[Cite as Mendoza v. Seger, 2019-Ohio-4284.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


Anita N. Mendoza                                  Court of Appeals No. L-19-1071

        Appellant                                 Trial Court No. CI0201804492

v.

Justin Lee Seger, et al.                          DECISION AND JUDGMENT

        Appellee                                  Decided: October 18, 2019

                                              *****

        Mary M. Bollinger, for appellant.

        Rhonda G. Hall, for appellee Progressive Specialty Insurance Company.

                                              *****

        ZMUDA, J.

        {¶ 1} This matter is before the court on appeal from the judgment of the Lucas

County Court of Common Pleas, General Division, granting a motion for judgment on

the pleadings and dismissing a re-filed case with prejudice. Because we find the trial

court considered matters beyond the pleadings in ruling on the motion, we reverse.
                         I. Facts and Procedural Background

      {¶ 2} In October 2015, appellant Anita N. Mendoza and Justin Lee Seger were

involved in a motor vehicle accident on the Anthony Wayne Trail near South Avenue.

As Mendoza slowed to turn onto South Avenue, Seger failed to slow, and as a result,

Mendoza alleges that she and her vehicle sustained injuries and damages. At the time,

Seger was an uninsured driver. Mendoza had coverage pursuant to a policy purchased

from appellee Progressive Specialty Insurance Company. Mendoza also had healthcare

coverage through Medicaid.

      {¶ 3} On November 30, 2018, Mendoza filed suit in Lucas County Court of

Common Pleas case No. CI0201804492. In her pleading, Mendoza asserted a claim

against Seger and Progressive, and named the Ohio Tort Recovery Unit of the Ohio

Department of Medicaid as an interested party. In Count 1, Mendoza alleged a

negligence claim against Seger, seeking recovery for injuries and damages caused by

Seger’s alleged negligence in causing the automobile collision. In Count 2, Mendoza

asserted a claim against Progressive, seeking uninsured/underinsured (UM/UIM) driver

coverage through her policy with Progressive. Mendoza also named the Department of

Medicaid in Count 3, acknowledging its interest based on a Medicaid lien placed against

any award of damages. Mendoza’s pleading did not reference any prior action or

otherwise indicate that her complaint was a re-filed suit. Mendoza also did not attach a

copy of the Progressive policy of insurance.




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       {¶ 4} On December 13, 2018, Progressive filed an answer, admitting to a policy of

insurance issued to Mendoza, but otherwise denying that any coverage applied in the

case. Progressive did not attach a copy of the policy to its pleading. Progressive raised

affirmative defenses that included a statute of limitations defense, and also asserted a

cross-claim against Seger, seeking judgment against him should Progressive be found

liable to Mendoza. Progressive’s pleading did not reference any prior action.

       {¶ 5} On January 7, 2019, the Ohio Department of Medicaid filed its answer,

asserting a right of recovery for the cost of medical services and care provided to

Mendoza as provided by R.C. 5160.37. This pleading, likewise, contained no reference

to any prior action.

       {¶ 6} Seger filed no answer in response to the complaint. Seger also filed no

response to the cross-claims of Progressive and the Department of Medicaid.

       {¶ 7} Almost immediately, Progressive filed a motion seeking judgment on the

pleadings, arguing Mendoza failed to refile her complaint within the time provided under

Ohio’s Savings Statute, R.C. 2305.19. Progressive’s motion referenced, for the first time

in the proceedings, a prior filing in 2017, case No. CI0201704435. Progressive attached

entries from that 2017 case as exhibits to its motion.

       {¶ 8} Mendoza filed no response in opposition to Progressive’s motion, and on

January 14, 2019, the trial court deemed the matter decisional and denied the motion. In

considering the issue, however, the trial court addressed the merits of Progressive’s

affirmative defense, and not the sufficiency of Mendoza’s claims. The trial court




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referenced the 2017 case and found the dismissal was filed-stamped on December 7,

2017, and determined the November 30, 2018 re-filing date to be within the one-year

period provided under R.C. 2305.19.

