[Cite as Am. Tax Funding L.L.C. v. Miamisburg, 2011-Ohio-4161.]

 IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO 

AMERICAN TAX FUNDING, LLC., : 

 et al. 

Plaintiff-Appellants : C.A. CASE NO. 24494 

vs. : T.C. CASE NO. 10CV5710 

CITY OF MIAMISBURG, ET AL : 

 

Defendant-Appellees : 

 . . . . . . . . . 

 O P I N I O N

 Rendered on the 19th day of August, 2011. 

 . . . . . . . . . 

David S. Anthony, Atty. Reg. No. 0074431; John N. Zomoida, Jr., 

Atty. Reg. No. 0072742, 1000 West Wallings Rd, Suite A, Broadview 

Heights, OH 44147 

Attorney for Plaintiff-Appellants 

Robert J. Surdyk; Kevin A. Lantz, 1 Prestige Place, Suite 700, 

Miamisburg, OH 45342 

Attorney for Defendant-Appellee 

J. Joseph Walsh, 201 East Sixth Street, Dayton, OH 45402 

Attorney for Third Party Defendant-Appellee, Michael J. King 

 . . . . . . . . . 

GRADY, P.J.: 

{¶ 1} This is an appeal from a final order granting a Civ.R. 

12(C) motion for judgment on the pleadings in an action brought 

pursuant to 42 U.S.C. §1983, the federal “civil rights” statute. 
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{¶ 2} R.C. 5126.32 authorizes the county treasurer to sell 

certificates of tax liens at public auction, and to thereafter 

record the sales in the tax certificate register. 

{¶ 3} R.C. 715.26(B) authorizes municipalities to provide for 

the removal or repair of unsafe or structurally defective 

buildings, and further provides that at least thirty days prior 

to the removal or repair “the municipal corporation . . . shall 

give notice of its intention with respect to such removal or repair 

to the holders of legal or equitable liens of record upon the real 

property on which such building is located and to the owners of 

record of such property.” 

{¶ 4} The underlying action was commenced on July 16, 2010, 

by American Tax Funding, LLC (“ATF”) and ATFH Real Property, LLC 

(“ATFH”) against the City of Miamisburg. (“Miamisburg”). The 

Plaintiffs’ complaint alleged that ATF purchased tax certificates 

of liens on real property located at 747 East Sycamore Street in 

Miamisburg, Ohio, on three separate dates: November 21, 2005; 

October 26, 2006; and September 28, 2007. 

{¶ 5} The complaint further alleged that ATF filed a 

complaint in foreclosure on its liens on May 12, 2008, and 

thereafter assigned its interest to ATFH, which acquired title 

to the property by a Sheriff’s Deed recorded on May 14, 2010. 

{¶ 6} The complaint further alleged that “[b]etween November 
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21, 2005 and May 24, 2010, the City of Miamisburg, Ohio . . . caused 

the structure upon the Property to be demolished, but the City 

did not provide ATF and/or ATFH with at least thirty days notice 

of its intention to remove the structure as required by R.C. 

715.26(B).” 

{¶ 7} The complaint further alleged that the failure of notice 

“violated the due process rights of ATF and/or ATFH as guaranteed 

by the Fourteenth Amendment of the United States Constitution and 

Section 10, Article I of the Ohio Constitution.” 

{¶ 8} Finally, the complaint alleged that demolition of the 

structure “caused the value of the Property be reduced by $41,000,” 

and the plaintiffs prayed for a judgment in that amount as well 

as associated legal and equitable relief. 

{¶ 9} Miamisburg filed a responsive pleading on August 11, 

2010. Miamisburg admitted “that, on or about January 8, 2008, 

it caused a structure located on the property at 747 East Sycamore 

Street, Miamisburg, Montgomery County, Ohio, to be demolished.” 

 Miamisburg denied the remaining allegations of the complaint for 

lack of knowledge or as untrue. Miamisburg also pled seventeen 

affirmative defenses, the last of those being that “Plaintiffs’ 

claims are barred by the applicable statute of limitations.” 

