[Cite as Williams v. MJS Ents., Ltd., 2022-Ohio-3695.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

WASHINGTON COUNTY

Delbert Williams, Jr., :

Plaintiff-Appellant, : Case No. 22CA8

v. :

DECISION AND 

MJS Enterprises, LTD : JUDGMENT ENTRY

D/B/A Saint Joseph’s Ambulance

Service, et al., :

Defendants-Appellees. : RELEASED 10/13/2022

APPEARANCES:

Rocco Screnci and Brian D. Spitz, Spitz, The Employee’s Law Firm, Beachwood, Ohio

for plaintiff-appellant.

Robert J. Kent and Ryan S. Moore, Bowles Rice LLP, Parkersburg, West Virginia for 

defendants-appellees.

Hess, J.

{¶1} Plaintiff-Appellant Delbert Williams Jr. appeals the trial court’s grant of 

Defendant MJS Enterprises, LTD D/B/A Saint Joseph’s Ambulance Service’s motion to 

dismiss his amended complaint pursuant to Civ.R. 12(B). Williams raises two 

assignments of error. First, he contends that the trial court erred in dismissing the 

amended complaint for lack of personal jurisdiction over MJS Enterprises. He contends 

that MJS Enterprises waived the defense of lack of personal jurisdiction by failing to raise 

it in its motion to dismiss. Alternatively, he argues that the trial court had personal 

jurisdiction over MJS Enterprises under Ohio’s long-arm statute and the Due Process 

Clause. Second, he contends that the trial court erred in dismissing his complaint as 

barred by West Virginia’s two-year statute of limitations on employment discrimination 
Washington App. No. 22CA8 2

claims. Williams argues that under the applicable law, Ohio’s six-year statute of limitation 

applies, and his complaint was timely filed.

{¶2} We find that the trial court erred when it determined that it lacked personal 

jurisdiction over MJS Enterprises because MJS Enterprises waived this defense by failing 

to raise it in its Civ.R. 12(B) motion to dismiss. Additionally, we find that the trial court

erred in dismissing the amended complaint on statute of limitations grounds under Civ.R. 

12(B)(6) when it considered factual matters outside the amended complaint without 

converting the motion to a motion for summary judgment as required by Civ.R. 12(B). We 

sustain Williams’s first assignment of error. We do not reach the merits of Williams’s 

second assignment of error because we sustain it on other grounds. We reverse the 

judgment of the trial court and remand for further proceedings consistent herewith. Upon 

remand, the trial court may convert the motion to dismiss to a motion for summary 

judgment, notify the parties, and allow them to submit evidence and additional briefing in 

accordance with Civ.R. 56(C).

I. FACTS AND PROCEDURAL BACKGROUND

{¶3} Williams brought an employment discrimination action against MJS 

Enterprises and Beth “Last Name Unknown” on March 1, 2021. Before filing a responsive 

pleading, MJS Enterprises filed a motion to dismiss asserting defenses under Civ.R. 

12(B)(1) (lack of subject matter jurisdiction); Civ.R. 12(B)(2) (lack of personal jurisdiction); 

Civ.R. 12(B)(3) (improper venue); Civ.R. 12(B)(5) (insufficiency of service of process); 

and Civ.R. 12(B)(6) (failure to state a claim upon which relief can be granted, specifically 

a statute of limitations defense). Williams amended his complaint as a matter of course 

under Civ.R. 15(A), by filing a first amended complaint within 28 days of MJS 
Washington App. No. 22CA8 3

Enterprises’s Civ.R. 12(B) motion to dismiss. The trial court issued an entry finding MJS 

Enterprises’s motion to dismiss moot because the original complaint had been substituted 

with an amended complaint. The court stated that MJS Enterprises may file a new motion 

to dismiss, if appropriate. 

