[Cite as Savoy v. Kramer, 2015-Ohio-437.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
ALAN SAVOY C.A. No. 27418
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE JEANETTE KRAMER COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. CV 2012 07 3862
DECISION AND JOURNAL ENTRY
Dated: February 6, 2015
HENSAL, Judge.
{¶1} Plaintiff-Appellant, Alan Savoy, appeals a judgment of the Summit County Court
of Common Pleas that dismissed his refiled action against Defendant-Appellee, Jeanette Kramer.
For the following reasons, this Court reverses.
I.
{¶2} In 2010, Mr. Savoy filed a personal injury complaint against Ms. Kramer
concerning injuries he allegedly sustained in a traffic collision that occurred on October 11,
2008. Mr. Savoy filed a “Motion to Dismiss” his complaint on June 17, 2011, in which he asked
the trial court “under Civil Rule 41(A)(1)(a) to grant a voluntary dismissal [of his case], without
prejudice[.]” The trial court entered an order on June 30, 2011, noting that Mr. Savoy had
requested “to voluntarily dismiss this case, without prejudice, pursuant to Civil Rule
41(A)(1)(a).” The order further provided that, “[w]hile it is unnecessary for the Plaintiff to seek 2
this Court’s permission, the Court recognizes that this case has been DISMISSED, without
prejudice.”
{¶3} Mr. Savoy refiled his action on July 2, 2012. Ms. Kramer moved to dismiss the
action as untimely under the savings statute, Revised Code Section 2305.19(A). The trial court
agreed and granted Ms. Kramer’s motion to dismiss without considering Mr. Savoy’s
memorandum in opposition. Mr. Savoy appealed, and this Court remanded the case back to the
trial court for it to consider Mr. Savoy’s arguments in opposition in the first instance. Savoy v.
Kramer, 9th Dist. Summit No. 26668, 2013-Ohio-3607, ¶ 8. After considering Ms. Kramer’s
motion to dismiss, Mr. Savoy’s memorandum in opposition, and supplemental briefs submitted
by both parties following this Court’s remand, the trial court again granted Ms. Kramer’s motion
to dismiss. Mr. Savoy timely appeals to this Court, assigning as error that the trial court
incorrectly dismissed his case.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT INCORRECTLY DISMISSED THIS CASE AS UNTIMELY UNDER R.C. 2305.19 BASED ON ITS INCORRECT CONSTRUCTION OF THE APPELLANT’S MOTION TO DISMISS IN THE ORIGINALLY FILED ACTION.
{¶4} Mr. Savoy argues that the trial court erred in granting Ms. Kramer’s motion to
dismiss because it misconstrued his “Motion to Dismiss” in the original case as being filed
pursuant to Civil Rule 41(A)(1)(a) rather than Rule 41(A)(2). We agree that the trial court erred
in dismissing Mr. Savoy’s complaint.
{¶5} We note that, although Ms. Kramer did not cite to a specific civil rule in her
motion to dismiss, she cites the standard for dismissal pursuant to Rule 12(B)(6) in her brief to
this Court. The trial court’s judgment granting the motion to dismiss also does not cite to a 3
specific civil rule. Rule 12(B) provides that the defenses therein “shall” be made by motion
before filing a responsive pleading. The record reflects that Ms. Kramer filed both her motion to
dismiss and an answer on the same day, and that her answer was time-stamped first.
Accordingly, Ms. Kramer’s motion and the judgment of the trial court may be construed as a
judgment on the pleadings since a responsive pleading was filed first. See Civ.R. 12(C). This
distinction does not alter the standard of review on appeal before this Court as “[t]he grant of a
motion to dismiss under Civ.R. 12(B) and Civ.R. 12(C) motions for judgment on the pleadings
are reviewed by this court de novo.” Hubiak v. Ohio Family Practice Ctr., 9th Dist. Summit.
No. 26949, 2014-Ohio-3116, ¶ 7. “Regardless of whether the motion is one under Civ.R.
