Mills v. Whitehouse Trucking Co., 320 N.E.2d 668 (Ohio 1974). · Go Syfert
Mills v. Whitehouse Trucking Co., 320 N.E.2d 668 (Ohio 1974). Cases Citing This Book View Copy Cite
234 citation events (137 in the last 25 years) across 6 distinct courts.
Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978 2002 2026
Top citers, strongest first. 28 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Welther v. Plageman
Ohio Ct. App. · 2021 · quote attribution · 1 verbatim quote · confidence high
to hold otherwise would effectively place the burden of affirmatively pleading compliance with the statute of limitations upon the plaintiff, contrary to the express mandate of civ.r. 8(c).
examined Cited as authority (verbatim quote) Altier v. Valentic, Unpublished Decision (10-22-2004) (3×) also: Cited "see", Cited "see, e.g."
Ohio Ct. App. · 2004 · signal: see · quote attribution · 1 verbatim quote · confidence high
a civ.r. 12(b)(6) motion will lie to raise the bar of the statute of limitations when the complaint shows on its face the bar of the statute
examined Cited as authority (quoted) Durig v. Youngstown (8×) also: Cited as authority (rule)
Ohio · 2025 · signal: see · quote attribution · 2 verbatim quotes · confidence high
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.
cited Cited as authority (rule) Williams v. MJS Ents., Ltd.
Ohio Ct. App. · 2022 · confidence medium
Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55 , 59–60, 320 N.E.2d 668, 671 (1974); Schmitz v. Natl.
cited Cited as authority (rule) Simindinger v. Meeker
Ohio Ct. App. · 2021 · confidence medium
Mills v. Whitehouse, 40 Ohio St.2d 55, 59 (1974).
discussed Cited as authority (rule) AIX Specialty Insurance Company v. Big Limo, Inc.
S.D. Ohio · 2021 · confidence medium
Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55, 60 , 320 N.E.2d 668, 671 (1974). 14 AIX also argues that the allegations in the Complaint are insufficient to state a claim of defamation because, unlike the Florida law that applied in Dginguerian, Ohio does not recognize a claim of defamation by implication.
discussed Cited as authority (rule) Agrawal v. Univ. of Cincinnati
Ohio Ct. App. · 2017 · confidence medium
Statute of Limitations {¶ 11} Dismissal of a cause of action is proper on statute of limitations grounds if the complaint "conclusively show[s] on its face the action is barred by the statute of limitations." Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376 (1982), paragraph three of the syllabus; Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55, 60 (1974); see also Civ.R. 12(B).
cited Cited as authority (rule) Stainbrook v. Ohio Secy. of State
Ohio Ct. App. · 2017 · confidence medium
Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55, 59 (1974); Jude v. Franklin Cty., 10th Dist.
discussed Cited as authority (rule) Shue v. Ohio Dept. of Rehab. & Corr.
Ohio Ct. App. · 2017 · confidence medium
DISCUSSION {¶ 6} Dismissal of a cause of action is proper on statute of limitations grounds if the complaint "conclusively show[s] on its face the action is barred by the statute of limitations." Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376 (1982), paragraph three of the syllabus; Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55, 60 (1974); see also Civ.R. 12(B).
discussed Cited as authority (rule) Walker v. Nationwide Mut. Ins. Co.
Ohio Ct. App. · 2015 · confidence medium
