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Date: 03-31-2021
Case Style:
KEVIN A. WOLFF -vs- DUNNING MOTOR SALES
Case Number: 20CA000011
Judge: Craig Baldwin
Court: COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
Plaintiff's Attorney:
Defendant's Attorney:
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Description:
Canton, Ohio - Civil attorney represented Kevin A. Wolff with alleging his 2002 Suburban was damaged by the actions of Dunning Motors.
Wolff brought his 2002 Chevrolet Suburban to Dunning Motor Sales on
January 5, 2016 for service. The mechanic at Dunning examined the vehicle and quoted
a price for repair that Wolff judged excessive, so he had the Suburban towed to his home.
In January 2019, Wolff filed a complaint against Dunning, claiming that Dunning damaged
his vehicle and that he was entitled to compensation for the damage. Dunning moved to
dismiss under Civ.R. 12(b)(6), arguing that the allegations in the complaint supported
dismissal based upon the statute of limitations. The trial court agreed and granted the
motion. Wolff filed an appeal to bring this matter to the attention of this court.
{¶3} Wolff filed a complaint against Dunning on January 3, 2019 alleging his
2002 Suburban was damaged by the actions of Dunning Motors. While Wolff uses his
brief to embellish the facts described in the complaint, our review of a decision granting
a motion to dismiss is limited to consideration of the complaint or material incorporated
into the complaint. State ex rel. Fuqua v. Alexander (1997), 79 Ohio St.3d 206, 207, 680
N.E.2d 985; State ex rel. Keller v. Cox (1999), 85 Ohio St.3d 279, 281-282, 707 N.E.2d
931. Our recitation of the facts includes only what is described or incorporated in the
complaint.
{¶4} We note that appellant references appellee’s motion for summary judgment
and the standard of review for summary judgment. Appellant is mistaken as no motion Guernsey County, Case No. 20CA000011 3
for summary judgment was presented to the court and, therefore, the standard of review
for such a motion is inapplicable. This distinction is critical as the evidence to be
considered in the context of a motion for summary judgment under Civ.R.56 is broader
than what may be considered for a motion to dismiss under Civ.R.12(b)(6). When
reviewing a motion for summary judgment, we consider “the pleadings, depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence, and
written stipulations of fact, if any, timely filed in the action.” Civ.R. 56(C). As noted above,
within the context of a Civ.R. 12(B)(6) motion to dismiss we are constrained to the
complaint or the material incorporated in the complaint, so our factual review will focus
only on that material available to us under Civ.R. 12(B). In the case before us, the only
source of facts is the complaint.
{¶5} In his complaint, Wolff states that he was driving a 2002 Chevrolet
Suburban on January 3, 2016 south of Cambridge, Ohio when the vehicle “started
missing on a cylinder.” Once it became clear that the “missing” would not resolve, he
stopped and called for a tow truck to take him to the nearest Chevrolet dealer, appellee
Dunning Motor Sales. Appellee was closed when Wolff arrived with his vehicle, so he left
the Suburban in the back lot.
{¶6} Wolff returned to appellee’s business on January 5, 2016, checked the oil
and spark plugs in the Suburban and drove it into the service building to be repaired.
After three hours he spoke with Louie, the service technician, who told him that the engine
suffered a mechanical problem and that there was fuel in the oil. Wolff asked if Louie had
checked the compression in the cylinder and found that he had not. The technician
checked the compression and found that all cylinders except number 8 had compression, Guernsey County, Case No. 20CA000011 4
possibly due to difficulty connecting the compression tester to the cylinder. The
technician also checked the spark plugs and all looked fine.
{¶7} The technician used a “scope camera” to inspect the inside of the eighth
cylinder and said “it did not look right” but Wolff looked at the screen and concluded the
top of the piston “was clearly in good shape.”
{¶8} The technician told Wolff that it would cost $7500.00 to repair the engine in
the Suburban and Wolff disagreed. Wolff spoke to the service manager who directed him
to the waiting room while the vehicle was reassembled. After reassembling it, the
Suburban was towed to the rear lot. Wolff asked why it was towed to the back lot and if
the vehicle was reassembled correctly, but did not receive an answer. He received the
keys and started the vehicle. The Suburban sounded much worse, “like there was
popcorn in it” and the technician jumped back when the vehicle started. Wolff asked the
technician “what the hell he did to my truck,” but received no answer.
