[Cite as Walker v. Nationwide Mut. Ins. Co., 2015-Ohio-5371.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

William D. Walker,                                  :

                Plaintiff-Appellant,                :
                                                                    No. 15AP-520
v.                                                  :            (C.P.C. No. 14CV-13157)

Nationwide Mutual Insurance Company, :                          (REGULAR CALENDAR)

                Defendant-Appellee.                 :


                                             DECISION

                                  Rendered on December 22, 2015


                Caryn Groedel & Associates, Co., LPA, Caryn M. Groedel,
                and Lori M. Griffin, for appellant.

                Jones Day, Matthew A. Kairis, Tonya B. Braun, and
                Kimberly A. Jolson, for appellee.

                  APPEAL from the Franklin County Court of Common Pleas

TYACK, J.
        {¶ 1} William D. Walker, a resident of Tennessee, filed a lawsuit in Ohio seeking
damages for his being fired by Nationwide Mutual Insurance Company ("Nationwide"). A
judge of the Franklin County Court of Common Pleas denied Walker's motion for leave to
file a second amended complaint, and granted Nationwide's motion to dismiss for failure
to state a claim. The trial court found that the Tennessee statute of limitations applied to
Walker's lawsuit and that Walker had filed the lawsuit outside of the time permitted by
Tennessee law. Walker has appealed the judgment of the trial court and assigned four
errors for our consideration:
                [I.] The trial court erred in dismissing Appellant's Amended
                Complaint based on Appellee's statute of limitations defense
No. 15AP-520                                                                         2


               when it was not conclusively shown on the face of Appellant's
               Amended Complaint that his claims are time-barred.

               [II.] The trial court erred in denying Appellant's Motion for
               Leave to File his Second Amended Complaint based on
               "futility" even though it would not have been futile for Plaintiff
               to file his Second Amended Complaint because the Second
               Amended Complaint does not conclusively shown [sic] on its
               face that Appellant's claims are time-barred.

               [III.] The trial court erred in converting Appellee's Motion to
               Dismiss to a Motion for Summary Judgment without
               providing notice to the parties, and without providing the
               parties with a reasonable opportunity to conduct discovery.

               [IV.] When considering Appellee's Motion to Dismiss, the trial
               court erred in drawing inferences in favor of Appellee, the
               moving party, rather than in favor of Appellant, the non-
               moving party, in contravention of Rule 12(B)(6) of the Ohio
               Rules of Civil Procedure.

         {¶ 2} For ease of discussion we shall address the assignments of error out of
order.
         {¶ 3} As noted in the assignments of error, the trial court granted a motion to
dismiss filed on behalf of Nationwide, not a motion for summary judgment. Our standard
in evaluating an appeal of a trial court's granting of a motion to dismiss is de novo.
Fisher v. Mallik, 10th Dist. No. 14AP-140, 2015-Ohio-1008, ¶ 9.
               A motion to dismiss under Civ.R. 12(B)(6) for failure to state a
               claim is procedural and tests the sufficiency of the complaint.
               Volbers-Klarich v. Middletown Mgt., Inc., 125 Ohio St.3d
               494, 2010-Ohio-2057, 929 N.E.2d 434, ¶ 11, citing Assn. for
               Defense of Washington Local School Dist. v. Kiger, 42 Ohio
               St.3d 116, 117, 537 N.E.2d 1292 (1989). Dismissal for failure to
               state a claim is proper if, after all factual allegations are
               presumed to be true and all reasonable inferences are made in
               favor of the non-moving party, it appears beyond doubt from
               the complaint that the plaintiff could prove no set of facts
               warranting the requested relief. State ex rel. Turner v. Houk,
               112 Ohio St.3d 561, 2007-Ohio-814, 862 N.E.2d 104, ¶ 5;
               O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio
               St.2d 242, 327 N.E.2d 753 (1975), syllabus. In considering a
               motion to dismiss under Civ.R. 12(B)(6), the court looks only
               to the complaint to determine whether the allegations are
No. 15AP-520                                                                               3


               legally sufficient to state a claim. Springfield Fireworks, Inc.
               v. Ohio Dept. of Commerce, 10th Dist. No. 03AP-330, 2003-
               Ohio-6940, 2003 WL 22976621, ¶ 12. We review the dismissal
               of a complaint pursuant to Civ.R. 12(B)(6) under a de novo
               standard. Woods v. Riverside Methodist Hosp., 10th Dist. No.
               11AP-689, 2012-Ohio-3139, 2012 WL 2759260, ¶ 9.

