filing of the initial complaint. Accordingly, pursuant to Hubiak v. Ohio Family Practice Center, Inc., 2014 Ohio 3116 and Suiter v. Karimian, 2015 Ohio 3330, this matter is DISMISSED.
The judgment entry does not offer any guidance as to the basis for considering the motion to
dismiss and entering judgment.
{¶7} The motion is based on three cumulative arguments summarized as follows:
(1) As to the original complaint, Kuczirka failed to properly serve Defendants with process in accordance with the former version of Civ.R. 4.1, thus the trial court lacked jurisdiction over them. (2) Kuczirka never reissued service of the improperly served original complaint; therefore, service was not perfected within the one-year time limit of Civ.R. 3(A) and the original action never commenced. (3) Kuczirka then voluntarily dismissed the original action—without ever having commenced the action, and beyond the expiration of the statute of limitations—thereby precluding the application of the savings statute, R.C. 2305.19, and rendering the refiled action time-barred.
Although Dr. Ellis and OBGYN Associates’ motion cites to Civ.R. 3(A) and Civ.R. 4.1, these
rules, in and of themselves, do not provide a procedural vehicle to present a motion to dismiss in
this matter. Despite stating the apparent rationale for dismissal, the procedural basis for
presenting such a dispositive motion is not evident. 4
{¶8} These arguments raised in the motion to dismiss sound in the nature of Civ.R.
12(B) defenses: specifically Civ.R. 12(B)(2) for lack of personal jurisdiction, and Civ.R.
12(B)(4) and (5) for insufficiency of process and service of process. Civ.R. 12(B) prescribes the
manner for presenting affirmative defenses and states that “[e]very defense, in law or fact, to a
claim for relief in any pleading *** shall be asserted in the responsive pleading thereto[.]”
Civ.R. 12(B). The rule creates an exception for the Civ.R. 12(B)(1)-(7) defenses that “may at the
option of the pleader be made by motion,” but specifies that “[a] motion making any of these
defenses shall be made before pleading if a further pleading is permitted.” Id.
{¶9} Even if this motion to dismiss is properly characterized as a motion pursuant to
Civ.R. 12(B)(2), (4), and (5), the pleadings preclude this Court from reviewing it as such. Dr.
Ellis and OBGYN Associates filed their answers to the refiled complaint and raised affirmative
defenses, but did not file a motion to dismiss prior to pleading. Indeed, their motion was not
filed until nearly a year later. A motion to dismiss filed subsequent to the answer contravenes
the “Civ.R. 12(B) requirement that: ‘[a] motion making any of these defenses shall be made
before pleading if a further pleading is permitted.’” O’Brien v. Univ. Community Tenants Union,
Inc., 42 Ohio St.2d 242, 244 (1975). Where a party files an answer prior to filing a motion to
dismiss, we must view the trial court’s “ruling as having granted a motion for a judgment on the
pleadings under Civ.R. 12(C).” State ex rel. Mancino v. Tuscarawas Cty. Court of Common
Pleas, 151 Ohio St.3d 35, 2017-Ohio-7528, fn. 2; Pontious, 75 Ohio St.3d at 569, quoting Lin
v. Gatehouse Constr. Co., 84 Ohio App.3d 96, 99 (8th Dist.1992) (“‘[A] motion to dismiss filed
after the pleadings have closed * * * is appropriately considered a motion for judgment on the
pleadings pursuant to Civ.R. 12 (C)’”). 5
{¶10} We review a motion for judgment on the pleadings de novo. Savoy v. Kramer,
9th Dist. Summit No. 27418, 2015-Ohio-437, ¶ 5. “[D]ismissal is appropriate where a court (1)
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[Cite as Kuczirka v. Ellis, 2018-Ohio-728.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
PETER KUCZIRKA C.A. No. 28599
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE CECILIA A. ELLIS, D.O., et al. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellees CASE No. CV-2012-08-4483
DECISION AND JOURNAL ENTRY
Dated: February 28, 2018
SCHAFER, Judge.
Plaintiff-Appellant, Peter Kuczirka, Administrator of the Estate of Trina Kuczirka,
appeals from the judgment of the Summit County Court of Common Pleas dismissing his claims
against Defendants-Appellees, Cecilia A. Ellis, D.O. and Obstetrical and Gynecological
Associates of Akron, Inc. We reverse, albeit on grounds other than those raised on appeal.
I.
{¶1} Peter Kuczirka, as administrator of the estate of Trina Kuczirka, (“Kuczirka”)
filed the refiled complaint in this action on August 3, 2012. After receiving service of the
complaint by certified mail, Defendants-Appellees, Cecilia A. Ellis, D.O. and Obstetrical and
Gynecological Associates of Akron, Inc. (“Dr. Ellis and OBGYN Associates”), each filed a
separate answer on August 31, 2012.
