[Cite as Seniah Corp. v. Buckingham, Doolittle & Burroughs, LLP, 2014-Ohio-4370.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
SENIAH CORPORATION : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellant : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 2014CA00013 : BUCKINGHAM, DOOLITTLE & : BURROUGHS, LLP, ET AL. : : : Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2013CV00527
JUDGMENT: REVERSED AND REMANDED
DATE OF JUDGMENT ENTRY: September 29, 2014
APPEARANCES:
For Plaintiff-Appellant: For Defendant-Appellee:
BRADLEY J. BARMEN LEE E. PLAKAS THOMAS P. MANNION MARIA C. KLUTINOTY EDWARDS ALLISON E. HAYES Tzangas, Plakas, Mannos, Ltd. Mannion & Gray Co., L.P.A. 220 Market Ave. South, 8th Floor 1375 E. 9th St., 16th Floor Canton, OH 44702 Cleveland, OH 44114 Stark County, Case No. 2014CA00013 2
Delaney, J.
{¶1} Plaintiff-Appellant Seniah Corporation appeals the June 4, 2013 judgment
entry of the Stark County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
{¶2} On February 19, 2013, Plaintiff-Appellant Seniah Corporation filed a
complaint in the Stark County Court of Common Pleas naming Buckingham, Doolittle &
Burroughs, LLP, Patrick J. Keating, and Joshua Berger as Defendants. Defendants-
Appellees Patrick J. Keating and Joshua Berger were attorneys with the law firm of
Buckingham, Doolittle, & Burroughs, LLP. The complaint alleged Keating and Berger
committed legal malpractice relating to their representation of Seniah Corporation
during a foreclosure action and a Chapter 11 Bankruptcy proceeding. Attached to the
complaint were orders and motions from the United States Bankruptcy Court.
{¶3} Buckingham, Doolittle & Burroughs, LLP filed an answer to the complaint.
{¶4} Keating and Berger filed a Motion to Dismiss on April 26, 2013. The
motion to dismiss argued that pursuant to Civ.R. 12(B)(6), Seniah Corporation could
prove no set of facts entitling it to relief because the applicable statute of limitations for a
legal malpractice expired prior to the filing of the complaint. Keating and Berger noted
Seniah Corporation filed its complaint for legal malpractice on February 19, 2013. They
argued the complaint stated two cognizable events whereby Seniah Corporation could
have discovered the legal malpractice. Those events, however, were beyond the one-
year statute of limitations. Keating and Berger also argued Seniah Corporation could not
rely upon the termination of the attorney-client relationship to determine the statute of Stark County, Case No. 2014CA00013 3
limitations because the complaint failed to state any facts as to the attorney-client
relationship termination.
{¶5} On May 13, 2013, Seniah Corporation filed a "Brief in Opposition to
Defendants' Motion to Dismiss, or in the Alternative, Motion for Leave to Amend
Complaint, Instanter." In support of its opposition to the motion to dismiss, Seniah
Corporation argued the complaint was timely filed based on a Tolling Agreement
entered into between Seniah Corporation and Buckingham, Doolittle & Burroughs, LLP
on October 3, 2012. Seniah Corporation attached the Tolling Agreement to the May 13,
2013 motion as Exhibit A. Seniah Corporation also attached correspondence between
the parties as exhibits to further support its opposition to the motion to dismiss. In the
alternative, Seniah Corporation moved for leave of court to amend its complaint
pursuant to Civ.R. 15(A). The amended complaint was attached to the motion as Exhibit
G. Seniah Corporation attached to the amended complaint the additional exhibits it used
in support of its opposition to the motion to dismiss.
{¶6} Keating and Berger filed a reply to their motion to dismiss.
{¶7} On June 4, 2013, the trial court issued its judgment entry granting the
motion to dismiss. In its judgment entry, the trial court agreed with the argument of
Keating and Berger that the complaint was filed outside of the one-year statute of
limitations. The trial court referred to the factual allegations in the complaint to find
Seniah Corporation could prove no set of facts warranting recovery. The trial court
further found the Tolling Agreement, which was attached to Seniah Corporation's brief in
opposition to the motion to dismiss, did not serve to extend the statute of limitations for
filing the legal malpractice complaint. The trial court found the Tolling Agreement was Stark County, Case No. 2014CA00013 4
not signed by Keating or Berger and therefore was not binding upon those parties per
the language of the Tolling Agreement.
{¶8} On June 12, 2013, Buckingham, Doolittle & Burroughs, LLP filed a motion
for judgment on the pleadings.
{¶9} Seniah Corporation filed a motion for relief from judgment. An oral hearing
was held on the motion on December 2, 2013.
{¶10} Berger was dismissed as a party-defendant.
{¶11} On December 19, 2013, the trial court denied Seniah Corporation's motion
for relief from judgment. The trial court also granted the motion for judgment on the
pleadings filed by Buckingham, Doolittle & Burroughs, LLP via judgment entry on
January 13, 2014.
{¶12} On January 28, 2014, Seniah Corporation appealed the June 4, 2013
judgment entry of the Stark County Court of Common Pleas.
