[Cite as Am. Tax Funding L.L.C. v. Miamisburg, 2011-Ohio-4161.]




          IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

AMERICAN TAX FUNDING, LLC.,                       :
                       et al.
     Plaintiff-Appellants                         :     C.A. CASE NO. 24494

vs.                                               :     T.C. CASE NO. 10CV5710

CITY OF MIAMISBURG, ET AL                         :

        Defendant-Appellees                       :

                                     . . . . . . . . .

                                        O P I N I O N

                  Rendered on the 19th day of August, 2011.

                                     . . . . . . . . .

David S. Anthony, Atty. Reg. No. 0074431; John N. Zomoida, Jr.,
Atty. Reg. No. 0072742, 1000 West Wallings Rd, Suite A, Broadview
Heights, OH 44147
     Attorney for Plaintiff-Appellants

Robert J. Surdyk; Kevin A. Lantz, 1 Prestige Place, Suite 700,
Miamisburg, OH 45342
     Attorney for Defendant-Appellee

J. Joseph Walsh, 201 East Sixth Street, Dayton, OH 45402
     Attorney for Third Party Defendant-Appellee, Michael J. King

                                     . . . . . . . . .

GRADY, P.J.:

        {¶ 1} This is an appeal from a final order granting a Civ.R.

12(C) motion for judgment on the pleadings in an action brought

pursuant to 42 U.S.C. §1983, the federal “civil rights” statute.
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      {¶ 2} R.C. 5126.32 authorizes the county treasurer to sell

certificates of tax liens at public auction, and to thereafter

record the sales in the tax certificate register.

      {¶ 3} R.C. 715.26(B) authorizes municipalities to provide for

the   removal     or   repair   of   unsafe   or   structurally   defective

buildings, and further provides that at least thirty days prior

to the removal or repair “the municipal corporation . . . shall

give notice of its intention with respect to such removal or repair

to the holders of legal or equitable liens of record upon the real

property on which such building is located and to the owners of

record of such property.”

      {¶ 4} The underlying action was commenced on July 16, 2010,

by American Tax Funding, LLC (“ATF”) and ATFH Real Property, LLC

(“ATFH”) against the City of Miamisburg.             (“Miamisburg”).   The

Plaintiffs’ complaint alleged that ATF purchased tax certificates

of liens on real property located at 747 East Sycamore Street in

Miamisburg, Ohio, on three separate dates: November 21, 2005;

October 26, 2006; and September 28, 2007.

      {¶ 5} The    complaint    further   alleged    that   ATF    filed   a

complaint in foreclosure on its liens on May 12, 2008, and

thereafter assigned its interest to ATFH, which acquired title

to the property by a Sheriff’s Deed recorded on May 14, 2010.

      {¶ 6} The complaint further alleged that “[b]etween November
                                                                   3

21, 2005 and May 24, 2010, the City of Miamisburg, Ohio . . . caused

the structure upon the Property to be demolished, but the City

did not provide ATF and/or ATFH with at least thirty days notice

of its intention to remove the structure as required by R.C.

715.26(B).”

      {¶ 7} The complaint further alleged that the failure of notice

“violated the due process rights of ATF and/or ATFH as guaranteed

by the Fourteenth Amendment of the United States Constitution and

Section 10, Article I of the Ohio Constitution.”

      {¶ 8} Finally, the complaint alleged that demolition of the

structure “caused the value of the Property be reduced by $41,000,”

and the plaintiffs prayed for a judgment in that amount as well

as associated legal and equitable relief.

      {¶ 9} Miamisburg filed a responsive pleading on August 11,

2010.   Miamisburg admitted “that, on or about January 8, 2008,

it   caused a structure located on the property at 747 East Sycamore

Street, Miamisburg, Montgomery County, Ohio, to be demolished.”

 Miamisburg denied the remaining allegations of the complaint for

lack of knowledge or as untrue.    Miamisburg also pled seventeen

affirmative defenses, the last of those being that “Plaintiffs’

claims are barred by the applicable statute of limitations.”

