[Cite as Weiler v. Osborn Eng. Co. , 2023
- Ohio
- 619.] COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
SHAWN WEILER , :

Plaintiff

- Appell ant , : No. 112023 v. : THE OSBORN ENGINEERING COMPANY, ET AL. , :

Defendant

- Appell ee . :

JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: March 2 , 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV

- 22
- 964282
Appearances: Shawn Weiler , pro se . Reminger Co., L.P.A., James O’Connor, and Brianna M. Prislipsky , for a

ppellee

.

EILEEN T. GALLAGHER , J.:

This cause came to be heard on the accelerated calendar pursuant to App.R. 11.1 and Loc. App. R. 11.1. Plaintiff

- appellant , Shawn Weiler ( “ Weiler ” ), appeals pro se from the trial court ’ s judgment granting the motion for judgment onthe pleadings filed by de fendant

- appellee, The Osborn Engineering Company

( “Osborn” ). Weiler raises the following assignments of error for review: 1. The Court of Common Pleas erred in granting the defendants

appellees ’ motion for judgment on the pleadings. 2. The Court of Comm on Pleas erred in denying plaintiff

- Weiler’ s motion for reconsideration. After careful review of the record and relevant case law, we reverse the trial court ’ s judgment and remand for further proceedings.

I. Procedural and Factual History In 2017, Weiler was employed by Osborn , an engineering firm located in Cuyahoga County, Ohio. For reasons undisclosed, Weiler’ s employment with Osborn was terminated in 2018. Thereafter, Weiler applied for other jobs in the architecture and engineering industry. Weiler listed Osborn as his former employer and, evidently, was unsuccessful in securing employment for a period of time. In October 2018, however, Weiler accepted a new job with an unidentified company. Weiler worked for this new company until he “ lost his po sition in April 2020. ” Weiler was subsequently hired by a second, unidentified company in October 2020. Again, for reasons undisclosed, Weiler lost his position with th e company in December 2020.

In 2021, Weiler began applying for new employment. In an application for employment with an unidentified company, Weiler used a pseudonym to refer to Osborn as his prior employer. Weiler obtained a phone interview with the unidentified company. During this interview, Weiler was asked to disclose theidentity of the fictitious companies listed in his resume. Weiler complied with the

request and identified each of his former employers, in cluding Osborn. Weiler was not hired by the unidentified company.

Following his phone interview, Weiler “ attempted to obtain new employment many times using resumes with [Osborn] ’ s name on it. ” His attempts, however, proved unsuccessful.

On June 3, 2022, Weiler filed a civil complaint against Osborn, setting forth a claim for tortious interference with prospective business relations. Weiler alleged that Osborn has prevented him from obtaining suitable employment by damaging his reputation with prospectiv e employers, resulting in mental pain and economic loss. The complaint sought money damages in excess of $25,000, costs, and injunctive relief preventing further damage to Weiler’ s prospective business prospects. Osborn filed a timely answer on July 5, 20 22. Subsequently, Osborn filed a motion for judgment on the pleadings pursuant to Civ.R. 12(C). In the motion, Osborn argued “ the claim asserted by Plaintiff, even under Ohio ’ s minimal notice pleading requirements, fails to contain any plausible facts su fficient to sustain a cause of action. ” Specifically, Osborn asserted that Weiler’ s claim failed as a matter of law because “ it is comprised of bare legal conclusions and is wholly unsupported by any factual allegations sufficient to raise a right to reli ef above a speculative level. ” Osborn summarized its position as follows:In his complaint, Plaintiff concludes that he had certain prospective

business relationships, but he does not identify any of them. Plaintiff also concluded that Osborn had knowled ge of these prospective business relationships, but he makes no factual allegations identifying what Osborn allegedly knew. Finally, Plaintiff concludes that Osborn took intentional actions to interfere with his prospective business relationships, but he does not identify who Osborn allegedly contacted, or what Osborn did to interfere. * * * “ [M]ere speculation, unsupported by operative facts, is not enough to state a claim. ”

