[Cite as Francis v. Lorain Cty. Prosecutor's Office, 2017-Ohio-4209.]


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

JEREMY FRANCIS                                              C.A. No.          16CA011041

        Appellant

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
STATE OF OHIO, LORAIN COUNTY                                COURT OF COMMON PLEAS
PROSECUTOR'S OFFICE                                         COUNTY OF LORAIN, OHIO
                                                            CASE No.   16CV190346
        Appellee

                                 DECISION AND JOURNAL ENTRY

Dated: June 12, 2017



        SCHAFER, Judge.

        {¶1}     Plaintiff-Appellant, Jeremy Francis, appeals the judgment of the Lorain County

Court of Common Pleas granting Defendant-Appellee, the Lorain County Prosecutor’s Office’s,

motion to dismiss. We affirm.

                                                       I.

        {¶2}     On August 25, 2016, Mr. Francis filed a complaint pro se against the Lorain

County Prosecutor’s Office (“Lorain County”) in the Lorain County Court of Common Pleas.

Mr. Francis’ complaint prays “for the court and grand jury for charges to be filed against the

Prosecutors office for Legal Malpractice according to: Giving a ruling against state law,

Disregarding court procedure, With holding court information, Defamation of character.” (sic.)

Mr. Francis’ complaint alleges that Lorain County committed malpractice, fraud, and defamation

during the pendency of his criminal case in 2003.                       Mr. Francis’ complaint also seeks

$1,140,000.00 in damages.
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          {¶3}   In response to Mr. Francis’ complaint, Lorain County filed a Civ.R. 12(B)(1)

motion to dismiss for lack of subject matter jurisdiction on the basis that Mr. Francis’ various

claims were time-barred pursuant to the statute of limitations contained in R.C. 2305.11. Mr.

Francis filed a reply brief in response to Lorain County’s motion to dismiss, wherein he argues

that even if the statute of limitations is applicable in this matter, Lorain County must still be held

accountable for their purported actions. On October 25, 2016, the trial court granted Lorain

County’s motion after concluding that it lacked jurisdiction to consider Mr. Francis’ complaint

because the causes of action pleaded therein were time-barred by the statutes of limitations set

forth in R.C. 2305.11 and R.C. 2305.09, respectively.

          {¶4}   Mr. Francis filed this timely appeal and presents one assignment of error for our

review.

                                                 II.

                                       Assignment of Error

          Ruling did not consider that the docket sheet and record were the primary
          argument and evidence of the complaint and were not disclosed upon.

          {¶5}   The substance of Mr. Francis’ sole assignment of error is unclear, but he appears

to argue that the trial court erred by granting Lorain County’s motion to dismiss without

addressing the merits of the allegations set forth in his complaint. Moreover, Mr. Francis

seemingly claims that the trial court erred by concluding that his claims are time-barred by the

applicable statutes of limitation because “[t]ime limits are waived where there is * * * proof of

innocence.”

          {¶6}   Initially, we note that Lorain County filed a motion to dismiss pursuant to Civ.R.

12(B)(1), arguing that the trial court lacked subject matter jurisdiction over Mr. Francis’ claims.

However, in asserting that the trial court lacked jurisdiction over the subject matter, Lorain
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County argued that Mr. Francis’ malpractice and defamation claims were barred by the one-year

statute of limitations set forth in R.C. 2305.11. Thus, the substance of Lorain County’s motion is

more akin to a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief

can be granted. See Ohio Bur. Of Workers’ Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-

4432, ¶ 13 (“A complaint may be dismissed under Civ.R. 12(B)(6) for failing to comply with the

applicable statute of limitations when the complaint on its face conclusively indicates that the

action is time-barred”), citing Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-

2625, ¶ 11. Indeed, the trial court implicitly treated Lorain County’s motion to dismiss as a

Civ.R. 12(B)(6) motion when it dismissed the case after determining that Mr. Francis’ claims

were time-barred.    Accordingly, we review the trial court’s ruling with respect to Lorain

County’s Civ.R. 12(B)(1) motion to dismiss as if it were a Civ.R. 12(B)(6) motion.

       {¶7}    We review de novo a motion to dismiss for failure to state a claim upon which

relief can be granted. Hunt v. Marksman Prod., Div. of S/R Industries, Inc., 101 Ohio App.3d

760, 762 (9th Dist.1995). Dismissal of a claim is appropriate where, after accepting as true all

factual allegations of the claim and resolving all reasonable inferences in favor of the nonmoving

party, “it appears beyond doubt that the nonmoving party cannot prove any set of facts entitling

him to the requested relief.” LaSalle Bank, N.A. v. Kelly, 9th Dist. Medina No. 09CA0067-M,

2010-Ohio-2668, ¶ 19, citing State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 75 Ohio

St.3d 545, 548 (1992).

