Mollie Ann Steiner v. Gary Eugene Steiner

• Decision Date: 29 March 1993
• Docket Number: 92 CA 2080,93-LW-0942
• Parties: Mollie Ann Steiner, Plaintiff-Appellant v. Gary Eugene Steiner, Defendant-Appellee Case
• Court: Ohio Court of Appeals

Mollie Ann Steiner, Plaintiff-Appellant v. Gary Eugene Steiner, Defendant-Appellee

No. 92 CA 2080.

93-LW-0942 (4th)

Court of Appeals of Ohio, Fourth District Scioto

March 29, 1993

James T. Boulger, Chillicothe, Ohio, for Appellant.

Mowery Brown & Blume, Steven L. Mowery, Wheelersburg, Ohio, for Appellee.

DECISION

Harsha P.J.

Mollie Ann Steiner appeals from a judgment dismissing her Assault and battery complaint against Gary Eugene Steiner for failure to state a claim upon which relief can be granted under Civ.R. 12(B)(6). The court also granted appellee's R.C 2323.51 motion for sanctions.

Appellant assigns the following errors:

1. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFF IN ENTERING DISMISSAL OF THE PLAINTIFF'S COMPLAINT AND AMENDED COMPLAINT UPON THE MOTION TO DISMISS FILED ON BEHALF OF THE DEFENDANT.

2. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE PLAINTIFF IN GRANTING DEFENDANTS MOTION FOR SANCTIONS UNDER SECTION 2323.51 OF THE REVISED CODE WITHOUT HOLDING AN EVIDENTIARY HEARING.

On October 17, 1991, appellant filed a complaint which alleged that appellee had committed assault and battery on October 17, 1989 by throwing appellant around and striking her. Appellant sought $100,000 and $250,000 in compensatory and punitive damages, respectively. Appellee was personally served with a copy of the complaint and summons on March 13, 1992. Appellee subsequently filed a Civ.R. 12(B)(6) motion to dismiss the complaint because appellant's claim for relief was barred by the statute of limitations set forth in R.C.A 2305.111. Appellee additionally filed a motion for attorney fees pursuant to R.C. 2323.51 for appellant's "frivolous conduct" in filing the complaint.

On April 20, 1992, the trial court ordered that an "oral hearing" be held on both of appellee's motions on May 5, 1992. Notice of the oral hearing was sent to appellant's counsel. On April 27, 1992, appellant filed an amended complaint without prior leave of court. The amended complaint realleged appellant's prior claim of assault and battery which had occurred on October 17, 1989, and additionally alleged a claim of intentional infliction of emotional distress based upon appellee's actions from 1988 through and subsequent to the parties' 1991 divorce. An unsigned note attached to appellant's amended complaint indicated that there had been "(n)o leave granted to amend" and that appellee had filed a "responsive pleading" although appellee never filed an answer to appellant's original complaint. The amended complaint was served on appellee's attorney rather than appellee himself. Appellee did not respond to the amended complaint in any manner. Appellant filed a memorandum contra to the motions to dismiss her original complaint and for sanctions. Upon appellant's motion, the common pleas court continued the scheduled hearing to June 10, 1992.

On June 11, 1992, the court issued a "DECISION AND JUDGMENT ENTRY" which granted appellee's Civ.R. 12(B)(6) motion and dismissed the case. The common pleas court further granted appellee's motion for sanctions pursuant to R.C. 2323.51 and awarded appellee $867.50 in attorney fees from appellant's counsel.^[1]

A preliminary issue is whether this court has jurisdiction over the appeal, i.e., whether the common pleas court's entry constituted a final order pursuant to R.C. 2505.02 and Civ.R. 54(B). From a review of the record, it appears evident that the common pleas court intended to dismiss appellant's entire action brought under common pleas case number "91-CI-385." The court's entry stated that the "cause is hereby dismissed and the costs herein are assessed to the plaintiff." The court appeared to treat appellant's amended complaint as a nullity, either because it believed that it was filed improperly without prior leave of court or it was not properly served. See discussion below. In other words, the amended complaint, in the court's apparent view, was not properly before it. Based upon the foregoing, we agree that there is no pending, unresolved claim, and the entry appealed from constitutes a final appealable order which dismissed the entire action.

