[Cite as Mealick v. Nichols, 2011-Ohio-6546.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
MARK MEALICK, ET AL. JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellants Hon. Sheila G. Farmer, J. Hon. Julie A. Edwards, J. v. Case No. CT2011-0021 BRYAN NICHOLS, ET AL.
Defendant-Appellees OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CC2010-0695
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: December 14, 2011
APPEARANCES:
For Defendant-Appellee For Plaintiff-Appellants Bryan Nichols
THOMAS M. COUGHLIN, JR. MILES D. FRIES BRADLEY B. GIBBS Gottlieb, Johnston, Bean & Dal Ponte Ritzler, Coughlin & Paglia, Ltd. 320 Main Street, P.O. Box 190 1360 East Ninth Street Zanesville, Ohio 43702-0190 1000 IMG Center Cleveland, Ohio 44114
For Defendant-Appellee American Collectors Insurance and American Bankers Insurance
R. EMMETT MORAN 1200 Fifth Third Center 600 Superior Ave., East Cleveland, Ohio 44114 Muskingum County, Case No. CT2011-0021 2
Hoffman, P.J.
{¶ 1} Plaintiff-appellant Mark Mealick appeals the May 3, 2011 Judgment Entry
of the Muskingum County Court of Common Pleas dismissing his complaint against
Defendant-appellee Bryan Nichols.
STATEMENT OF THE CASE
{¶ 2} On August 8, 2006, Appellant filed a complaint against Bryan Nichols
following a motor vehicle accident which occurred on August 17, 2004. Appellant
voluntarily dismissed the case without prejudice on December 10, 2007. On October
22, 2010, Appellant refiled his complaint against Appellee.
{¶ 3} On February 18, 2011, Appellee filed a motion to dismiss pursuant to Civil
Rule 12(B)(6) asserting the complaint was filed outside the statute of limitations. Via
Judgment Entry of May 3, 2011, the trial court granted the motion to dismiss.
{¶ 4} Appellant now appeals, assigning as error:
{¶ 5} “I. THE TRIAL COURT ERRED IN GRANTING RULE 12(B)(6) MOTION
TO DISMISS WHERE THE ALLEGATIONS IN THE COMPLAINT DID NOT
CONCLUSIVELY SHOW ON ITS FACE THAT THE STATUTE OF LIMITATIONS WAS
A BAR TO THIS ACTION.”
{¶ 6} In the sole assignment of error, Appellant asserts the trial court erred in
dismissing the cause of action as the complaint does not conclusively establish on its
face the statute of limitations barred the action. Appellant alleged in his Complaint
Appellee had been out of state since the date of the accident; thereby tolling the statute
of limitations.
{¶ 7} O.R.C. 2305.15(A) states, Muskingum County, Case No. CT2011-0021 3
{¶ 8} “(A) When a cause of action accrues against a person, if the person is out
of the state, has absconded, or conceals self, the period of limitation for the
commencement of the action as provided in sections 2305.04 to 2305.14, 1302.98, and
1304.35 of the Revised Code does not begin to run until the person comes into the state
or while the person is so absconded or concealed. After the cause of action accrues if
the person departs from the state, absconds, or conceals self, the time of the person's
absence or concealment shall not be computed as any part of a period within which the
action must be brought.”
{¶ 9} Ohio Civil Rule 12(B)(6) reads,
{¶ 10} “(B) How presented
{¶ 11} “Every defense, in law or fact, to a claim for relief in any pleading, whether
a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the
responsive pleading thereto if one is required, except that the following defenses may at
the option of the pleader be made by motion: *** (6) failure to state a claim upon which
relief can be granted, (7) failure to join a party under Rule 19 or Rule 19.1. A motion
making any of these defenses shall be made before pleading if a further pleading is
permitted. No defense or objection is waived by being joined with one or more other
defenses or objections in a responsive pleading or motion. If a pleading sets forth a
claim for relief to which the adverse party is not required to serve a responsive pleading,
he may assert at the trial any defense in law or fact to that claim for relief. When a
motion to dismiss for failure to state a claim upon which relief can be granted presents
matters outside the pleading and such matters are not excluded by the court, the motion
shall be treated as a motion for summary judgment and disposed of as provided in Rule Muskingum County, Case No. CT2011-0021 4
56. Provided however, that the court shall consider only such matters outside the
pleadings as are specifically enumerated in Rule 56. All parties shall be given
reasonable opportunity to present all materials made pertinent to such a motion by Rule
56.”