Weiler did not respond to Osborn ’ s motion for judgment on the pleadings. Rather , Weiler filed an amended complaint on August 2, 2022. The amended complaint added Osborn ’ s chief executive officer, appellee Gary Hribar ( “ Hribar ” ), as a party defendant. The amended complaint reiterated many of the allegations contained in the original complaint. For the first time, however, Weiler alleged that Hribar, “ acting in his capacity as CEO of [Osborn] , damaged [ Weiler’ s] reputation with those who would have otherwise employed [ Weiler ]. ” In an apparent attempt to address several of the issues identified by Osborn in its motion for judgment on the pleadings, Weiler further alleged that following his interview with an unidentified company in 2021, the prospective employer had a phone conversation with Hribar. During this conversation, Hribar al legedly rendered an unfavorable opinion of Weiler that “ damaged [ Weiler ] ’ s reputation before the
company. ” On August 16, 2022, Osborn filed a motion to strike the amended complaint, arguing that it was impermissibly filed without leave of court or the de fendants ’ written consent. Civ.R. 15(A). Osborn further asserted that leave ofcourt would be “ futile ” because the contents of the proposed amended complaint

“ contains nothing but bare legal conclusions and is wholly unsupported by factual allegations su fficient to raise a right to relief above a speculative level. ” Alternatively, however, Osborn sought 28 days to “file an answer or otherwise plead” if the court deemed it necessary to grant Weiler leave to amend his complaint

.

On August 30, 2022, Weiler filed a pro se motion, requesting the trial court to strike Osborn ’ s motion to strike the amend ed complaint. Weiler argued that he was entitled to amend his complaint “ once as a matter of course ” after Osborn filed its answer on July 5, 2022. Weiler , therefore, asserted that Osborn ’ s motion to strike the amended complaint, which was filed in lieu of an answer to the amended complaint, was a “ sham ” intended to cause unnecessary delays.

On September 8, 2022, the trial court granted Osborn’s motion for judgment on the pleadings, stating: The motion for judgment on the pleadings is granted. The cour t hereby dismisses the complaint with prejudice as it fails to contain any plausible facts sufficient to sustain a cause of action. On October 3, 2022, Weiler filed a motion for reconsideration, requesting the trial court to enter an order denying the moti on for judgment on the pleadings as moot because the motion was filed before the complaint was amended

. Weiler asserted that the pleadings were incomplete at the time the trial court ’ s judgment was rendered. The motion was summarily denied on October 11, 2022.

Weiler now appeals from the trial court ’ s judgment.II. Law and Analysis
A. Judgment on the Pleadings In the first assignment of error, Weiler argues the trial court erred in granting Osborn’s motion for judgment on the pleadings. He contends the trial court’s judgment failed to consider the contents of his amended complaint , which was filed after the motion for judgment on the pleadings was filed.

“ Motions for judgment on the pleadings are go verned by Civ.R. 12(C). Civ.R. 12(C) provides that ‘ [a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. ’” Bank of Am., N.A. v. Michko , 8th Dist. Cuyahoga No. 101513, 2015

- Ohio

- 3137, ¶ 37. “ In ruling on a Civ.R. 12(C) motion, the court is permitted to consider both the complaint and the answer as well as any material attached as exhibits to those pleadings. ” Id ., citing Schmitt v. Educational Serv. Ctr ., 2012
- Ohio

- 2208, 970
N. E.2d 1187, ¶ 10 (8th Dist.). ““‘ 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. ’”” Id ., quoting Rayess v. Educational Comm. for Foreign Med. Graduates , 134 Ohio St.3d 509, 2012

- Ohio

- 5676, 983 N.E.2d 1267, ¶ 18, quoting State ex rel. Midwest Pride IV Inc. v. Pontious , 75 Ohio St.3d 565, 664 N.E.2d 931 (1996).

“ Judgment on the pleadings is appropriate where, after considering the material allegations of the pleadings and all reasonable inferences to be drawn therefrom in a light most favorable to the nonmoving party, the court finds that the moving party is entitled to judgment as a matter of law. ” Id ., citi ng Rayess at ¶ 18.“ We review a trial court ’ s granting of a motion for judgment on the pleadings de

novo. ” Id

. On appeal, Weiler asserts that “ regardless of its contents, ” the trial

court ’ s dismissal of the original complaint constituted reversible error because the

“ amended complaint was filed within the requirements of Civ.R. 15(A). ” In contrast, Osborn maintains that the trial court properly granted its motion for judgment on the pleadings because (1) Weiler failed to amend his complaint within the ti me
pr e scribed by Civ.R. 15(A), and (2) the amended complaint did not cure the defects present in the original complaint. With respect t o the requirements of Civ.R. 15(A), Osborn asserts as follows: [I]t is clear under Civ.R. 15(A) that [ Weiler ] had twenty