      {¶ 10} On August 31, 2010, Miamisburg filed a Civ.R. 12(C)

motion for a judgment on the pleadings.    The motion presented two
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grounds for relief.

     {¶ 11} Miamisburg   first   argued    that   money    damages   are

unavailable for the constitutional due process violations alleged

except pursuant to 42 U.S.C. §1983, and that Plaintiffs failed

to plead that claim for relief; and, more specifically, that

Plaintiffs’ complaint failed to allege that Miamisburg had acted

under color of law, an essential element of a 42 U.S.C. §1983 claim.

     {¶ 12} Second, Miamisburg argued that, even assuming that the

civil rights claim was properly pled, the action Plaintiffs

commenced     was untimely filed.    Per Nadra v. Mbah, 119 Ohio St.3d

305, 2008-Ohio-3918, the two-year statute of limitations for

personal injury actions, R.C. 2305.10, governs 42 U.S.C. §1983

actions filed in the courts of Ohio.          Because Miamisburg had

demolished the house on January 8, 2008, the Plaintiffs’ action

then accrued.    Therefore, the action Plaintiffs commenced on July

10, 2010, more than two years thereafter, was not timely filed.

     {¶ 13} Plaintiffs   filed   a   memorandum   contra   Miamisburg’s

motion.     Plaintiffs argued, among other things, that there is an

issue of fact concerning when their action accrued.          Plaintiffs

contended that even if the demolition occurred on January 8, 2008,

they were then unaware of that fact.      Plaintiffs argued that their

action accrued only later, when they discovered that the building

had been demolished.      Plaintiffs relied on Ormiston v. Nelson
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(1997), 117 F.3d 69, which held that 42 U.S.C. §1983 actions “based

upon medical or psychiatric confinement, like other section 1983

claims, accrue when the plaintiff ‘knows or has reason to know

of the injury which is the basis of his action.’       Id., at p. 70.

     {¶ 14} Miamisburg   responded   that   the   discovery   rule   is

unavailing to Plaintiffs’ claims.       Miamisburg attached to its

submission certified copies of five postal receipts returned in

the foreclosure action Plaintiffs filed.     The receipts are marked

as Exhibits B through F.     The receipts indicate that service of

process Plaintiffs had five times attempted on the defendant in

the foreclosure action at “747 Sycamore Street, Miamisburg, Ohio,

45342,” were returned without service, each indicating, “No Such

Number/Street.”   The return receipts were filed in the foreclosure

action as early as May 20, 2008, and as late as June 30, 2008.

Miamisburg asked the court to take judicial notice of the five

Exhibits, and to find that, even if the discovery rule applies,

Plaintiffs’ action on their 42 U.S.C §1983 commenced to run on

May 20, 2008.   On that basis, the action they commenced on July

10, 2010, more than two years later was likewise untimely.

     {¶ 15} The trial court overruled Miamisburg’s motion for

judgment on the pleadings.    Miamisburg moved for reconsideration.

 Plaintiffs opposed the motion for reconsideration, and also moved

to amend their complaint to correct any alleged defect in pleading
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their 42 U.S.C. §1983 claim.     The trial court granted Miamisburg’s

motion for reconsideration.      The court allowed the parties until

December 14, 201 to file supplemental memoranda on the statue of

limitations issue and on Plaintiffs’ motion to amend their

complaint.

     {¶ 16} Miamisburg filed a supplemental memorandum on December

14, 2010.    Plaintiffs filed none.    On January 19, 2011, the trial

court granted Miamisburg’s motion for judgment on the pleadings.

 The court agreed with Plaintiffs that the discovery rule applies

to Miamisburg’s statute of limitations claim.         However, after

taking judicial notice of Exhibits B through F attached to

Miamisburg’s prior submission, the court found “that Plaintiff

should have known of the injury, i.e. the demolition of which they

received no notice on June 30, 2008 at the very latest.   Plaintiffs

waited to file the present action until July 16, 2010, more than

two years after June 30, 2008.    Accordingly, this court holds that

Plaintiffs’ section 1983 claim is barred by the applicable statute

of limitations.”    (Dkt. 29, p. 5).

