[Cite as Kuczirka v. Ellis, 2018-Ohio-728.]


STATE OF OHIO                      )                 IN THE COURT OF APPEALS
                                   )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

PETER KUCZIRKA                                       C.A. No.     28599

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
CECILIA A. ELLIS, D.O., et al.                       COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellees                                    CASE No.   CV-2012-08-4483

                                  DECISION AND JOURNAL ENTRY

Dated: February 28, 2018



        SCHAFER, Judge.

        Plaintiff-Appellant, Peter Kuczirka, Administrator of the Estate of Trina Kuczirka,

appeals from the judgment of the Summit County Court of Common Pleas dismissing his claims

against Defendants-Appellees, Cecilia A. Ellis, D.O. and Obstetrical and Gynecological

Associates of Akron, Inc. We reverse, albeit on grounds other than those raised on appeal.

                                                I.

        {¶1}     Peter Kuczirka, as administrator of the estate of Trina Kuczirka, (“Kuczirka”)

filed the refiled complaint in this action on August 3, 2012. After receiving service of the

complaint by certified mail, Defendants-Appellees, Cecilia A. Ellis, D.O. and Obstetrical and

Gynecological Associates of Akron, Inc. (“Dr. Ellis and OBGYN Associates”), each filed a

separate answer on August 31, 2012.

        {¶2}     On August 2, 2013, Dr. Ellis and OBGYN Associates filed a “motion to dismiss”

pursuant to Civ.R. 3(A) and Civ.R. 4.1. Dr. Ellis and OBGYN Associates argued that Kuczirka
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improperly served them, not in the current action, but rather in the initial action filed August 31,

2009. They asserted that service of the original complaint by Federal Express was an improper

method of service under the version of Civ.R. 4.1 then in effect, that Kuczirka never perfected

service within one year of filing the original complaint, and the failure to commence the suit

warranted dismissal of the action with prejudice. The trial court initially denied the motion on

August 22, 2013.

       {¶3}    On September 11, 2013 Dr. Ellis and OBGYN Associates moved for

reconsideration or, in the alternative, to stay the case.     They urged that a case of similar

circumstance was pending on appeal, and a stay was appropriate while awaiting a decision in that

case. The trial court stayed the proceedings on September 25, 2013. Upon motion, the trial

court reactivated the case on March 7, 2017, and permitted the parties to submit additional

briefing in light of this Court’s rulings in Hubiak v. Ohio Family Practice Ctr., 9th Dist. Summit

No. 26949, 2014-Ohio-3116 and Suiter v. Karimian, 9th Dist. Summit App. No. 27496, 2015-

Ohio-3330.

       {¶4}    The trial court granted the motion and dismissed the matter with prejudice.

Kuczirka filed this timely appeal.

                                                II.

                                      Assignment of Error

       The trial court erred in dismissing the Plaintiff-Appellant’s case for failure to
       obtain proper service within one year of filing of the initial complaint.

       {¶5}    In the sole assignment of error, Kuczirka argues that the trial court erred by

granting the motion to dismiss. However, neither the motion itself nor the trial court’s decision

identify the procedural foundation for the motion to dismiss. “A reviewing court must examine

the entire journal entry and the proceedings below where necessary to ascertain the precise basis
                                                3


of a lower court’s judgment.” State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d

565, 569 (1996). Accordingly, we must conduct a preliminary review of the proceedings below

to determine the standard of review and the appropriate legal framework to analyze the

argument.

       {¶6}    In its March 14, 2017 judgment entry, the trial court characterized the motion to

dismiss as having been brought pursuant to case law, and held:

       Upon review of the Motion and Brief in Opposition, the Court finds Defendants in
       this matter never waived the affirmative defense of insufficient service and
       Plaintiff failed to obtain proper service within one year of filing of the initial
       complaint. Accordingly, pursuant to Hubiak v. Ohio Family Practice Center, Inc.,
       2014 Ohio 3116 and Suiter v. Karimian, 2015 Ohio 3330, this matter is
       DISMISSED.

The judgment entry does not offer any guidance as to the basis for considering the motion to

dismiss and entering judgment.

       {¶7}    The motion is based on three cumulative arguments summarized as follows:

   (1) As to the original complaint, Kuczirka failed to properly serve Defendants with
   process in accordance with the former version of Civ.R. 4.1, thus the trial court lacked
   jurisdiction over them.
   (2) Kuczirka never reissued service of the improperly served original complaint;
   therefore, service was not perfected within the one-year time limit of Civ.R. 3(A) and the
   original action never commenced.
   (3) Kuczirka then voluntarily dismissed the original action—without ever having
   commenced the action, and beyond the expiration of the statute of limitations—thereby
   precluding the application of the savings statute, R.C. 2305.19, and rendering the refiled
   action time-barred.

Although Dr. Ellis and OBGYN Associates’ motion cites to Civ.R. 3(A) and Civ.R. 4.1, these

rules, in and of themselves, do not provide a procedural vehicle to present a motion to dismiss in

this matter.   Despite stating the apparent rationale for dismissal, the procedural basis for

presenting such a dispositive motion is not evident.
                                                4


       {¶8}    These arguments raised in the motion to dismiss sound in the nature of Civ.R.

12(B) defenses: specifically Civ.R. 12(B)(2) for lack of personal jurisdiction, and       Civ.R.

