[Cite as Henton v. Ohio Dept. of Rehab. & Corr., 2017-Ohio-2630.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT



W.D. Henton,                                          :

                Plaintiff-Appellant,                  :

v.                                                    :                   No. 16AP-768
                                                                     (Ct. of Cl. No. 2016-00513)
Ohio Department of Rehabilitation                     :
and Correction,                                                     (REGULAR CALENDAR)
                                                      :
                Defendant-Appellee.
                                                      :



                                        D E C I S I O N

                                       Rendered on May 2, 2017


                On brief: W.D. Henton, pro se.

                On brief: Michael DeWine, Attorney General, and Stacy
                Hannan, for appellee.

                             APPEAL from the Court of Claims of Ohio
SADLER, J.
        {¶ 1} Plaintiff-appellant, W.D. Henton, appeals from the judgment entry of the
Court of Claims of Ohio granting the motion to dismiss of appellee, Ohio Department of
Rehabilitation and Correction ("ODRC"). For the following reasons, we affirm the trial
court judgment.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On June 27, 2016, appellant filed a complaint in the Court of Claims
alleging physical injuries from falling down a flight of stairs at Lorain Correctional
Institution on March 13, 2014. The date of filing is marked on the complaint. Appellee
filed a motion to dismiss asserting that appellant's complaint exceeded the two-year
No. 16AP-768                                                                                                2


statute of limitations governing civil actions against the state as set forth in R.C.
2743.16(A). Appellant filed a response on August 26, 2016.
        {¶ 3} On October 14, 2016, the Court of Claims granted appellee's motion to
dismiss. In doing so, the Court of Claims noted that dismissal under Civ.R. 12(B)(6),
based on a statute of limitations, is proper only when the face of the complaint
conclusively shows that the action is time-barred.                  The Court of Claims found that
appellant's complaint conclusively established that appellant's claim was time-barred as
the cause of action accrued on March 13, 2014 under Ohio law, and appellant filed his
complaint beyond the two-year statute of limitations.
        {¶ 4} Appellant filed a timely appeal to this court.
II. ASSIGNMENTS OF ERROR
        {¶ 5} Appellant presents two assignments of error:1
                [1.] [R.C.] 2305.15 Savings Clause; time tolled during
                imprisonment (b) When a person is imprisoned for the
                commission of any offense, the time the person's
                imprisonment shall not be computed as any part of any period
                of limitation, as provided in section 2305.09, 2305.10,
                2305.11, 2305.113, or 2305.14 of imprisoned person. 129 v 13;
                1953 H 1; GC 11228. note 2 * * * The court did not include the
                Statue that this objection by the use of the appellate process
                uses as the Assignment of Error 1: 2305.15 Savings Clause;
                time tolled during imprisonment.

                [2.] [R.C.] 2305.19 * * * In the court ruling Civ Rul 12 (B)(6)
                failure to state a claim upon which relief can be granted is not
                supported by the findings of the Court: * * * The ruling is fault
                as 2305.19 note 1. In general Allegations that an action is
                barred by the statute of limitations and that the savings
                statute, R.C. 2305.19 is inapplicable to save the action may not
                be asserted as grounds in support of a motion to dismiss filed
                pursuant to Civ R 12 (B)since the bar of the statue of
                limitations is an affirmative defense and it is not one of the
                defenses specifically permitted to be raised by civ R 12(B)
                prior to a responsive pleading. Paul v. world Metals, Inc(Ohio
                App. 9 Dist.,Summit, 02-28-2001)No. 20130,2001 WL

1 It is unclear from appellant's brief whether he intends only the first sentence after each "Assignment of

Error" title to serve as his assignments of error or whether he intended the entire four-page section entitled
"Statement of the assignments of error presented for review" as his statement of his assignments of error.
For sake of clarity, we have truncated appellant's text to include the essence of his alleged errors.
No. 16AP-768                                                                                                3


