Delbert Williams, Jr., Plaintiff-Appellant, v. MJS Enterprises, LTD D/B/A Saint Joseph‘s Ambulance Service, et al., Defendants-Appellees.
Case No. 22CA8
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
RELEASED 10/13/2022
2022-Ohio-3695
DECISION AND JUDGMENT ENTRY
APPEARANCES:
Rocco Screnci and Brian D. Spitz, Spitz, The Employee‘s Law Firm, Beachwood, Ohio for plaintiff-appellant.
Robert J. Kent and Ryan S. Moore, Bowles Rice LLP, Parkersburg, West Virginia for defendants-appellees.
Hess, J.
{1} Plaintiff-Appellant Delbert Williams Jr. appeals the trial court‘s grant of Defendant MJS Enterprises, LTD D/B/A Saint Joseph‘s Ambulance Service‘s motion to dismiss his amended complaint pursuant to
{2} We find that the trial court erred when it determined that it lacked personal jurisdiction over MJS Enterprises because MJS Enterprises waived this defense by failing to raise it in its
I. FACTS AND PROCEDURAL BACKGROUND
{3} Williams brought an employment discrimination action against MJS Enterprises and Beth “Last Name Unknown” on March 1, 2021. Before filing a responsive pleading, MJS Enterprises filed a motion to dismiss asserting defenses under
{4} In his first amended complaint Williams alleged that he was a resident of Marietta, Ohio and began working for MJS Enterprises as an ambulette driver on August 20, 2017. He alleged that MJS Enterprises had its principal place of business in Parkersburg, West Virginia, which is in Wood County, and Beth was a supervisor or manager who worked for MJS Enterprises. Williams alleged that he has bipolar disorder and “a learning disability” and is considered disabled under Ohio‘s statute prohibiting unlawful employment discrimination against persons with disabilities. Williams alleged that in September 2017 he made a minor mistake involving a client‘s signature on a form and asked for more training as an accommodation request. He alleged that, instead of providing additional training, MJS Enterprises and Beth willfully denied the request and effectively discharged him instead on September 25, 2017, by never scheduling him for another shift. He alleged that the defendants conducted business in Wood County, West Virginia and Washington County, Ohio and that all material events alleged in the complaint occurred in Washington County, Ohio – which is the main substantive change between his original and amended complaints – in his original complaint he alleged all material events occurred in Wood County, West Virginia. His amended complaint contained three counts: (1) disability discrimination against
{5} Before filing a responsive pleading to the amended complaint, MJS Enterprises filed a motion to dismiss asserting defenses under
{6} In Williams‘s response to the motion to dismiss, he noted that MJS Enterprises omitted the defense of lack of personal jurisdiction under
{7} Approximately five months after MJS Enterprises filed its motion to dismiss the amended complaint, it filed a supplemental memorandum in support of its motion to dismiss in which it argued that Williams‘s claim arose in Wood County, West Virginia and was governed by the laws of West Virginia, but that Williams was attempting to bring the case in Ohio to avoid West Virginia‘s two-year statute of limitations. MJS Enterprises asserted, “The limited discovery that has taken place in this civil action has further crystalized this fact. Despite Plaintiff‘s artful pleading tactics, jurisdiction lies in West Virginia and the law of West Virginia applies. Assuming, arguendo, this Court has jurisdiction and Ohio substantive law applies, Plaintiff‘s claim is barred under West Virginia‘s two-year statute of limitations vis-a-vie [sic] Ohio‘s choice of law rules and Ohio‘s borrowing statute (
{8} MJS Enterprises focused half of its supplemental memorandum on Ohio choice-of-law rules and its borrowing statute, and the West Virginia Human Rights Act and its two-year statute of limitation which, if applied to Williams‘s claim, would bar it as untimely. This argument supports MJS Enterprises‘s statute of limitation defense under
{9} The trial court granted MJS Enterprises‘s motion to dismiss. It did so on two alternative grounds: (1) lack of personal jurisdiction over MJS Enterprises and/or (2) Williams‘s claim is barred by West Virginia‘s two-year statute of limitations for discrimination claims. The trial court did not address Williams‘s argument that MJS Enterprises waived its personal jurisdiction defense by not raising it in its motion to dismiss the amended complaint. Instead, the trial court found that it lacked personal jurisdiction over MJS Enterprises under Ohio‘s long-arm statute and the Due Process Clause. It also found that Williams was engaged in forum shopping because Ohio has a longer statute of limitations than West Virginia. It found alternatively, if it had personal jurisdiction, then the two-year statute of limitations applied, and Williams‘s amended complaint should be dismissed “for failure to comply with the applicable statute of limitations.”3
{10} Williams appealed.