No. 20130 (Feb. 28, 2001); Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55, 58 (1974); Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St.2d 376, 379 (1982) ("A motion to dismiss a complaint under Civ.R. 12(B) which is based upon the statute of limitations is erroneously granted where the complaint does not conclusively show on its face the action is barred by the statute of limitations."); Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491 , 2006- Ohio-2625, ¶ 11. {¶ 5} A key issue in this case is a conflict of laws issue.
discussed Cited as authority (rule) Baker v. Mosler
Ohio Ct. App. · 2013 · confidence medium
Judgment Affirmed PRESTON, P.J., concurs. /jlr ROGERS, J., dissents. {¶9} I must respectfully dissent from the opinion of the majority. {¶10} R.C. 2303.09 requires that “[t]he clerk of the court of common pleas shall file together and carefully preserve in [his/her] office all papers delivered to [him/her] for that purpose in every action or proceeding.” Based on this plain statutory language, the Clerk’s duty is just to file and preserve papers delivered to 1 We recognize the inherent logic of the dissent, but the Ohio Supreme Court has held “that a Civ.R. 12(B)(6) motion will lie t…
discussed Cited as authority (rule) Mitchell v. Haynes, Unpublished Decision (8-30-2001)
Ohio Ct. App. · 2001 · confidence medium
Mills , 40 Ohio St.2d at 55 (stating and noting that the only reason for allowing a prepleading motion to dismiss based on the statute of limitations is to avoid the unnecessary delay of filing an answer when the violation is clear on the face of the complaint).
cited Cited as authority (rule) Hoover v. Sumlin
Ohio · 1984 · confidence medium
Id. at 360.
discussed Cited as authority (rule) Millar v. Bowman
Ohio Ct. App. · 1983 · confidence medium
This amendment would appear to overrule dicta in Mills v. Whitehouse Trucking Co. (1974), 40 Ohio St. 2d 55, 59-60 [ 69 O.O.2d 350 ], which stated that: “* * * If the bar of the statute is not raised either by motion before pleading or affirmatively in a responsive pleading, or by amendment made under Civ.
cited Cited "see" Ronald Grimes v. Amazon.com Services, Inc., Tenmarks Education LLC, et al.
N.D. Ohio · 2026 · signal: see · confidence high
See Mills v. Whitehouse Trucking Co., 320 N.E.2d 668 , 670–71 (Ohio 1974).
cited Cited "see" Soliman v. Nawar
Ohio Ct. App. · 2023 · signal: see · confidence high
See Kvinta at ¶ 75 , citing Plain Dealer Publishing Co. at 33, and Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55, 60 (1974).
discussed Cited "see" Lorad, LLC v. Azteca Milling, L.P.
N.D. Ohio · 2023 · signal: see · confidence high
See Mills v. Whitehouse Trucking Co., 320 N.E.2d 668, 671 (Ohio 1974); Taylor v. Meridia Huron Hosp. of Cleveland Clinic Health Sys., 754 N.E.2d 810, 811 (Ohio Ct. App. 8th Dist. 2000); cf. Shamrock v. Cobra Res., LLC, 191 N.E.3d 1197, 1211 (Ohio Ct. App. 11th Dist. 2022) (holding that “a party may not oppose a motion for summary judgment by raising a new affirmative defense in its opposition to summary judgment”).
cited Cited "see" Truist Bank v. Eichenberger
Ohio Ct. App. · 2023 · signal: see · confidence high
See id.
discussed Cited "see" Moore v. Mt. Carmel Health Sys. (Slip Opinion) (2×)
Ohio · 2020 · signal: see · confidence high
See Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55, 59-60 , 320 N.E.2d 668 (1974).
examined Cited "see" BP Communications Alaska, Inc. v. Central Collection Agency (3×)