                196513, Unreported. Savings Statue afford plaintiffs
                opportunity to bring new action after running of limitations
                period when effort to bring original action in timely manner
                fails other wise than on its merits. Motorists Mut. Ins. Co. v.
                Huron rd. Hosp. (Ohio 1995) 73 Ohio St. 3d 391, 653, N.E.2d
                235. Civ 12(B)(6) Dismissal for failure to state a claim based
                on non-compliance with statute of limitations was
                inappropriate; consideration of limitation statue required
                court to look beyond averments of the complaint. * * * The
                court in its remarks and dismissal by the lack of Civ Rul 12
                (B)(6) failed to give the cause of why it was an affirmative
                defense such as expiration of applicable statute of limitations
                are generally not properly raised in motion to dismiss for
                failure to state claim unless complaint conclusively shows on
                its face that action is barred by statute of limitations. * * * The
                court has not shown by face of complaint or record statue of
                limitations or that the records do not reflect the complaint has
                not merit of claim for relief. * * * Violating the statue of
                2905.15 and 2905.192 with violation of instructions of Civil
                rule 12(B)(6)note. 2; 3.

(Sic passim.)
III. STANDARD OF REVIEW
        {¶ 6} Under Civ.R. 12(B)(6), a defendant may move to dismiss a complaint for
failure to state a claim on which relief can be granted. Coleman v. Columbus State
Community College, 10th Dist. No. 15AP-119, 2015-Ohio-4685, ¶ 6. "A Civ.R. 12(B)(6)
motion to dismiss for failure to state a claim upon which relief can be granted is
procedural and tests the sufficiency of the complaint." Rudd v. Ohio State Hwy. Patrol,
10th Dist. No. 15AP-869, 2016-Ohio-8263, ¶ 11.
        {¶ 7} In reviewing a motion to dismiss, pursuant to Civ.R. 12(B)(6), the court may
not rely on allegations or evidence outside the complaint.                     Id.    In considering the
complaint, the court "must construe the complaint in the light most favorable to the
plaintiff, presume all factual allegations in the complaint are true, and make all
reasonable inferences in favor of the plaintiff." Coleman at ¶ 6, citing Mitchell v. Lawson
Milk Co., 40 Ohio St.3d 190, 192 (1988). However, the court need not accept as true any
unsupported and conclusory legal propositions advanced in the complaint. Rudd at ¶ 12,

2At times. appellant's brief cites to R.C. 2905.15 and 2905.19, which do not exist; we read these to mean R.C.
2305.15 and 2305.19.
No. 16AP-768                                                                                 4


citing Morrow v. Reminger & Reminger Co., LPA, 183 Ohio App.3d 40, 2009-Ohio-2665,
¶ 7 (10th Dist.). The dismissal of a complaint for failure to state a claim is proper when it
appears, beyond doubt, that the plaintiff can prove no set of facts entitling him to relief.
Rudd at ¶11, citing O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242
(1975), syllabus. Where the motion to dismiss is based on the application of a statute of
limitations, the motion may be granted when the complaint shows conclusively on its face
that the action is time-barred. Coleman at ¶ 6; Leichliter v. Natl. City Bank of Columbus,
134 Ohio App.3d 26, 32 (10th Dist.1999). See also Cundall v. U.S. Bank, 122 Ohio St.3d
188 (2009). An appellate court reviews a trial court's dismissal, pursuant to Civ.R.
12(B)(6), under a de novo standard of review. State ex rel. Ohio Civ. Serv. Emps. Assn. v.
State, 146 Ohio St.3d 315, 2016-Ohio-478, ¶ 12.
IV. DISCUSSION
       A. First Assignment of Error
       {¶ 8} Under the first assignment of error, appellant contends that the trial court
erred in failing to apply R.C. 2305.15(B) to toll time while appellant was imprisoned. We
disagree.
       {¶ 9} The statute of limitations for claims brought in the Court of Claims is set
forth in R.C. 2743.16(A), which provides, in pertinent part: "civil actions against the state
permitted by sections 2743.01 to 2743.20 of the Revised Code shall be commenced no
later than two years after the date of accrual of the cause of action or within any shorter
period that is applicable to similar suits between private parties." "Under Ohio law, the
general rule is that 'a cause of action accrues and the statute of limitations begins to run at
the time the wrongful act was committed.' " Marok v. Ohio State Univ., 10th Dist. No.
13AP-12, 2014-Ohio-1184, ¶ 25, discretionary appeal not allowed, 140 Ohio St.3d 1415,
2014-Ohio-3785, quoting Collins v. Sotka, 81 Ohio St.3d 506, 507 (1998).
       {¶ 10} R.C. 2305.15(B), "[t]olling of limitation during defendant's absence,
concealment or imprisonment," states:
              When a person is imprisoned for the commission of any
              offense, the time of the person's imprisonment shall not be
              computed as any part of any period of limitation, as provided
              in section 2305.09, 2305.10, 2305.11, 2305.113 or 2305.14 of
No. 16AP-768                                                                                5


