Weiler v. Osborn Eng. Co.

[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 defendants-
appellees’ 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-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 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).