{¶4} In his first amended complaint Williams alleged that he was a resident of 

Marietta, Ohio and began working for MJS Enterprises as an ambulette driver on August 

20, 2017. He alleged that MJS Enterprises had its principal place of business in 

Parkersburg, West Virginia, which is in Wood County, and Beth was a supervisor or 

manager who worked for MJS Enterprises. Williams alleged that he has bipolar disorder 

and “a learning disability” and is considered disabled under Ohio’s statute prohibiting 

unlawful employment discrimination against persons with disabilities. Williams alleged 

that in September 2017 he made a minor mistake involving a client’s signature on a form 

and asked for more training as an accommodation request. He alleged that, instead of 

providing additional training, MJS Enterprises and Beth willfully denied the request and 

effectively discharged him instead on September 25, 2017, by never scheduling him for 

another shift. He alleged that the defendants conducted business in Wood County, West 

Virginia and Washington County, Ohio and that all material events alleged in the 

complaint occurred in Washington County, Ohio – which is the main substantive change 

between his original and amended complaints – in his original complaint he alleged all 

material events occurred in Wood County, West Virginia. His amended complaint 

contained three counts: (1) disability discrimination against both defendants; (2) failure to 

accommodate against both defendants and (3) aiding, abetting, and inciting 

discrimination against Beth only. 
Washington App. No. 22CA8 4

{¶5} Before filing a responsive pleading to the amended complaint, MJS 

Enterprises filed a motion to dismiss asserting defenses under Civ.R. 12(B)(1) (lack of 

subject matter jurisdiction); Civ.R. 12(B)(3) (improper venue); Civ.R. 12(B)(4) 

(insufficiency of process); Civ.R. 12(B)(5) (insufficiency of service of process); and Civ.R. 

12(B)(6) (failure to state a claim upon which relief can be granted, specifically a statute of 

limitations defense). Notably, MJS Enterprises did not include a defense under 

Civ.R.12(B)(2) for lack of personal jurisdiction in its motion and its memorandum in 

support contained none of the arguments concerning personal jurisdiction that it had 

included in the memorandum supporting its first motion to dismiss the original complaint. 

However, MJS Enterprises continued to argue a lack of subject matter jurisdiction, which 

it argued was based on Williams’s original allegation that all the material facts occurred 

in Wood County and his “180 degree change in the stated location of where the material 

facts occurred.” MJS Enterprises argued that under Civ.R. 12(B)(1), the trial court can 

“consider material pertinent to such inquiry * * * this Court may wish to explore the issue 

in a hearing to attempt to determine where the material facts occurred (West Virginia or 

Ohio), and satisfy itself as to whether the jurisdiction regarding this case is affected.”1 

{¶6} In Williams’s response to the motion to dismiss, he noted that MJS 

Enterprises omitted the defense of lack of personal jurisdiction under Civ.R. 12(B)(2) and 

stated, “MJS Enterprises has assented to the Court’s personal jurisdiction by failing to 

object or move to dismiss under Civ.R. 12(B)(2).” 

1 For clarification, “ ‘Subject matter jurisdiction is the power of a court to entertain and adjudicate a particular 

class of cases.’ In contrast, ‘venue connotes the locality where the suit should be heard’ and is a procedural 

matter, rather than a jurisdictional concern.” (Citations omitted.) Watson v. Rankin-Thoman, KinmanKindell, Co., 6th Dist. Erie No. E-21-056, 2022-Ohio-2811, ¶ 9 (explaining the difference between subject 

matter jurisdiction, venue, and personal jurisdiction); see also Singleton v. Denny's, Inc., 36 Ohio App.3d 

225, 522 N.E.2d 1097 (9th Dist.1987).
Washington App. No. 22CA8 5

{¶7} Approximately five months after MJS Enterprises filed its motion to dismiss 

the amended complaint, it filed a supplemental memorandum in support of its motion to 

dismiss in which it argued that Williams’s claim arose in Wood County, West Virginia and 

was governed by the laws of West Virginia, but that Williams was attempting to bring the 

case in Ohio to avoid West Virginia’s two-year statute of limitations. MJS Enterprises 

asserted, “The limited discovery that has taken place in this civil action has further 

crystalized this fact. Despite Plaintiff’s artful pleading tactics, jurisdiction lies in West 

Virginia and the law of West Virginia applies. Assuming, arguendo, this Court has 

jurisdiction and Ohio substantive law applies, Plaintiff’s claim is barred under West 