{¶ 10} On August 31, 2010, Miamisburg filed a Civ.R. 12(C) 

motion for a judgment on the pleadings. The motion presented two 
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grounds for relief. 

{¶ 11} Miamisburg first argued that money damages are 

unavailable for the constitutional due process violations alleged 

except pursuant to 42 U.S.C. §1983, and that Plaintiffs failed 

to plead that claim for relief; and, more specifically, that 

Plaintiffs’ complaint failed to allege that Miamisburg had acted 

under color of law, an essential element of a 42 U.S.C. §1983 claim. 

{¶ 12} Second, Miamisburg argued that, even assuming that the 

civil rights claim was properly pled, the action Plaintiffs 

commenced was untimely filed. Per Nadra v. Mbah, 119 Ohio St.3d 

305, 2008-Ohio-3918, the two-year statute of limitations for 

personal injury actions, R.C. 2305.10, governs 42 U.S.C. §1983 

actions filed in the courts of Ohio. Because Miamisburg had 

demolished the house on January 8, 2008, the Plaintiffs’ action 

then accrued. Therefore, the action Plaintiffs commenced on July 

10, 2010, more than two years thereafter, was not timely filed. 

{¶ 13} Plaintiffs filed a memorandum contra Miamisburg’s 

motion. Plaintiffs argued, among other things, that there is an 

issue of fact concerning when their action accrued. Plaintiffs 

contended that even if the demolition occurred on January 8, 2008, 

they were then unaware of that fact. Plaintiffs argued that their 

action accrued only later, when they discovered that the building 

had been demolished. Plaintiffs relied on Ormiston v. Nelson
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(1997), 117 F.3d 69, which held that 42 U.S.C. §1983 actions “based 

upon medical or psychiatric confinement, like other section 1983 

claims, accrue when the plaintiff ‘knows or has reason to know 

of the injury which is the basis of his action.’ Id., at p. 70. 

{¶ 14} Miamisburg responded that the discovery rule is 

unavailing to Plaintiffs’ claims. Miamisburg attached to its 

submission certified copies of five postal receipts returned in 

the foreclosure action Plaintiffs filed. The receipts are marked 

as Exhibits B through F. The receipts indicate that service of 

process Plaintiffs had five times attempted on the defendant in 

the foreclosure action at “747 Sycamore Street, Miamisburg, Ohio, 

45342,” were returned without service, each indicating, “No Such 

Number/Street.” The return receipts were filed in the foreclosure 

action as early as May 20, 2008, and as late as June 30, 2008. 

Miamisburg asked the court to take judicial notice of the five 

Exhibits, and to find that, even if the discovery rule applies, 

Plaintiffs’ action on their 42 U.S.C §1983 commenced to run on 

May 20, 2008. On that basis, the action they commenced on July 

10, 2010, more than two years later was likewise untimely. 

{¶ 15} The trial court overruled Miamisburg’s motion for 

judgment on the pleadings. Miamisburg moved for reconsideration. 

 Plaintiffs opposed the motion for reconsideration, and also moved 

to amend their complaint to correct any alleged defect in pleading 
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their 42 U.S.C. §1983 claim. The trial court granted Miamisburg’s 

motion for reconsideration. The court allowed the parties until 

December 14, 201 to file supplemental memoranda on the statue of 

limitations issue and on Plaintiffs’ motion to amend their 

complaint. 

{¶ 16} Miamisburg filed a supplemental memorandum on December 

14, 2010. Plaintiffs filed none. On January 19, 2011, the trial 

court granted Miamisburg’s motion for judgment on the pleadings. 

 The court agreed with Plaintiffs that the discovery rule applies 

to Miamisburg’s statute of limitations claim. However, after 

taking judicial notice of Exhibits B through F attached to 

Miamisburg’s prior submission, the court found “that Plaintiff 

should have known of the injury, i.e. the demolition of which they 

received no notice on June 30, 2008 at the very latest. Plaintiffs 

waited to file the present action until July 16, 2010, more than 

two years after June 30, 2008. Accordingly, this court holds that 

Plaintiffs’ section 1983 claim is barred by the applicable statute 

of limitations.” (Dkt. 29, p. 5). 