Id. at ¶ 9.
        {¶ 4} The bar of the statute 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 unless the complaint conclusively shows on its face that it is barred by the statute
of limitations. Paul v. World Metals, Inc., 9th Dist. No. 20130 (Feb. 28, 2001); Mills v.
Whitehouse Trucking Co., 40 Ohio St.2d 55, 58 (1974); Velotta v. Leo Petronzio
Landscaping, Inc., 69 Ohio St.2d 376, 379 (1982) ("A motion to dismiss a complaint
under Civ.R. 12(B) which is based upon the statute of limitations is erroneously granted
where the complaint does not conclusively show on its face the action is barred by the
statute of limitations."); Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-
Ohio-2625, ¶ 11.
        {¶ 5} A key issue in this case is a conflict of laws issue. Tennessee allows plaintiffs
in employment cases only one year to file their lawsuits. "A claim for retaliatory discharge
is a tort action which is governed by the general tort statute of limitations which requires
that a lawsuit be 'commenced within one (1) year after the cause of action accrued....'
Tenn.Code Ann. § 28-3-104 (1980 Repl. and Supp.1996)." Weber v. Moses, 938 S.W.2d
387, 393 (Tenn.1996). Ohio allows four years for the pursuit of such claims. Pytlinski v.
Brocar Prod., Inc., 94 Ohio St.3d 77, 80 (2002) ("An action for wrongful discharge in
violation of public policy is not specifically covered by any statutory section. Accordingly,
we find that the limitations period for common-law claims for wrongful discharge in
violation of public policy is four years as set forth in R.C. 2305.09(D)"). Walker filed his
lawsuit more than one year after he was fired. Therefore, if Tennessee's statute of
limitations applies, his claim is barred.
        {¶ 6} Walker claims that he was wrongfully terminated in violation of public
policy. He asserted two claims: one for testifying truthfully in a deposition involving
Nationwide; and one for reporting and refusing to participate in insurance fraud. After an
No. 15AP-520                                                                           4


initial filing of his lawsuit, Walker and his lawyers amended the complaint to play up ties
of his responsibilities as an employee of Nationwide to actions which occurred in the State
of Ohio. He tried to further emphasize such ties with a second amended complaint. The
Trial court did not permit the filing of the second amended complaint, mostly because the
judge assigned to the case did not believe that the new allegations in the second amended
complaint had any bearing on the outcome. The judge felt Walker was a Tennessee
resident who worked for Nationwide for over 20 years in Tennessee and was fired in
Tennessee. As indicated earlier, the judge made his findings in the context of a motion to
dismiss.
        {¶ 7} One of the issues to be addressed with respect to the third assignment of
error is whether the judge made his rulings based upon the allegations contained in the
complaint or whether the judge based his rulings upon facts not contained within the four
corners of the complaint. Civ.R. 12(B) states in pertinent part:
              When a motion to dismiss for failure to state a claim upon
              which relief can be granted presents matters outside the
              pleading and such matters are not excluded by the court, the
              motion shall be treated as a motion for summary judgment
              and disposed of as provided in Rule 56. Provided however,
              that the court shall consider only such matters outside the
              pleadings as are specifically enumerated in ruled 56. All
              parties shall be given reasonable opportunity to present all
              materials made pertinent by such a motion by Rule 56.

        {¶ 8} If the trial court relied on facts from other sources, the motion to dismiss
under Civ.R. 12(B)(6) should have been converted to a motion for summary judgment.
This would have allowed some discovery to be pursued and the development of a clearer
picture of the ties between Walker and Ohio and Walker and Tennessee. For instance,
discovery proceedings might have revealed whether the decision to fire Walker was made
in Ohio or was made in Tennessee. If Walker was a Tennessee resident, working in
Tennessee, who was fired as the result of a decision made in Tennessee, the fact
Nationwide is headquartered in Columbus, Ohio would not be enough to free Walker
from the requirement under Tennessee law that employment claims be filed within one
year.
No. 15AP-520                                                                           5