Virginia’s two-year statute of limitations vis-a-vie [sic] Ohio’s choice of law rules and 

Ohio’s borrowing statute (Ohio Revised Code § 2305.03).”2

{¶8} MJS Enterprises focused half of its supplemental memorandum on Ohio 

choice-of-law rules and its borrowing statute, and the West Virginia Human Rights Act

and its two-year statute of limitation which, if applied to Williams’s claim, would bar it as 

untimely. This argument supports MJS Enterprises’s statute of limitation defense under 

Civ.R. 12(B)(6), which it preserved by raising it in its motion to dismiss the amended 

complaint. However, the other half of the supplemental memorandum focused on the 

defense of lack of personal jurisdiction under Civ.R. 12(B)(2), which MJS Enterprises 

failed to raise in its motion to dismiss the amended complaint. 

2

“A borrowing statute is a legislative exception from the general rule that the forum always applies its 

statute of limitation.” Combs v. Internatl. Ins. Co., 354 F.3d 568, 578 (6th Cir. 2004) (discussing Kentucky’s 

borrowing statute’s accrual method (i.e., “where the cause of action accrued”), “An accrual-based approach 

makes forum shopping impossible because the statute of limitations that governs in the forum where the 

cause of action accrued will apply no matter where the plaintiff files suit. In contrast, allowing plaintiffs to 

file suit in any state that has significant contacts with the dispute encourages plaintiffs to shop for the forum 

with the longest statute of limitations.”).
Washington App. No. 22CA8 6

{¶9} The trial court granted MJS Enterprises’s motion to dismiss. It did so on two 

alternative grounds: (1) lack of personal jurisdiction over MJS Enterprises and/or (2) 

Williams’s claim is barred by West Virginia’s two-year statute of limitations for

discrimination claims. The trial court did not address Williams’s argument that MJS 

Enterprises waived its personal jurisdiction defense by not raising it in its motion to 

dismiss the amended complaint. Instead, the trial court found that it lacked personal 

jurisdiction over MJS Enterprises under Ohio’s long-arm statute and the Due Process 

Clause. It also found that Williams was engaged in forum shopping because Ohio has a 

longer statute of limitations than West Virginia. It found alternatively, if it had personal 

jurisdiction, then the two-year statute of limitations applied, and Williams’s amended 

complaint should be dismissed “for failure to comply with the applicable statute of 

limitations.”3 

{¶10} Williams appealed. 

II. ASSIGNMENTS OF ERROR

{¶11} Williams designates two assignments of error for review:

I. The trial court erred in dismissing the First Amended Complaint for lack of 

personal jurisdiction. (3/14/22 J.E. ¶ 3.)

II. The trial court erred in dismissing the First Amended Complaint for failure to 

state a claim upon which relief can be granted. (3/14/22 J.E. ¶ 4.)

3 The trial court’s decision is open to a possible second interpretation: it only dismissed the complaint 

against MJS Enterprises for lack of personal jurisdiction and the discussion of the statute of limitations is 

merely dicta. However, this interpretation raises a jurisdictional problem: Williams’s claims against Beth are 

never separately addressed by the trial court and the entry does not contain Civ.R. 54(B) “no just reason 

for delay” language – the trial court’s decision would not be a final appealable order. Because the docket 

reflects that the entire case was dismissed and terminated, including the claims against Beth, and because 

the parties themselves do not raise this second interpretation in their appellate briefs, we interpret the trial 

court’s decision as finding, in the alternative, that it has personal jurisdiction over MJS Enterprises and

dismissing the complaint against both defendants on statute of limitations grounds.
Washington App. No. 22CA8 7

III. LEGAL ANALYSIS

A. Personal Jurisdiction over MJS Enterprises

1. Standard of Review

{¶12} “ ‘An appellate court reviews a trial court’s determination of whether 

personal jurisdiction over a party exists under a de novo standard of review.’ ” Britton v. 

Britton, 4th Dist. Washington No. 18CA10, 2019-Ohio-2179, ¶ 13, quoting State ex rel. 