{¶ 17} Plaintiffs filed a notice of appeal on February 18, 2011 

from the trial court’s final order of January 19, 2011. 

ASSIGNMENT OF ERROR

{¶ 18} “THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE’S 

MOTION FOR JUDGMENT ON THE PLEADINGS. 
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{¶ 19} “A. THE TRIAL COURT ERRED BY GOING BEYOND THE FOUR 

CORNERS OF THE PLEADINGS IN SUPPORT OF ITS DECISION TO GRANT 

DEFENDANT-APPELLEES’S MOTION FOR JUDGMENT ON THE PLEADINGS. 

{¶ 20} “B. THE TRIAL COURT ERRED BY DECIDING A QUESTION OF 

MATERIAL FACT IN SUPPORT OF ITS DECISION TO GRANT 

DEFENDANT-APPELLEE’S MOTION FOR JUDGMENT ON THE PLEADINGS.” 

{¶ 21} Civ.R. 12(C) provides: “After the pleadings are closed 

but within such time as not to delay the trial, any party may move 

for judgment on the pleadings.” 

{¶ 22} Unlike a motion to dismiss filed pursuant to Civ.R. 

12(B), which is limited to claims for relief in the pleadings, 

a motion to dismiss filed pursuant to Civ.R. 12(C) is directed 

to all the pleadings, including any defensive pleadings. “[T]his 

means all the pleadings, as well as any material incorporated 

therein or attached thereto as exhibits.” Klein/Darling, 

Baldwin’s Ohio Civil Practice, §12:10. However, “determination 

of the motion for judgment on the pleadings is restricted solely 

to the allegations in the pleadings.” Peterson v. Teodosio (1973), 

34 Ohio St.2d 161. Further, “. . . Civ.R. 12(C) requires a 

determination that no material factual issues exist and that the 

movant is entitled to judgment as a matter of law.” State ex rel. 

Midwest Pride v. Pontious (1996), 75 Ohio St. 3d 565, 570. 

{¶ 23} Civ.R. 7(A) provides that the pleadings include the 
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complaint and answer. Civ.R. 7(B) distinguishes a motion from 

a pleading, and states that a motion is “[a]n application to the 

court for an order.” 

{¶ 24} Miamisburg pleaded a statute of limitations affirmative 

defense in its answer. That matter was therefore available as 

grounds for the Civ.R. 12(C) motion Miamisburg filed. In ruling 

on the motion, the trial court expressly relied on the copies of 

postal return receipts that Miamisburg submitted as Exhibits B 

through F attached to its memorandum in reply to the “discovery 

rule” argument that Plaintiffs made in opposition to Miamisburg’s 

Civ.R. 12(C) motion. Miamisburg’s Civ.R. 12(C) motion and the 

memoranda that followed were not pleadings. Therefore, the trial 

court erred when it relied on the Exhibits in determining 

Miamisburg’s Civ.R. 12(C) motion. 

{¶ 25} Miamisburg argues that Plaintiffs waived the error 

because they failed to object to or move to strike the Exhibits. 

 Miamisburg had asked the court to take judicial notice of the 

Exhibits as copies of documents in the records of the clerk of 

court, and the court apparently did that. Miamisburg relies on 

State ex rel. Neff v. Corrigan (1996), 75 Ohio St.3d 12, which 

suggests that a court may take judicial notice of appropriate 

matters in considering a Civ.R. 12(B)(6) motion to dismiss for 

failure to state claim upon which relief may be granted without 
9

having to convert it to a motion for summary judgment. 