12(B)[6] or 12(C), the material allegations of the complaint, with all reasonable inferences to be
drawn therefrom, are to be construed in favor of the [nonmoving] party * * *.” Id. at ¶ 8, quoting
Free v. Govt. Emps. Ins., 12th Dist. Butler No. CA89-09-135, 1990 WL 55680, *1 (Apr. 30,
1990).
{¶6} “A complaint may be dismissed * * * for failing to comply with the applicable
statute of limitations when the complaint on its face conclusively indicates that the action is
time-barred.” Ohio Bur. of Workers’ Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432,
¶ 13. “This Court has previously stated that in order ‘[t]o conclusively show that the statute of
limitations bars the action, the complaint must demonstrate both the relevant statute of
limitations and the absence of factors which would toll the statute, or make [ ] it inapplicable.’”
Warren v. Estate of Durham, 9th Dist. Summit No. 25624, 2011-Ohio-6416, ¶ 6, quoting Tarry
v. Fechko Excavating, Inc., 9th Dist. Lorain No. 98CA007180, 1999 WL 1037755, *2 (Nov. 3,
1999). 4
{¶7} In Warren, the defendant filed a motion to dismiss plaintiff’s refiled personal
injury action pursuant to Civil Rule 12(B)(6). The defendant argued that the refiled claim was
time-barred by the statute of limitations and that the savings statute did not apply. We reversed
the trial court’s decision to grant the motion to dismiss because the court improperly relied on
facts from the original case that were outside the complaint, and the pleadings in the refiled case
did not conclusively show that the action was time-barred. Id. at ¶ 7.
{¶8} Similar to Warren, the record before us reflects that Mr. Savoy’s complaint and
Ms. Kramer’s answer 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. The trial court’s judgment recited facts concerning the procedural history
and filings in Mr. Savoy’s original case that are not present in the pleadings of the refiled case.
{¶9} In making a ruling on a motion to dismiss, it is improper to look at matters outside
of the pleadings without converting the motion into a motion for summary judgment. Wick v.
Lorain Manor, Inc., 9th Dist. Lorain No. 12CA010324, 2014-Ohio-4329, ¶ 10. In Wick, this
Court reversed the trial court’s decision to grant motions to dismiss a complaint pursuant to Civil
Rule 12(B)(6) because the trial court considered information outside of the pleadings without
converting the motions to dismiss into motions for summary judgment. Id. at ¶ 10-12.
{¶10} In the present case, the trial court considered filings from the prior case and its
procedural history. None of this information was included in the parties’ pleadings. In doing so,
the trial court failed to convert Ms. Kramer’s motion to dismiss into a motion for summary
judgment. “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 5
[Civ.R. 56].” Civ.R. 12(B); see also Cotton v. Anderson, 9th Dist. Lorain No. 06CA008984,
2007-Ohio-6548, ¶ 5.
{¶11} It appears from its judgment that the trial court took judicial notice of the
procedural history of the first case between the parties. This Court has held that a court may take
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[Cite as Savoy v. Kramer, 2015-Ohio-437.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
ALAN SAVOY C.A. No. 27418
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE JEANETTE KRAMER COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. CV 2012 07 3862
DECISION AND JOURNAL ENTRY
Dated: February 6, 2015
HENSAL, Judge.
{¶1} Plaintiff-Appellant, Alan Savoy, appeals a judgment of the Summit County Court
of Common Pleas that dismissed his refiled action against Defendant-Appellee, Jeanette Kramer.
For the following reasons, this Court reverses.
I.
{¶2} In 2010, Mr. Savoy filed a personal injury complaint against Ms. Kramer
concerning injuries he allegedly sustained in a traffic collision that occurred on October 11,
2008. Mr. Savoy filed a “Motion to Dismiss” his complaint on June 17, 2011, in which he asked
the trial court “under Civil Rule 41(A)(1)(a) to grant a voluntary dismissal [of his case], without
prejudice[.]” The trial court entered an order on June 30, 2011, noting that Mr. Savoy had
requested “to voluntarily dismiss this case, without prejudice, pursuant to Civil Rule
41(A)(1)(a).” The order further provided that, “[w]hile it is unnecessary for the Plaintiff to seek 2
this Court’s permission, the Court recognizes that this case has been DISMISSED, without
prejudice.”