Ohio Ct. App. · 2000 · signal: see · confidence high
See Mills v. Whitehouse Trucking Co. (1974), 40 Ohio St.2d 55 , 69 O.O.2d 350 , 320 N.E.2d 668 , syllabus.
cited Cited "see" Bp Comm. Alaska v. Central Collection
Ohio Ct. App. · 2000 · signal: see · confidence high
See Mills v. Whitehouse Trucking Co. (1974), 40 Ohio St.2d 55 , syllabus.
cited Cited "see" Oliver v. Wagner, Unpublished Decision (12-8-1999)
Ohio Ct. App. · 1999 · signal: see · confidence high
See Mills v. Whitehouse Trucking Co. (1974), 40 Ohio St.2d 55 .
discussed Cited "see, e.g." Castle CFD Group, L.L.C. v. Kinney (2×)
Ohio Ct. App. · 2023 · signal: see also · confidence low
Wood No. WD-18-031, 2019-Ohio-2255, ¶ 40 , citing Stanwade Metal Prods. v. Heintzelman, 158 Ohio App.3d 228 , 2004-Ohio-4196 , 814 N.E.2d 572, ¶ 22 (11th Dist.); see also Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55 , 320 N.E.2d 668 (1974), syllabus. {¶ 24} In this case, Kinney and Parks waived the affirmative defense of payment by failing to raise it in their answer; therefore, they could not raise this defense for the first time in response to Castle’s motion for summary judgment. {¶ 25} In sum, the evidence provided by Castle establishes that Kinney is in default under the terms…
cited Cited "see, e.g." Frenchtown Square Partnership v. Nick Ents., Inc.
Ohio Ct. App. · 2021 · signal: see also · confidence low
See also Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55 , (1974), syllabus.
discussed Cited "see, e.g." DeFoe v. Schoen Builders, L.L.C. (2×)
Ohio Ct. App. · 2019 · signal: see also · confidence low
See also Mills v. Whitehouse Trucking Co., 40 Ohio St.2d 55 , 320 N.E.2d 668 (1974), syllabus.
discussed Cited "see, e.g." Hills v. Patton, 1-07-71 (3-24-2008)
Ohio Ct. App. · 2008 · signal: see, e.g. · confidence low
See, e.g., Kreitzer , 157 Ohio App.3d at ¶ 9, citing Carmen v. Link (1997), 119 Ohio App.3d 244 , 250 , and Mills v. Whitehouse Trucking Co. (1974), 40 Ohio St.2d 55 , syllabus. *Page 12 {¶ 26} Nevertheless, since the trial court addressed the statute of limitations, we note that the trial court properly determined that R.C. 3111.13 (F)(3) did not bar an award for back child support.
discussed Cited "see, e.g." Kreitzer v. Anderson (2×)
Ohio Ct. App. · 2004 · signal: see also · confidence low
See Carmen v. Link (1997), 119 Ohio App.3d 244, 250 , 695 N.E.2d 28 ; see, also, See Mills v. Whitehouse Trucking Co. (1974), 40 Ohio St.2d 55 , 320 N.E.2d 668 , syllabus. {¶ 10} However, even if this issue were not waived, R.C. 3111.13(F)(3) does not preclude an award of retroactive child support in the case sub judice.
discussed Cited "see, e.g." Dawson v. Astrocomos Metallurgical, Unpublished Decision (12-18-2002)
Ohio Ct. App. · 2002 · signal: see, e.g. · confidence low
See, e.g., Mills v. Whitehouse Trucking Co. (1974), 40 Ohio St.2d 55 , 59-60 (holding statute of limitations defense raised for the first time at trial by oral motion to dismiss was waived); Motorists Ins.
Retrieving the full opinion text from the archive…
Mills
v.
Whitehouse Trucking Co. City of Hillsboro
No. 73-991.
Ohio Supreme Court.
Dec 4, 1974.
320 N.E.2d 668
Mr. John 0. Crouse, for appellant., Mr. Eugene A. Pyle and Mr. Jon C. Eapner, for appel-lee.
Beown, Celebeezze, Cokrigan, Heebert, Neill, Steen.
Cited by 106 opinions  |  Published
1 passages pin-cited by 1 case
Pinpoint authority: bottom 77%
Citer courts: Ohio Supreme Court (2)
CokRigan, J.