      {¶ 9} Here, we have been unable to find any indication in the record that the trial
court considered information outside of the complaint in ruling on the motion to dismiss.
Walker argues that his amended complaint is devoid of any reference to Tennessee.
However, the caption of the amended complaint clearly lists Walker with a Tennessee
address. The trial court did not need to have additional facts but only to review the
allegations in the amended complaint. The trial court did not convert the motion to a
motion for summary judgment.
      {¶ 10} The third assignment of error is overruled.
      {¶ 11} Turning to the complaints filed or tendered on behalf of Walker, we first
evaluate the amended complaint. The amended complaint lists Walker as a resident of
Tennessee in the caption and a resident of Sumner, Williamson, and/or Davidson
Counties in the body of the amended complaint. (Amended Complaint at ¶ 1.) It alleges
Nationwide is an Ohio corporation with its principal place of business in Franklin County,
Ohio. (Amended Complaint at ¶ 2.)
      {¶ 12} The amended complaint states that Walker began his employment with
Nationwide in Indianapolis, but transferred less than two years later to the South Central
Region where Terry Francis Saharski became his supervisor in 1998.             (Amended
Complaint at ¶ 5, 6, 11.)     Walker alleges that he himself supervised agents, whom
Nationwide considers to be independent contractors. (Amended Complaint at ¶ 12, 10.)
The amended complaint does not state where Walker actually performed the supervision,
other than the general allegation that Walker was in the "South Central Region."
(Amended Complaint at ¶ 6.)
      {¶ 13} Walker claimed that he had compensation wrongly withheld from him in
2003, but provided no information about how or where the compensation was withheld.
(Amended Complaint at ¶ 24.) He claimed that he was the victim of retaliation based on
his giving truthful testimony in a deposition in a lawsuit filed against Nationwide.
(Amended Complaint at ¶ 25.)
      {¶ 14} In short, the amended complaint is long on claims that Nationwide did bad
things in 2003 and again in 2013, but short on saying how the termination and
withholding of pay came about with respect to the State of Ohio. The only claim of any
significance is the claim that Nationwide is headquartered in Ohio and Walker worked for
No. 15AP-520                                                                               6


Nationwide in the South Central Region, the boundaries of which are not described in the
amended complaint.
          {¶ 15} The amended complaint does not in fact allege that Walker's claims accrued
in Ohio. Without an allegation that tied his claims to Ohio over and above the fact that
Nationwide is headquartered in Ohio, the amended complaint does not state a claim
justiciable in Ohio courts. The trial court judge did not need to draw inferences. The trial
court merely needed to review the allegations in the amended complaint.
          {¶ 16} Based upon the amended complaint, the trial court was not in error to order
dismissal.
          {¶ 17} The first and fourth assignments of error are overruled.
          {¶ 18} The remaining issue is whether or not the trial court should have allowed
counsel for Walker to amend the complaint for a second time.
          {¶ 19} Civ.R. 15(A) provides that leave to file an amended pleading "shall be freely
given when justice so requires." The decision of whether to allow a party leave to amend a
complaint is within the discretion of the trial court and the ruling should not be disturbed
on appeal absent an affirmative showing of an abuse of discretion. Betz v. Penske Truck
Leasing Co., L.P., 10th Dist. No. 11AP-982, 2012-Ohio-3472, ¶ 50; Schweizer v. Riverside
Methodist Hosps., 108 Ohio App. 3d 539, 545 (1996).
          {¶ 20} To determine whether Walker's second amended complaint states a claim
for wrongful discharge, the court must ascertain whether the complaint conclusively
shows on its face that it was filed outside of the applicable statute of limitations. As stated
above, resolution of this issue turns on whether Tennessee or Ohio's statute of limitations
applies to the claim. Resolution depends, at least in part, on Ohio's borrowing statute,
R.C. 2305.03(B) and the Supreme Court of Ohio's guidance with respect to conflict of law
issues.
          {¶ 21} A borrowing statute "is a legislative exception from the general rule that the
forum always applies its statute of limitation." Combs v. Internatl. Ins. Co., 354 F.3d 568,
578 (6th Cir.2004). It is meant to prevent forum shopping by a plaintiff whose claims
have otherwise expired. Ohio's borrowing statute reads as follows:
                 No civil action that is based upon a cause of action that
                 accrued in any other state * * * may be commenced and
No. 15AP-520                                                                             7


              maintained in this state if the period of limitation that applies
              to that action under the laws of that other state * * * has
              expired or the period of limitation that applies to that action
              under the laws of this state has expired.