{¶ 26} We agree that Plaintiffs waived the trial court’s error 

in taking judicial notice of the Exhibits on which Miamisburg 

relied. We also agree that a court may take judicial notice of 

its own records. However, whether the matter for which those 

records were considered is “appropriate” depends on the purpose 

for which they were considered. That implicates Plaintiff’s 

second contention: that a genuine issue of material fact remains 

to be determined regarding their “discovery” argument. 

{¶ 27} Even though the applicable limitations period in state 

law determines the statute of limitations period for 42 U.S.C. 

§1983 actions, “federal law governs the determination of the 

accrual date (that is, the date the statute of limitations begins 

to run) for purposes of the statute of limitations in a section 

1983 action.” Ormiston v. Nelson, at p. 71. Application of the 

discovery rule may be appropriate in those actions. Id. The 

statute of limitations begins to run “when the plaintiff knows 

or has reason to know of the injury which is the basis of his action.” 

Singleton v. City of New York (1980), 632 F.2d 185, 191. 

{¶ 28} The pleadings do not support a finding that Plaintiffs 

knew of their injury on January 8, 2008, the date on which Miamisburg 

alleges it demolished the building on Plaintiff’s property. 

Neither does the record demonstrate when Plaintiffs first learned 
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that the building had been demolished. Nevertheless, if 

Plaintiffs by the exercise of reasonable diligence should have 

known of their injury on a date more than two years before they 

commenced their action, Miamisburg was entitled to a judgment of 

dismissal on the Civ.R. 12(C) motion it filed. O’Stricker v. Jim 

Walter Corp. (1983), 4 Ohio St.3d 84. 

{¶ 29} The discovery rule requires that two factors be 

discovered before the two-year limitations period in R.C. 2305.10 

begins to run: first, a plaintiff must know or reasonably should 

have known that he has been injured; second, a plaintiff must know 

or reasonably should know that his injury was proximately caused 

by the conduct of defendant. Viock v. Stowe-Woodward Company

(1983), 13 Ohio App.3d 7. The statute of limitations does not 

begin to run until both prongs are satisfied. Norgard v. Brush 

Wellman, Inc., 95 Ohio St.3d 165, 2002-Ohio-2007, at ¶9. In that 

case the Supreme Court explained: 

{¶ 30} “Since the rule’s adoption, the court has reiterated 

that discovery of an injury alone is insufficient to start the 

statute of limitations running if at that time there is no 

indication of wrongful conduct of the defendant. Moreover, the 

court has been careful to note that the discovery rule must be 

specially tailored to the particular context to which it is to 

be applied. Browning v. Burt (1993), 66 Ohio St.3d 544, 559, 613 
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N.E.2d 993.” Id., at ¶10. 

{¶ 31} In the determination of a Civ.R. 12(C) motion, the 

nonmoving party is entitled to have all of the material allegations 

in the pleading, with all reasonable inferences to be drawn 

therefrom, construed in his favor as true. State ex rel. Midwest 

Pride IV, Inc. v. Pontious. On that basis, reasonable minds could 

conclude that the postal return receipts that were filed in the 

foreclosure action Plaintiffs commenced should have put them on 

notice that the building on their property may no longer exist. 

 However, reasonable minds could also conclude that the Plaintiffs 

would not thereby also have known that their injury was proximately 

caused by Miamisburg’s demolition of the building, the foundation 

of the wrongful conduct Plaintiff’s complaint alleges. Therefore, 

the trial court erred when it granted Miamisburg’s Civ.R. 12(C) 

motion and dismissed Plaintiff’s 42 U.S.C. §1983 action. 

{¶ 32} Plaintiff-Appellant’s assignment of error is sustained. 

 The judgment from which the appeal was taken will be reversed, 

and the matter will be remanded for further proceedings, consistent 

with our opinion. 

FAIN, J. And HALL, J., concur. 

Copies mailed to: 
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David S. Anthony, Esq. 

John N. Zomoida, Jr., Esq. 

Robert J. Surdyk, Esq. 

Kevin A. Lantz, Esq. 

J. Joseph Walsh, Esq. 

Hon. Connie S. Price