Athens Cty. Dept. of Job & Family Servs. v. Martin, 4th Dist. Athens No. 07CA11, 2008-

Ohio-1849, ¶ 13.

2. Waiver of the Defense of Personal Jurisdiction

{¶13} Williams argues that MJS Enterprises waived the defense of personal 

jurisdiction when it failed to raise it in its motion to dismiss the amended complaint. MJS 

Enterprises argues that it preserved it when it raised the defense of personal jurisdiction 

in its motion to dismiss the original complaint. 

{¶14} We find that MJS Enterprises waived the defense of lack of personal 

jurisdiction when it failed to raise it in its motion to dismiss the amended complaint.

It is rudimentary that in order to render a valid personal judgment, a court 

must have personal jurisdiction over the defendant. This may be acquired 

either by service of process upon the defendant, the voluntary appearance 

and submission of the defendant or his legal representative, or by certain 

acts of the defendant or his legal representative which constitute an 

involuntary submission to the jurisdiction of the court. The latter may more 

accurately be referred to as a waiver of certain affirmative defenses, 

including jurisdiction over the person under the Rules of Civil Procedure.

{¶15} Maryhew v. Yova, 11 Ohio St.3d 154, 156, 464 N.E.2d 538, 540 (1984). 

Under Civ.R. 12(G) and (H), because MJS Enterprises made a Civ.R. 12(B) motion to 
Washington App. No. 22CA8 8

dismiss in response to the first amended complaint, it had to join the Civ.R.12(B)(2) 

defense of lack of personal jurisdiction in that motion or it is waived.

Such a rule reflects a strong policy against tardily raising defenses that go 

not to the merits of the case but to the legal adequacy of the initial steps 

taken by the plaintiff in his litigation, namely his service of process on the 

defendant and his choice of forum for the action. Unless the defendant 

objects on those grounds at the outset, he forfeits his right later to raise 

them as a defense. 

See Myers v. Am. Dental Ass'n, 695 F.2d 716, 721 (3d Cir.1982) (discussing the rationale 

for the identical Federal Rule of Civil Procedure 12(h)).

{¶16} Although MJS Enterprises raised a Civ.R. 12(B)(2) personal jurisdiction 

defense in its initial motion to dismiss the original complaint, Williams filed a first amended 

complaint. To remove any confusion about the effect the amended complaint had on MJS 

Enterprises’s original motion to dismiss, the trial court issued an entry denying its first 

motion to dismiss as moot. Everhome Mgte. Co. v. Baker, 10th Dist. Franklin No. 10AP534, 2011-Ohio-3303, ¶ 25 (“A motion to dismiss an original complaint is rendered moot 

by subsequent filing of an amended complaint.”); see Fried, Admr. v. Friends of 

Breakthrough Schools, 8th Dist. Cuyahoga No. 108766, 2020-Ohio-4215, ¶ 12 (it is “the 

rare case” in which an amended complaint is insufficient to moot the motion to dismiss). 

Not only does the amended complaint moot the motion to dismiss, it affords the defendant 

an opportunity to make a new motion to dismiss and re-raise previous defenses or raise 

new ones.

It is well settled that an amended pleading supersedes the original pleading. 

* * * 75 Ohio Jurisprudence Pleading, 343, Section 469 (“ ‘it is hornbook law 

that an amended pleading supersedes the original, the latter being [treated] 

thereafter as nonexistent’ ”). Therefore, an amended pleading opens the 

door for defending parties to raise new affirmative defenses. (Citations 

omitted.)
Washington App. No. 22CA8 9

Morris v. Morris, 189 Ohio App.3d 608, 2010-Ohio-4750, 939 N.E.2d 928, ¶ 32 (10th 

Dist.). Thus, after Williams filed his first amended complaint, MJS Enterprises had a “fresh 

start” and could raise any Civ.R. 12(B) defenses. However, Civ.R. 12(G) and (H) applied 

to MJS Enterprises’s motion to dismiss the amended complaint just as they did to its 

motion to dismiss the original complaint: failure to raise a Civ.R. 12(B)(2) defense in the 

motion to dismiss the amended complaint waived it. Emekekwue v. Offor, Civ.No.: 1:11-

CV-01747, 2012 WL 5249414, *4 (M.D. Penn. Oct. 24, 2012) (where defendant raises a 

12(b)(2) defense of lack of personal jurisdiction in initial motion to dismiss, plaintiff then 

files an amended complaint, and defendant files motion to dismiss amended complaint 

without re-raising her defense of lack of personal jurisdiction, she waived her right to 

assert the defense under F.R.C.P. 12(g) and (h)). 