{¶9} Wolff complained to the service manager and paid for the analysis,
“knowing at the time that my truck had been vandalized by a Chevrolet dealership, the
defendant.” He suspected “at the time that the technician put a foreign object in my
engine and that it broke something serious.” He had the truck towed to his home and
stored it in his mother’s garage for further analysis when the weather was better and when
he had more time. He was unable to inspect the vehicle for over one year due to his
mother’s failing health and his children’s participation in high school sports.
{¶10} In April 2018 Wolff inspected the Suburban and concluded that the spark
plug, the piston and one of the valves in cylinder eight was broken and that the vehicle
required a new engine. Wolff concluded that “[I]t was now clear that the technician had Guernsey County, Case No. 20CA000011 5
vandalized my engine and had put something in my engine that broke all the parts in
cylinder number 8.”
{¶11} Over the next four months Wolff and his sons installed a new engine, but
discovered that the new engine “acted the same as the old engine before it was
vandalized by the defendant.” Wolff discovered that the problem was a faulty fuel injector
for cylinder eight, and, after replacing the fuel injector, the engine worked well. He
concluded that the only problem with the old engine was the faulty fuel injector.
{¶12} Wolff filed his complaint on January 3, 2019, nearly three years after the
incident occurred, and demanded $10,000.00 to cover the cost of towing and repairing
the Suburban and $10,000 for loss of use of the truck. Dunning Motors filed a general
denial of the allegations and included several affirmative defenses, including failure to
state a claim for which relief may be granted and that the complaint was barred by the
applicable statute of limitations.
{¶13} For the next year the parties engaged in discovery disputes. Wolff claimed
that Dunning and its counsel were not cooperating and providing clear and appropriate
answers to discovery requests and Dunning contended Wolff inappropriately refused to
appear for his deposition. The trial court struggled with a resolution and set deadlines,
but Wolff was never satisfied with the discovery responses he received and Dunning was
never able to conduct Wolff’s deposition.
{¶14} Wolff also asked the trial judge to disclose his relationship with the owner
of Dunning Motor Sales and recuse himself from the case, contending that the judge may
be biased in favor of Dunning. The trial court rejected Wolff’s request and the record Guernsey County, Case No. 20CA000011 6
does not contain evidence that Wolff took any further action to have the trial judge
removed from the case.
{¶15} Dunning filed a motion to dismiss pursuant to Civ.R. 12(B)(6) and R.C.
2305.10(A) on April 2, 2020, claiming that Wolff’s complaint was barred by the statute of
limitations. Dunning characterized the complaint as an action for damage to personal
property and subject to the two-year statute of limitations under R.C. 2305.15(A).
Dunning acknowledged that Wolff’s complaint refers to a “contract infraction” but
concluded that the complaint does not state a claim for breach of contract arguing that
“[t]he substance of a claim, not the form of the complaint, determines the appropriate
statute of limitations”, citing Hunter v. Shenango Furnace Co., 38 Ohio St.3d 235, 237,
527 N.E. 2d 871 (1988).
{¶16} Wolff responded to the motion by pointing out that he specifically stated
within the complaint “that the action comes under Contract and Tort law.” Wolff argued
that he never limited the complaint to “property damage” and that “[i]t is inherent and clear
from the materials produced by the Defendant during discovery that this case is based on
a contract for analysis and repair of my vehicle by the defendant.” He claimed cases relied
upon by Dunning did not address damage to a motor vehicle and were distinguishable on
their facts. “The fact that property damage occurred was merely a complication of the
breach of contract and goes along with the damages aspect of the case, not to the cause
of action” according to Wolff.