II. ASSIGNMENTS OF ERROR
{11} Williams designates two assignments of error for review:
I. The trial court erred in dismissing the First Amended Complaint for lack of personal jurisdiction. (3/14/22 J.E. ¶ 3.)
II. The trial court erred in dismissing the First Amended Complaint for failure to state a claim upon which relief can be granted. (3/14/22 J.E. ¶ 4.)
III. LEGAL ANALYSIS
A. Personal Jurisdiction over MJS Enterprises
1. Standard of Review
{12} ” ‘An appellate court reviews a trial court‘s determination of whether personal jurisdiction over a party exists under a de novo standard of review.’ ” Britton v. Britton, 4th Dist. Washington No. 18CA10, 2019-Ohio-2179, ¶ 13, quoting State ex rel. Athens Cty. Dept. of Job & Family Servs. v. Martin, 4th Dist. Athens No. 07CA11, 2008-Ohio-1849, ¶ 13.
2. Waiver of the Defense of Personal Jurisdiction
{13} Williams argues that MJS Enterprises waived the defense of personal jurisdiction when it failed to raise it in its motion to dismiss the amended complaint. MJS Enterprises argues that it preserved it when it raised the defense of personal jurisdiction in its motion to dismiss the original complaint.
{14} We find that MJS Enterprises waived the defense of lack of personal jurisdiction when it failed to raise it in its motion to dismiss the amended complaint.
It is rudimentary that in order to render a valid personal judgment, a court must have personal jurisdiction over the defendant. This may be acquired either by service of process upon the defendant, the voluntary appearance and submission of the defendant or his legal representative, or by certain acts of the defendant or his legal representative which constitute an involuntary submission to the jurisdiction of the court. The latter may more accurately be referred to as a waiver of certain affirmative defenses, including jurisdiction over the person under the Rules of Civil Procedure.
{15} Maryhew v. Yova, 11 Ohio St.3d 154, 156, 464 N.E.2d 538, 540 (1984). Under
Such a rule reflects a strong policy against tardily raising defenses that go not to the merits of the case but to the legal adequacy of the initial steps taken by the plaintiff in his litigation, namely his service of process on the defendant and his choice of forum for the action. Unless the defendant objects on those grounds at the outset, he forfeits his right later to raise them as a defense.
See Myers v. Am. Dental Ass‘n, 695 F.2d 716, 721 (3d Cir.1982) (discussing the rationale for the identical Federal Rule of Civil Procedure 12(h)).
{16} Although MJS Enterprises raised a
It is well settled that an amended pleading supersedes the original pleading. *** 75 Ohio Jurisprudence Pleading, 343, Section 469 (” ‘it is hornbook law that an amended pleading supersedes the original, the latter being [treated] thereafter as nonexistent’ “). Therefore, an amended pleading opens the door for defending parties to raise new affirmative defenses. (Citations omitted.)
Morris v. Morris, 189 Ohio App.3d 608, 2010-Ohio-4750, 939 N.E.2d 928, ¶ 32 (10th Dist.). Thus, after Williams filed his first amended complaint, MJS Enterprises had a “fresh start” and could raise any
{17} Because MJS Enterprises waived the defense of lack of personal jurisdiction, the trial court erred in dismissing the case against it on that ground. WBCMT 2007-C33 Office 7870, LLC v. Breakwater Equity Partners, LLC, 2019-Ohio-3935, 133 N.E.3d 607, ¶ 41 (1st Dist.) (“And it is well-settled that personal jurisdiction should not be raised sua sponte when the parties have waived the point“).
{18} We sustain Williams‘s first assignment of error.