{¶17} Because MJS Enterprises waived the defense of lack of personal 

jurisdiction, the trial court erred in dismissing the case against it on that ground. WBCMT 

2007-C33 Office 7870, LLC v. Breakwater Equity Partners, LLC, 2019-Ohio-3935, 133 

N.E.3d 607, ¶ 41 (1st Dist.) (“And it is well-settled that personal jurisdiction should not be 

raised sua sponte when the parties have waived the point”).

{¶18} We sustain Williams’s first assignment of error.

B. Dismissal Based on West Virginia Statute of Limitations

{¶19} Williams contends that the trial court erred when it granted, in the 

alternative, MJS Enterprises’s Civ.R. 12(B)(6) motion to dismiss the amended complaint 

as barred by the West Virginia statute of limitations. The trial court determined, 
Washington App. No. 22CA8 10

alternatively, that it had personal jurisdiction over MJS Enterprises and Williams’s claims 

were barred by the West Virginia Human Rights Act’s two-year statute of limitation.4

1. Standard of Review

{¶20} We review dismissals pursuant to Civ.R. 12(B)(6) de novo, presume the 

truth of all material factual allegations in the complaint, and make all reasonable 

inferences in Williams’s favor. State ex rel. Yost v. Rover Pipeline, L.L.C., 167 Ohio St.3d 

223, 2022-Ohio-766, 191 N.E.3d 421, ¶ 6. “ ‘In order for a trial court to dismiss a 

complaint under Civ.R. 12(B)(6) for failure to state claim upon which relief can be granted, 

it must appear beyond doubt that the plaintiff can prove no set of facts in support of the 

claim that would entitle the plaintiff to the relief sought.’ ” Id. at ¶ 18, quoting Ohio Bur. of 

Workers' Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 

12.

2. Legal Analysis

{¶21} After MJS Enterprises filed its motion to dismiss the amended complaint, 

the trial court established a briefing schedule and set a non-oral hearing on the motion 

for September 3, 2021. The trial court held a case management conference in November 

2021. After the conference, the trial court issued an entry stating that the conference was 

held, counsel for the parties attended, and the non-oral hearing on the motion to dismiss 

previously set for September 3, 2021 was continued to February 1, 2022. There was no 

additional information contained in the entry; it did not notify the parties that it was 

4

If we interpret the trial court’s decision as determining both that it lacked personal jurisdiction over the 

defendant and that the plaintiff’s claims were barred by the statute of limitations, the portion of the decision 

determining the statute of limitations issue would be void. See, e.g., Malone v. Berry, 174 Ohio App.3d 122, 

2007-Ohio-6501, 881 N.E.2d 283, ¶ 10 (10th Dist.) (“A judgment rendered by a court that has not acquired 

personal jurisdiction over the defendant is void”).
Washington App. No. 22CA8 11

converting the motion to dismiss into a summary judgment motion or set additional 

briefing deadlines. In the week following the conference, MJS Enterprises served 

interrogatories, document production requests, and requests for admissions on Williams 

that were focused on Williams’s allegations that he worked in Washington County, Ohio 

and that the material events occurred in Washington County, Ohio. 