R.C. 2305.03(B).
       {¶ 22} Nationwide argues that this borrowing statute applies because Walker's
claims accrued in Tennessee. Whether Walker's claim for wrongful discharge accrued in
Ohio or Tennessee is not a simple question, and does not have a simple answer. "Ohio's
borrowing statute does not clarify how to determine where a cause of action accrues, and
case law has not offered a definitive answer." Jarvis v. First Resolution Mgt. Corp., 9th
Dist. No. 26042, 2012-Ohio-5653, ¶ 18.
       {¶ 23} We look to Ohio law to determine the applicable limitations period.
Boulder Capital Group, Inc. v. Lawson, 2d Dist. No. 2014-CA-58, 2014-Ohio-5797, ¶ 12.
To determine where a cause of action accrued, the Supreme Court of Ohio adopted the
test used in the Restatement of the Law 2d, Conflict of Laws. Morgan v. Biro Mfg. Co., 15
Ohio St.3d 339 (1971).
       {¶ 24} A tort claim generally accrues at the time the wrongful act is committed.
O'Stricker v. Jim Walter Corp., 4 Ohio St.3d 84, 87 (1983). Tort claims are generally
governed by the law of the place of injury, unless another state has a more significant
relationship to the lawsuit. In Ohio, a party may overcome the presumption that the law
of the place where the injury occurs will be applied to a tort action, if it can demonstrate
that another state has a more significant relationship to the action. Muncie Power Prods.,
Inc. v. United Techs. Auto., Inc., 328 F.3d 870, 874 (6th Cir.2003).
       {¶ 25} Factors to be considered in determining which state has the most significant
relationship to the lawsuit include the place of the injury, the place where the conduct
causing the injury occurred, the domicile, place of incorporation and place of business of
the parties, and the place where the relationship between the parties is located. Morgan at
342, citing Restatement of the Law 2d, Conflict of Laws, Section 145-46 (1971).
       {¶ 26} The second amended complaint is in the record before us. The second
amended complaint again lists Walker as a resident of one of three counties in Tennessee
at all relevant times. (Second Amended Complaint at ¶ 1.) It alleges that William D.
No. 15AP-520                                                                             8


Walker has claims under Ohio law, but includes little rationale for why the claims
supposedly accrued in Ohio, as opposed to Tennessee where he lived at all pertinent
times. (Second Amended Complaint at ¶ 4.) The second amended complaint further
alleges the following:
              All decisions, approvals and instructions relating to Plaintiff's
              employment at Nationwide came from Nationwide's
              headquarters in Columbus, Ohio, including but not limited to
              his title, changes to his title, the region in which he worked,
              his compensation (salary, bonuses, variable compensation),
              merit increases, to whom he reported, which agent-employees
              he supervised, the forms he used, the policies and procedures
              he was required to follow, the discipline to be given to his
              agent-employees, approval for hiring agent-employees,
              decisions pertaining to the termination of his subordinates,
              background checks for the agent-employees he wanted to hire,
              the policies and procedures his subordinates had to follow,
              and the contracts his subordinates had to sign, all came
              directly from Nationwide's headquarters in Columbus, Ohio.

(Second Amended Complaint at ¶ 50.)
       {¶ 27} Walker also alleged that Saharski did not make any Nationwide-related
decisions without first contacting the home office in Columbus, Ohio. (Second Amended
Complaint at ¶ 17-18.)
       {¶ 28} Walker further alleged that he reported "coding errors," otherwise known as
insurance fraud to corporate headquarters in Columbus, Ohio, and that he had
approximately 10-15 insurance fraud and coding-related telephone conversations with
staff in Columbus, Ohio before his termination. (Second Amended Complaint at ¶ 39, 45.)
       {¶ 29} Contrary to the trial court's findings, this set of allegations goes far beyond
what was contained in the first amended complaint. If orders came from corporate
headquarters to withhold Walker's pay in 2013 for improper reasons and then to fire him,
and the orders were merely carried out in Tennessee, the second amended complaint does
in fact state a claim which could be adjudicated in Ohio courts under Ohio law.
       {¶ 30} We, therefore, sustain the second assignment of error.
       {¶ 31} Having overruled the first, third, and fourth assignments of error, and
sustaining the second assignment of error, we reverse the judgment of the trial court
dismissing the lawsuit in its entirety and remand the case with instructions to sustain
No. 15AP-520                                                                          9


Walker's motion for leave to file the second amended complaint and conduct such
proceedings as are appropriate with regard to the second amended complaint.
                                                      Judgment reversed; case remanded


                               BROWN, P.J., concurs.
                      DORRIAN, J., concurs in part, dissents in part.

DORRIAN, J., concurring in part and dissenting in part.
       {¶ 32} For the following reasons, I respectfully concur in part and dissent in part
with the majority opinion.
       {¶ 33} I concur with the majority in affirming the trial court and overruling
assignments of error one, three, and four. However, I dissent from the majority in
sustaining the second assignment of error and reversing the trial court's judgment.
Applying the abuse of discretion standard, I would not find that the trial court erred in
denying appellant's motion for leave to file a second amended complaint. The trial court
thoroughly considered and discussed its reasons for denying the motion, including ¶ 17
and ¶ 50 of the second amended complaint and case law from this district. I would find
no abuse of discretion and would overrule the second assignment of error and affirm the
judgment of the trial court.
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