ASSIGNMENT OF ERROR
{¶13} Seniah Corporation raises one Assignment of Error:
{¶14} "THE TRIAL COURT ERRED BY GRANTING APPELLEES' CIV.R.
12(B)(6) MOTION TO DISMISS."
ANALYSIS
Motion to Dismiss
{¶15} Seniah Corporation argues the trial court erred in granting the Civ.R.
12(B)(6) motion to dismiss. We agree.
{¶16} 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 Stark County, Case No. 2014CA00013 5
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 Cty. Bd. of Comm., 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).
{¶17} When considering a motion to dismiss under Civ.R. 12(B)(6), the trial court
cannot rely upon evidence or materials outside of the complaint. Shearer v.
Echelberger, 5th Dist. Ashland No. 00-COA-01368, 2000 WL 1663626 (Oct. 30, 2000).
Civ.R. 12(B) states in pertinent part: "* * * 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 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."
{¶18} A motion to dismiss based upon a statute of limitations may be granted
only when the complaint shows conclusively on its face that the action is time-barred.
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[Cite as Seniah Corp. v. Buckingham, Doolittle & Burroughs, LLP, 2014-Ohio-4370.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
SENIAH CORPORATION : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellant : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 2014CA00013 : BUCKINGHAM, DOOLITTLE & : BURROUGHS, LLP, ET AL. : : : Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2013CV00527
JUDGMENT: REVERSED AND REMANDED
DATE OF JUDGMENT ENTRY: September 29, 2014
APPEARANCES:
For Plaintiff-Appellant: For Defendant-Appellee:
BRADLEY J. BARMEN LEE E. PLAKAS THOMAS P. MANNION MARIA C. KLUTINOTY EDWARDS ALLISON E. HAYES Tzangas, Plakas, Mannos, Ltd. Mannion & Gray Co., L.P.A. 220 Market Ave. South, 8th Floor 1375 E. 9th St., 16th Floor Canton, OH 44702 Cleveland, OH 44114 Stark County, Case No. 2014CA00013 2
Delaney, J.
{¶1} Plaintiff-Appellant Seniah Corporation appeals the June 4, 2013 judgment
entry of the Stark County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
{¶2} On February 19, 2013, Plaintiff-Appellant Seniah Corporation filed a
complaint in the Stark County Court of Common Pleas naming Buckingham, Doolittle &
Burroughs, LLP, Patrick J. Keating, and Joshua Berger as Defendants. Defendants-
Appellees Patrick J. Keating and Joshua Berger were attorneys with the law firm of
Buckingham, Doolittle, & Burroughs, LLP. The complaint alleged Keating and Berger
committed legal malpractice relating to their representation of Seniah Corporation
during a foreclosure action and a Chapter 11 Bankruptcy proceeding. Attached to the
complaint were orders and motions from the United States Bankruptcy Court.
{¶3} Buckingham, Doolittle & Burroughs, LLP filed an answer to the complaint.
{¶4} Keating and Berger filed a Motion to Dismiss on April 26, 2013. The
motion to dismiss argued that pursuant to Civ.R. 12(B)(6), Seniah Corporation could
prove no set of facts entitling it to relief because the applicable statute of limitations for a
legal malpractice expired prior to the filing of the complaint. Keating and Berger noted
Seniah Corporation filed its complaint for legal malpractice on February 19, 2013. They
argued the complaint stated two cognizable events whereby Seniah Corporation could
have discovered the legal malpractice. Those events, however, were beyond the one-
year statute of limitations. Keating and Berger also argued Seniah Corporation could not
rely upon the termination of the attorney-client relationship to determine the statute of Stark County, Case No. 2014CA00013 3
limitations because the complaint failed to state any facts as to the attorney-client
relationship termination.
{¶5} On May 13, 2013, Seniah Corporation filed a "Brief in Opposition to
Defendants' Motion to Dismiss, or in the Alternative, Motion for Leave to Amend
Complaint, Instanter." In support of its opposition to the motion to dismiss, Seniah
Corporation argued the complaint was timely filed based on a Tolling Agreement
entered into between Seniah Corporation and Buckingham, Doolittle & Burroughs, LLP
on October 3, 2012. Seniah Corporation attached the Tolling Agreement to the May 13,
2013 motion as Exhibit A. Seniah Corporation also attached correspondence between
the parties as exhibits to further support its opposition to the motion to dismiss. In the
alternative, Seniah Corporation moved for leave of court to amend its complaint
pursuant to Civ.R. 15(A). The amended complaint was attached to the motion as Exhibit
G. Seniah Corporation attached to the amended complaint the additional exhibits it used
in support of its opposition to the motion to dismiss.
{¶6} Keating and Berger filed a reply to their motion to dismiss.
{¶7} On June 4, 2013, the trial court issued its judgment entry granting the
motion to dismiss. In its judgment entry, the trial court agreed with the argument of
Keating and Berger that the complaint was filed outside of the one-year statute of
limitations. The trial court referred to the factual allegations in the complaint to find
Seniah Corporation could prove no set of facts warranting recovery. The trial court
further found the Tolling Agreement, which was attached to Seniah Corporation's brief in
opposition to the motion to dismiss, did not serve to extend the statute of limitations for
filing the legal malpractice complaint. The trial court found the Tolling Agreement was Stark County, Case No. 2014CA00013 4
not signed by Keating or Berger and therefore was not binding upon those parties per
the language of the Tolling Agreement.