{¶22} On January 31, 2022, one day before the extended non-oral hearing date, 

MJS Enterprises filed a “supplemental memorandum to its motion to dismiss (or 

alternatively motion for summary judgment).” MJS Enterprises identified the supplemental

memorandum as “alternatively in support of a motion for summary judgment if converted 

by this Court per Rule 12 of the Ohio Civil Procedure from a motion to dismiss to one for 

summary judgment.” It attached an affidavit from the President of MJS Enterprises, in 

which he explained that Williams was employed in West Virginia, received paychecks 

from a West Virginia corporation, received his work assignments in MJS Enterprises’s 

office in Parkersburg, West Virginia, picked up in Parkersburg and returned to 

Parkersburg the vehicle he drove for his assignments, and the termination he alleged 

occurred would have occurred in Parkersburg, West Virginia. MJS Enterprises also 

included Williams’s responses to interrogatories in which Williams stated he could not 

remember the specific times he worked in Washington County, Ohio, and did not have 

witnesses or documentation of it, but he identified three locations in Washington County 

(one in Belpre and two in Marietta) where he either picked up or dropped off a client or 

clients. These facts, which were beyond the scope of the amended complaint, were cited 

by MJS Enterprises in support of its argument that, under Ohio’s borrowing statute, the 

cause of action for employment discrimination accrued in West Virginia where Williams 
Washington App. No. 22CA8 12

was employed. The only facts alleged in the complaint concerning where the alleged 

employment discrimination accrued was Williams’s broad allegation, “All of the material 

events alleged in this Complaint occurred in Washington County, Ohio.” 

{¶23} Williams did not submit a response. However, MJS Enterprises’s certificate 

of service on its supplemental memorandum (or alternatively its summary judgment 

motion) stated that it was served by the United States Postal Service regular mail on 

January 31, 2022. Because the non-oral hearing date was the following day on February 

1, 2022, Williams would not have had sufficient time to respond prior to the non-oral

hearing date. 

{¶24} The trial court issued its decision and judgment entry in March 2022. In the 

decision, the trial court references facts outside the amended complaint, which were 

included in affidavits and discovery responses. For example, the trial court noted the fact 

that Williams “only had incidental contact with Ohio as a MJS employee when he made a 

few ‘runs’ into Ohio.” This appears to be a reference to the three, isolated incidents 

Williams identified in an interrogatory. The trial court determined that the employment 

discrimination accrued in West Virginia and therefore, under Ohio’s borrowing statute, the 

West Virginia Human Rights Act two-year statute of limitations applied and barred 

Williams’s claim. 

{¶25} Because the statute of limitations is an affirmative defense it can only be 

raised in a Civ.R. 12(B)(6) motion where it is clear from the face of the complaint that the 

action is barred.

A clear distinction exists in the Civil Rules between the affirmative defense 

of the bar of the statute of limitations pursuant to Civ.R. 8(C), and a Civ.R. 

12(B)(6) defense. The purpose behind the allowance of a Civ.R. 12(B) 

motion to dismiss based upon the statute of limitations is to avoid the 
Washington App. No. 22CA8 13

unnecessary delay involved in raising the bar of the statute in a responsive 

pleading when it is clear on the face of a complaint that the cause of action 

is barred. The allowance of a Civ.R. 12(B) motion serves merely as a 

method for expeditiously raising the statute of limitations defense.

Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55, 59–60, 320 N.E.2d 668, 671 (1974); 

Schmitz v. Natl. Collegiate Athletic Assn., 155 Ohio St.3d 389, 2018-Ohio-4391, 122 

N.E.3d 80, ¶ 41 (Kennedy, J., concurring in part and concurring in judgment only in part) 

(“Ohio's appellate courts have long recognized the difficulty of successfully asserting an 

affirmative defense in a Civ.R. 12(B)(6) motion to dismiss. ‘Because affirmative defenses 

typically rely on matters outside the complaint, they normally cannot be raised 

successfully in a Civ.R. 12(B)(6) motion.’ ”); Savoy v. Univ. of Akron, 10th Dist. Franklin 

No. 11AP-183, 2012-Ohio-1962, ¶ 6-7 (“the better procedure is to address affirmative 

defenses by way of a motion for summary judgment that will allow introduction of 

additional facts beyond the complaint”). “Affirmative defenses such as the statute of 

limitations are generally not properly raised in a Civ.R. 12(B)(6) motion because they 

usually require reference to materials outside the complaint.” Steiner v. Steiner, 85 Ohio 

App.3d 513, 518, 620 N.E.2d 152, 156 (4th Dist. 1993). “Only where the complaint 

demonstrates conclusively on its face that the action is time-barred should a Civ.R. 

