[Cite as Weiler v. Osborn Eng. Co., 2023-Ohio-619.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

SHAWN WEILER, :

Plaintiff-Appellant, :

No. 112023

v. :

THE OSBORN ENGINEERING

COMPANY, ET AL., :

Defendant-Appellee. :

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 appellee. 

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 on 
the pleadings filed by defendant-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 defendantsappellees’ motion for judgment on the pleadings.

2. The Court of Common 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 position in April 2020.” 

Weiler was subsequently hired by a second, unidentified company in October 2020. 

Again, for reasons undisclosed, Weiler lost his position with the 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 the 
identity of the fictitious companies listed in his resume. Weiler complied with the 

request and identified each of his former employers, including 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 prospective 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, 2022. 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 sufficient 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 relief 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 knowledge 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 allegedly 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 

defendants’ written consent. Civ.R. 15(A). Osborn further asserted that leave of 
court would be “futile” because the contents of the proposed amended complaint 

“contains nothing but bare legal conclusions and is wholly unsupported by factual 

allegations sufficient 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 amended 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 court 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 motion 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 governed 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., citing 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 time 

prescribed by Civ.R. 15(A), and (2) the amended complaint did not cure the defects 

present in the original complaint. With respect to 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 motion 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 relevant 

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 written 
consent or the court’s leave. The court shall freely give leave when 

justice 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 No. 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 of 
support for new matters sought to be pleaded, 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-Ohio2363, 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 Rules 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) (“There 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-settled 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 afforded 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 moot 
because the complaint from which she sought the alleged benefit of immunity was 

no longer active.”); see also Med. Mut. of Ohio v. FrontPath Health Coalition, 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 since 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 defendant has answered the amended complaint, 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 complaint, or in a subsequent

Civ.R. 12(C) motion for judgment on the pleadings.

The first assignment 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. 15(A), which permitted Weiler to amend his 
complaint 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 is ordered that appellant recover from appellee 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., CONCURS (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).