{¶17} Wolff concludes his argument by asserting that any statute of limitation
should begin to run only after he had the opportunity to inspect the vehicle in April 2018
and confirm his suspicion that Dunning damaged his vehicle. Guernsey County, Case No. 20CA000011 7
{¶18} Dunning filed a Reply and, due to purported delay in Wolff’s receipt of
Dunning’s Reply both parties were given the opportunity to file supplemental materials
and both did so. Dunning offered an analysis of what it characterized as the Andrianos
Rule, derived from the Supreme Court of Ohio’s decision in Andrianos v. Community
Traction Co., 155 Ohio St. 47, 97 N.E. 2d 549 (1951), That rule, as described by appellee,
stands for “the proposition that it is the ‘essence of the action’ and not the ‘form of
action’ which controls the applicable statute of limitations. (Emphasis added.) Id. at 51.”
{¶19} Wolff replies by arguing that questions of fact remain to be decided
regarding the appropriate statute of limitations to apply and when he knew or should have
known that the engine had been damaged as a direct and proximate result of Dunning’s
actions. Wolff includes a reference to fraud in this pleading and attempted to file an
amended complaint, but that complaint was stricken from the record by the trial court
because Wolff had not requested leave to amend the complaint.
{¶20} The trial court granted the motion to dismiss on May 20, 2020 finding that
“the alleged damage [Wolff] suffered did not result from a breach of an oral agreement to
diagnose the problem, but rather Plaintiff’s allegation that “ ‘the technician had vandalized
my engine and had put something in my engine that broke all the parts in cylinder number
8’ causing injury to Plaintiff’s vehicle.” The trial court found that the two-year statute of
limitations of R.C. 2305.15(A) applied and began running on January 5, 2016 when Wolff
“paid for the half ass analysis, knowing at the time that my truck had been vandalized by
a Chevrolet dealership, the Defendant.” The trial court concluded that the statute of
limitations expired on January 5, 2018 and that Wolff’s claim was barred. Guernsey County, Case No. 20CA000011 8
{¶21} The trial court also addressed the amended complaint filed May 4, 2020 by
the clerk prior to the court’s ruling on the motion to amend the complaint. The trial court
ordered that the amended complaint be removed from the docket.
{¶22} All other pending motions were denied by the trial court as moot.
{¶23} Wolff filed a notice of appeal with twelve assignments of error; however,
because we will not address those assignments for the reasons set forth below, they are
not included within this opinion.
ANALYSIS
{¶24} Before addressing the merits of this appeal, we must address Wolff’s failure
to comply with the Appellate Rules regarding the requirements and limitations of appellate
briefs. While we recognize that Wolff is acting pro se, the Supreme Court of Ohio has
“repeatedly declared that “pro se litigants * * * must follow the same procedures as
litigants represented by counsel.” State ex rel. Gessner v. Vore, 123 Ohio St.3d 96, 2009-
Ohio-4150, 914 N.E.2d 376, ¶ 5. “ ‘It is well established that pro se litigants are presumed
to have knowledge of the law and legal procedures and that they are held to the same
standard as litigants who are represented by counsel.’ ” State ex rel. Fuller v. Mengel,
100 Ohio St.3d 352, 2003-Ohio-6448, 800 N.E.2d 25, ¶ 10, quoting Sabouri v. Ohio Dept.
of Job & Family Serv., 145 Ohio St.3d 651, 654, 763 N.E.2d 1238. State ex rel. Neil v.
French, 153 Ohio St.3d 271, 2018-Ohio-2692, 104 N.E.3d 764 (2018).
{¶25} Appellate Rule 16(A) supplies the requirements for appellant’s brief:
(1) A table of contents, with page references.
(2) A table of cases alphabetically arranged, statutes, and other
authorities cited, with references to the pages of the brief where cited. Guernsey County, Case No. 20CA000011 9
(3) A statement of the assignments of error presented for review, with
reference to the place in the record where each error is reflected.
(4) A statement of the issues presented for review, with references to
the assignments of error to which each issue relates.
(5) A statement of the case briefly describing the nature of the case, the
course of proceedings, and the disposition in the court below.
(6) A statement of facts relevant to the assignments of error presented
for review, with appropriate references to the record in accordance with
division (D) of this rule.
(7) An argument containing the contentions of the appellant with respect
to each assignment of error presented for review and the reasons in support
of the contentions, with citations to the authorities, statutes, and parts of the
record on which appellant relies. The argument may be preceded by a
summary.
(8) A conclusion briefly stating the precise relief sought.