12(B)(6) motion to dismiss based upon the statute of limitations be granted.” Swanson v. 

Boy Scouts of Am., 4th Dist. No. 07CA663, 2008-Ohio-1692, ¶ 6.

{¶26} Here it is evident from its references to factual matters contained within MJS 

Enterprises’s affidavit and discovery evidence that the trial court converted the Civ.R. 

12(B)(6) motion into a motion for summary judgment without giving proper notice.

When a trial court considers a Civ.R. 12(B)(6) motion to dismiss, it * * *

“cannot rely on evidence or allegations outside the complaint to determine 

a Civ.R. 12(B)(6) motion.” When a party presents evidence outside the 

pleadings, the trial court bears the “responsibility either to disregard [the] 
Washington App. No. 22CA8 14

extraneous material or to convert [the] motion to dismiss into a motion for 

summary judgment * * *.” If the court converts the motion to dismiss to one 

for summary judgment, the court must give the parties notice and a 

reasonable opportunity to present all of the available evidence that Civ.R. 

56(C) permits. Civ.R. 12(B). As our sister district aptly explained in Powell 

v. Vorys, Sater, Seymour & Pease, 131 Ohio App.3d 681, 684–685, 723 

N.E.2d 596 (10th Dist.1998):

When a motion to dismiss presents matters outside the 

pleadings, the trial court may either exclude the extraneous 

matter from its consideration or treat the motion as one for 

summary judgment and dispose of it pursuant to Civ.R. 56. 

However, a trial court may not, on its own motion, convert a 

Civ.R. 12(B)(6) motion to dismiss to a motion for summary 

judgment and thus dispose of it without giving notice to the 

parties of its intent to do so and fully complying with Civ.R. 

12(B) and Civ.R. 56 in its considerations. Civ.R. 12(B); State 

ex rel. Baran v. Fuerst (1990), 55 Ohio St.3d 94, 97, 563 

N.E.2d 713, 716. * * * * Failure to notify the parties that the 

court is converting a Civ.R. 12(B)(6) motion to dismiss into 

one for summary judgment is, itself, reversible error. State ex 

rel. Boggs v. Springfield Local School Dist. Bd. of Edn. (1995), 

72 Ohio St.3d 94, 96, 647 N.E.2d 788, 791.

(Citations omitted.) (Brackets sic.) Lang v. Enervest Energy Institutional Fund XI A LP, 

2016-Ohio-4844, 68 N.E.3d 179, ¶ 31 (4th Dist.). There is nothing in the record notifying 

the parties that the trial court was converting MJS Enterprises’s motion to dismiss to a 

summary judgment motion.

{¶27} This case involves a statute of limitations analysis that invokes questions of 

fact that “go beyond the scope of the bare dates set forth in the complaint.” Savoy v. Univ. 

of Akron, 10th Dist. Franklin No. 11AP-183, 2012-Ohio-1962, ¶ 6 (discussing how various 

tolling provisions that affect the statute of limitation can require an analysis of facts beyond 

those in the complaint). “Because of this, the question of whether a complaint, on its face, 

‘conclusively’ fails as time-barred often requires more than mere reference to the overlong 

interval between the injury and commencement of the action.” Id.
Washington App. No. 22CA8 15

{¶28} Although the face of the complaint contained an allegation that the 

employment discrimination occurred on September 25, 2017 when Williams was allegedly 

discharged, MJS Enterprises’s contention that the cause of action accrued in West 

Virginia could not be determined from the face of the complaint. Ohio’s borrowing statute, 

R.C. 2305.03(B), in effect at the time the action was brought provides:

(B) No civil action that is based upon a cause of action that accrued in any 

other state * * * may be commenced and maintained in this state if the period 

of limitation that applies to that action under the laws of that other state * * 

* has expired or the period of limitation that applies to that action under the 

law of this state has expired.

Thus, to determine whether West Virginia’s two-year statute of limitation applies, the trial 

court must consider facts that establish where the cause of action accrued, which are not 

fully set out in Williams’s complaint. 