- eight days

— until July 1, 2022

— to amend his complaint as a matter of right. After that time period elapsed, the only proper means by which [ Weiler ] could have amended his complaint would have been with the consent from Osborn, which [ Weiler ] certainly did not have, or with leave from the trial court, which [ Weiler ] did not request. None of the other exceptions under Civ.R. 15(A) apply, as Osborn ’ s answer did not assert a counterclaim and did not require a responsive pleading, nor did Osborn file a mot ion under Civ.R. 12(B), (E), or (F) against [ Weiler ] ’ s complaint. Thus, because [ Weiler ] ’ s amended complaint was untimely, the trial court was not required to consider his amended complaint. Civ.R. 15(A) governs amendments to pleadings and states, in re levant part: A party may amend its pleading once as a matter of course within twenty

- eight days after serving it or, if the pleading is one to which a responsive pleading is required within twenty

- eight days after service of a responsive pleading or twenty

- eight days after service of a motion under Civ.R. 12(B), (E), or (F), whichever is earlier. In all other cases, a party may amend its pleading only with the opposing party ’ s writtenconsent or the court ’ s leave. The court shall freely give leave when

ju stice so requires. Pursuant to the plain language of the rule , “ a plaintiff may amend a complaint as a matter of course within (1) 28 days of service of the complaint, or (2) the earlier of 28 days of service of (a) a responsive pleading or (b) a motion to dismiss, to strike, or for a more definite statement. ” Hunter v. Shield , 10th Dist. Franklin No. 18AP

- 244, 2019
- Ohio

- 1422, ¶ 13, citing Civ.R. 15 Staff Notes (July 1, 2013) (explaining the 2013 changes to Civ.R. 15(A)); King v. Divoky , 9th Dist.
Summit N o. 29769, 2021

- Ohio

- 1712, ¶ 39. Upon the expiration of the applicable 28

- day period, a plaintiff must obtain either leave from the trial court or written consent from the opposing party before filing an amending complaint. Id. at ¶ 13; Civ.R. 15(A).

“ The language of Civ.R. 15(A) favors a liberal policy when the trial judge is confronted with a motion to amend a pleading beyond the time limit when such amendments are automatically allowed. ” Wilmington Steel Prods., Inc. v. Cleveland Elec. Illum . Co., 60 Ohio St.3d 120, 122, 573 N.E.2d 622 (1991)

. However, there is no unconditional or absolute right to amend a complaint once the time specified in Civ.R. 15(A) has passed. Franciscan Communities, Inc. v. Rice , 8th Dist. Cuyahoga No. 109889, 2021

- Ohio

- 1729, ¶ 31. A trial court may properly deny a motion for leave to amend a complaint if the amendment would be futile. See, e.g., Wilmington at 123 ( “ [W]here a plaintiff fails to make a prima facie showing ofsupport for new matters sought to be plea ded, a trial court acts within its discretion

to deny a motion to amend the pleading. ” ).

When leave is required to file an amended complaint, and a party files or serves the amended complaint without leave of court, the amended complaint is without legal effect. IBEW, Local Union No. 8 v. Kingfish Elec., L

. L

. C

. , 2012
- Ohio

2363, 971 N.E.2d 425 , ¶ 18 (6th Dist.) ; accord PNC Bank, N.A. v. J & J Slyman, L.L.C., 8th Dist. Cuyahoga No. 101777, 2015

- Ohio

- 2951, ¶ 20 ( “ Generally, where leave is required to file a pleading, and a party files its pleading without the requisite leave, a trial court may treat it as a legal nullity. ” )

.

In this case, Weiler filed his original complaint on June 3, 2022, and service was completed on June 15, 2022. Pursuant to the Ohio Rul es of Civil Procedure, Weiler’ s original complaint constituted a pleading “ to which a responsive pleading was required. ” See Brenson v. Dean , 10th Dist. Franklin No. 21AP

- 584,

2022
- Ohio

- 2228, ¶ 11; see also Civ.R. 7(A) ( “ T here shall be a complaint and an
answer * * *. ” ). Here, Osborn filed its answer on July 5, 2022. Thus, contrary to Osborn ’ s interpretation of Civ.R. 15(A) on appeal, we find Weiler had 28 days from the responsive pleading to file an amended complaint “ once as a matter of course. ” By our calculation, Weiler’ s amended complaint was required to be filed by August
2, 2022. Significantly , Weiler’ s amended complaint was filed on August 2,

2022
— the final day of the 28

- day period prescribed by Civ.R. 15(A). Under these circumstances, we find the amended complaint was timely filed. Weiler , therefore,had no obligation to obtain Osborn ’ s consent or leave of court to amend his pleading.

