[Cite as Emery v. State Farm Ins., 2015-Ohio-4056.]




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


Elisabeth Emery, et al.                               Court of Appeals No. S-15-010

        Appellants                                    Trial Court No. 15 CV 13

v.

State Farm Insurance, et al.                          DECISION AND JUDGMENT

        Appellees                                     Decided: September 30, 2015

                                                 *****

        Elisabeth Emery, pro se.

        J. Mark Trimble, Tracy B. Selis, for appellee, State Farm
        Mutual Insurance, Co.

        Micheael E. Lyford, for appellee, All Ohio Transportation Clyde 101 LLC.

                                                 *****
        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Elisabeth Emery, appeals from the February 25, 2015 judgment

of the Sandusky County Court of Common Pleas, which dismissed her complaint
pursuant to Civ.R. 12(B)(6) because it was filed beyond the statute of limitations. For the

reasons that follow, we affirm, in part, and reverse, in part.

         {¶ 2} The facts taken from the complaint are as follows. On December 31, 2012,

appellant was involved in a single-car rollover accident. She alleges that the accident

was caused by the presence of snow and sludge on the road, which was placed there by

appellee, All Ohio Transportation Clyde 101 LLC (“All Ohio”), when it plowed its

driveway.

         {¶ 3} On January 5, 2015, appellant, along with her husband, Roger Emery,1 filed

a pro se complaint against All Ohio, and against appellant’s auto insurer, appellee, State

Farm Insurance (“State Farm”). The complaint presented five counts. Counts One and

Two alleged negligence and negligence per se, respectively, against All Ohio. Counts

Three and Four alleged that State Farm is obligated to pay medical and related expenses,

and to provide uninsured and/or underinsured motorists coverage. Count Five does not

allege a cause of action, but simply states that “At all relevant times, Plaintiff, Roger

Emery was the owner of the Dodge Durango involved in the accident.”

         {¶ 4} Along with the complaint, appellant also filed a “Request for Filing

Extension,” in which she asked the court to extend the filing date one business day,

explaining that she had attempted to file the complaint on December 31, 2014, but the

clerk’s office was closed. She then attempted to file the complaint on Friday, January 2,




1
    Roger Emery is not included on the notice of appeal.


2.
2015, but was stuck in traffic. She stated that she called the clerk’s office and requested

that they stay open an additional ten minutes so that she could file the complaint. When

she arrived at the courthouse at 4:28 p.m., she found that the outside doors were locked.

Appellant further explained that in the months prior to the filing deadline, she had been in

a separate accident that rendered her car unreliable, preventing her from filing earlier.

       {¶ 5} On January 6, 2015, the trial court found appellant’s request for an extension

reasonable, and thus found her complaint to be within the statute of limitations.

       {¶ 6} Thereafter, on February 4, 2015, All Ohio filed a Civ.R. 12(B)(6) motion to

dismiss the complaint on the grounds that it was outside of the two-year statute of

limitations for claims of personal injury and property damage provided in R.C. 2305.10.2

Further, All Ohio argued that none of the statutorily provided exceptions to the two-year

time limit applied to appellant’s complaint. All Ohio contended that even if the clerk’s

office was closed on December 31, 2014, appellant was required to file the complaint by

January 2, 2015, the next succeeding business day. See R.C. 1.14 (“When a public office

in which an act, required by law, is to be performed is closed to the public for the entire

day that constitutes the last day for doing the act or before its usual closing time on that

day, the act may be performed on the next succeeding day that is not a Sunday or a legal

holiday as defined in this section.”). In this case, appellant failed to do so. Therefore, All

Ohio concluded that her complaint must be dismissed as beyond the statute of limitations.



2
 R.C. 2305.10(A) provides, “[A]n action for bodily injury or injuring personal property
shall be brought within two years after the cause of action accrues.”


