[Cite as Shury v. Greenaway, 2014-Ohio-1629.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100344




                                  DONALD P. SHURY
                                                      PLAINTIFF-APPELLANT

                                                vs.

                     PATRICIA ALLEN GREENAWAY
                                                      DEFENDANT-APPELLEE




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-12-794684

        BEFORE: McCormack, J., Jones, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: April 17, 2014
ATTORNEYS FOR APPELLANT

Scott H. Schooler
George L. Forbes
Forbes, Fields & Associates
700 Rockefeller Building
614 West Superior Avenue
Cleveland, OH 44113


ATTORNEY FOR APPELLEE

James E. Nagy
19120 Old Detroit Road
Suite 7
Rocky River, OH 44116
TIM McCORMACK, J.:

       {¶1} Donald Shury filed a complaint in 2012 alleging his former girlfriend,

Patricia Allen Greenaway, failed to compensate him for funds he expended on her behalf

between 2002 and 2006, when they resided together. The Cuyahoga County Court of

Common Pleas granted summary judgment in Greenaway’s favor, on the ground that

Shury’s claims were time barred.          We agree with the trial court that Shury’s complaint

was filed untimely. However, Greenaway failed to raise the affirmative defense of the

statute of limitations in her answer and, therefore, waived that defense.               Consequently,

we are constrained to reverse the judgment of the trial court.

                          Substantive Facts and Procedural History

       {¶2} Shury and Greenaway cohabitated from 2002 to March 2006 at Shury’s

home in Cleveland.       During the time, Greenaway owned a house in Lakewood and Shury

paid for the costs of labors and materials of several home improvement projects for the

Lakewood house.        The house was rented, and the rental payments were used to pay for its

mortgage.     The couple broke up in March 2006.

       {¶3} Six years later, in June 2012, Shury filed a complaint against Greenaway,

alleging breach of oral contract, unjust enrichment, and fraud.1 Shury alleged he paid for


         Due to Shury’s counsel not appearing at a case management conference, the trial court
       1


dismissed the complaint without prejudice, and Shury refiled the complaint in October 31, 2012.
“When a complaint is refiled under the saving statute, the case relates back to the date of the original
complaint for purposes of satisfying any statute of limitations problems.” Merino v. Salem Hunting
Club, 7th Dist. Columbiana No. 11CO2, 2012-Ohio-4553, ¶ 13. Shury did not state in his refiled
complaint that the complaint was refiled under the saving statute, therefore, for purposes of the statute
of limitations, the filing date is October 31, 2012.
the repairs for the driveway, foundation, bathroom, and the             alarm system of the

Lakewood house, and also provided Greenaway with two automobiles, as well as

“thousands of dollars” in cash, “thousands of dollars” in room and board, and “thousands

of dollars” in clothing and other goods for her and her child. Shury alleged all the funds

were provided by him to Greenaway with the understanding by the two of them that he

would be reimbursed by her.

       {¶4} In response, Greenaway filed a “Motion to Dismiss or Alternatively Motion

for a Definite Statement” pursuant to Civ.R. 12(B) and (E).        In the motion, Greenaway

asserted that Shury failed to state a claim upon which relief can be granted pursuant to

Civ.R. 12(B)(6), and that the claims were barred by the statute of limitations; Greenaway

requested, in the alternative, that plaintiff be ordered to file an amended complaint.

       {¶5} The trial court issued a journal entry, stating that Greenaway’s motion “is

granted in part.   Plaintiff to file a more definite statement.”   In response, Shury filed an

amended complaint. He specified that it was in 2003 that he provided the funds for the

various home repair projects and the automobiles; that cash of $10,000 was provided

between 2002 to 2006. He also alleged the total funds owed by Greenaway was $31,000.

 In addition, Shury alleged that the parties made new, separate oral agreements on three

different occasions for Greenaway to pay him the funds: On September 28, 2008,

October 6, 2009, and November 13, 2009, he gave Greenaway silverware, place settings,
furniture, and other household items in exchange for her “continued agreement” to

compensate him.

       {¶6} Greenaway filed an answer to the amended complaint.                    She raised an

assortment of affirmative defenses, claiming that Shury’s complaint failed to state a claim

upon which relief may be granted, failed under the doctrines of estoppel, latches, and

unclean hands, that Shury failed to mitigate his damages, and that his claims are barred by

res judicta and claim preclusion.2       She did not, however, raise the statute-of-limitations

defense in her answer.