{¶ 12} A motion to dismiss pursuant to Rule 12(B)(6) merely tests the sufficiency
of the complaint. In order for such a motion to be granted, it must appear beyond doubt
from the complaint itself the plaintiff can prove no set of facts entitling him to relief.
O’Brien v. University Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242. The
trial court is required to construe the complaint in a light most favorable to the plaintiff,
and must presume the factual allegations in the complaint are true. Mitchell v. Lawson
Milk Co. (1988), 40 Ohio St.3d 190. The court must make all reasonable inferences in
favor of the plaintiff. Id.
{¶ 13} In deciding a Rule 12(B)(6) motion, the trial court can only consider the
allegations of the complaint, and cannot look outside the four corners of the complaint.
The court must presume all of the allegations of the complaint are true. We note the
trial court did not convert the motion to dismiss to a motion for summary judgment;
therefore, pursuant to Ohio law, the trial court was precluded from considering matters
outside the pleadings.
{¶ 14} The October 22, 2010 complaint filed herein states,
{¶ 15} “6. Defendant Nichols has been out of state since the date of the
accident, thus tolling the statute of limitations.” Muskingum County, Case No. CT2011-0021 5
{¶ 16} Because Appellant alleges Appellee has been out of the state since the
date of the accident, we find the statute of limitations would be tolled pursuant to RC.
2305.15 set forth above.
{¶ 17} Appellee cites Bendix Autolight Corp. Midwesco Enterprises, Inc. (1998),
486 U.S. 888, 108 S.Ct 2218, holding R.C. 2305.15 unconstitutional in violation of the
Commerce Clause by requiring foreign corporations to choose between “exposing itself
to personal jurisdiction in [state] courts by complying with the tolling statute, or, by
refusing to comply, to remain in perpetuity for all lawsuits containing state causes of
action filed against it in [the state].”
{¶ 18} This Court has interpreted the decision in Bendix to apply only where
interstate commerce is involved. In Wise v. Morrison, (July 31, 2000), Stark App. No.
1999CA00272, this Court held:
{¶ 19} “However, the constitutionality of R.C. 2305.15(A) was challenged in
Bendix Autolight Corp. v. Midwesco Enterprises, Inc. (1988), 486 U.S. 888, 108 S.Ct.
2218, 100 L.Ed.2d 896. In Bendix, the United States Supreme Court considered R.C.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Mealick v. Nichols, 2011-Ohio-6546.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
MARK MEALICK, ET AL. JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellants Hon. Sheila G. Farmer, J. Hon. Julie A. Edwards, J. v. Case No. CT2011-0021 BRYAN NICHOLS, ET AL.
Defendant-Appellees OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CC2010-0695
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: December 14, 2011
APPEARANCES:
For Defendant-Appellee For Plaintiff-Appellants Bryan Nichols
THOMAS M. COUGHLIN, JR. MILES D. FRIES BRADLEY B. GIBBS Gottlieb, Johnston, Bean & Dal Ponte Ritzler, Coughlin & Paglia, Ltd. 320 Main Street, P.O. Box 190 1360 East Ninth Street Zanesville, Ohio 43702-0190 1000 IMG Center Cleveland, Ohio 44114
For Defendant-Appellee American Collectors Insurance and American Bankers Insurance
R. EMMETT MORAN 1200 Fifth Third Center 600 Superior Ave., East Cleveland, Ohio 44114 Muskingum County, Case No. CT2011-0021 2
Hoffman, P.J.
{¶ 1} Plaintiff-appellant Mark Mealick appeals the May 3, 2011 Judgment Entry
of the Muskingum County Court of Common Pleas dismissing his complaint against
Defendant-appellee Bryan Nichols.