{¶8} On June 12, 2013, Buckingham, Doolittle & Burroughs, LLP filed a motion
for judgment on the pleadings.
{¶9} Seniah Corporation filed a motion for relief from judgment. An oral hearing
was held on the motion on December 2, 2013.
{¶10} Berger was dismissed as a party-defendant.
{¶11} On December 19, 2013, the trial court denied Seniah Corporation's motion
for relief from judgment. The trial court also granted the motion for judgment on the
pleadings filed by Buckingham, Doolittle & Burroughs, LLP via judgment entry on
January 13, 2014.
{¶12} On January 28, 2014, Seniah Corporation appealed the June 4, 2013
judgment entry of the Stark County Court of Common Pleas.
ASSIGNMENT OF ERROR
{¶13} Seniah Corporation raises one Assignment of Error:
{¶14} "THE TRIAL COURT ERRED BY GRANTING APPELLEES' CIV.R.
12(B)(6) MOTION TO DISMISS."
ANALYSIS
Motion to Dismiss
{¶15} Seniah Corporation argues the trial court erred in granting the Civ.R.
12(B)(6) motion to dismiss. We agree.
{¶16} 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 Stark County, Case No. 2014CA00013 5
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 Cty. Bd. of Comm., 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).
{¶17} When considering a motion to dismiss under Civ.R. 12(B)(6), the trial court
cannot rely upon evidence or materials outside of the complaint. Shearer v.
Echelberger, 5th Dist. Ashland No. 00-COA-01368, 2000 WL 1663626 (Oct. 30, 2000).
Civ.R. 12(B) states in pertinent part: "* * * 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 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."
{¶18} A motion to dismiss based upon a statute of limitations may be granted
only when the complaint shows conclusively on its face that the action is time-barred.
Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376, 346, 433 N.E.2d 147
(1982), paragraph three of the syllabus. In the trial court's June 4, 2013 judgment entry
granting the motion to dismiss, the trial court found the factual allegations in the
complaint showed the complaint was filed outside the statute of limitations. The trial
court also found the Tolling Agreement did not extend the statute of limitations. Stark County, Case No. 2014CA00013 6
{¶19} The Tolling Agreement was not filed with the complaint. The Tolling
Agreement was provided as an exhibit to Seniah Corporation's brief in opposition to the
motion to dismiss and therefore, it was outside the four corners of the complaint.
{¶20} In order to consider matters outside of the four corners of the complaint,
Civ.R. 12(B) permits the trial court to convert the motion to dismiss to a motion for
summary judgment. However, in the case sub judice, the trial court did not convert this
matter to a motion for summary judgment and expressly stated that this matter was
being considered as a motion pursuant to Civ.R. 12(B)(6). It is apparent from the
judgment entry of the trial court that it considered matters outside of the complaint. In
order to consider matters outside of the complaint, the trial court should have converted
this matter to a motion for summary judgment. Because the trial court did not do so, the
trial court erred in granting the motion to dismiss on the basis of Civ.R. 12(B)(6) and
documentation outside of the complaint. Seniah Corporation's sole Assignment of Error
is sustained.
Leave to Amend Complaint
{¶21} Seniah Corporation raised only one Assignment of Error that argued the
trial court erred in granting the Civ.R. 12(B)(6) motion to dismiss. As an “issue
presented for review” under the Assignment of Error, Seniah Corporation stated the trial
court erred when it dismissed Seniah Corporation’s complaint without granting leave to
amend its complaint.
{¶22} Civ.R. 15(A) permits a party to amend a pleading as a matter of right any
time before a responsive pleading is served. State ex rel. Hanson v. Guernsey Cty. Bd.
of Comm. 65 Ohio St.3d 545, 549, 605 N.E.2d 378 (1992). Under Civ.R. 7(A), only Stark County, Case No. 2014CA00013 7
complaints, answers, and replies constitute pleadings. A Civ.R. 12(B)(6) motion is not a
pleading under the rules. State ex rel. Hanson, supra.
{¶23} A review of the record shows the trial court did not deny by specific
judgment entry Seniah Corporation's motion for leave to amend its complaint. In its
December 19, 2013 judgment entry denying Seniah Corporation's motion for relief from
judgment, the trial court stated it considered but did not grant the motion for leave to
amend the complaint because the Tolling Agreement did not extend the statute of
limitations.
{¶24} Seniah Corporation did not appeal the December 19, 2013 judgment entry
where the trial court specifically stated it denied the motion for leave to amend, nor did
Seniah Corporation separately assign the decision as error. Under the Appellate Rules,
there is no assignment of error for this court to sustain or overrule as to the motion for
leave to amend. Stark County, Case No. 2014CA00013 8
CONCLUSION
{¶25} The judgment of the Stark County Court of Common Pleas is reversed
and remanded for further proceedings consistent with this opinion and law.
By: Delaney, J.,
Gwin, P.J. and
Farmer, J., concur.