{¶26} Appellate Rule 19(A) establishes limits to the length of an appellate brief:
Without prior leave of court, no initial brief of appellant or
cross-appellant and no answer brief of appellee or cross-appellee
shall contain more than 9,000 words, and no reply brief shall contain
more than 4,500 words, exclusive of the cover page, table of
contents, table of cases, statutes and other authorities cited,
statement regarding oral argument, certificates of counsel, signature
blocks, certificate of service, and appendices, if any. An initial brief Guernsey County, Case No. 20CA000011 10
and answer brief not exceeding 30 pages in length at 12-point font
shall be presumed compliant with the 9,000 word limit, and a reply
brief not exceeding 15 pages in length at 12-point font shall be
presumed compliant with the 4,500 word limit.”
{¶27} This court’s local rule narrows the length of briefs to specific page limits: “In
addition to the requirements of App.R. 16, no brief by any party in an appeal or original
action, excluding appendices, table of contents, table of cases, statement of assignments
of errors, and statement of the issues shall exceed thirty pages, unless, upon a motion
requesting an increase of a specific number of pages and the showing of good cause,
this Court orders otherwise. No reply brief shall exceed fifteen pages.” Loc.R. 9(B).
{¶28} Appellant’s brief is comprised of ninety-seven pages, far exceeding any
applicable page limit. If we reduce the count by the number of pages attributable to
appendices, table of contents, table of cases, statement of assignments of errors, and
statement of the issues, the brief still violates the page limit by an excessive amount. And
the additional pages do not clarify appellant’s argument, but only serve to introduce
irrelevant issues, such as the discussion regarding summary judgment, or tirelessly
repeat facts that are not within the complaint and cannot be considered in the context of
a motion filed under Civ.R. 12(B)(6).
{¶29} Appellant’s presentation also lacks a clear reference to the twelve
assignments of error that he has submitted. Rather than segregate his argument “with
respect to each assignment of error presented for review and the reasons in support of
the contentions, with citations to the authorities, statutes, and parts of the record on which
appellant relies,” much of this presentation is an unedited narrative with no reference to Guernsey County, Case No. 20CA000011 11
the specific assignments of error. Appellant may expect the court to collate his argument
and assign different portions to the relevant assignment, but we will not create appellant’s
argument on his behalf. Salameh v. Doumet, 5th Dist. No. 19 CAF 01 0008, 2019-Ohio5391, 151 N.E.3d 83, ¶ 60, appeal not allowed,158 Ohio St.3d 1506, 2020-Ohio-2819,
144 N.E.3d 456.
{¶30} Appellant captions a portion of his brief “Argument” and within this section
of his brief he contends that the trial court erred because it failed to properly apply “the
law for determining summary judgment motions by viewing facts in the light most
favorable to the nonmoving party.” No party to this matter has filed a motion for summary
judgment. Appellant is conflating an analysis of a motion for summary judgment with that
of a motion to dismiss under Civ.R. 12(B)(6), two distinctly different procedures. Because
the parties did not file a motion for summary judgment and the trial court did not resolve
a motion for summary judgment we cannot consider Wolff’s argument regarding that
issue. This section of his brief does contain assertions regarding issues relevant to the
decision of the motion to dismiss, so, in the interest of justice, we will review the trial
court’s dismissal of the complaint under Civ.R. 12(B)(6) and Wolff’s arguments relevant
to that decision to the extent they are described in the “Argument” section of his brief.
{¶31} Dunning filed a motion to dismiss pursuant to Civ.R. 12(B)(6) based upon
the expiration of the statute of limitations. Our standard of review on a Civ.R. 12(B)(6)
motion to dismiss is de novo. Greeley v. Miami Valley Maintenance Contractors, Inc., 49
Ohio St.3d 228, 551 N.E.2d 981 (1990). A motion to dismiss for failure to state a claim
upon which relief can be granted is procedural and tests the sufficiency of the complaint.
State ex rel. Hanson v. Guernsey County Board of Commissioners, 65 Ohio St.3d 545, Guernsey County, Case No. 20CA000011 12
605 N.E.2d 378 (1992). Under a de novo analysis, we must accept all factual allegations
of the complaint as true and all reasonable inferences must be drawn in favor of the
nonmoving party. Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991).