STATEMENT OF THE CASE
{¶ 2} On August 8, 2006, Appellant filed a complaint against Bryan Nichols
following a motor vehicle accident which occurred on August 17, 2004. Appellant
voluntarily dismissed the case without prejudice on December 10, 2007. On October
22, 2010, Appellant refiled his complaint against Appellee.
{¶ 3} On February 18, 2011, Appellee filed a motion to dismiss pursuant to Civil
Rule 12(B)(6) asserting the complaint was filed outside the statute of limitations. Via
Judgment Entry of May 3, 2011, the trial court granted the motion to dismiss.
{¶ 4} Appellant now appeals, assigning as error:
{¶ 5} “I. THE TRIAL COURT ERRED IN GRANTING RULE 12(B)(6) MOTION
TO DISMISS WHERE THE ALLEGATIONS IN THE COMPLAINT DID NOT
CONCLUSIVELY SHOW ON ITS FACE THAT THE STATUTE OF LIMITATIONS WAS
A BAR TO THIS ACTION.”
{¶ 6} In the sole assignment of error, Appellant asserts the trial court erred in
dismissing the cause of action as the complaint does not conclusively establish on its
face the statute of limitations barred the action. Appellant alleged in his Complaint
Appellee had been out of state since the date of the accident; thereby tolling the statute
of limitations.
{¶ 7} O.R.C. 2305.15(A) states, Muskingum County, Case No. CT2011-0021 3
{¶ 8} “(A) When a cause of action accrues against a person, if the person is out
of the state, has absconded, or conceals self, the period of limitation for the
commencement of the action as provided in sections 2305.04 to 2305.14, 1302.98, and
1304.35 of the Revised Code does not begin to run until the person comes into the state
or while the person is so absconded or concealed. After the cause of action accrues if
the person departs from the state, absconds, or conceals self, the time of the person's
absence or concealment shall not be computed as any part of a period within which the
action must be brought.”
{¶ 9} Ohio Civil Rule 12(B)(6) reads,
{¶ 10} “(B) How presented
{¶ 11} “Every defense, in law or fact, to a claim for relief in any pleading, whether
a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the
responsive pleading thereto if one is required, except that the following defenses may at
the option of the pleader be made by motion: *** (6) failure to state a claim upon which
relief can be granted, (7) failure to join a party under Rule 19 or Rule 19.1. A motion
making any of these defenses shall be made before pleading if a further pleading is
permitted. No defense or objection is waived by being joined with one or more other
defenses or objections in a responsive pleading or motion. If a pleading sets forth a
claim for relief to which the adverse party is not required to serve a responsive pleading,
he may assert at the trial any defense in law or fact to that claim for relief. When a
motion to dismiss for failure to state a claim upon which relief can be granted presents
matters outside the pleading and such matters are not excluded by the court, the motion
shall be treated as a motion for summary judgment and disposed of as provided in Rule Muskingum County, Case No. CT2011-0021 4
56. Provided however, that the court shall consider only such matters outside the
pleadings as are specifically enumerated in Rule 56. All parties shall be given
reasonable opportunity to present all materials made pertinent to such a motion by Rule
56.”
{¶ 12} A motion to dismiss pursuant to Rule 12(B)(6) merely tests the sufficiency
of the complaint. In order for such a motion to be granted, it must appear beyond doubt
from the complaint itself the plaintiff can prove no set of facts entitling him to relief.
O’Brien v. University Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242. The
trial court is required to construe the complaint in a light most favorable to the plaintiff,
and must presume the factual allegations in the complaint are true. Mitchell v. Lawson
Milk Co. (1988), 40 Ohio St.3d 190. The court must make all reasonable inferences in
favor of the plaintiff. Id.
{¶ 13} In deciding a Rule 12(B)(6) motion, the trial court can only consider the
allegations of the complaint, and cannot look outside the four corners of the complaint.
The court must presume all of the allegations of the complaint are true. We note the
trial court did not convert the motion to dismiss to a motion for summary judgment;
therefore, pursuant to Ohio law, the trial court was precluded from considering matters
outside the pleadings.