       {¶ 9} On March 3, 2019, Progressive filed a motion for reconsideration, arguing

Mendoza filed her dismissal on November 16, 2017, even though she filed under an

incorrect case number. In support, Progressive provided a copy of an entry file-stamped

on November 16, 2017, containing the correct case caption, but an incorrect case number,

case No. CI0201702650. Based on this new exhibit, the trial court once more considered

the merits of Progressive’s affirmative defense, and granted the motion for judgment on

the pleadings as to all claims. Despite Seger’s default and waiver of defenses regarding

Mendoza’s negligence claim, and despite the Department of Medicaid’s asserted

subrogation interest, the trial court dismissed the entire case with prejudice. It is from

this decision that Mendoza appeals, arguing the following assignment of error:

              THE COURT ERRED IN DISMISSING [MENDOZA’S] CASE

       WITH PREJUDICE AS HAVING BEEN FILED OUTSIDE OF THE

       TIME REQUIRED.

                                        II. Analysis

       {¶ 10} In challenging the trial court’s dismissal with prejudice, Mendoza argues

the merits of a timely-filed 2018 action. Specifically, Mendoza acknowledges that she

dismissed the 2017 case pursuant to Civ.R. 41(A)(1) on November 16, 2017, but because

she used an incorrect case number and was directed to file the dismissal with the correct




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case number on December 7, 2017, her refiling on November 30, 2018, based on the

December 7 dismissal, was timely. Progressive, in response, disputes the merits of

Mendoza’s argument. The pleadings in the case on appeal, however, do not permit a

review of the merits of the parties’ dispute regarding a timely re-filing.

       {¶ 11} Progressive moved for judgment on the pleadings, pursuant to Civ.R.

12(C). A motion for judgment on the pleadings presents only questions of law. Peterson

v. Teodosio, 34 Ohio St.2d 161, 166, 297 N.E.2d 113 (1973). In reviewing a decision

that grants judgment on the pleadings and dismisses a proceeding for failure to state a

claim, we apply a de novo standard. McMullian v. Borean, 167 Ohio App.3d 777, 2006-

Ohio-3867, 857 N.E.2d 180, ¶ 8 (6th Dist.), citing Battersby v. Avatar, Inc., 157 Ohio

App.3d 648, 2004-Ohio-3324, 813 N.E.2d 46, ¶ 5 (1st Dist.).

       {¶ 12} “A Civ.R. 12(C) motion for judgment on the pleadings has been

characterized as a belated Civ.R. 12(B)(6) motion for failure to state a claim upon which

relief can be granted.” (Citations omitted.) Whaley v. Franklin Cty. Bd. of Commrs., 92

Ohio St.3d 574, 581, 752 N.E.2d 267 (2001). Therefore, in ruling on a Civ.R. 12(C)

motion, a trial court must deem all material allegations in the complaint as true, with all

reasonable inferences, drawn from those allegations, construed in favor of the nonmoving

party. Id., citing Peterson at 165-166.

       {¶ 13} In order to dismiss based on Progressive’s statute of limitations defense,

the pleadings must demonstrate an untimely complaint, as a motion seeking dismissal

based on this affirmative defense “is erroneously granted where the complaint does not




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show on its face the action is barred by the statute of limitations.” Velotta v. Leo

Petronzio Landscaping, Inc., 69 Ohio St.2d 376, 379, 433 N.E.2d 147 (1982), citing

Scheer v. Air-Shields, Inc., 61 Ohio App.2d 205, 208, 401 N.E.2d 478 (1st Dist.1979);

Durham v. Anka Research Limited, 60 Ohio App.2d 239, 396 N.E.2d 799 (1st Dist.1978);

see also Snyder v. Gleason Consrt., 6th Dist. Lucas No. L-12-1187, 2013-Ohio-1930,

¶ 17-18 (consideration of matters outside the four corners of the pleadings is improper,

with dismissal proper “only when the complaint shows conclusively on its face” that it is

time-barred).

       {¶ 14} In this case, Mendoza alleged a negligence claim against Seger arising

from a motor vehicle collision in 2015 and a claim asserting a contractual right to

uninsured motorist coverage pursuant to a policy issued to Mendoza by Progressive.

Additionally, Mendoza joined the Department of Medicaid in the suit, based on its

subrogation interest in any recovery awarded to Mendoza on her claims.

       {¶ 15} Mendoza served a copy of her pleading on Seger on December 10, 2018,

evidenced by signed receipt. Seger failed to file an answer to Mendoza’s complaint.