               the Revised Code, within which any person must bring any
               action against the imprisoned person.

R.C. 2305.15(B) plainly applies to toll a statute of limitations where the defendant is
imprisoned and does not toll the statute of limitations for inmates who wish to sue others.
As a result, the trial court did not err in not considering R.C. 2305.15(B) in relation to the
statute of limitations in this case.
       {¶ 11} Accordingly, appellant's first assignment of error is overruled.
       B. Second Assignment of Error
       {¶ 12} Appellant's position under his second assignment of error, which references
R.C. 2305.19, the "[s]avings in case of reversal" statute, is unclear. R.C. 2305.19(A) states
in pertinent part:
               In any action that is commenced or attempted to be
               commenced, if in due time a judgment for the plaintiff is
               reversed or if the plaintiff fails otherwise than upon the
               merits, the plaintiff or, if the plaintiff dies and the cause of
               action survives, the plaintiff's representative may commence
               a new action within one year after the date of the reversal of
               the judgment or the plaintiff's failure otherwise than upon
               the merits or within the period of the original applicable
               statute of limitations, whichever occurs later. This division
               applies to any claim asserted in any pleading by a defendant.

       {¶ 13} "The savings statute 'is neither a statute of limitations nor a tolling statute
extending the statute of limitations. Instead, it is clear that R.C. 2305.19 has no
application unless an action is timely commenced and is then dismissed without prejudice
after the applicable statute of limitations has run.' " Allen v. McBride, 10th Dist. No.
03AP-432, 2003-Ohio-7158, ¶ 27, affirmed, 105 Ohio St.3d 21, 2004-Ohio-7112, quoting
Lewis v. Conner, 21 Ohio St.3d 1, 4 (1985).
       {¶ 14} Appellant's argument in support of his assignment of error appears to assert
that R.C. 2305.19 should save his claim after we reverse the trial court's decision due to
the trial court's error in not tolling the statute of limitations under R.C. 2305.15(B).
Because we determined in the first assignment of error that appellant is not entitled to
tolling due to imprisonment under R.C. 2305.15(B), this issue is moot.                App.R.
12(A)(1)(c).
No. 16AP-768                                                                              6


       {¶ 15} To the extent appellant challenges the trial court's application of the Civ.R.
12(B)(6) standard in regard to R.C. 2305.19, this argument lacks merit. As previously set
forth in the standard of review, a motion to dismiss based on the application of a statute
of limitations may be granted when the complaint shows conclusively on its face that the
action is time-barred. Coleman at ¶ 6; Leichliter at 32. The trial court stated the
appropriate standard of review, looked only to information in the complaint, and
concluded that the face of the complaint conclusively established that appellant's
complaint is time-barred under Ohio law. After independent review of the matter, we find
that the trial court did not err in not considering R.C. 2305.19, as R.C. 2305.19 clearly
does not apply to the facts of this case. Allen at ¶ 27. Appellant has not otherwise met his
burden to affirmatively demonstrate error on appeal. Watkins v. Holderman, 10th Dist.
No. 11AP-491, 2012-Ohio-1707, ¶ 11; App.R. 16(A).
       {¶ 16} Accordingly, appellant's second assignment of error is overruled.
V. CONCLUSION
       {¶ 17} Having overruled appellant's two assignments of error, we affirm the
judgment of the Court of Claims of Ohio.
                                                                       Judgment affirmed.

                     DORRIAN and LUPER SCHUSTER, JJ., concur.
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