Thomas L. Engler, Plaintiff-Appellant, v. Adjutant General of Ohio, Defendant-Appellee.
No. 17AP-814 (Ct. of Cl. No. 2017-00610)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
June 12, 2018
[Cite as Engler v. Adjutant Gen., 2018-Ohio-2273.]
(REGULAR CALENDAR)
Rendered on June 12, 2018
On brief: Vesper C. Williams, II, for appellant. Argued: Vesper C. Williams, II.
On brief: Michael DeWine, Attorney General, Peter E. DeMarco, and Timothy M. Miller, for appellee. Argued: Timothy M. Miller.
APPEAL from the Court of Claims of Ohio
LUPER SCHUSTER, J.
{¶ 1} Plaintiff-appellant, Thomas L. Engler, appeals from а judgment of the Court of Claims of Ohio dismissing his complaint against defendant-appellee, Adjutant General of Ohio (“Adjutant General“). For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} In July 2017, Engler filed suit against the Adjutant General alleging claims for breach of contract and violation of
{¶ 3} Engler timely appeals.
II. Assignment of Error
{¶ 4} Engler assigns the following error for our review:
Appellant states that the Court of Claims abused its discretion by applying the statute of limitations set out in
R.C. 2743 which states in part “...civil аctions against the state...shall be commenced no later than two years after the date of accrual of the cause of action...” for breach of his enlistment contract AND violation of10 U.S.C. 1176 regarding his discharge and his service credits to make him eligible for his retirement all stated in the ENTRY OF DISMISSAL appealed in the second and fourth paragraphs on page numbered -2-.
(Sic passim.)
III. Discussion
{¶ 5} In his sole assignment of error, Engler аlleges the Court of Claims erred in dismissing his claims based on its finding that they are time-barred pursuant to the applicable statute of limitations. This assignment of error lacks merit.
{¶ 6} Under Civ.R. 12(B)(6), a defendant may move to dismiss a complaint for failure to state a claim upon which relief can bе granted. A Civ.R. 12(B)(6) motion to dismiss tests the sufficiency of a complaint. O‘Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245 (1975). In ruling on a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must construe the complaint in the light most favorable to the plaintiff, presume all factual allegations in the complaint are true, and make all reasonable infеrences in favor of the plaintiff. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). The dismissal of a complaint for failure to state a claim is proper when it appears, bеyond doubt, that the plaintiff can prove no set of facts entitling him to relief. Celeste v. Wiseco Piston, 151 Ohio App.3d 554, 2003-Ohio-703, ¶ 12 (11th Dist.). A motion to dismiss based on the application of a statutе of limitations may be granted when the complaint
{¶ 7} The statute of limitаtions for claims brought in the Court of Claims is set forth in
{¶ 8} Engler suggests that his claims have accrued recently because he is currently unable to qualify for military retirement benefits. We disagree. “Under Ohio law, the general rule is that ‘a cause of action accrues and the statute of limitations begins to run at the time the wrongful act was committed.’ ” Marok v. Ohio State Univ., 10th Dist. No. 13AP-12, 2014-Ohio-1184, ¶ 25, quoting Collins v. Sotka, 81 Ohio St.3d 506, 507 (1998). Engler doеs not allege that the Adjutant General has somehow wrongfully denied him
{¶ 9} According to Engler, the Court of Claims should have tolled the applicable statute of limitations to permit him to pursue his claims аgainst the Adjutant General. “Equitable estoppel prevents relief when one party induces another to believe certain facts exist and the other party changes his position in reasonable reliance on those facts to his detriment.” State ex rel. Chavis v. Sycamore City School Dist. Bd. of Edn., 71 Ohio St.3d 26, 34 (1994). “The purpose of equitable estoppel is to prevent actual or constructive fraud and to prоmote the ends of justice.” Ohio State Bd. of Pharmacy v. Frantz, 51 Ohio St.3d 143, 145 (1990). To invoke the doctrine as a bar to a statute of limitations defense, the plaintiff must be able to show the dеfendant‘s specific actions prevented the plaintiff from timely filing the lawsuit. Doe v. Archdiocese of Cincinnati, 116 Ohio St.3d 538, 2008-Ohio-67, ¶ 8-9 (defendant cannot be equitably estopped from assеrting a defense premised on the expiration of the applicable limitations period when nothing in the complaint suggests defendаnt prevented plaintiff from timely filing suit). Thus, equitable tolling is to be applied sparingly and only in exceptional circumstances. Byers v. Robinson, 10th Dist. No. 08AP-204, 2008-Ohio-4833, ¶ 56.
{¶ 10} Here, Engler‘s сomplaint alleges no facts suggesting the existence of an extraordinary circumstance warranting the application of the equitable tolling doctrine. While Engler‘s complaint alleges that he was mistreated during his military service, and that other servicemen were unсooperative with his inquiries during that time, it does not allege the Adjutant General engaged in any conduct preventing him from timely filing his lawsuit. Thereforе, the equitable tolling doctrine has no application in this case.
{¶ 11} Because the Court of Claims properly concluded that Engler‘s claims are time-barred pursuant to the applicable statute of limitations, we overrule Engler‘s sole assignment of error.
{¶ 12} Having overruled Engler‘s sole assignment of error, we affirm the judgment of the Court of Claims of Ohio.
Judgment affirmed.
BROWN, P.J., and BRUNNER, J., concur.