Rather, his right to amend the original complaint was “ absolute. ” See Bunting v.
Watts , 5th Dist. Stark No. 2017CA00161, 2017

- Ohio

- 9121, ¶ 16, quoting Martin v. Block Communications, Inc ., 6th Dist. Lucas No. L

- 16

- 1213, 2017
- Ohio

- 1474, ¶ 19 ( “ A party has an absolute right to amend his pleading during the applicable 28

- day period by filing an amended pleading. ” ).

Based on the foregoing, we find the trial court erred as a matter of law by prematurely granting Osborn ’ s motion for judgment on the pleadings. In this case, there is no indication that the trial court considered the amended complaint, which was timely filed after Osborn’s Civ.R. 12(C) motion was filed

. See Fried v. Friends of Breakthrough Schools , 8th Dist. Cuyahoga No. 108766, 2020

- Ohio

- 4215, ¶ 12 ( “ It is well

- se ttled that an amended pleading supersedes the original pleading. ” ). The judgment entry summarily grants “the motion for judgment on the pleadings” and does not otherwise address the allegations levied against Hribar, who was not a party to the Civ.R. 12(C ) motion. Thus, it is unclear whether the court afford ed the amended complaint ’s legal effect

.

Nevertheless, even if this court were to find the court considered the contents of the amended complaint, we note that the arguments posed in the Civ.R. 12(C) motion, dated July 5, 2022 , were limited to the allegations set forth in the original complaint. See Vanek v. Geauga Soil & Water Conservation Dist ., 9th Dist. Summit No. 29610, 2020

- Ohio

- 3950, ¶ 8 (“Upon the filing of the amended complaint, [defendant] ’ s motion for judgment on the pleadings became mootbecause the complaint from which she sought the alleged benefit of immunity was

no longer active.”); see also Med

. Mut. of Ohio v. FrontPath Health Coa l ition , 6th
Dist. Lucas No. L

- 21
- 1226, 2023
- Ohio

- 243 ¶ 66. Furthermore, neither Osborn nor Hribar responded to the amended complaint. As such, the pleadings were not closed at the time the Civ.R. 12(C) judgment was entered. See Bullard v. McDonald ’ s , 10th
Dist. Franklin No. 20AP

- 374, 2021
- Ohio

- 1505, ¶ 9 (pleadings were not closed because defendant had not filed an answer to the amended complaint), citing JP Morgan Chase Bank, N.A. v. Belden Oak Furniture Outlet, Inc ., 5th Dist. Stark No. 2010 CA 00049, 2010

- Ohio

- 4444, ¶ 21 (pleadings were not closed because an answer had not been filed); see also Brooks v. Caswell , D.Or. No. 3:14

- cv - 01232, 2016 U.S. Dist. LEXIS 26832, *12 (Mar. 2, 2016) ( “ Here, though judgment on the pleadings under Rule 12(c) is not available si nce Defendants have not yet filed an answer to the Amended Complaint, and hence the pleadings are not yet closed. ” );
D ’ Ambly v. Exoo , D.N.J. No. 20

- 12880, 2021 U.S. Dist. LEXIS 210314, 6

- 7 (Nov. 1, 2021) ( “ [B]ecause no d efendant has answered the a mended c o mplaint, the pleadings are not closed. ” ). On remand, the defendants are free to assert the defense of failure to state a claim in an answer to the amended c omplaint, or in a subsequent
Civ.R. 12( C ) motion for judgment on the pleadings.

The first assignmen t of error is sustained. Our resolution of this assigned error is not premised on the contents of the amended complaint or the sufficiency of the allegations raised therein. Rather, our judgment relies exclusively on the procedural directives of Civ.R. 1 5(A) , which permitted Weiler to amend hiscomplaint as a matter of course and Civ.R. 12(C) , which required the trial court to

construe the entirety of the pleadings. The second assignment of error is rendered

moot. Judgment reversed and remanded.
It i s ordered that appell ant recover from appell ee costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate be sent to the common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE
EILEEN A. GALLAGHER , P. J., CONCURS; MARY EILEEN KILBANE , J., CONCUR S (WITH SEPARATE ATTACHED OPINION) MARY EILEEN KILBANE, J., CONCURRING:

I respectfully concur with the majority opinion. I wholeheartedly agree that Civ.R. 15(A) favors a liberal policy with respect to a plaintiff amending their complaint. See Grimberg v. Blackbird Baking Co

. , 8th Dist. Cuyahoga No.
111592, 2023
- Ohio

- 313 (Kilbane, J., dissenting)

.