Bojac Corp. v. Kutevac, 89-T-4308

Decision Date29 October 1990
Docket NumberNo. 89-T-4308,89-T-4308
Citation64 Ohio App.3d 368,581 N.E.2d 625
PartiesBOJAC CORPORATION et al., Appellants, v. KUTEVAC, Appellee.
CourtOhio Court of Appeals

Michael D. Rossi, Warren, for appellants.

Dennis Watkins, Pros. Atty., and James J. Misocky, Asst. Pros. Atty., for appellee.

MARY CACIOPPO, Judge.

Appellants, Bojac Corporation and Bojac Management Corporation, filed a complaint against appellee, Edward Kutevac, on May 10, 1989 in the Trumbull County Common Pleas Court. Edward Kutevac is the Executive Director of the Trumbull County Planning Commission. The complaint alleged that appellee was acting, at all times, in his official capacity, yet he was being sued individually rather than in his official capacity. The first claim was for civil rights violations pursuant to Section 1983, Title 42, U.S.Code, and the second claim was for tortious business interference.

The complaint alleged that appellants' cause of action arose on August 15, 1986, which was more than two and one-half years prior to the filing of the lawsuit.

On July 21, 1989, appellee filed a motion to dismiss or, alternatively, for summary judgment based on the applicable statute of limitations. By judgment entry dated September 26, 1989, the trial court dismissed the action on statute-of-limitations grounds. The civil rights claim was dismissed on the authority of Browning v. Pendleton (C.A.6, 1989), 869 F.2d 989; and the tortious business interference claim was dismissed pursuant to R.C. 2744.04.

Appellant timely filed a notice of appeal with the following assignment of error:

"The trial court erred to the prejudice of Plaintiff-Appellants in granting Defendant-Appellee's Motion to Dismiss or, Alternatively, For Summary Judgment." the sole assignment of error, appellants contend that the trial court erred in granting appellee's motion to dismiss. Both claims that were dismissed will be addressed separately because they were dismissed for different reasons.

Appellants first argue that the civil rights claim should not have been dismissed because it is governed by Ohio's four-year residual statute of limitations for unspecified personal injury actions set forth in R.C. 2305.09(D) rather than the two-year statute of limitations for personal injury actions found in R.C. 2305.10.

Appellee asserts that the trial court correctly concluded that the two-year statute of limitations was applicable because of the holding in Browning v. Pendleton, supra. In that case, the Sixth Circuit Court of Appeals held that the appropriate statute of limitations for Section 1983, Title 42, U.S.Code civil rights actions arising in Ohio is set forth in R.C. 2305.10, which requires that the action be filed within two years of its accrual. Id. at 992.

Appellants claim that Browning is not dispositive of the issue in the instant cause. In Browning, the court was asked to choose between the one-year statute of limitations in R.C. 2305.11 and the two-year statute of limitations set forth in R.C. 2305.10. Therefore, appellants argue, the court did not have to consider the four-year statute of limitations found in R.C. 2305.09(D).

The Browning court based its decision on the United States Supreme Court's decision in Owens v. Okure (1989), 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594. There, the court stated:

"We accordingly hold that where state law provides multiple statutes of limitations for personal injury actions, courts considering Section 1983 claims should borrow the general or residual statute for personal injury actions." Id. at 249-250, 109 S.Ct. at 582, 102 L.Ed.2d at 605-606.

Appellants' argument is well taken. R.C. 2305.11 addresses the statute-of-limitations question specifically for libel, slander, malicious prosecution, false imprisonment and malpractice. R.C. 2305.10 sets forth the statute of limitations solely for bodily injury or injury to personal property. R.C. 2305.09(D), however, sets forth the statute of limitations "[f]or an injury to the rights of the plaintiff not arising on contract nor enumerated in sections 2305.10 to 2305.12, inclusive, 2305.14 and 1304.29 of the Revised Code."

It is clear that appellants' claim under Section 1983 does not fit into any of the categories of R.C. 2305.10 through 2305.12. It must, therefore, fall within the general or residual statute for personal injury actions, which is R.C. 2305.09(D). This is the most logical and appropriate result based on the United States Supreme Court holding in Owens v. Okure, supra.

R.C. 2305.09(D) provides for a four-year statute of limitations. Since appellants' civil rights claim was filed within four years of when the cause of action accrued, the trial court erred in dismissing appellants' Section 1983 claim.

The second argument that appellants present is that the trial court erred in dismissing their tortious business interference claim.

The complaint alleged that appellee, at all times relevant, was the Executive Director of the Trumbull County Planning Commission, acting in his official capacity. The complaint then stated that appellee was being sued individually rather than in his official capacity. The trial court determined that the activities...

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24 cases
  • LRL Properties v. Portage Metro Housing Authority
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • July 6, 1995
    ...four-year "residual" statute of limitations is the proper statute of limitations in Sec. 1983 cases. See Bojac Corp. v. Kutevac, 64 Ohio App.3d 368, 581 N.E.2d 625, 627 (1990) (holding that Ohio Rev.Code Sec. 2305.09(D) is the "most logical and appropriate [statute of limitations in a Sec. ......
  • Peoples Rights Org., Inc. v. Montgomery
    • United States
    • Ohio Court of Appeals
    • April 9, 2001
    ...their analysis upon R.C. 2305.09(D)'s inclusion of the words "injury to the rights of the plaintiff." See Bojac Corp. v. Kutevac (1990), 64 Ohio App.3d 368, 370-371, 581 N.E.2d 625; Weethee v. Boso (1989), 64 Ohio App.3d 532, 534-535, 582 N.E.2d 19.16 But these words must be read in light o......
  • Peoples Rights Organization, Inc. v. Betty D. Montgomery, Ohio Attorney General
    • United States
    • Ohio Court of Appeals
    • April 9, 2001
    ... ... Link v. Leadworks ... Corp ... (1992), 79 Ohio App.3d 735, 741 ... In ... "injury to the rights of the plaintiff." See ... Bojac Corp. v. Kutevac (1990), 64 Ohio App.3d 368, ... 370-371; Weethee ... ...
  • State ex rel. Eckstein v. Midwest Pride IV, Inc.
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    • Ohio Court of Appeals
    • April 6, 1998
    ...appropriate limitations period is the four-year statute of limitations set forth in R.C. 2305.09(D). See Bojac Corp. v. Kutevac (1990), 64 Ohio App.3d 368, 370, 581 N.E.2d 625, 626-627; Weethee v. Boso (1989), 64 Ohio App.3d 532, 534-535, 582 N.E.2d 19, 20-21. But, see, Herdman v. Capretta ......
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