{¶2} On August 2, 2013, Dr. Ellis and OBGYN Associates filed a “motion to dismiss”
pursuant to Civ.R. 3(A) and Civ.R. 4.1. Dr. Ellis and OBGYN Associates argued that Kuczirka 2
improperly served them, not in the current action, but rather in the initial action filed August 31,
2009. They asserted that service of the original complaint by Federal Express was an improper
method of service under the version of Civ.R. 4.1 then in effect, that Kuczirka never perfected
service within one year of filing the original complaint, and the failure to commence the suit
warranted dismissal of the action with prejudice. The trial court initially denied the motion on
August 22, 2013.
{¶3} On September 11, 2013 Dr. Ellis and OBGYN Associates moved for
reconsideration or, in the alternative, to stay the case. They urged that a case of similar
circumstance was pending on appeal, and a stay was appropriate while awaiting a decision in that
case. The trial court stayed the proceedings on September 25, 2013. Upon motion, the trial
court reactivated the case on March 7, 2017, and permitted the parties to submit additional
briefing in light of this Court’s rulings in Hubiak v. Ohio Family Practice Ctr., 9th Dist. Summit
No. 26949, 2014-Ohio-3116 and Suiter v. Karimian, 9th Dist. Summit App. No. 27496, 2015-
Ohio-3330.
{¶4} The trial court granted the motion and dismissed the matter with prejudice.
Kuczirka filed this timely appeal.
II.
Assignment of Error
The trial court erred in dismissing the Plaintiff-Appellant’s case for failure to obtain proper service within one year of filing of the initial complaint.
{¶5} In the sole assignment of error, Kuczirka argues that the trial court erred by
granting the motion to dismiss. However, neither the motion itself nor the trial court’s decision
identify the procedural foundation for the motion to dismiss. “A reviewing court must examine
the entire journal entry and the proceedings below where necessary to ascertain the precise basis 3
of a lower court’s judgment.” State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d
565, 569 (1996). Accordingly, we must conduct a preliminary review of the proceedings below
to determine the standard of review and the appropriate legal framework to analyze the
argument.
{¶6} In its March 14, 2017 judgment entry, the trial court characterized the motion to
dismiss as having been brought pursuant to case law, and held:
Upon review of the Motion and Brief in Opposition, the Court finds Defendants in this matter never waived the affirmative defense of insufficient service and Plaintiff failed to obtain proper service within one year of filing of the initial complaint. Accordingly, pursuant to Hubiak v. Ohio Family Practice Center, Inc., 2014 Ohio 3116 and Suiter v. Karimian, 2015 Ohio 3330, this matter is DISMISSED.
The judgment entry does not offer any guidance as to the basis for considering the motion to
dismiss and entering judgment.
{¶7} The motion is based on three cumulative arguments summarized as follows:
(1) As to the original complaint, Kuczirka failed to properly serve Defendants with process in accordance with the former version of Civ.R. 4.1, thus the trial court lacked jurisdiction over them. (2) Kuczirka never reissued service of the improperly served original complaint; therefore, service was not perfected within the one-year time limit of Civ.R. 3(A) and the original action never commenced. (3) Kuczirka then voluntarily dismissed the original action—without ever having commenced the action, and beyond the expiration of the statute of limitations—thereby precluding the application of the savings statute, R.C. 2305.19, and rendering the refiled action time-barred.
Although Dr. Ellis and OBGYN Associates’ motion cites to Civ.R. 3(A) and Civ.R. 4.1, these
rules, in and of themselves, do not provide a procedural vehicle to present a motion to dismiss in
this matter. Despite stating the apparent rationale for dismissal, the procedural basis for
presenting such a dispositive motion is not evident. 4
{¶8} These arguments raised in the motion to dismiss sound in the nature of Civ.R.
12(B) defenses: specifically Civ.R. 12(B)(2) for lack of personal jurisdiction, and Civ.R.
12(B)(4) and (5) for insufficiency of process and service of process. Civ.R. 12(B) prescribes the
manner for presenting affirmative defenses and states that “[e]very defense, in law or fact, to a
claim for relief in any pleading *** shall be asserted in the responsive pleading thereto[.]”
Civ.R. 12(B). The rule creates an exception for the Civ.R. 12(B)(1)-(7) defenses that “may at the
option of the pleader be made by motion,” but specifies that “[a] motion making any of these
defenses shall be made before pleading if a further pleading is permitted.” Id.