{¶3} Mr. Savoy refiled his action on July 2, 2012. Ms. Kramer moved to dismiss the
action as untimely under the savings statute, Revised Code Section 2305.19(A). The trial court
agreed and granted Ms. Kramer’s motion to dismiss without considering Mr. Savoy’s
memorandum in opposition. Mr. Savoy appealed, and this Court remanded the case back to the
trial court for it to consider Mr. Savoy’s arguments in opposition in the first instance. Savoy v.
Kramer, 9th Dist. Summit No. 26668, 2013-Ohio-3607, ¶ 8. After considering Ms. Kramer’s
motion to dismiss, Mr. Savoy’s memorandum in opposition, and supplemental briefs submitted
by both parties following this Court’s remand, the trial court again granted Ms. Kramer’s motion
to dismiss. Mr. Savoy timely appeals to this Court, assigning as error that the trial court
incorrectly dismissed his case.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT INCORRECTLY DISMISSED THIS CASE AS UNTIMELY UNDER R.C. 2305.19 BASED ON ITS INCORRECT CONSTRUCTION OF THE APPELLANT’S MOTION TO DISMISS IN THE ORIGINALLY FILED ACTION.
{¶4} Mr. Savoy argues that the trial court erred in granting Ms. Kramer’s motion to
dismiss because it misconstrued his “Motion to Dismiss” in the original case as being filed
pursuant to Civil Rule 41(A)(1)(a) rather than Rule 41(A)(2). We agree that the trial court erred
in dismissing Mr. Savoy’s complaint.
{¶5} We note that, although Ms. Kramer did not cite to a specific civil rule in her
motion to dismiss, she cites the standard for dismissal pursuant to Rule 12(B)(6) in her brief to
this Court. The trial court’s judgment granting the motion to dismiss also does not cite to a 3
specific civil rule. Rule 12(B) provides that the defenses therein “shall” be made by motion
before filing a responsive pleading. The record reflects that Ms. Kramer filed both her motion to
dismiss and an answer on the same day, and that her answer was time-stamped first.
Accordingly, Ms. Kramer’s motion and the judgment of the trial court may be construed as a
judgment on the pleadings since a responsive pleading was filed first. See Civ.R. 12(C). This
distinction does not alter the standard of review on appeal before this Court as “[t]he grant of a
motion to dismiss under Civ.R. 12(B) and Civ.R. 12(C) motions for judgment on the pleadings
are reviewed by this court de novo.” Hubiak v. Ohio Family Practice Ctr., 9th Dist. Summit.
No. 26949, 2014-Ohio-3116, ¶ 7. “Regardless of whether the motion is one under Civ.R.
12(B)[6] or 12(C), the material allegations of the complaint, with all reasonable inferences to be
drawn therefrom, are to be construed in favor of the [nonmoving] party * * *.” Id. at ¶ 8, quoting
Free v. Govt. Emps. Ins., 12th Dist. Butler No. CA89-09-135, 1990 WL 55680, *1 (Apr. 30,
1990).
{¶6} “A complaint may be dismissed * * * for failing to comply with the applicable
statute of limitations when the complaint on its face conclusively indicates that the action is
time-barred.” Ohio Bur. of Workers’ Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432,
¶ 13. “This Court has previously stated that in order ‘[t]o conclusively show that the statute of
limitations bars the action, the complaint must demonstrate both the relevant statute of
limitations and the absence of factors which would toll the statute, or make [ ] it inapplicable.’”
