       [Cite as Miller v. Lincoln Hts., 197 Ohio App.3d 285, 2011-Ohio-6722.]




                             IN THE COURT OF APPEALS
                      FIRST APPELLATE DISTRICT OF OHIO
                              HAMILTON COUNTY, OHIO




MILLER,                                         :          APPEAL NO. C-110276
                                                           TRIAL NO. A-1008486
     Appellee,                                  :
                                                                 O P I N I O N.
v.                                              :

VILLAGE OF LINCOLN HEIGHTS,                     :

     Appellant.                                 :




       Civil Appeal From: Hamilton County Court of Common Pleas

       Judgment Appealed From Is: Reversed and Cause Remanded

       Date of Judgment Entry on Appeal: December 28, 2011



       Mann & Mann, L.L.C , David S. Mann, and Michael T. Mann, for appellee.

       Santen & Hughes, L.P.A., Deepak K. Desai, and Brian P. O’Connor, for
appellant.



       D INKELACKER , Presiding Judge.

       {¶ 1}     Defendant-appellant the Village of Lincoln Heights appeals from a

judgment of the Hamilton County Court of Common Pleas awarding plaintiff-appellee
Scott A. Miller paid military leave under R.C. 5923.05(A). Because we find that Miller’s

complaint was filed outside the applicable statute of limitations, we reverse the trial

court’s judgment.

         {¶ 2}   The case was tried on joint stipulations of fact. The record shows that

from November 1999 to January 2005, Miller was a permanent public employee of the

Lincoln Heights Police Department. During that time, he was also a member of the

Army National Guard.

         {¶ 3}   Miller “performed service in the uniformed services” from October 9,

2001, to September 11, 2002, and from February 7, 2003, to March 1, 2004. For each of

these deployments, he was called or ordered to the uniformed services for longer than a

month.

         {¶ 4}   During the deployments, Miller’s gross pay for “performing services in

the uniformed services” exceeded the gross pay he would have earned working for

Lincoln Heights during the same period. Lincoln Heights did not pay Miller during his

deployments, and he did not render any services to the village.

         {¶ 5}   On September 17, 2010, Miller filed a complaint against Lincoln Heights

seeking to recover wages that he alleged that he was entitled to be paid under R.C.

5923.05 while he was on military leave from his employment. Lincoln Heights filed a

motion to dismiss Miller’s complaint under Civ. R. 12(B)(6), in which it argued that the

six-year statute of limitations had run. Miller filed a memorandum in response in which

he argued that the time was tolled under the Servicemembers Civil Relief Act, 50

Appendix, U.S.C. 526(a) (“SCRA”). Miller also filed a motion to amend his complaint

to add that he had been on “active duty military service” as defined by the SCRA. The

trial court permitted the amendment and, based on that amendment, overruled Lincoln

Heights’s motion to dismiss.



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       {¶ 6}    After the trial on the stipulated facts, the trial court held that the time to

file the complaint had been tolled under SCRA. It awarded Miller judgment in the

amount of $9,134.40 plus prejudgment interest of $4,428.55. This appeal followed.

       {¶ 7}    In its sole assignment of error, Lincoln Heights contends that the trial

court erred in granting judgment in favor of Miller.          It argues that the statute of

limitations had not been tolled under SCRA because Miller had failed to present evidence

showing that he had been engaged in active military service during the time that he

claimed the limitations period had been tolled. This assignment of error is well taken.

       {¶ 8}    The parties do not dispute that the six-year statute of limitations for “an

action * * * upon a liability created by statute” in R.C. 2305.07 applies. We agree. An

action upon a liability created by statute is “one that would not exist but for the statute.”

McAuliffe v. W. States Import Co., Inc., 72 Ohio St.3d 534, 538, 651 N.E.2d 957 (1995).

Numerous courts have applied the six-year statute of limitations to cases involving

public-employee compensation. See, e.g., Harville v. Franklin, 12th Dist. No. CA91-01-

003, 1991 WL 144318 (July 29, 1991); Niswonger v. Cincinnati, 17 Ohio App.2d 200,

205-206, 245 N.E.2d 375 (1st Dist.1968); Welch v. Lima, 89 Ohio App. 457, 465-466,

102 N.E.2d 888 (3rd Dist.1950).

       {¶ 9}    If the time had not been tolled, then Miller’s action was not filed within

the applicable statute of limitations. Once Lincoln Heights showed that the complaint

had not been filed within the applicable limitations period, Miller then bore the burden to

show that the statute of limitations had been tolled. See Simpson v. Neidlinger, 1st Dist.

No. C-950649, 1996 WL 656357 (Nov. 13, 1996); Spence v. Gohara, 6th Dist. No. L-94-

043, 1994 WL 590528 (Oct. 28, 1994).

       {¶ 10} 50 Appendix, U.S.C. 526(a) provides, “The period of a servicemember’s

military service may not be included in computing any period limited by law, regulation,



                                             3
or order for the bringing of any action or proceeding in a court, or in any board, bureau,

commission, department, or other agency of a State (or political subdivision of a State) or

the United States by or against the servicemember or the servicemember’s heirs,

executors, administrators, or assigns.”