Therefore, even if the applicable statute of limitations might bar Mendoza’s negligence

claim, Seger waived a statute of limitations defense. See Drenning v. Blue Ribbon

Homes, 6th Dist. Fulton No. F-06-001, 2007-Ohio-1323, ¶ 74, citing Jim’s Steak House,

Inc. v. Cleveland, 81 Ohio St.3d 18, 20, 688 N.E.2d 505 (1998) (“[T]he statute of

limitations defense is waived if not raised in the pleadings or by an amendment to the

pleadings.”) Accordingly, based solely on the pleadings, Mendoza’s negligence claim




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against Seger was sufficient, and the Department of Medicaid’s subrogation interest

remained for adjudication. The trial court erred in dismissing these claims based on

Progressive’s motion.1

       {¶ 16} Mendoza also asserted a contract claim against Progressive, seeking

UM/UIM coverage pursuant to her Progressive insurance policy. Pursuant to R.C.

3937.18(H), a claim may be limited to “within three years after the date of the accident

causing the bodily injury * * * or within one year after the liability insurer for the owner

or operator of the motor vehicle liable to the insured has become the subject of

insolvency proceedings in any state, whichever is later.” Progressive might have varied

the limitations period, however, within its policy, permissible “as long as the shorter

period is a reasonable one.” Angel v. Reed, 119 Ohio St.3d 73, 2008-Ohio-3193, 891

N.E.2d 1179, ¶ 11.

       {¶ 17} In seeking judgment on the pleadings, Progressive acknowledged

Mendoza’s 2018 case as a re-filed proceeding, and argued that Mendoza failed to re-file

within the one-year period provided in the savings statute, R.C. 2305.19. Considering


1
  While not raised as error, we note that the record contains no motion requesting
dismissal of either Mendoza’s claim against Seger or the claim asserting the Department
of Medicaid’s subrogation interest. Therefore, the trial court sua sponte dismissed these
claims, without motion. “The Rules of Procedure neither expressly permit nor forbid
courts to sua sponte dismiss complaints. Generally, a court may dismiss a complaint on
its own motion pursuant to Civ.R. 12(B)(6) * * * only after the parties are given notice of
the court’s intention to dismiss and an opportunity to respond.” State ex rel. Edwards v.
Toledo City School Dist. Bd. of Edn., 72 Ohio St.3d 106, 108, 647 N.E.2d 799 (1995).
Because we reverse on other grounds, we need not consider whether this issue presents
plain error for our review.




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only the pleadings in this case, however, the prior action and the dismissals filed are not

referenced within the pleadings and, therefore, not before the court. Furthermore, the

policy of insurance, which might recite a shorter limitations period for suit under the

policy, is neither referenced within the pleadings nor attached to Mendoza’s complaint or

Progressive’s answer.

       {¶ 18} While Progressive attached the dismissals from the prior action as exhibits

to its motion, a court may not consider matters outside the pleadings in ruling on a

motion for judgment on the pleadings. McMullian v. Borean, 167 Ohio App.3d 777,

2006-Ohio-3867, 857 N.E.2d 180, ¶ 8 (6th Dist.). Even if the trial court wished to

consider the additional matters pursuant to Civ.R. 56, moreover, “no legal authority exists

in Ohio for a trial court to convert a Civ.R. 12(C) motion into one for summary

judgment.” Kuhn v. Schmidt Bros., Inc., 6th Dist. Lucas No. L-07-1235, 2008-Ohio-

1567, ¶ 10, citing Piersant v. Bryngelson, 61 Ohio App.3d 359, 362, 572 N.E.2d 800 (8th

Dist.1989).

       {¶ 19} In granting Progressive’s motion, the trial court relied on additional

matters, not contained within the pleadings. The trial court referenced the prior suit filed

in 2017, as well as the dismissal filed on November 16, 2017. Mendoza’s complaint and

Progressive’s answer, however, do not conclusively demonstrate that the statute of

limitations bars Mendoza’s claims, based solely on the four corners of the pleadings. The

trial court, therefore, erred in dismissing Mendoza’s claim against Progressive, and we

find Mendoza’s sole assignment of error well-taken.




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                                     III. Conclusion

       {¶ 20} For the forgoing reasons, we reverse the judgment of the Lucas County

Court of Common Pleas. Appellee is ordered to pay the costs of this appeal pursuant to

App.R. 24.


                                                                       Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Thomas J. Osowik, J.                           _______________________________
                                                           JUDGE
Christine E. Mayle, P.J.
                                               _______________________________
Gene A. Zmuda, J.                                          JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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