{¶9} Even if this motion to dismiss is properly characterized as a motion pursuant to
Civ.R. 12(B)(2), (4), and (5), the pleadings preclude this Court from reviewing it as such. Dr.
Ellis and OBGYN Associates filed their answers to the refiled complaint and raised affirmative
defenses, but did not file a motion to dismiss prior to pleading. Indeed, their motion was not
filed until nearly a year later. A motion to dismiss filed subsequent to the answer contravenes
the “Civ.R. 12(B) requirement that: ‘[a] motion making any of these defenses shall be made
before pleading if a further pleading is permitted.’” O’Brien v. Univ. Community Tenants Union,
Inc., 42 Ohio St.2d 242, 244 (1975). Where a party files an answer prior to filing a motion to
dismiss, we must view the trial court’s “ruling as having granted a motion for a judgment on the
pleadings under Civ.R. 12(C).” State ex rel. Mancino v. Tuscarawas Cty. Court of Common
Pleas, 151 Ohio St.3d 35, 2017-Ohio-7528, fn. 2; Pontious, 75 Ohio St.3d at 569, quoting Lin
v. Gatehouse Constr. Co., 84 Ohio App.3d 96, 99 (8th Dist.1992) (“‘[A] motion to dismiss filed
after the pleadings have closed * * * is appropriately considered a motion for judgment on the
pleadings pursuant to Civ.R. 12 (C)’”). 5
{¶10} We review a motion for judgment on the pleadings de novo. Savoy v. Kramer,
9th Dist. Summit No. 27418, 2015-Ohio-437, ¶ 5. “[D]ismissal is appropriate where a court (1)
construes the material allegations in the complaint, with all reasonable inferences to be drawn
therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt, that the plaintiff
could prove no set of facts in support of [the] claim that would entitle [plaintiff] to relief.”
Cashland Fin. Servs., Inc. v. Hoyt, 9th Dist. Lorain No. 12CA010232, 2013–Ohio–3663, ¶ 7,
quoting Pontious, at 570. A Civ.R. 12(C) motion presents only questions of law, the
determination of which is restricted solely to the allegations in the pleadings. Peterson v.
Teodosio, 34 Ohio St.2d 161, 166 (1973).
{¶11} Where the pleadings in a refiled case “do not recite the procedural history of the
original case in a way that is sufficient to conclusively show that the statute of limitations bars
the action and that the savings statute does not apply,” it is error for a trial court to look to
matters outside of the pleadings. Savoy at ¶6-7. Dr. Ellis and OBGYN Associates’ motion
alleges facts not included in the parties’ pleadings. Indeed, the motion recites the entire
procedural history of the prior case which, aside from the acknowledgment that it is a refiled
complaint, is not addressed in the pleadings. Therefore, the record and proceedings of
Kuczirka’s original case were not before the trial court for consideration. See Savoy at ¶ 11,
quoting In re J.C., 186 Ohio App.3d 243, 2010–Ohio–637, ¶ 14 (9th Dist.) (“[A] court may take
judicial notice of proceedings in the immediate case but not in other cases ‘even though between
the same parties and even though the same judge presided.’”).
{¶12} Dr. Ellis and OBGYN Associates’ motion relied on factual allegations that were
not properly before the trial court for consideration, but which were essential to reaching the
court’s conclusion. Upon review of the judgment entry, it is evident that the trial court 6
necessarily, and improperly, relied upon matters outside of the pleadings in reaching its decision.
We conclude, therefore, that the trial court erred by granting the motion and dismissing the
action. Kuczirka’s assignment of error is sustained.
III.
{¶13} Kuczirka’s assignment of error is sustained. The judgment of the Summit county
Court of Common Pleas is reversed and the cause is remanded for further proceedings consistent
with this opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellees.
JULIE A. SCHAFER FOR THE COURT 7
HENSAL, P. J. CONCURRING IN JUDGMENT ONLY.
{¶14} While I concur with the majority’s ultimate disposition of this appeal, I do so
based solely upon this Court’s analysis in Hall v. Crystal Clinic, Inc., 9th Dist. Summit No.
28524, 2017-Ohio-8471.
CALLAHAN, J. DISSENTING.
{¶15} I respectfully dissent from the majority’s resolution of this matter and in
accordance with this Court’s prior decision in Suiter v. Karimian, 9th Dist. Summit No. 27496,
2015-Ohio-3330, I would consider the merits of this appeal. While I acknowledge that a motion
to dismiss filed after the pleadings have closed is to be converted to a motion for judgment on the
pleadings, I disagree that the rule is absolute or that it is applicable in this case.
APPEARANCES:
STACIE L. ROTH, Attorney at Law, for Appellant.
GREGORY T. ROSSI, Attorney at Law, for Appellees.