Appellant, in this action, asserts a single proposition of law for this court’s consideration. It states:

“The defense of statute of limitations is in [an] affirmative defense which must be raised by pleading in accordance with Rule 8-C or by motion timely filed in accordance with Rule 12-B (6) of the Civil Rules of Procedure. Pleading the affirmative defense in an answer that ‘The petition does not set forth a claim’ does not raise the defense of statute of limitations under the Ohio Rules of Civil Procedure.”

Appellant contends that the defense of the statute of limitations was not raised in appellee’s answer pursuant to Civ. R. 8(C), that appellee’s motion filed in accordance[*58] with Civ. R. 12(B)(6) was not timely, and, therefore,, the defense was waived pursuant to Civ. R. 12(H).

Civ. R. 8(C) provides, in part:

“In pleading to a preceding pleading, a party shall set forth affirmatively * * * statute of limitations # * and any other matter constituting an avoidance or affirmative defense. * * ®”

Appellee’s first defense, “the complaint fails to state a claim against the defendant, City of Hillsboro, upón which relief can be granted,” clearly fails to allege affirmatively the bar of the statute of limitations to the present action nor does it formulate in a simple, concise, and: direct manner the issue to be resolved by the trial court. •

Appellee maintains that appellant’s complaint clearly shows on its face that the cause of action against appel-lee. is barred by the statute of limitations and the complaint is, therefore, subject to dismissal pursuant to Civ. R. 12 (B)(6) for failure to state a claim upon which relief can be granted.

Appellee is correct insofar as it maintains that a Civ. R. 12(B)(6) motion will lie to raise the bar of the statute of limitations when the complaint shows on its face,the bar of the statute.

Prior to the effective date of the Civil Rules, this court held, in Wentz v. Richardson (1956), 165 Ohio St. 558, that the bar of the statute of limitations may be effectively raised by a motion to dismiss, where it is apparent from the record before the court that the limitation period has run through failure to obtain timely service and no good reason has been advanced as to why the record should not prevail.

In a subsequent decision, Aetna Cas. & Sur. Co. v. Hensgen (1970), 22 Ohio St. 2d 83, this court construed the motion to dismiss, approved in Wentz, supra, as a special demurrer based on the statute of limitations, since that motion had been made before answer day and within the time limit for filing a demurrer.. In so doing, -the court stated, in paragraph one of the syllabus, the Ohio law prior[*59] to the effective date of the Civil Rules, as follows:

“Where a defendant fails to raise the objection that an alleged cause of action was not brought within the time limited for the commencement of such action, by a demurrer or by answer or in any other manner before filing an answer, such defendant thereby waives that ground of objection. (R. C. 2309.08 and 2309.10, construed and applied.)” (Emphasis ours.)

The Ohio Rules of Civil Procedure became effective July 1, 1970, and govern the pending action. Civ. R. 7(C) specifically abolishes the use of demurrers. Civ. R. 12(B) provides a pleader with the option of raising certain designated defenses by motion. Among them is the Civ. R. 12(B)(6) defense, “failure to state a claim upon which relief can be granted,” which supersedes the common-law demurrer as a vehicle for challenging a pleading which is defective on its face.

Civ. R. 12(B), however, provides that a motion making any of the enumerated defenses shall be made before pleading if a further pleading is permitted. Additionally, Civ.. R. 12(H) provides, in part:

“A party waives all defenses and objections which he does not present either by motion as hereinbefore provided or if he has made no motion, by responsive pleading or an amendment thereof made as a matter of course under Rule 15(A) * * *.”

The problem in the present ease arises from the fact that Civ. R. 12(H) (1) contains an exception to the waiver provision which also allows the Civ. R. 12(B)(6) defense to be raised by motion for judgment on the pleadings or at the trial on the merits'.

Appellee contends, and the Court of Appeals agreed, that appellee’s oral motion made at trial concerning the statute of limitations was such a motion as Civ. R. 12(H) (1) contemplated, and should have been allowed. This contention is without merit.

A clear distinction exists in the Civil Rules between the affirmative defense of the bar of the statute of limita[*60] tions 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 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. If the bar of the statute is not raised either by motion before pleading or affirmatively in a responsive pleading, or by amendment made under Civ. R. 15, then the defense is waived under Civ. R. 12(H), as are all other affirmative defenses which a party may present.

This result is in accord with the pre-Civil Rules procedure established by this court in the Hensgen decision above. To hold otherwise would effectively place the burden of affirmatively pleading compliance with the statute of limitations upon the plaintiff, contrary to the express mandate of Civ. R. 8(C), and contravene the intent of the Ohio Civil Rules to expedite the formulation of issues prior to trial.

In the present case, appellee’s oral motion to dismiss, made at trial, was not timely made pursuant to Civ. R. 12 (B), and the defense of the statute of limitations is waived pursuant to Civ. R. 12(H).

For the foregoing reasons, the judgment of the Court of Appeals is, therefore, reversed.

Judgment reversed.

O’Neill, C. J., HeebeRT, Steen, Celebeezze, W. Beown and P. Beown, JJ., concur.