{¶29} Factual matters provided in the evidence submitted by MJS Enterprises 

should have been considered only after the trial court notified the parties that it was

converting the motion to dismiss to a summary judgment motion and provided the parties 

with an opportunity to present the pertinent Civ.R. 56(C) materials.

Under Civ.R. 12(B) and 56(C), a court must notify all parties at least 

fourteen days before the time fixed for hearing when it converts a motion to 

dismiss for failure to state a claim into a motion for summary judgment. 

Civ.R. 56(C) (“The motion shall be served at least fourteen days before the 

time fixed for hearing.”). “ ‘The primary vice of unexpected conversion to 

summary judgment is that it denies the surprised party sufficient opportunity 

to discover and bring forward factual matters [that] may become relevant 

only in the summary judgment, and not the dismissal, context.’ ” The 

surprised party is generally the nonmoving party. (Citations omitted.)

State ex rel. The V Cos. v. Marshall, 81 Ohio St.3d 467, 470–71, 692 N.E.2d 198, 202 

(1998).

{¶30} A trial court's failure to give notice is harmless error if the nonmoving party

had a sufficient opportunity to respond. Goodwin v. T.J. Schimmoeller Trucking, 3rd Dist. 
Washington App. No. 22CA8 16

Wyandot No. 16-07-08, 2008-Ohio-163, ¶ 11, citing State ex rel. The V Cos., at 472. 

Where it is clear from the record that both parties submitted additional evidence and the 

nonmoving party had sufficient opportunity to respond, the trial court’s failure to give 

notice may be harmless error. Id.; My Father's House No. 1 v. McCardle, 2013-Ohio-420, 

986 N.E.2d 1081, ¶ 16 (3d Dist.) (parties submitted pre-hearing briefs, submitted 

evidence during a two-day hearing, and submitted post-hearing briefs).

[A] trial court's error in considering a Civ.R. 12(B)(6) motion as a summary 

judgment motion generally does not affect the parties' substantial rights, 

and is therefore harmless, when (1) both parties rely on evidence outside 

the complaint, (2) the non-moving party had sufficient notice and opportunity 

to respond, and (3) no prejudice results. (Citations omitted.)

Rice v. Lewis, 4th Dist. Scioto No. 13CA3551, 2013-Ohio-5890, ¶16.

{¶31} Based on the record, we cannot say that the error was harmless. There 

was nothing in the trial court’s case management conference entry from November 2021 

that notified the parties that the motion to dismiss would be converted to a summary 

judgment motion. The trial court did not hold an evidentiary hearing. Williams was not 

notified that he could submit Civ.R. 56(C) material beyond the face of the complaint, he 

did not do so, and he had insufficient time prior to the non-oral hearing date to respond 

to MJS Enterprises’s submissions. Had Williams wished to submit additional evidence, it 

is not clear he had sufficient time to do so. The trial court issued a decision promptly after 

the hearing date which resulted in prejudicial results to Williams because it dismissed his 

action.

{¶32} By considering additional evidence beyond that contained in the amended 

complaint, the trial court erred. It should have either excluded the evidence or converted

the motion to dismiss to a motion for summary judgment as required by Civ.R. 12(B). 

Accordingly, we hold that the trial court improperly dismissed the case and we reverse 
Washington App. No. 22CA8 17

the trial court's judgment. See Rose v. Cochran, 4th Dist. Ross No. 11CA3243, 2012-

Ohio-1729, ¶ 13 (sua sponte reversed the trial court’s grant of motion to dismiss because 

it failed to convert the motion to dismiss to a motion for summary judgment).

{¶33} We decline to address the substantive merits of Williams’s second 

assignment of error because we sustain it on other procedural grounds.

IV. CONCLUSION

{¶34} We sustain Williams’s first assignment of error, sustain on other grounds 

his second assignment of error, and remand for further proceedings consistent herewith.

JUDGMENT REVERSED. 

CAUSE REMANDED.
Washington App. No. 22CA8 18

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS REVERSED, CAUSE REMANDED and that 

appellee shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Washington

County Court of Common Pleas to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of 

this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________________

 Michael D. Hess, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing with 

the clerk.