       {¶8}    In the context of a motion to dismiss predicated upon expiration of the applicable

statute of limitations, this Court has determined:

       “A complaint may be dismissed under Civ.R. 12(B)(6) for failing to comply with
       the applicable statute of limitations when the complaint on its face conclusively
       indicates that the action is time-barred.” [McKinley] at ¶ 13. This Court has
       previously stated that, in order “[t]o conclusively show that the statute of
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       limitations bars the action, the complaint must demonstrate both the relevant
       statute of limitations and the absence of factors which would toll the statute, or
       make [ ] it inapplicable.” Tarry v. Fechko Excavating, Inc., 9th Dist. [Lorain] No.
       98CA007180, 1999 WL 1037755, *2 (Nov. 3, 1999); see also Helman v. EPL
       Prolong, Inc.[, 139 Ohio App.3d 231, 241 (7th Dist.2000)] (adopting the above
       language from Tarry). Moreover, “[b]ecause Ohio is a notice pleading state, it
       suffices that the complaint put[s] defendants on notice of the general claim. It [i]s
       not necessary to specify facts to defend from a statute of limitations defense.”
       Irvin v. Am. Gen. Fin., Inc., 5th Dist. [Muskingum] No. CT2004–0046, 2005–
       Ohio–3523, ¶ 29, fn. 11.

Warren v. Estate of Durham, 9th Dist. Summit No. 25624, 2011-Ohio-6416, ¶ 6.

       {¶9}    In the present case, Mr. Francis’ complaint listed claims for (1) legal malpractice,

(2) defamation, and (3) fraud. In support of these claims, Mr. Francis alleged that the trial judge

and the prosecutors in his criminal case from 2001 intentionally mishandled the trial court

transcripts in order to prevent him from appealing his convictions. Mr. Francis also alleged that

the transcripts would have revealed “false statements that were submitted [by the prosecution]

during the course of [the] proceedings * * *.”

       {¶10} The trial court determined that Mr. Francis’ malpractice and defamation claims

were subject to the one-year statute of limitations set forth in R.C. 2305.11. The trial court

further determined that Mr. Francis’ fraud claim was both insufficiently pled and subject to the

four-year statute of limitations set forth in R.C. 2305.09. Based upon this, the trial court

determined that all of Mr. Francis’ claims were time-barred.

       {¶11} Mr. Francis does not dispute the trial court’s determination that his claims are all

time-barred by the applicable statutes of limitations. Instead, his appellate brief rehashes similar

arguments as those contained in his complaint and in response to Lorain County’s motion to

dismiss. Additionally, in an apparent reference to the trial court’s conclusion that his claims are

time-barred, Mr. Francis argues without any legal support that “[t]ime limits are waived where

there is * * * proof of innocence.”
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       {¶12} Taking as true the allegations of the complaint, as we must, Mr. Francis was

required to file his malpractice and defamation claims within one year after those causes of

action accrued. See R.C. 2305.11(A) (“An action for libel, slander, * * * or * * * an action for

malpractice other than an action upon a medical, dental, optometric, or chiropractic claim * * *

shall be commenced within one year after the cause of action accrued[.]”). He was also required

to file his fraud claim within four years after that cause of action accrued. See former R.C.

2305.09(C) (stating that an action “[f]or relief on the ground of fraud” “shall be brought within

four years after the cause * * * accrued.”). Mr. Francis’ complaint indicates that his claims all

stem from Lorain County’s actions during the course of Lorain County Court of Common Pleas

case number 01CR059493, which concluded with his sentencing on April 25, 2003. This would

give Mr. Francis until April 2004, to bring his claims for malpractice and defamation and until

April 2007, to bring his claim for fraud. However, Mr. Francis did not initiate this action until

2016. Accordingly, we conclude that the trial court did not err in dismissing Mr. Francis’ claims

in toto on the basis of expiration of the applicable statutes of limitation.

       {¶13} Mr. Francis’ assignment of error is overruled.

                                                  III.

       {¶14} Mr. Francis’ sole assignment of error is overruled and the judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.
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       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, 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 Appellant.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



HENSAL, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

JEREMY FRANCIS, pro se, Appellant.

DENNIS P. WILL, Prosecuting Attorney, and GERALD A. INNES, Assistant Prosecuting
Attorney, for Appellee.