3.
       {¶ 7} On February 5, 2015, State Farm filed an answer to appellant’s complaint, in

which it denied appellant’s allegations and raised numerous affirmative defenses,

including that the complaint was filed beyond the statute of limitations. State Farm’s

answer also included a cross-claim, alleging that it is entitled to contribution and/or

indemnity from All Ohio. State Farm, however, did not file a motion to dismiss. All

Ohio did not respond to the cross-claim.

       {¶ 8} On February 25, 2015, the trial court entered its judgment granting All

Ohio’s motion to dismiss. In its entry, the court noted that State Farm had filed an

answer which also raised the affirmative defense of failure to comply with the statute of

limitations. The court stated that, upon review of the law, there is no basis to extend the

time period for filing beyond the statutory limits. Thus, the trial court vacated its prior

January 6, 2015 entry, and dismissed appellant’s complaint as untimely.

                                   Assignments of Error

       {¶ 9} Appellant, pro se, has appealed the trial court’s February 25, 2015 decision,

asserting two assignments of error for our review:

              I. Was the trial court in error in dismissing the complaint as

       untimely when State Farm’s contract with Plaintiff states that the medical

       claim is extended to three years.

              II. Was the trial court operating outside the normal operating hours

       by locking the Courthouse doors early on Friday, January 2, 2015, after

       improperly closing without public notification on December 31, 2014.



4.
       Thus falling under the umbrella of excusable neglect permitting an

       extension of time for filing.

                                         Analysis

       {¶ 10} We review an order granting a Civ.R. 12(B)(6) motion to dismiss for

failure to state a claim upon which relief can be granted de novo. Perrysburg Twp. v.

Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. “In reviewing

whether a motion to dismiss should be granted, we accept as true all factual allegations in

the complaint.” Id.

                                Claims against State Farm

       {¶ 11} We will begin our analysis with appellant’s first assignment of error. In

that assignment, appellant argues that the trial court erred in dismissing her claims against

State Farm for uninsured/underinsured motorist coverage and for payment of medical

expenses because her contract extended the time for filing medical claims to three years.

       {¶ 12} State Farm, addressing appellant’s claims separately, first argues that the

trial court did not err in dismissing the uninsured/underinsured motorist claim because

appellant is not entitled to that coverage pursuant to the terms of the policy. State Farm

explained that appellant does not qualify for coverage because, due to her failure to file

the claim against All Ohio within the two-year statute of limitations, she did not protect

State Farm’s subrogation rights against All Ohio and is no longer legally entitled to

recover damages against All Ohio, both of which are preconditions to coverage.




5.
       {¶ 13} Turning to appellant’s claim regarding medical payments coverage, State

Farm states in its amended brief that it has paid the bills that were submitted by appellant.

Nevertheless, State Farm requests that the case be remanded to the trial court on that

claim so that counsel can seek to have it dismissed as not ripe due to appellant’s failure to

supply any medical bills or records that have not been paid by State Farm.

       {¶ 14} Upon review, we find that the trial court erred in dismissing appellant’s

complaint as against State Farm. Notably, State Farm did not file a motion to dismiss the

claims, instead choosing to file an answer with affirmative defenses. Thus, we must

conclude that the trial court dismissed her claims sua sponte. Relative to this subject, the

Ohio Supreme Court has stated that “The Rules of Civil Procedure neither expressly

permit nor forbid courts to sua sponte dismiss complaints.” State ex rel. Edwards v.

Toledo City School Dist. Bd. of Edn., 72 Ohio St.3d 106, 108, 647 N.E.2d 799 (1995).

“Generally, a court may dismiss a complaint on its own motion pursuant to Civ.R.

12(B)(6), failure to state a claim upon which relief may be granted, only after the parties

are given notice of the court’s intention to dismiss and an opportunity to respond.” Id.

“However, some courts have recognized an exception to the general rule, allowing sua

sponte dismissal without notice where the complaint is frivolous or the claimant

obviously cannot possibly prevail on the facts alleged in the complaint.” Id.

       {¶ 15} Here, the trial court did not give appellant notice of its intention to dismiss

the claims against State Farm, nor did it give her an opportunity to respond. Furthermore,

her claims against State Farm are not outside the statute of limitations. Unlike her tort



6.
claims against All Ohio, appellant’s claims against State Farm sound in contract, which is

subject to an eight-year statute of limitations pursuant to R.C. 2305.06. See Miller v.