Appellant's first assignment of error asserts that the trial court erred in dismissing her original and amended complaints. The common pleas court dismissed the action based upon appellee's Civ.R. 12(B)(6) motion. In order for a court to dismiss a complaint pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief may be granted, it must appear beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d 143, 144, citing O'Brien v. University Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 245. In construing a complaint upon a motion to dismiss for failure to state a claim, the court must presume all factual allegations of the complaint are true and make all reasonable inferences in favor of the nonmoving party. York, supra. In resolving a Civ.R. 12(B)(6) motion, a court is confined to the averments set forth in the complaint. See, e.g., State ex rel. Alford v. Willoughby Civil Service Comm. (1979), 58 Ohio St.2d 221, 223. Appellate review of a ruling on such a motion presents a question of law which we decide independently of the trial court' s determination.

Appellee's Civ.R. 12(B)(6) motion to dismiss appellant's original complaint was based on the limitations period contained in R.C. 2305.111, which provides that an action for assault and/or battery shall be brought within one year after the cause of action accrues. See, also, Love v. Port Clinton (1988), 37 Ohio St.3d 98. Affirmative defenses such as the statute of limitations are generally not properly raised in a Civ.R. 12(B)(6) motion because they usually require.reference to materials outside the complaint. Cf, e.g., Nelson v. Pleasant (1991), 73 Ohio App.3d 479, 482 (addressing the propriety of raising the affirmative defense of res judicata by Civ.R. 12(B)(6) dismissal motion). However, an exception to this general rule exists when the bar of the statute of limitations is obvious from the face of the complaint. See Hughes v. Robinson Memorial Portage Cty. Hosp. (1984), 16 Ohio App.3d 80, 82, citing Mills v. Whitehouse Trucking Co. (1974), 40 Ohio St.2d 55, 60. In this case, the bar of R.C. 2305.111 was apparent from the face of appellant's original complaint and would have supported dismissal of the initial complaint.

However, appellant contends that her original complaint was no longer before the court when it granted the 'dismissal motion because of the amended complaint she filed over a month prior to the court's judgment entry. Civ.R. 15(A) provides:

A party may amend his pleading once as a matter of course at any time before a responsive pleading is served ***. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party. ***

An amended pleading is designed to include matters occurring before the filing of the complaint but either overlooked or not known at the time. Mork v. Waltco Truck Equip. Co. (1990), 70 Ohio App.3d 458, 461. An amended pleading substitutes for or replaces the original pleading. 4 Harper, Anderson's Ohio Civil Practice (1987) 528, Section 156.04. There is an absolute right to amend a pleading without leave of court at any time before a responsive pleading is filed. Newton v. Jones (1984), 13 Ohio App.3d 449.

The common pleas court's dismissal of the action without treating the amended complaint as being properly substituted for the initial complaint seems to have been based upon either or both of the following grounds: (1) appellee's Civ.R. 12(B)(6) motion constituted a "responsive pleading" as that term is used in Civ.R. 15(A), thus requiring that appellant obtain leave of court prior to filing her amended complaint (this is the position espoused in the handwritten, unsigned note attached to appellant's amended complaint); and (2) appellant's amended complaint could only be substituted for the original complaint if proper service were perfected. Since the amended complaint added a new claim for relief, Civ.R. 4 and 5 required service upon appellee personally and not upon appellee's attorney of record in order to perfect service (this is the view advocated by appellee on appeal).

As one treatise writer notes:

The time for amendment of course may be extended if an adverse party serves a motion to a pleading rather than a responsive pleading. The question has arisen most frequently in connection with the motion to dismiss for failure to state a claim for relief, although the situation could come about if any other motion is served in lieu of a responsive pleading. By way of example, plaintiff files his complaint. In lieu of an answer, defendant serves a motion to dismiss for failure to state a claim for relief pursuant to Civ.R. 12(B)(6). Three months later, at the hearing, the motion to dismiss is sustained. Plaintiff may still amend his complaint "of course." Reason: a motion is not a responsive pleading; a responsive pleading, i.e., an answer, has not as yet been served.

Harper, supra, at 515, Section 156.02 (footnotes omitted); see, also, 1 Klein, Browne & Murtaugh, Baldwin's Ohio Civil Practice (1992) 67, T 17.01(B)(1)(a); State ex rel. Millington v. Weir (Aug. 29, 1978), Franklin App. No. 78AP-359, unreported; see, also, 3 Moore's Federal Practice (2 Ed.1990) 15-33-34, Paragraph 15.07[2], stating that motions to dismiss are not considered responsive pleadings for purposes of Fed.R.Civ.P. 15(a), which Civ.R. 15(A) was based upon.

Since appellee's motion to dismiss did not constitute a responsive pleading, appellant had the absolute right to file her amended complaint pursuant...