Warren v. Estate of Durham, 9th Dist. Summit No. 25624, 2011-Ohio-6416, ¶ 6, quoting Tarry
v. Fechko Excavating, Inc., 9th Dist. Lorain No. 98CA007180, 1999 WL 1037755, *2 (Nov. 3,
1999). 4
{¶7} In Warren, the defendant filed a motion to dismiss plaintiff’s refiled personal
injury action pursuant to Civil Rule 12(B)(6). The defendant argued that the refiled claim was
time-barred by the statute of limitations and that the savings statute did not apply. We reversed
the trial court’s decision to grant the motion to dismiss because the court improperly relied on
facts from the original case that were outside the complaint, and the pleadings in the refiled case
did not conclusively show that the action was time-barred. Id. at ¶ 7.
{¶8} Similar to Warren, the record before us reflects that Mr. Savoy’s complaint and
Ms. Kramer’s answer 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. The trial court’s judgment recited facts concerning the procedural history
and filings in Mr. Savoy’s original case that are not present in the pleadings of the refiled case.
{¶9} In making a ruling on a motion to dismiss, it is improper to look at matters outside
of the pleadings without converting the motion into a motion for summary judgment. Wick v.
Lorain Manor, Inc., 9th Dist. Lorain No. 12CA010324, 2014-Ohio-4329, ¶ 10. In Wick, this
Court reversed the trial court’s decision to grant motions to dismiss a complaint pursuant to Civil
Rule 12(B)(6) because the trial court considered information outside of the pleadings without
converting the motions to dismiss into motions for summary judgment. Id. at ¶ 10-12.
{¶10} In the present case, the trial court considered filings from the prior case and its
procedural history. None of this information was included in the parties’ pleadings. In doing so,
the trial court failed to convert Ms. Kramer’s motion to dismiss into a motion for summary
judgment. “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 5
[Civ.R. 56].” Civ.R. 12(B); see also Cotton v. Anderson, 9th Dist. Lorain No. 06CA008984,
2007-Ohio-6548, ¶ 5.
{¶11} It appears from its judgment that the trial court took judicial notice of the
procedural history of the first case between the parties. This Court has held that 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.” In re J.C., 186 Ohio App.3d 243,
2010-Ohio-637, ¶ 14 (9th Dist.), quoting Patel v. Gadd, 9th Dist. Summit No. 21604, 2004-
Ohio-436, ¶ 7. “The rationale for this rule is that an appellate court cannot review the propriety
of the trial court’s reliance on such prior proceedings when that record is not before the appellate
court. This court’s review is necessarily limited to the record on appeal.” (Citation omitted.) In
re J.C. at ¶ 15. Compare Indus. Risk Insurers v. Lorenz Equip. Co., 69 Ohio St.3d 576, 580
(1994) (noting that a trial court is not required to suffer from “institutional amnesia” and may
take judicial notice of its own docket when considering previous dilatory conduct of a plaintiff
when ruling on a Civ.R. 41(B)(1) dismissal for failure to prosecute); Hutz v. Gray, 11th Dist.
Trumbull No. 2008-T-0100, 2009-Ohio-3410, ¶ 39 (when ruling on a motion to dismiss
predicated on the double-dismissal rule of Civ.R. 41(A), the Eleventh District took judicial
notice of pleadings in prior cases solely to determine what the parties filed, not to examine the
truth of the contents of the filings).
{¶12} We are compelled by our precedent in Warren to find that, in this case, the trial
court erred when it looked to matters outside the pleadings when it granted Ms. Kramer’s motion
to dismiss without converting the motion into a motion for summary judgment. This Court takes
no position on the merits of Ms. Kramer’s arguments concerning the applicability of the statute
of limitations and the savings statute as the facts concerning those arguments are not properly 6
before us. See Warren, 2011-Ohio-6416, at ¶ 7, fn. 1. For the above reasons, Mr. Savoy’s sole
assignment of error is sustained.
III.
{¶13} The judgment of the Summit County Court of Common Pleas is reversed and the
cause 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 Appellee.
JENNIFER HENSAL FOR THE COURT 7
BELFANCE, P. J. WHITMORE, J. CONCUR
APPEARANCES:
PETER D. TRASKA, Attorney at Law, for Appellant.
STACIE LINDLEY BAKER, Attorney at Law, for Appellee.