       {¶7} Thereafter, Greenaway filed a trial brief. She denied the existence of any

agreement requiring her to reimburse Shury, and asserted his claims were time barred.            In

response, Shury filed a “motion in limine prohibiting any statute of limitation defense,” on

the ground that Greenaway failed to properly assert that defense in her answer.           The trial

court denied Shury’s motion and issued a journal entry stating “leave to file summary

judgment is granted as to the issue of the statute of limitations only,” although no such

leave was requested by either party.

       {¶8} In her motion for summary judgment, Greenaway argued the causes of

action accrued when the funds were provided by Shury but were not reimbursed, i.e., by

March 2006, when the parties ceased to cohabitate; therefore, Shury’s October 2012

complaint was time barred. In his response opposing summary judgment, Shury argued



         Apparently Greenaway had filed a replevin action against Shury in Cleveland Municipal Court
       2


requesting Shury return various household items to her.
that the new agreements in 2008 and 2009 created separate oral contracts — the

consideration being the additional household items he gave to her on each occasion — and

therefore, the statute of limitations did not begin to run until 2008–2009.

       {¶9} To prove the existence of the 2008–2009 agreements, Shury attached his

own affidavit, which stated that on September 28, 2008, October 6, 2009, and November

13, 2009, he met with Greenaway and, in exchange for silverware, place settings,

furniture, and other household items, she orally agreed to compensate him for the funds he

provided during the time they cohabitated.3

       {¶10} The trial court granted summary judgment in favor of Greenaway, holding

that Shury’s claims were time barred, on the ground that the statute of limitations for his

claims expired before he filed the complaint in 2012.

       {¶11} Shury now appeals and raises three assignment of error.            They state:

       1.      The trial court erred in granting summary judgment in favor of
               defendant-appellee      Patricia     Allen    Greenaway        because
               defendant-appellee Greenaway failed to raise the statute of limitations
               as an affirmative defense in its answer.

       2.      The trial court erred when it unilaterally granted leave to file a motion
               for summary judgment on the issue of statute of limitations. The
               trial court does not have the authority to raise an affirmative defense
               on its own since defendant appellee Greenaway failed to do so
               herself.




         In addition to his own affidavit, Shury also submitted affidavits by Steven Hrusovsky and
       3


Anna Kucirek. It is unclear who these individuals are, but they provided identical affidavits, stating
that on those three occasions, they witnessed Shury giving various household items to Greenaway and
heard Greenaway agreeing to pay Shury for the funds he had provided her.
       3.     The trial court erred in granting summary judgment in favor of
              defendant-appellee Patricia Allen Greenaway. There are genuine
              issues of material fact as to whether plaintiff-appellant Donald P.
              Shury’s claims are barred by the applicable statutes of limitations.

We address the first and third assignments of error together.

       {¶12} An appellate court reviews summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment is

appropriate where it appears that:    (1) there is no genuine issue as to any material fact; (2)

the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can

come to but one conclusion, and that conclusion is adverse to the party against whom the

motion for summary judgment is made, who is entitled to have the evidence construed

most strongly in his favor.   Harless v. Willis Day Warehousing Co., Inc., 54 Ohio St.2d

64, 66, 375 N.E.2d 46 (1978); Civ.R. 56(C).

                                     Statute of Limitations

       {¶13} R.C. 2305.07 provides a six-year statute of limitations for a

breach-of-oral-contracts claim. The cause of action of such a claim accrues when the

plaintiff “discovers the failure to perform as agreed in an oral contract.” Dandrew v.

Silver, 8th Dist. Cuyahoga No. 86089, 2005-Ohio-6355, ¶ 15, citing Aluminum Line Prods.

Co. v. Brad Smith Roofing Co., Inc., 109 Ohio App.3d 246, 671 N.E.2d 1343 (8th

Dist.1996).   See also Kotyk v. Rebovich, 87 Ohio App.3d 116, 621 N.E.2d 897 (8th

Dist.1993) (a cause of action on an oral contract accrues when the omission to perform as

agreed is discovered).
       {¶14} R.C. 2305.07 also provides a six-year statute of limitations for a claim of

unjust enrichment.   A cause of action for unjust enrichment accrues “from the date that

money is retained under circumstances where it would be unjust to do so.” Palm Beach

Co. v. Dun & Bradstreet, 106 Ohio App.3d 167, 175 665 N.E.2d 718 (1st Dist.1995). A

cause of action for fraud has a four-year statute of limitations, R.C. 2305.09(C), and the

claim accrues when the fraud and wrongdoer are discovered.       Collins v. Sotka, 81 Ohio

St.3d 506, 515, 692 N.E.2d 581 (1998).