{¶32} A trial court should dismiss a complaint for failure to state a claim on which
relief can be granted pursuant to Civ.R. 12(B)(6) only when it appears “beyond doubt * *
* that the [plaintiff] can prove no set of facts warranting relief.” State ex rel. Crabtree v.
Franklin Cty. Bd. of Health (1997), 77 Ohio St.3d 247, 248, 673 N.E.2d 1281. The court
may look only to the complaint itself, and no evidence or allegation outside the complaint,
when ruling on a Civ.R. 12(B)(6) motion. State ex rel. Fuqua v. Alexander (1997), 79 Ohio
St.3d 206, 680 N.E.2d 985. Nevertheless, the court may consider material incorporated
in the complaint as part of the complaint. State ex rel. Keller v. Cox (1999), 85 Ohio St.3d
279, 707 N.E.2d 931.
{¶33} In its answer, Dunning asserted that Wolff’s claim was barred by the statute
of limitations, an affirmative defense that must be pleaded in an answer or it is waived
under Civ.R. 8(C). Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St.3d 366, 2012-Ohio4193, 978 N.E.2d 832. “Since affirmative defenses typically rely on matters beyond the
pleadings, they normally cannot be raised in a Civ.R. 12(B)(6) motion to dismiss. * * * An
exception exists, however, where the existence of the affirmative defense is obvious from
the face of the complaint itself.” Lanzer v. Louisville, 5th Dist. No. 2015 CA 00170, 2016-
Ohio-8071, 75 N.E.3d 752, ¶ 56, referencing Mills v. Whitehouse Trucking Co. (1974), 40
Ohio St.2d 55, 58, 320 N.E.2d 668 where the Supreme Court of Ohio held 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.” Id.Guernsey County, Case No. 20CA000011 13
{¶34} A 12(B)(6) motion to dismiss based upon a statute of limitations should be
granted only where the complaint conclusively shows on its face that the action is so
barred. Velotta v. Petronzio Landscaping, Inc., 69 Ohio St.2d 376, 379, 433 N.E.2d 147
(1982). To conclusively show that the action is time barred, the complaint must
demonstrate both (1) the relevant statute of limitations, and (2) the absence of factors
which would toll the statute, or make it inapplicable. Tarry v. Fechko Excavating, Inc.
(Nov. 3, 1999), Lorain App. No. 98–CA–7180, unreported, 1999 WL 1037755, as quoted
in Helman v. EPL Prolong, Inc., 7th Dist. No. 98 CO 83, 139 Ohio App.3d 231, 2000-Ohio2593, 743 N.E.2d 484.
{¶35} Wolff’s complaint sets out the date when the cause of action accrued and
includes allegations to make the nature of the claim and the applicable limitations period
clear. He alleges he took his Chevrolet Suburban to Dunning for service on January 5,
2016 and after the technician returned the vehicle, he knew “at the time that my truck had
been vandalized by” Dunning. He “suspected at the time that the technician put a foreign
object in my engine and that it broke something serious.” Wolff’s cause of action accrued
on January 5, 2016 and the complaint states a claim for damage to personal property,
subject to a two-year limitations period.
CAUSE OF ACTION ACCRUES
{¶36} Wolff not only discovered, but confidently stated that he was aware that he
was injured by the alleged wrongful conduct of the technician at Dunning on January 5,
2016 at which time the cause of action accrued and the statute of limitations began to
run. Collins v. Sotka, 81 Ohio St.3d 506, 507, 692 N.E.2d 58 (1998), quoting O'Stricker
v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, 4 OBR 335, 447 N.E.2d 727. Guernsey County, Case No. 20CA000011 14
{¶37} Wolff contends that his claim should not be barred because the statute of
limitation did not begin to run until he determined that the service technician had damaged
his truck. He argues the statute of limitations did not begin to run until August 2018 and
would expire in August 2020, long after he filed his complaint. He offers no legal authority
to support his argument, but states that the delay was caused by other matters that
required his attention. Wolff is requesting that we apply a “discovery rule” to a property
damage claim where the damage was not latent, but, according to the allegations in the
complaint, was evident on the date service was provided. We must deny Wolff’s request.