     {¶ 17} Plaintiffs filed a notice of appeal on February 18, 2011

from the trial court’s final order of January 19, 2011.

     ASSIGNMENT OF ERROR

     {¶ 18} “THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE’S

MOTION FOR JUDGMENT ON THE PLEADINGS.
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     {¶ 19} “A.    THE TRIAL COURT ERRED BY GOING BEYOND THE FOUR

CORNERS OF THE PLEADINGS IN SUPPORT OF ITS DECISION TO GRANT

DEFENDANT-APPELLEES’S MOTION FOR JUDGMENT ON THE PLEADINGS.

     {¶ 20} “B.    THE TRIAL COURT ERRED BY DECIDING A QUESTION OF

MATERIAL    FACT     IN    SUPPORT   OF    ITS     DECISION     TO    GRANT

DEFENDANT-APPELLEE’S MOTION FOR JUDGMENT ON THE PLEADINGS.”

     {¶ 21} Civ.R. 12(C) provides: “After the pleadings are closed

but within such time as not to delay the trial, any party may move

for judgment on the pleadings.”

     {¶ 22} Unlike a motion to dismiss filed pursuant to Civ.R.

12(B), which is limited to claims for relief in the pleadings,

a motion to dismiss filed pursuant to Civ.R. 12(C) is directed

to all the pleadings, including any defensive pleadings.             “[T]his

means all the pleadings, as well as any material incorporated

therein    or   attached   thereto   as   exhibits.”     Klein/Darling,

Baldwin’s Ohio Civil Practice, §12:10.           However, “determination

of the motion for judgment on the pleadings is restricted solely

to the allegations in the pleadings.”      Peterson v. Teodosio (1973),

34 Ohio St.2d 161.         Further, “. . . Civ.R. 12(C) requires a

determination that no material factual issues exist and that the

movant is entitled to judgment as a matter of law.”           State ex rel.

Midwest Pride v. Pontious (1996), 75 Ohio St. 3d 565, 570.

     {¶ 23} Civ.R. 7(A) provides that the pleadings include the
                                                                  8

complaint and answer.    Civ.R. 7(B) distinguishes a motion from

a pleading, and states that a motion is “[a]n application to the

court for an order.”

     {¶ 24} Miamisburg pleaded a statute of limitations affirmative

defense in its answer.     That matter was therefore available as

grounds for the Civ.R. 12(C) motion Miamisburg filed.    In ruling

on the motion, the trial court expressly relied on the copies of

postal return receipts that Miamisburg submitted     as Exhibits B

through F attached to its memorandum in reply to the “discovery

rule” argument that Plaintiffs made in opposition to Miamisburg’s

Civ.R. 12(C) motion.     Miamisburg’s Civ.R. 12(C) motion and the

memoranda that followed were not pleadings.   Therefore, the trial

court erred when it relied on the Exhibits in determining

Miamisburg’s Civ.R. 12(C) motion.

     {¶ 25} Miamisburg argues that Plaintiffs waived the error

because they failed to object to or move to strike the Exhibits.

 Miamisburg had asked the court to take judicial notice of the

Exhibits as copies of documents in the records of the clerk of

court, and the court apparently did that.     Miamisburg relies on

State ex rel. Neff v. Corrigan (1996), 75 Ohio St.3d 12, which

suggests that a court may take judicial notice of appropriate

matters in considering a Civ.R. 12(B)(6) motion to dismiss for

failure to state claim upon which relief may be granted without
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having to convert it to a motion for summary judgment.

