KEVIN A. WOLFF v. DUNNING MOTOR SALES,
Case No. 20CA000011
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
March 11, 2021
[Cite as Wolff v. Dunning Motor Sales, 2021-Ohio-740.]
Hon. Craig R. Baldwin, P.J., Hon. John W. Wise, J., Hon. Earle E. Wise, J.
CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court of Common Pleas, Case No. 2019 CV 000003. JUDGMENT: Affirmed.
-vs-
DUNNING MOTOR SALES, Defendant - Appellee
APPEARANCES:
For Plaintiff-Appellant: KEVIN A. WOLFF, Pro Se, 1118 Wellstone Circle, Apex, NC 27502
For Defendant-Appellee: STEPHEN P. TABATOWSKI, Curry, Roby & Mulvey Co., LLC, 30 Northwoods Blvd., Suite 300, Columbus, Ohio 43235
{¶1} Appellant, Kevin A. Wolff, appeals the decision of the Guernsey County Common Pleas Court granting appellee’s motion to dismiss pursuant to
STATEMENT OF FACTS AND THE CASE
{¶2} 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 hоme. 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
{¶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, оur 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
{¶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,
{¶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. Aftеr 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 valvеs 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
{¶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
{¶15} Dunning filed a motion to dismiss pursuant to
{¶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.
{¶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 cоmplaint.
{¶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
{¶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 thosе 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 App.3d 651, 654, 763 N.E.2d 1238 (10th Dist. 2001). State ex rel. Neil v. French, 153 Ohio St.3d 271, 2018-Ohio-2692, 104 N.E.3d 764 (2018).
{¶25}
- A table of contents, with page references.
- A table of cases alphabetically arranged, statutes, and other authorities cited, with references to the pages of the brief where cited.
A statement of the assignments of error presented for review, with reference to the place in the record where each error is reflected. - A statement of the issues presented for review, with references to the assignments of error to which еach issue relates.
- A statement of the case briefly describing the nature of the case, the course of proceedings, and the disposition in the court below.
- 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.
- 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 сitations to the authorities, statutes, and parts of the record on which appellant relies. The argument may be preceded by a summary.
- A conclusion briefly stating the precise relief sought.
{¶26}
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
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
{¶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 contеnts, 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
{¶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
{¶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
{¶31} Dunning filed a motion to dismiss pursuant to
{¶32} A trial court should dismiss a complaint for failure to state a claim on which relief can be granted pursuant to
{¶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
{¶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.
{¶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 two-pronged test—i.e., discovery not just thаt 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, 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
{¶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.
{¶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 fаctors, 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
FRAUD
{¶47}
{¶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
CONTRACT
{¶49} Wolff’s cоntention 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
{¶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).
{¶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
{¶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
{¶53} The decision of the Guernsey County Court of Common Pleas is affirmed.
By: Baldwin, P.J.
Wise, John, J. and
Wise, Earle, J. concur.