       {¶15} A reading of Shury’s (amended) complaint shows he alleged he provided the

funds for various purposes to Greenaway during the time they cohabitated from 2002 to

2006, under an agreement that he would be reimbursed by Greenaway, but Greenaway

never fulfilled her obligation to compensate him. All the funds were provided in 2003,

with the exception of $10,000 in cash, which Shury alleged was given to Greenaway

“between 2002 and 2006.”      As such,   all three alleged causes of action accrued, at the

latest, in March 2006, when the relationship was ended; by that time, even if all the

allegations were true, Shury would have been aware that Greenaway would not honor the

purported agreement to reimburse him, wrongfully retained the money, and/or perpetrated

a fraud on him.

       {¶16} On appeal,    Shury argues that the   2008–2009 agreements were three new,

separate contracts and that Greenaway’s failure to pay under those contracts gave rise to the

causes of action in this case and, therefore, his 2012 complaint was well within the

statutory time.
       {¶17} Shury essentially argues that the agreements he sought to enforce in this

action are the 2008–2009 agreements, not the agreement formed in the 2002-2006 period.

This claim is incongruous because there is only one purported debt owed in this case (in

the amount of $31,000) and the debt was incurred and remained unpaid during 2002 to

2006, when the parties cohabitated.       In other words, the various causes of action

stemming from the alleged $31,000 debt accrued, at the latest, in March 2006, when the

couple parted ways.    The alleged new agreements do nothing to change the fact that the

statutory time for any claims stemming from Greenaway’s failure to pay the $31,000

“debt” began to run in 2006, when Shury would have been well aware that Greenaway

would not honor the alleged promise to pay. As such, Shury’s claims were time barred.

       {¶18} Greenaway, though, waived the statute-of-limitations defense. Although she

raised the defense in her Civ.R. 12(B) motion, she failed, glaringly, to raise it in her

answer, as she was required to under the rules of pleading, by which this appeal is

determined.

       {¶19} Civ.R. 8(C) (“Affirmative defenses”)           provides for how affirmative

defenses, such as the statute of limitations, is to be raised. The rule states that “[i]n

pleading to a preceding pleading, a party shall set forth affirmatively * * * statute of

limitations * * * and any other matter constituting an * * * affirmative defense.”

       {¶20} Pursuant to the rule, an affirmative defense such as the statute of limitations

must be raised in a “pleading.”   A “pleading,” as defined in Civ.R. 7(A), does not include

a motion to dismiss. See, e.g., Cashelmara Villas Partnership v. Dibenedetto, 87 Ohio
App.3d 809, 815, 623 N.E.2d 213 (8th Dist.1993) (a motion to dismiss is not a pleading

pursuant to Civ.R. 7(A)).

       {¶21} For that reason, the Supreme Court of Ohio has held that “[a]ffirmative

defenses other that those listed in Civ.R. 12(B) are waived if not raised in the pleadings or

in an amendment to the pleadings.” Jim’s Steak House, Inc. v. Cleveland, 81 Ohio St.3d

18, 20, 688 N.E.2d 506 (1998), citing Civ.R. 8 and 15. Because the statute of limitations

is not one of the defenses listed in Civ.R 12(B), it is waived if not properly raised in a

pleading.    See Zindroski v. Parma City School Dist. Bd. of Edn., 8th Dist. Cuyahoga No.

93583, 2010-Ohio-3188, ¶ 18 (the defense of statute of limitations is an affirmative

defense that must be raised in a responsive pleading under Civ.R. 8(C), or it will be

considered waived); BP Communications Alaska, Inc. v. Cent. Collection Agency, 136

Ohio App.3d 807, 812, 737 N.E.2d 1050 (8th Dist.2000).

       {¶22} Thus, Greenaway’s assertion of the statute-of-limitations defense in a Civ.R.

12(B) motion to dismiss does not relieve her of the requirement imposed by the civil rules

to raise that defense in a “pleading.”       Her failure to raise the statute of limitations in her

answer fatally waived that defense.             Therefore, the trial court improperly granted

summary judgment in her favor.4




         Because we reverse the trial court’s judgment based on our determination that the
       4


defendant-appellee waived the-statute-of-limitations defense, we decline to address the issue raised in
the second assignment of error regarding whether the trial court erred in sua sponte granting leave to
file a motion for summary judgment.
       {¶23} Judgment reversed, and matter remanded for further proceedings consistent

with this opinion.

       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.


______________________________________________
TIM McCORMACK, JUDGE

LARRY A. JONES, SR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