B. Dismissal Based on West Virginia Statute of Limitations
{19} Williams contends that the trial court erred when it granted, in the alternative, MJS Enterprises‘s
1. Standard of Review
{20} We review dismissals pursuant to
2. Legal Analysis
{21} After MJS Enterprises filed its motion to dismiss the amended complaint, the trial court established a briefing schedule and set a non-oral hearing on the motion for September 3, 2021. The trial court held a case management conference in November 2021. After the conference, the trial court issued an entry stating that the conference was held, counsel for the parties attended, and the non-oral hearing on the motion to dismiss previously set for September 3, 2021 was continued to February
{22} On January 31, 2022, one day before the extended non-oral hearing date, MJS Enterprises filed a “supplemental memorandum to its motion to dismiss (or alternatively motion for summary judgment).” MJS Enterprises identified the supplemental memorandum as “alternatively in support of a motion for summary judgment if converted by this Court per
{23} Williams did not submit a response. However, MJS Enterprises‘s certificate of service on its supplemental memorandum (or alternatively its summary judgment motion) stated that it was served by the United States Postal Service regular mail on January 31, 2022. Because the non-oral hearing date was the following day on February 1, 2022, Williams would not have had sufficient time to respond prior to the non-oral hearing date.
{24} The trial court issued its decision and judgment entry in March 2022. In the decision, the trial court references facts outside the amended complaint, which were included in affidavits and discovery responses. For example, the trial court noted the fact that Williams “only had incidental contact with Ohio as a MJS employee when he made a few ‘runs’ into Ohio.” This appears to be a reference to the three, isolated incidents Williams identified in an interrogatory. The trial court determined that the employment discrimination accrued in West Virginia and therefore, under Ohio‘s borrowing statute, the West Virginia Human Rights Act two-year statute of limitations applied and barred Williams‘s claim.
{25} Because the statute of limitations is an affirmative defense it can only be raised in a
A clear distinction exists in the Civil Rules between the affirmative defense of the bar of the statute of limitations pursuant to Civ.R. 8(C) , and aCiv.R. 12(B)(6) defense. The purpose behind the allowance of aCiv.R. 12(B) motion to dismiss based upon the statute of limitations is to avoid the unnecessary delay involved in raising the bar of the statute in a responsive pleading when it is clear on the face of a complaint that the cause of action is barred. The allowance of aCiv.R. 12(B) motion serves merely as a method for expeditiously raising the statute of limitations defense.
Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55, 59–60, 320 N.E.2d 668, 671 (1974); Schmitz v. Natl. Collegiate Athletic Assn., 155 Ohio St.3d 389, 2018-Ohio-4391, 122 N.E.3d 80, ¶ 41 (Kennedy, J., concurring in part and concurring in judgment only in part) (“Ohio‘s appellate courts have long recognized the difficulty of successfully asserting an affirmative defense in a
{26} Here it is evident from its references to factual matters contained within MJS Enterprises‘s affidavit and discovery evidence that the trial court converted the
When a trial court considers a
Civ.R. 12(B)(6) motion to dismiss, it *** “cannot rely on evidence or allegations outside the complaint to determine aCiv.R. 12(B)(6) motion.” When a party presents evidence outside the pleadings, the trial court bears the “responsibility either to disregard [the] extraneous material or to convert [the] motion to dismiss into a motion for summary judgment ***.” If the court converts the motion to dismiss to one for summary judgment, the court must give the parties notice and a reasonable opportunity to present all of the available evidence thatCiv.R. 56(C) permits.Civ.R. 12(B) . As our sister district aptly explained in Powell v. Vorys, Sater, Seymour & Pease, 131 Ohio App.3d 681, 684–685, 723 N.E.2d 596 (10th Dist.1998):When a motion to dismiss presents matters outside the pleadings, the trial court may either exclude the extraneous matter from its consideration or treat the motion as one for summary judgment and dispose of it pursuant to
Civ.R. 56 . However, a trial court may not, on its own motion, convert aCiv.R. 12(B)(6) motion to dismiss to a motion for summary judgment and thus dispose of it without giving notice to the parties of its intent to do so and fully complying withCiv.R. 12(B) andCiv.R. 56 in its considerations.Civ.R. 12(B) ; State ex rel. Baran v. Fuerst (1990), 55 Ohio St.3d 94, 97, 563 N.E.2d 713, 716. *** Failure tonotify the parties that the court is converting a Civ.R. 12(B)(6) motion to dismiss into one for summary judgment is, itself, reversible error. State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn. (1995), 72 Ohio St.3d 94, 96, 647 N.E.2d 788, 791.