{¶38} Generally, a cause of action accrues and the statute of limitations begins to
run at the time the wrongful act was committed. Collins v. Sotka (1998), 81 Ohio St.3d
506, 507, 692 N.E.2d 581. However, the discovery rule is an exception to this general
rule and provides that a cause of action does not arise until the plaintiff discovers, or by
the exercise of reasonable diligence should have discovered, that he or she was injured
by the wrongful conduct of the defendant. Id., citing O'Stricker v. Jim Walter Corp. (1983),
4 Ohio St.3d 84, 4 OBR 335, 447 N.E.2d 727.
{¶39} In O'Stricker, the court emphasized that the discovery rule entails a twopronged test—i.e., discovery not just that one has been injured but also that the injury
was “caused by the conduct of the defendant”—and that a statute of limitations does not
begin to run until both prongs have been satisfied. O'Stricker, 4 Ohio St.3d at 86, 4 OBR
335, 447 N.E.2d 727, paragraph two of the syllabus.
{¶40} Since the rule's adoption, the Court has reiterated that discovery of an injury
alone is insufficient to start the statute of limitations running if at that time there is no
indication of wrongful conduct of the defendant. Moreover, the court has been careful to Guernsey County, Case No. 20CA000011 15
note that the discovery rule must be specially tailored to the particular context to which it
is to be applied. Browning v. Burt (1993), 66 Ohio St.3d 544, 559, 613 N.E.2d 993.
{¶41} In the case before us, Wolff’s complaint makes it clear that he discovered
the claimed injury to the property and that it was allegedly caused by Dunning on
January 5, 2016. The pertinent allegations include:
I got the keys and asked why they towed it out of the building and
whether he put it together correctly.
The Truck then sounded much worst(sic) and sounded like there was
popcorn in it.
When I started the truck the technician jumped back like it was going to
explode. I asked him what the hell he did to my truck and he would not
answer, just walked away.
I complained to the service manager and paid for the half ass analysis,
knowing at the time that my truck had been vandalized by a Chevrolet
dealership, the defendant.
I suspected at the time that the technician put a foreign object in my
engine and that it broke something serious. I would need time and better
weather to analyze my engine and identify what he had done.
Complaint, p. 2.
{¶42} Wolff’s allegations allow no other conclusion than that he was aware of the
alleged damage to his vehicle and Dunning’s role in the injury on January 5, 2016 and
that his cause of action accrued on that date. Guernsey County, Case No. 20CA000011 16
{¶43} Wolff’s claim that the statute should not begin to run until he discovered the
full extent of the damage with certainty also fails. The Supreme Court of Ohio addressed
this argument in Zimmie v. Calfee, Halter & Griswold, 43 Ohio St.3d 54, 58, 538 N.E.2d
398, 402 (1989) where it found that a claimant need not be aware of the full extent of his
injury before a cause of action accrues. “Instead, it is enough that some noteworthy event,
the cognizable event, has occurred which does or should alert a reasonable person that
an improper” procedure, repair or diagnosis has taken place.” Wolff highlighted the
“cognizable event” in his complaint when he alleged that he knew “at that time” that his
vehicle had been vandalized.
{¶44} Wolff’s cause of action accrued on January 5, 2016. We now turn to the
issue of the period of limitations.
PERIOD OF LIMITATIONS
{¶45} To determine the applicable limitations period, we look “to the actual nature
or subject matter of the case, rather than the form in which an action is pleaded, to
determine the applicable limitations period.” Helman v. EPL Prolong, Inc. (Oct. 30, 2000),
Columbiana App. Nos. 98 CO 83, 99 CO 5, unreported, quoting Lawyers Cooperative
Publishing Co. v. Muething (1992), 65 Ohio St.3d 273, 277. “The grounds for bringing
the action are the determinative factors, the form is immaterial.” Love v. Port Clinton, 37
Ohio St.3d 98, 99, 524 N.E.2d 166 (1988); see also, Doe v. First United Methodist Church,
68 Ohio St.3d 531, 629 N.E.2d 402 (1994).
{¶46} We find that the only possible interpretation of the complaint is that it states
a claim for damage to personal property subject to the two-year statute of limitations Guernsey County, Case No. 20CA000011 17
described in R.C. 2305.10(A). Wolff’s insistence that we find that he stated a claim for
fraud and breach of contract is not supported by the allegations and the law.
