Harris v. Pro-Lawn Landscaping, Inc.
2012 Ohio 498
Ohio Ct. App.2012Background
- Harris sued Pro-Lawn for negligent and defective landscaping services; services included fountain center island, walkway, plantings, and irrigation work.
- The complaint did not specify when services were performed or when damage became apparent.
- Pro-Lawn moved to dismiss under Civ.R. 12(B)(6) and Civ.R. 41, arguing the claim had been filed and twice dismissed previously, with the second dismissal allegedly with prejudice.
- Harris contends prior dismissals were without prejudice and that the savings statute could revive the claim.
- The trial court denied an earlier motion to dismiss, then granted a second Civ.R. 12(B)(6) dismissal on timeliness grounds, with prejudice, in August 2011.
- This appeal challenges the dismissal as improper because the court treated the motion as dispositive without proper conversion or consideration of outside-evidence, and because it could not conclusively determine timeliness on the face of the complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R. 12(B)(6) dismissal was proper when outside evidence was considered. | Harris argues the court did not convert to summary judgment and relied on outside matters. | Pro-Lawn argues the motion incorporated outside evidence suitable for dismissal. | No; dismissal cannot rely on outside-evidence without proper conversion or notice. |
| Whether the trial court could take judicial notice of prior proceedings. | Harris contends prior cases are not proper judicial notice in a Civ.R. 12(B)(6) context. | Pro-Lawn contends judicial notice is permissible for prior proceedings. | Trial court erred by taking judicial notice of prior actions outside the immediate case. |
| Whether the savings statute can revive a time-barred claim after prior non-prejudicial dismissals. | Harris disputes the application of the savings statute given unclear accrual and tolling. | Pro-Lawn asserts the savings statute cannot revive after prior dismissals. | The court cannot conclusively determine timeliness on the face of the complaint; reversal warranted. |
| Whether the complaint states a cognizable tort claim for negligent landscaping. | Harris asserts the complaint pleads actionable negligent/defective landscaping. | Pro-Lawn asserts the claim is time-barred or failed to allege timely accrual. | The complaint, on its face, could support relief; dismissal was improper. |
| Whether the action should be dismissed with prejudice under Civ.R. 41 for failure to prosecute. | Not dispositive; remand required to determine timeliness and validity. |
Key Cases Cited
- NorthPoint Properties, Inc. v. Petticord, 179 Ohio App.3d 342 (2008-Ohio-5996) (judicial notice limits in Civ.R. 12(B)(6) contexts; only matters in the immediate case)
- State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206 (1997-Ohio-169) (judicial notice allowances and standard for 12(B)(6) motions)
- State ex rel. Scott v. Cleveland, 112 Ohio St.3d 324 (2006-Ohio-6573) (judicial notice of appropriate matters in 12(B)(6) motions)
- NorthPoint Properties, Inc. v. Petticord, 901 N.E.2d 869 (2008) (see above)
- McKinley, Ohio Bur. of Workers’ Comp. v. McKinley, 130 Ohio St.3d 156 (2011-Ohio-4432) (de novo review; 12(B)(6) standard; time-bar analysis)
- State ex rel. Findlay Publ’g Co. v. Schroeder, 76 Ohio St.3d 580 (1996-Ohio-360) (face-of-claim limitations analysis; improper dismissal without clear time-bar)
- State ex rel. Neff v. Corrigan, 75 Ohio St.3d 12 (1996-Ohio-231) (prior proceedings not to be judicially noticed beyond immediate case)
- Fuqua v. Alexander, 79 Ohio St.3d 206 (1997-Ohio-169) (scope of judicial notice in 12(B)(6) motions)
- EMC Mortgage Corp. v. Jenkins, 164 Ohio App.3d 240 (2005-Ohio-5799) (harmless error when conversion notice not provided)