COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69144 ROBERT F. SCHMIDT : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION CHICAGO TITLE INSURANCE : COMPANY : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 11, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-228405 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: BERNARD MANDEL (#0030988) 8233 Whispering Pines Drive Russell, Ohio 44072 For Defendant-Appellee: THOMAS L. ESPER (#0007090) PERSKY SHAPIRO, SALIM, ESPER, ARNOFF & NOLFI CO., L.P.A. 1410 Terminal Tower Cleveland, Ohio 44113-2298 - 2 - SPELLACY, C.J.: Plaintiff-appellant Robert Schmidt appeals the dismissal of his suit for tortious breach of duty and breach of contract against defendant-appellee Chicago Title Insurance Company granted under Civ.R. 12(C). Appellant raises the following assignment of error on appeal: THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION FOR JUDGMENT ON THE PLEAD- INGS AND MOTION TO DISMISS, IN LIGHT OF DEFENDANT-APPELLEE'S FAILURE TO FILE A MOTION FOR DEFINITE STATEMENT. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. I. In 1982, Schmidt entered into a mortgage transaction with Buckeye Federal Savings and Loan to refinance certain commercial property which he owned. Defendant-appellee Chicago Title Insurance Company ("Chicago") acted as escrow agent during the transaction. Chicago's responsibilities as escrow agent including the recording of various documents with the State of Ohio and with Franklin County. Chicago, however, misfiled various documents which were not part of the Schmidt-Buckeye mortgage transaction. Chicago's failure to file the proper documents caused delay in Schmidt selling the mortgage, and Schmidt was also caused to pay approximately $80,000.00 in additional interest payments. - 3 - On March 9, 1992, Schmidt filed a Complaint in the Cuyahoga County Court of Common Pleas based on tortious breach of duty and breach of cotract. However, Schmidt failed to attach to the complaint a copy of a written contract. On April 15, 1992, Chicago filed its Answer and subsequently filed its Notice of Discovery on Schmidt. After nearly two years of inactivity, on February 8, 1994, the trial court ordered the case to be dismissed without prejudice for want of prosecution pursuant to Local Rule 18 and C.P. Sup.R. 6 if either party failed to show good cause within 30 days of the order. Both parties complied with the trial court's order and discovery continued between the parties. The case was then set for trial on June 27, 1995. On April 4, 1995, defendant-appellee Chicago, filed a Motion for Judgment on the Pleadings and Motion to Dismiss stating that Schmidt's complaint failed to state a cause of action against Chicago; and that Schmidt failed to commence the action within the applicable period of limitations. On June 6, 1995, the trial court granted Chicago's Motion for Judgment on the Pleadings and Motion to Dismiss. II. In his sole assignment of error, Schmidt contends that the trial court erred in granting Chicago's motion for judgment on the pleadings and motion to dismiss. Schmidt further contends that - 4 - Chicago's proper course of action should have been to file a motion for a more definite statement. "A motion for judgment on the pleadings is the same as a motion to dismiss filed after the pleadings are closed and raises only questions of law." Goodwin v. Department of Rehabilitation and Correction (September 19, 1995), Franklin App. No. 95AP103- 393, unreported. In determining whether to grant the motion, the trial court's review must be limited to the allegations contained in the pleadings, and the nonmoving party is entitled to have all material allegations in the complaint, with all reasonable inferences to be drawn therefrom, construed in his favor. If the trial court finds no material factual issues exist and appellee is entitled to judgment as a matter of law, it may then grant the motion for judgment on the pleadings. Id. In his complaint, Schmidt set forth that Chcago was under a contractual obligation to file only records related to the Schmidt- Buckeye refinancing transaction. (See Complaint). However, Schmidt never contends that an actual written contract existed, nor did Schmidt ever attach a written contract to the complaint. Where a complaint filed in a civil action is founded upon a written contract Civ.R. 10(D) requires: (D) Copy must be attached. When any claim or defense is founded on an account or other written instrument, a copy thereof must be attached to the pleading. If not so attached, the reason for the omission must be stated in the pleading. - 5 - Schmidt's failure to attach the written contract to the complaint leads this court to conclude that any contract which may have existed between Schmidt and Chicago was oral. Thus, the issue involved here is whether, from looking at the face of the complaint, Schmidt's suit is time barred by either R.C. 2305.07 for Schmidt's breach of contract claim, or by R.C. 2305.09 for Schmidt's tortious breach of duty claim. R.C. 2305.07 states "Except as provided in sections 126.301 [126.30.1] and 1302.98 of the Revised Code, an action upon a contract not in writing, express or implied, or upon a liability created by statute other than a forfeiture or penalty, shall be brought within six years after the cause thereof accrued." The