(Citations omitted.) (Brackets sic.) Lang v. Enervest Energy Institutional Fund XI A LP, 2016-Ohio-4844, 68 N.E.3d 179, ¶ 31 (4th Dist.). There is nothing in the record notifying the parties that the trial court was converting MJS Enterprises‘s motion to dismiss to a summary judgment motion.
{27} This case involves a statute of limitations analysis that invokes questions of fact that “go beyond the scope of the bare dates set forth in the complaint.” Savoy, 2012-Ohio-1962, ¶ 6 (discussing how various tolling provisions that affect the statute of limitation can require an analysis of facts beyond those in the complaint). “Because of this, the question of whether a complaint, on its face, ‘conclusively’ fails as time-barred often requires more than mere reference to the overlong interval between the injury and commencement of the action.” Id.
{28} Although the face of the complaint contained an allegation that the employment discrimination occurred on September 25, 2017 when Williams was allegedly discharged, MJS Enterprises‘s contention that the cause of action accrued in West Virginia could not be determined from the face of the complaint. Ohio‘s borrowing statute,
(B) No civil action that is based upon a cause of action that accrued in any other state * * * may be commenced and maintained in this state if the period of limitation that applies to that action under the laws of that other state ** * has expired or the period of limitation that applies to that action under the law of this state has expired.
Thus, to determine whether West Virginia‘s two-year statute of limitation applies, the trial court must consider facts that establish where the cause of action accrued, which are not fully set out in Williams‘s complaint.
{29} Factual matters provided in the evidence submitted by MJS Enterprises should have been considered only after the trial court notified the parties that it was converting the motion to dismiss to a summary judgment motion and provided the parties with an opportunity to present the pertinent
Under
Civ.R. 12(B) and56(C) , a court must notify all parties at least fourteen days before the time fixed for hearing when it converts a motion to dismiss for failure to state a claim into a motion for summary judgment.Civ.R. 56(C) (“The motion shall be served at least fourteen days before the time fixed for hearing.“). ” ‘The primary vice of unexpected conversion to summary judgment is that it denies the surprised party sufficient opportunity to discover and bring forward factual matters [that] may become relevant only in the summary judgment, and not the dismissal, context.’ ” The surprised party is generally the nonmoving party. (Citations omitted.)
State ex rel. The V Cos. v. Marshall, 81 Ohio St.3d 467, 470–71, 692 N.E.2d 198, 202 (1998).
{30} A trial court‘s failure to give notice is harmless error if the nonmoving party had a sufficient opportunity to respond. Goodwin v. T.J. Schimmoeller Trucking, 3rd Dist. Wyandot No. 16-07-08, 2008-Ohio-163, ¶ 11, citing State ex rel. The V Cos., at 472. Where it is clear from the
[A] trial court‘s error in considering a
Civ.R. 12(B)(6) motion as a summary judgment motion generally does not affect the parties’ substantial rights, and is therefore harmless, when (1) both parties rely on evidence outside the complaint, (2) the non-moving party had sufficient notice and opportunity to respond, and (3) no prejudice results. (Citations omitted.)
Rice v. Lewis, 4th Dist. Scioto No. 13CA3551, 2013-Ohio-5890, ¶ 16.
{31} Based on the record, we cannot say that the error was harmless. There was nothing in the trial court‘s case management conference entry from November 2021 that notified the parties that the motion to dismiss would be converted to a summary judgment motion. The trial court did not hold an evidentiary hearing. Williams was not notified that he could submit
{32} By considering additional evidence beyond that contained in the amended complaint, the trial court erred. It should have either excluded the evidence or converted the motion to dismiss to a motion for summary judgment as required by
{33} We decline to address the substantive merits of Williams‘s second assignment of error because we sustain it on other procedural grounds.
IV. CONCLUSION
{34} We sustain Williams‘s first assignment of error, sustain on other grounds his second assignment of error, and remand for further proceedings consistent herewith.
JUDGMENT REVERSED.
CAUSE REMANDED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED, CAUSE REMANDED and that appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: __________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to