2021 Ohio 713
Ohio Ct. App.2021Background
- Welther sued Plageman claiming he was hit while in a crosswalk; his complaint alleges the injury occurred on January 3, 2017 and he filed suit on August 2, 2019.
- Plageman answered and moved for judgment on the pleadings under Civ.R. 12(C), asserting the action was time-barred by the two-year negligence statute of limitations.
- Welther did not file a response to the motion; the trial court granted the motion in October 2019 and dismissed the case with prejudice.
- On appeal Welther contended he was not timely notified of Plageman’s motion via the court e-filing system.
- The trial record contained a certificate of service showing mail service of the motion and a letter from Welther acknowledging receipt of an email about the court’s judgment; the trial court’s dismissal was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the complaint is barred by the two-year statute of limitations for negligence | Welther did not meaningfully dispute the limitations defense in the record (focused on notice) | Action accrued at injury (Jan 3, 2017); complaint filed Aug 2, 2019 — beyond two years | Court held complaint was time-barred and dismissal under Civ.R. 12(C) was proper because the complaint showed on its face it was filed after the statutory period |
| Whether dismissal was improper because Welther lacked timely notice of the motion | Welther claimed he did not receive e-file notice of the defense motion | Plageman showed service by ordinary mail and the record included Welther’s later acknowledgment of receiving email about the judgment | Court found Welther’s lack-of-notice claim unsupported and contradicted by the record; assignment of error overruled |
Key Cases Cited
- Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376 (Ohio 1982) (complaint must conclusively show untimeliness to dismiss on statute-of-limitations grounds under Civ.R. 12(C))
- Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55 (Ohio 1974) (plaintiff is not required to plead compliance with the statute of limitations)
- Morgan v. Eads, 104 Ohio St.3d 142 (Ohio 2004) (appellate review is limited to the record below)
- Franks v. Ohio Dep’t of Rehab. & Corr., 195 Ohio App.3d 114 (Ohio Ct. App. 2011) (standards for reviewing a Civ.R. 12(C) motion under a de novo review)