mortgage transaction in which Chicago acted as escrow agent for Schmidt took place in 1982. Schmidt should have filed his cause of action some time before 1988, but did not do so until 1992, ten years after the cause had accrued. Therefore, Schmidt's cause of action sounding in contract is time barred for failure to meet the time limitation set forth in R.C. 2305.07. Schmidt's complaint also sets forth a second cause of action for tortious breach of duty by Chicago. R.C. 2305.09(D) requires "an action for any of the following causes shall be brought within four years after the cause thereof accrued: For an injury to the rights of the plaintiff not arising on contract nor enumerated in sections 2305.10 to 2305.12, 2305.14 and 1304.35 of the Revised Code." - 6 - Schmidt's tort cause of action was not filed until 1992, ten years after the alleged breach of duty occurred. Clearly, Schmidt's second cause of action did not comply with the four year statutory period set forth in R.C. 2305.09(D); and is therefore time barred. In his brief, Schmidt asserts that the trial court should have, in the alternative, required Chicago to file a motion for a more definite statement and cites Point Rental v. Posani (Franklin 1976), 52 Ohio App.2d 183 as supportive. The court in Point Rental held that a motion for a more definite statement, pursuant to Civ.R. 12(E), is appropriate where the plaintiff has failed to attach a copy of the written instrument or state a valid reason for the failure to attach the same. Point Rental, however, is not persuasive in this case. Point Rental can abe distinguished on the fact that the plaintiff in that case admitted that a written instrument existed, but it was unable to obtain the original instrument in order to attach it to the complaint. In the case sub judice, not only did Schmidt not attach the written instrument to the complaint, but he never gave the court any indication that a written instrument may have existed. For the foregoing reason, Plaintiff-appellant Schmidt's assignment of error is overruled and the judgment of the Cuyahoga County Court of Common Pleas is affirmed. - 7 - It is ordered that appellee recover of appellant his costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing 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. PATRICIA BLACKMON, J., CONCURS; DIANE KARPINSKI, J., DISSENTS. (See Dissenting Opinion Attached) LEO M. SPELLACY CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69144 : ROBERT F. SCHMIDT : : : Plaintiff-Appelant : : DISSENTING v. : : OPINION CHICAGO TITLE INSURANCE : COMPANY : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 11, 1996 KARPINSKI, J., DISSENTING: I respectfully dissent. The sole issue in this appeal is whether the trial court properly entered judgment against Schmidt for Chicago Title on the ground that Schmidt's action for "breach of contract" was barred by the statute of limitations. Resolution of this issue depends upon whether Schmidt's claim arises from an oral contract (subject to the 6 year R.C. 2305.07 statute of limitations), or a written contract (to which the 15 year R.C. 2305.06 applies). The events occurred in 1982 and Schmidt's complaint was filed approximately 10 years thereafter in - 2 - March, 1992. The action would be barred if it arose from an oral contract, but not if it arose from a written contract. See Saad v. Rodriguez (1986), 30 Ohio App.3d 156 (applying a 15-year statute of limitations in a case involving a claim for breach of a written escrow agreement.) Schmidt's original complaint does not specify which type of contract forms the basis for his claim and no written contract is attached to the complaint in accordance with Civ.R. 10(D). The sole reference to a contract is in paragraph 4 of the complaint as follows: "contractually was under obligation." The standard governing motions to dismiss under Civ.R. 12(B)(6) and motions for judgment on the pleadings under Civ.R. 12(C) is stringent and requires viewing the allegations in the complaint and inferences drawn therefrom in the light most favorable to the non-moving party. Any doubt should be resolved in favor of the non-moving party and against granting such judgments. See Burnside v. Leimbach (1991), 71 Ohio App.3d 399, 402-404 (citing authority). Because the complaint does not state whether the contract is "oral" or "written," the trial court improperly granted judgment for Chicago Title since it could not conclusively find, based on the face of the complaint, that the action was time barred. The majority states that Schmidt "never gave the court any indication that a written instrument may have existed." On the contrary, Schmidt filed a motion to amend his complaint to allege - 3 - the existence of an written contract. The trial court (which permitted Chicago Title to amend its answer to raise the statute of limitations defense) never ruled, however, on the motion to amend the complaint. This case languished in the trial court and this appears to be the reason that the trial court resolved this case in the way that it did. However, the proper manner to resolve the dispute would be summary judgment and not by granting motions to dismiss and for judgment on the pleadings. See Gargallo v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (Dec. 22, 1992), Franklin App. No. 92AP-1308, unreported at p. 3. .