12(B)(4) and (5) for insufficiency of process and service of process. Civ.R. 12(B) prescribes the

manner for presenting affirmative defenses and states that “[e]very defense, in law or fact, to a

claim for relief in any pleading *** shall be asserted in the responsive pleading thereto[.]”

Civ.R. 12(B). The rule creates an exception for the Civ.R. 12(B)(1)-(7) defenses that “may at the

option of the pleader be made by motion,” but specifies that “[a] motion making any of these

defenses shall be made before pleading if a further pleading is permitted.” Id.

       {¶9}    Even if this motion to dismiss is properly characterized as a motion pursuant to

Civ.R. 12(B)(2), (4), and (5), the pleadings preclude this Court from reviewing it as such. Dr.

Ellis and OBGYN Associates filed their answers to the refiled complaint and raised affirmative

defenses, but did not file a motion to dismiss prior to pleading. Indeed, their motion was not

filed until nearly a year later. A motion to dismiss filed subsequent to the answer contravenes

the “Civ.R. 12(B) requirement that: ‘[a] motion making any of these defenses shall be made

before pleading if a further pleading is permitted.’” O’Brien v. Univ. Community Tenants Union,

Inc., 42 Ohio St.2d 242, 244 (1975). Where a party files an answer prior to filing a motion to

dismiss, we must view the trial court’s “ruling as having granted a motion for a judgment on the

pleadings under Civ.R. 12(C).” State ex rel. Mancino v. Tuscarawas Cty. Court of Common

Pleas, 151 Ohio St.3d 35, 2017-Ohio-7528, fn. 2; Pontious, 75 Ohio St.3d at 569, quoting Lin

v. Gatehouse Constr. Co., 84 Ohio App.3d 96, 99 (8th Dist.1992) (“‘[A] motion to dismiss filed

after the pleadings have closed * * * is appropriately considered a motion for judgment on the

pleadings pursuant to Civ.R. 12 (C)’”).
                                                5


       {¶10} We review a motion for judgment on the pleadings de novo. Savoy v. Kramer,

9th Dist. Summit No. 27418, 2015-Ohio-437, ¶ 5. “[D]ismissal is appropriate where a court (1)

construes the material allegations in the complaint, with all reasonable inferences to be drawn

therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt, that the plaintiff

could prove no set of facts in support of [the] claim that would entitle [plaintiff] to relief.”

Cashland Fin. Servs., Inc. v. Hoyt, 9th Dist. Lorain No. 12CA010232, 2013–Ohio–3663, ¶ 7,

quoting Pontious, at 570.      A Civ.R. 12(C) motion presents only questions of law, the

determination of which is restricted solely to the allegations in the pleadings. Peterson v.

Teodosio, 34 Ohio St.2d 161, 166 (1973).

       {¶11} Where the pleadings in a refiled case “do not recite the procedural history of the

original case in a way that is sufficient to conclusively show that the statute of limitations bars

the action and that the savings statute does not apply,” it is error for a trial court to look to

matters outside of the pleadings. Savoy at ¶6-7. Dr. Ellis and OBGYN Associates’ motion

alleges facts not included in the parties’ pleadings.     Indeed, the motion recites the entire

procedural history of the prior case which, aside from the acknowledgment that it is a refiled

complaint, is not addressed in the pleadings.        Therefore, the record and proceedings of

Kuczirka’s original case were not before the trial court for consideration. See Savoy at ¶ 11,

quoting In re J.C., 186 Ohio App.3d 243, 2010–Ohio–637, ¶ 14 (9th Dist.) (“[A] court may take

judicial notice of proceedings in the immediate case but not in other cases ‘even though between

the same parties and even though the same judge presided.’”).

       {¶12} Dr. Ellis and OBGYN Associates’ motion relied on factual allegations that were

not properly before the trial court for consideration, but which were essential to reaching the

court’s conclusion.   Upon review of the judgment entry, it is evident that the trial court
                                                 6


necessarily, and improperly, relied upon matters outside of the pleadings in reaching its decision.

We conclude, therefore, that the trial court erred by granting the motion and dismissing the

action. Kuczirka’s assignment of error is sustained.


                                                III.

       {¶13} Kuczirka’s assignment of error is sustained. The judgment of the Summit county

Court of Common Pleas is reversed and the cause is remanded for further proceedings consistent

with this opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellees.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT
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HENSAL, P. J.
CONCURRING IN JUDGMENT ONLY.

        {¶14} While I concur with the majority’s ultimate disposition of this appeal, I do so

based solely upon this Court’s analysis in Hall v. Crystal Clinic, Inc., 9th Dist. Summit No.

28524, 2017-Ohio-8471.


CALLAHAN, J.
DISSENTING.

        {¶15} I respectfully dissent from the majority’s resolution of this matter and in

accordance with this Court’s prior decision in Suiter v. Karimian, 9th Dist. Summit No. 27496,

2015-Ohio-3330, I would consider the merits of this appeal. While I acknowledge that a motion

to dismiss filed after the pleadings have closed is to be converted to a motion for judgment on the

pleadings, I disagree that the rule is absolute or that it is applicable in this case.



APPEARANCES:

STACIE L. ROTH, Attorney at Law, for Appellant.

GREGORY T. ROSSI, Attorney at Law, for Appellees.