       {¶ 11} 50 Appendix, U.S.C. 511(2), states, “The term ‘military service’ means

(A) in the case of a servicemember who is a member of the Army, Navy, Air Force,

Marine Corps, or Coast Guard – (i) active duty, as defined in section 101(d)(1) of title 10,

United States Code, and (ii) in the case of a member of the National Guard, includes

service under a call to active service authorized by the President or the Secretary of

Defense for a period of more than 30 consecutive days under section 502(f) of title 32,

United States Code, for purposes of responding to a national emergency declared by the

President and supported by Federal funds.”

       {¶ 12} Thus, the federal statutes clearly draw a distinction between the National

Guard and other branches of the military.        Courts deciding whether service in the

National Guard constitutes “military service” within the meaning of SCRA have looked

to the definition of “active duty” in 10 U.S.C. 101. They have stated that “ ‘the SCRA

expressly points to “active duty” as the touch stone [sic] activating its tolling

provisions.’ ” Gutridge v. Suburban Steel Supply Co., 5th Dist. No. 2007 CA 00110,

2008-Ohio-3902, 2008 WL 2953662, ¶ 20, quoting Lazarski v. Archdiocese of

Philadelphia, 2007 Pa. Super 142, 926 A.2d 459, 469 (2007).

       {¶ 13} 10 U.S.C. 101(d) states that “(1) The term ‘active duty’ means full-time

duty in the active military service of the United States. Such term includes full-time

training duty, annual training duty, and attendance, while in the active military service, at

a school designated as a service school by law or by the Secretary of the military




                                             4
department concerned. Such term does not include full-time National Guard duty.”

(Emphasis added.)

       {¶ 14} Relying on this section, courts have held that the term “active duty” does

not include training performed by a member of the National Guard. Therefore, that

training does not toll a statute of limitations. Gutridge, 2008-Ohio-3902, 2008 WL

2953662, at ¶ 22; Bowen v. United States, 292 F.3d 1383, 1386 (Fed.Cir.2002).

       {¶ 15} In Freeman v. United States, 98 Fed.Cl. 360 (Ct.Cl.2011), the court

stated, “Although ‘active duty’ includes periods of ‘full-time training duty, annual

training duty, and attendance, while in the active military service, at a school,’ ‘full-time

National Guard duty’ is explicitly excluded from the definition of ‘active duty.’ ” Id. at

371-372. It went on to hold, “For the periods [that the servicemember] was not serving in

his federal capacity on active duty in the Reserve, he was serving in his state capacity on

‘full-time National Guard duty.’” Id. at 372.

       {¶ 16} In this case, the stipulated facts provided that Miller was a member of the

Army National Guard and that he “performed service in the uniformed services” on

specified dates.    They do not specify whether he was in federal service, which is

necessary for SCRA to apply, or in training, which is state service.

       {¶ 17} In his amended complaint, he alleged that he was on “active duty,” which

was sufficient to defeat the Civ.R. 12(B) motion to dismiss. In ruling on that motion, the

trial court was limited to considering the face of the complaint and was required to take

all the allegations in the complaint as true. See Mitchell v. Lawson Milk. Co., 40 Ohio

St.3d 190, 192, 532 N.E.2d 753 (1988); Mann v. Cincinnati Enquirer, 1st Dist. No. C-

090747, 2010-Ohio-3963, 2010 WL 3328631, ¶ 11. But the stipulated facts did not

contain any language to prove that allegation; they did not specify that he was on active

duty as defined in the federal statutes.



                                             5
       {¶ 18} Miller also submitted unauthenticated documents titled “discharge from

active duty,” attached to a memorandum in response to Lincoln Heights’s motion to

dismiss. But the trial court could not properly have considered those documents when

ruling on the motion to dismiss under Civ.R. 12(B)(6) because they were never properly

before it. The court correctly did not consider them. See Coors v. Fifth Third Bank, 1st

Dist. No. C-050927, 2006-Ohio-4505, 2006 WL 2520322, ¶ 10-11. They were not made

a part of the stipulated facts, and we also cannot consider them.

       {¶ 19} Miller bore the burden to show that SCRA tolled the statute of

limitations. Based on the limited information in the stipulated facts, we reluctantly come

to the conclusion that he failed to meet his burden of proof.

       {¶ 20} We note that the stipulations of fact stated that Miller had been

performing “service in the uniformed services.” This language is the same as in R.C.

5923.05(A)(2)(e), and its definition does not include service in the national guard. But

that definition goes to the merits of whether the employee is entitled to the pay under

R.C. 5923.05. When discussing whether the statute of limitations is tolled under SCRA,

the federal definitions apply.

       {¶ 21} We hold that Miller did not file his complaint within the applicable

statute-of-limitations period. Consequently, we sustain the village’s assignment of error.

We reverse the trial court’s judgment and remand the case to the trial court with

instructions to dismiss Miller’s complaint.



                                                                       Judgment reversed

                                                                     and cause remanded.


H ENDON and C UNNINGHAM , JJ., concur.




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