     {¶ 26} We agree that Plaintiffs waived the trial court’s error

in taking judicial notice of the Exhibits on which Miamisburg

relied.   We also agree that a court may take judicial notice of

its own records.    However, whether the matter for which those

records were considered is “appropriate” depends on the purpose

for which they were considered.        That implicates Plaintiff’s

second contention: that a genuine issue of material fact remains

to be determined regarding their “discovery” argument.

     {¶ 27} Even though the applicable limitations period in state

law determines the statute of limitations period for 42 U.S.C.

§1983 actions, “federal law governs the determination of the

accrual date (that is, the date the statute of limitations begins

to run) for purposes of the statute of limitations in a section

1983 action.”   Ormiston v. Nelson, at p. 71.     Application of the

discovery rule may be appropriate in those actions.         Id.   The

statute of limitations begins to run “when the plaintiff knows

or has reason to know of the injury which is the basis of his action.”

 Singleton v. City of New York (1980), 632 F.2d 185, 191.

     {¶ 28} The pleadings do not support a finding that Plaintiffs

knew of their injury on January 8, 2008, the date on which Miamisburg

alleges it demolished the building on Plaintiff’s property.

Neither does the record demonstrate when Plaintiffs first learned
                                                                          10

that    the   building    had   been   demolished.       Nevertheless,    if

Plaintiffs by the exercise of reasonable diligence should have

known of their injury on a date more than two years before they

commenced their action, Miamisburg was entitled to a judgment of

dismissal on the Civ.R. 12(C) motion it filed.           O’Stricker v. Jim

Walter Corp.        (1983), 4 Ohio St.3d 84.

       {¶ 29} The   discovery   rule   requires   that    two   factors   be

discovered before the two-year limitations period in R.C. 2305.10

begins to run: first, a plaintiff must know or reasonably should

have known that he has been injured; second, a plaintiff must know

or reasonably should know that his injury was proximately caused

by     the conduct of defendant.       Viock v. Stowe-Woodward Company

(1983), 13 Ohio App.3d 7.         The statute of limitations does not

begin to run until both prongs are satisfied.            Norgard v. Brush

Wellman, Inc., 95 Ohio St.3d 165, 2002-Ohio-2007, at ¶9.            In that

case the Supreme Court explained:

       {¶ 30} “Since the rule’s adoption, the court has reiterated

that discovery of an injury alone is insufficient to start the

statute of limitations running if at that time there is no

indication of wrongful conduct of the defendant.            Moreover, the

court has been careful to note that the discovery rule must be

specially tailored to the particular context to which it is to

be applied.     Browning v. Burt (1993), 66 Ohio St.3d 544, 559, 613
                                                                 11

N.E.2d 993.”   Id., at ¶10.

     {¶ 31} In the determination of a Civ.R. 12(C) motion, the

nonmoving party is entitled to have all of the material allegations

in the pleading, with all reasonable inferences to be drawn

therefrom, construed in his favor as true.   State ex rel. Midwest

Pride IV, Inc. v. Pontious.   On that basis, reasonable minds could

conclude that the postal return receipts that were filed in the

foreclosure action Plaintiffs commenced should have put them on

notice that the building on their property may no longer exist.

 However, reasonable minds could also conclude that the Plaintiffs

would not thereby also have known that their injury was proximately

caused by Miamisburg’s demolition of the building, the foundation

of the wrongful conduct Plaintiff’s complaint alleges.   Therefore,

the trial court erred when it granted Miamisburg’s Civ.R. 12(C)

motion and dismissed Plaintiff’s 42 U.S.C. §1983 action.

     {¶ 32} Plaintiff-Appellant’s assignment of error is sustained.

 The judgment from which the appeal was taken will be reversed,

and the matter will be remanded for further proceedings, consistent

with our opinion.



FAIN, J. And HALL, J., concur.



Copies mailed to:
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David S. Anthony, Esq.
John N. Zomoida, Jr., Esq.
Robert J. Surdyk, Esq.
Kevin A. Lantz, Esq.
J. Joseph Walsh, Esq.
Hon. Connie S. Price