Progressive Cas. Ins. Co., 69 Ohio St.3d 619, 624, 635 N.E.2d 317 (1994) (an action by

an insured against an insurance carrier for payment of benefits is a cause of action

sounding in contract). Therefore, we hold that the trial court erred in sua sponte

dismissing appellant’s claims against State Farm.3

       {¶ 16} Accordingly, appellant’s first assignment of error is well-taken.

       {¶ 17} In appellant’s second assignment of error, she contends that her complaint

should not be viewed as outside of the two-year statute of limitations for tort claims.

Citing Civ.R. 6(B)(2), appellant argues that her late filing falls under the umbrella of

excusable neglect because the court closed without notice on December 31, 2014, and

because she was stuck in traffic and the court closed two minutes early on January 2,

2015.4 Civ.R. 6(B)(2) provides,

              When by these rules or by a notice given thereunder or by order of

       court an act is required or allowed to be done at or within a specified time,

       the court for cause shown may at any time in its discretion * * * (2) upon

       motion made after the expiration of the specified period permit the act to be

       done where the failure to act was the result of excusable neglect.


3
 In so holding, the court makes no finding with respect to whether appellant’s claims
against State Farm are meritorious.
4
  Notably, the record contains nothing of evidentiary quality indicating that the court did,
in fact, close two minutes early on January 2, 2015.


7.
       {¶ 18} However, numerous Ohio courts have held that the time-extension

provisions under Civ.R. 6(B) apply only to an act to be done pursuant to (1) the civil

rules, (2) a notice given under the civil rules, or (3) an order of the court, and do not

apply to acts to be done pursuant to statutory provisions, such as R.C. 2305.10. See, e.g.,

Williams v. E. & L. Transport Co., 81 Ohio App.3d 108, 110, 610 N.E.2d 491 (9th

Dist.1991); Hughes v. Fed. Mogul Ignition Co., 5th Dist. Guernsey No. 06 CA 27, 2007-

Ohio-2021, ¶ 27; Ruch v. Ohio Dept. of Transp., 10th Dist. Franklin No. 03AP-1070,

2004-Ohio-6714, ¶ 23; McCullough v. Budd Co., 3d Dist. Wyandot No. 16-92-12, 1992

WL 180096, *2 (July 23, 1992).

       {¶ 19} Here, the two year statute of limitations ran on December 31, 2014.

Because the court was closed that day, appellant was required to file her complaint on the

following business day, January 2, 2015. Appellant failed to do so. Therefore, because

appellant filed her complaint outside of the statute of limitations, the trial court did not err

in dismissing her claims for personal injury and property damage in Counts One and Two

against All Ohio.

       {¶ 20} Accordingly, appellant’s second assignment of error is not well-taken.

       {¶ 21} As a final matter, we note that the trial court also sua sponte dismissed

Count Five. That count, however, was not directed at either appellee and did not allege a

cause of action. Thus, appellant could not possibly have prevailed on the count, and we

find no error in the trial court’s dismissal of it. See State ex rel. Edwards, 72 Ohio St.3d

at 108, 647 N.E.2d 799.



8.
                                       Conclusion

       {¶ 22} For the foregoing reasons, the judgment of the Sandusky County Court of

Common Pleas is affirmed, in part, and reversed, in part. The trial court’s dismissal of

Counts One and Two against All Ohio, and Count Five, is affirmed. The trial court’s

dismissal of Counts Three and Four against State Farm is reversed, and the matter is

remanded to the Sandusky County Court of Common Pleas for further proceedings on

those counts, and on State Farm’s cross-claim against All Ohio. Pursuant to App.R. 24,

appellant and State Farm are ordered to share the costs of this appeal.

                                                               Judgment affirmed, in part
                                                               and reversed, in part.


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




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
James D. Jensen, 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.sconet.state.oh.us/rod/newpdf/?source=6.




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