{¶ 14} The October 22, 2010 complaint filed herein states,
{¶ 15} “6. Defendant Nichols has been out of state since the date of the
accident, thus tolling the statute of limitations.” Muskingum County, Case No. CT2011-0021 5
{¶ 16} Because Appellant alleges Appellee has been out of the state since the
date of the accident, we find the statute of limitations would be tolled pursuant to RC.
2305.15 set forth above.
{¶ 17} Appellee cites Bendix Autolight Corp. Midwesco Enterprises, Inc. (1998),
486 U.S. 888, 108 S.Ct 2218, holding R.C. 2305.15 unconstitutional in violation of the
Commerce Clause by requiring foreign corporations to choose between “exposing itself
to personal jurisdiction in [state] courts by complying with the tolling statute, or, by
refusing to comply, to remain in perpetuity for all lawsuits containing state causes of
action filed against it in [the state].”
{¶ 18} This Court has interpreted the decision in Bendix to apply only where
interstate commerce is involved. In Wise v. Morrison, (July 31, 2000), Stark App. No.
1999CA00272, this Court held:
{¶ 19} “However, the constitutionality of R.C. 2305.15(A) was challenged in
Bendix Autolight Corp. v. Midwesco Enterprises, Inc. (1988), 486 U.S. 888, 108 S.Ct.
2218, 100 L.Ed.2d 896. In Bendix, the United States Supreme Court considered R.C.
2305.15(A) to determine if it violated the Commerce Clause [footnote omitted] as
applied to out-of-state corporations, which were engaged in interstate commerce. The
Court did not declare the statute unconstitutionally discriminatory on its face but applied
a balancing test to determine whether the State's interest was legitimate and whether
the burden on interstate commerce exceeded the local benefits so as to constitute an
unreasonable burden. The Court found that a foreign corporation would have to choose
between exposure to the general jurisdiction of Ohio courts, by appointing a resident
agent, or forfeit any statute of limitations defense under the tolling statute. The Court Muskingum County, Case No. CT2011-0021 6
determined that this choice was an impermissible burden on interstate commerce,
thereby violating the Commerce Clause.
{¶ 20} “***
{¶ 21} “We find Bendix did not overrule Wetzel in factual situations in which the
defendant was not engaged in interstate commerce, and therefore the Commerce
Clause was not implicated, or in factual situations in which the result of the application
of the balancing test, as applied in Bendix, would produce a finding that the burden
imposed on interstate commerce by the tolling of the statute was not unreasonable.
Bendix, 108 S.Ct. at 2220-2221; Crosby v. Beam (1992), 83 Ohio App.3d 501, 512, 615
N.E.2d 294.”
{¶ 22} Appellee has yet to demonstrate he was engaged in interstate commerce
during his absence from the State. The Commerce Clause has not been implicated
under the factual situation presented, and any determination as to whether R.C.
2305.15 is unconstitutional as applied herein is premature. Given the posture of the
pleadings relevant to Appellee’s Civil Rule 12(B)(6) motion; i.e, Appellee was out of
state since the time of the accident, we conclude the statute of limitations was tolled and
the trial court erred in granting the motion to dismiss the complaint. Muskingum County, Case No. CT2011-0021 7
{¶ 23} The May 3, 2011 Judgment Entry of the Muskingum County Court of
Common Pleas is reversed and the matter remanded to the trial court for further
proceedings in accordance with the law and this opinion.
By: Hoffman, P.J.
Farmer, J. and
Edwards, J. concur
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER
s/ Julie A. Edwards ___________________ HON. JULIE A. EDWARDS Muskingum County, Case No. CT2011-0021 8
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
MARK MEALICK, ET AL. : : Plaintiff-Appellants : : v. : JUDGMENT ENTRY : BRYAN NICHOLS, ET AL. : : Defendant-Appellees : Case No. CT2011-0021
For the reason stated in our accompanying Opinion, the May 3, 2011 Judgment
Entry of the Muskingum County Court of Common Pleas is reversed and the matter
remanded to the trial court for further proceedings in accordance with the law and this
opinion. Costs to Appellee.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Julie A. Edwards ___________________ HON. JULIE A. EDWARDS