Maga v. Brockman

925 N.E.2d 208, 185 Ohio App. 3d 666
CourtOhio Court of Appeals
DecidedFebruary 5, 2010
DocketNo. 23495
StatusPublished
Cited by2 cases

This text of 925 N.E.2d 208 (Maga v. Brockman) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maga v. Brockman, 925 N.E.2d 208, 185 Ohio App. 3d 666 (Ohio Ct. App. 2010).

Opinion

Donovan, Presiding Judge.

{¶ 1} Plaintiff-appellant, Dominic J. Maga, appeals a decision of the Montgomery County Court of Common Pleas, General Division, in which the trial court sustained defendant-appellees Gayle Brockman and Dan Brockman’s Civ.R. 12(B)(6) motion to dismiss Maga’s complaint. The trial court filed its written [668]*668decision on May 20, 2009. Maga filed a timely notice of appeal with this court on June 16, 2009.

I

{¶ 2} On August 23, 2002, Union Savings Bank1 filed a foreclosure action against Maga in regards to real property he owned that was located at 8144 Frederick Pike in Dayton, Ohio. Union Savings Bank purchased the real property at a sheriffs sale held on May 27, 2004. While he was in possession of the property, Maga stored lawn equipment at the location, which he used to maintain the grounds on the property. Maga also stored lumber on the property that was to be used in the construction of a “three-domed complex home.” On July 20, 2004, Union Savings Bank sold the property to Gayle Brockman, as trustee of an unnamed trust. At the time of the sale to the Brockmans, Maga’s lawn equipment and lumber was still being stored on the property. On July 21, 2004, Maga traveled to the property and discovered that the lock and chain on the entrance had been changed and that he could no longer gain access to his personal property.

{¶ 3} Once he discovered that the Brockmans had purchased the real property from the bank, Maga sent the couple a demand letter in which he requested the return of his personal property that had been stored at 8144 Frederick Pike. Maga sent the demand letter on September 8, 2004. The Brockmans refused to return the personal property, and Maga subsequently filed a complaint on September 5, 2008, in which he asserted claims for replevin and conversion.2

{¶ 4} On October 9, 2008, the Brockmans filed a motion to dismiss pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief could be granted. Specifically, the Brockmans asserted that Maga’s claims against them were barred by the four-year statute of limitations set forth in R.C. 2305.09(B) for actions in replevin and conversion. On November 5, 2008, the magistrate filed a judgment entry in which she sustained, without explanation, the Brockmans’ motion to dismiss. Maga filed a motion to set aside the magistrate’s judgment with the trial court on November 14, 2008. A hearing with oral arguments was held before the trial court on March 13, 2009. On May 20, 2009, the trial court filed a decision in which it adopted the magistrate’s order. The trial court also [669]*669filed a “final judgment entry” in which it reaffirmed its decision adopting the magistrate’s order, as well as ordering Maga to pay court costs from a previous voluntarily dismissed case in the amount of $2,992.25.

{¶ 5} Maga now appeals the trial court decision adopting the magistrate’s order sustaining the Brockmans’ Civ.R. 12(B)(6) motion to dismiss.

II

{¶ 6} Because they are interrelated, Maga’s first and second assignments of error will be discussed together:

{¶ 7} “It is error for a magistrate to grant a Rule 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted when the facts in the complaint allege all of the elements necessary for the claims of replevin and conversion.

{¶ 8} “It is error for a trial judge to uphold a magistrate’s order dismissing a case pursuant to Rule 12(B)(6) for failure to state a claim upon which relief can be granted when the defendants failed to show that the alleged facts in the complaint were insufficient to state a claim in replevin or conversion.”

{¶ 9} “A motion to dismiss a complaint for failure to state a claim upon which relief can be granted, pursuant to Civ.R. 12(B)(6), tests the sufficiency of a complaint. In order to prevail, [it must appear beyond doubt from the complaint] that the plaintiff can prove no set of facts entitling him to relief. O’Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242[, 71 O.O.2d 223], 327 N.E.2d 753 at syllabus. The court must construe the complaint in the light most favorable to the plaintiff, presume all of the factual allegations in the complaint to be true, and make all reasonable inferences in favor of the plaintiff. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753. We review de novo the trial court’s granting of a Civ.R. 12(B)(6) motion to dismiss.” Grover v. Bartsch, 170 Ohio App.3d 188, 2006-Ohio-6115, 866 N.E.2d 547, ¶ 16.

{¶ 10} In Velotta v. Leo Petronzio Landscaping, Inc. (1982), 69 Ohio St.2d 376, 23 O.O.3d 346, 433 N.E.2d 147, the Ohio Supreme Court held that “a motion to dismiss based on the bar of the statute of limitations is erroneously granted when the complaint does not conclusively show on its face the action is barred by the statute of limitations.” Id., paragraph three of the syllabus.

{¶ 11} As previously stated, the magistrate offered no explanation regarding her decision sustaining the Brockmans’ motion to dismiss Maga’s complaint. The trial court, however, provided the following analysis in its decision adopting the magistrate’s order:

[670]*670{¶ 12} “This Court finds that as a matter of law the Plaintiff knew or should have known of the taking of the personal property prior to September 8, 2004 when the demand letter was sent. At the earliest, he knew that arrangements for the personal property should have been made on or before May 25, 2004 when the Sheriffs Sale occurred. At the latest, the Plaintiff knew or should have discovered that something was wrong on or about July 20, 2004 when he discovered a chain across the property. Therefore, at earliest he had from May 26, 2004 to May 25, 2008 to file an action to recover the property or from July 20, 2004 to July 19, 2008 as the latest time period to file his lawsuit. Plaintiffs Compliant [sic] was filed on September 5, 2008. As a matter of law, this Court finds that the statute of limitations had run when Mr. Maga filed his lawsuit. Therefore, the Magistrate’s dismissal of his lawsuit based upon a failure to state a claim upon which relief could be granted was correct.”

{¶ 13} Initially, we note that there is no indication from the trial court’s decision that it relied on any evidence outside the pleadings and memoranda associated with the motion to dismiss when it adopted the magistrate’s order. Had the trial court considered evidence outside Maga’s complaint in reaching its decision, thereby treating the motion to dismiss as a motion for summary judgment, the court would have been required to give proper notice to the opposing party and provide an opportunity for that party to present its own evidentiary materials. Jackson v. Internatl. Fiber, 169 Ohio App.3d 395, 2006-Ohio-5799, 863 N.E.2d 189.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Shaw v. Access Ohio
2018 Ohio 2969 (Ohio Court of Appeals, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
925 N.E.2d 208, 185 Ohio App. 3d 666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maga-v-brockman-ohioctapp-2010.