FRAUD
{¶47} Civil Rule 9(B) requires that “[i]n all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with particularity.” We have
held that “[t]he circumstances constituting fraud include the time, place, and content of
the false representation; the fact misrepresented; the identification of the individual giving
the false representation; and the nature of what was obtained or given as a consequence
of the fraud. First-Knox Nat'l Bank v. MSD Properties, Ltd., 5th Dist. Knox No. 15CA6,
2015-Ohio-4574 as quoted in Health & Wellness Lifestyle Clubs v. Valentine, 5th Dist.
Stark No. 2020CA00083, 2021-Ohio-42, ¶ 25.
{¶48} Wolff’s complaint does not contain a reference to a false representation,
when it was made, who made it or the consequences of the false representation. Wolff
invites us to interpret the Statement of Claim in his complaint as inferring a claim for fraud,
but we must reject his invitation as Civ.R. 9(B) does not permit an allegation of fraud by
inference.
CONTRACT
{¶49} Wolff’s contention that he stated a claim for breach of contract also fails for
lack of allegations of fact in the complaint sufficient to support such a claim. To state a
valid claim for breach of contract, it was incumbent upon [Wolff] to establish: (1) the
existence of a contract; (2) performance by [Wolff]; (3) breach by [Dunning]; and (4)
damage as a result. McFarren v. Emeritus at Canton, 5th Dist. No. 2017CA00130, 2018-
Ohio-1593, 111 N.E.3d 87, ¶ 34 quoting Blake Homes, Ltd. v. First Energy Corp., 173 Guernsey County, Case No. 20CA000011 18
Ohio App.3d 230, 2007-Ohio-4606, 877 N.E.2d 1041 (6th Dist). Wolff did not include
allegations in his complaint that expressly or impliedly satisfy these requirements and,
even if we strain to find the existence and breach of a contract, the allegations do not
supply a basis for us to conclude that a breach of contract caused the damages, but,
instead, Wolff confidently concludes that the technician vandalized his truck and he is
entitled to compensation for the resulting damages.
{¶50} Wolff’s complaint and demand compel a finding that his claim is subject to
the statute of limitations for an injury to personal property, and not breach of contract or
fraud because “the applicable statute of limitations is not determined from or by the form
of pleading, but rather by the gist of the complaint.” Viock v. Stowe-Woodward Co., 13
Ohio App.3d 7, 11, 467 N.E.2d 1378, 1382 (6th Dist.1983). Revised Code Section
2305.10 does not “concern itself with the circumstances under which an injury was
inflicted. On its face, it clearly covers all actions based on a claim respecting” injury to
personal property. Andrianos v. Community Traction Co., 155 Ohio St. 47, 51, 97 N.E.2d
549, 552 (1951). Wolff’s insistence that he has alleged that fraud or a breach of contract
has occurred is immaterial as his action is plainly one to recover damages for injury to his
Chevrolet Suburban allegedly committed by an employee of Dunning.
{¶51} We reject Wolff’s characterization of his cause of action as seeking
damages as a result of breach of contract or fraud. We find the trial court correctly
concluded the complaint states a claim for injury to personal property which is subject to
a two-year statute of limitations pursuant to R. C. 2305.10 (A). The trial court correctly
concluded the cause of action accrued on January 5, 2016 when Wolff concluded his
vehicle had been vandalized. The statute of limitations expired on January 5, 2018 as Guernsey County, Case No. 20CA000011 19
found by the trial court. Wolff’s complaint demonstrates, on its face, that it is subject to a
two-year statute of limitations and that there is no basis to make the statute inapplicable
or to toll the statute. For those reasons, we find trial court’s dismissal pursuant to Civ.R.12
(B)(6) was correct.
{¶52} Our finding that the trial court correctly determined that the statute of
limitations for Wolff’s cause of action expired prior to filing of the complaint and, that
therefore, the complaint was properly dismissed pursuant to Civ.R 12 (B)(6) renders all
of the other issues addressed by Wolff in his appellate brief moot.
Outcome: The decision of the Guernsey County Court of Common Pleas is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: