John E.T. Gleason, Iii v. Ohio Army National Guard
| Decision Date | 01 May 2001 |
| Docket Number | 01-LW-1627,00AP-1038 |
| Parties | John E.T. Gleason, III, Plaintiff-Appellant v. Ohio Army National Guard, Defendant-Appellee |
| Court | Ohio Court of Appeals |
APPEAL from the Ohio Court of Claims.
Swope and Swope, and Richard F. Swope, for appellant.
Betty D. Montgomery, Attorney General, and Larry Y. Chan, for appellee.
John E.T. Gleason, III, plaintiff-appellant, appeals the August 14, 2000 judgment of the Ohio Court of Claims granting the motion to dismiss filed by the Ohio Army National Guard ("OANG"), defendant-appellee.
Appellant began active duty with OANG as a recruiter on June 1, 1984. Appellant claims his tour of duty was scheduled to end on May 30, 1995. On August 4, 1995, OANG advised appellant, through a letter from Congresswoman Keptur, that his term of service had been extended until August 28, 1995. Appellant states in his complaint that OANG asserts on July 31, 1995, OANG involuntarily removed him from the service. However, appellant alleges that at no time was there an order entered in his records that ratified or granted the extension until August 28, 1995, and no notice was given as to the extension. Thus, appellant claims he was "illegally" and "wrongfully" removed because his tour was not legally extended and there was inadequate time before the end of his tour to remove him from the service as provided by existing regulations. Appellant asserts that he should have been allowed to end his tour on May_30, 1995, by non-renewal of tour. Appellant alleges he did not become aware of OANG's actions until May 1998 when he attempted to apply for a recruiter assignment in the Active Guard/Reserve Program but was refused. Appellant claims at that time he was advised he could not re-enlist because he had resigned from the OANG to avoid "adverse personnel action," which he denies. As a result of OANG's actions, appellant claims he cannot obtain severance pay or re-enlist to obtain four additional years of active service to procure retirement benefits.
On May 10, 1999, appellant filed a complaint in the Court of Claims against OANG, alleging fraud and infliction of emotional distress. Appellant prayed for an order permitting his re-enlistment to active duty status with OANG, an award of $30,000 plus interest from August 1, 1995, for lost severance pay, and one million dollars for lost personal benefits financial loss, and emotional distress. On June 7, 1999, OANG filed a motion to dismiss pursuant to Civ.R. 12(B)(1), 12(B)(6), and R.C. 2743.02(G). OANG argued it was entitled to a dismissal for the following three reasons: (1) the Court of Claims lacked subject matter jurisdiction over appellant's claims because of federal preemption pursuant to R.C. 2743.02(G); (2) the two-year statute of limitations contained in R.C. 2743.16 had expired; and (3) appellant failed to exhaust his administrative remedies. On August 14, 2000, the Court of Claims granted OANG's motion to dismiss. Appellant now appeals the judgment of the Court of Claims, asserting the following assignment of error:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN SUSTAINING DEFENDANT-APPELLEE'S MOTION TO DISMISS.
Appellant argues in his sole assignment of error that the trial court erred in granting OANG's motion to dismiss. The Court of Claims did not state which of the three grounds it relied upon in granting the motion to dismiss. Because each is independently sufficient to support a dismissal of appellant's complaint, we need only find one ground meritorious to sustain the trial court's judgment. Thus, even if assuming arguendo, the federal preemption statute does not apply and appellant was not required to exhaust his administrative remedies, we find appellant failed to meet the applicable statute of limitations.
When reviewing a judgment granting a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim, an appellate court must independently review the complaint to determine if dismissal is appropriate. McGlone v. Grimshaw (1993), 86 Ohio App.3d 279, 285. The appellate court need not defer to the trial court's decision in Civ.R. 12(B)(6) cases. Id. Dismissal of a claim for failure to state a claim upon which relief may be granted is appropriate only where it appears beyond a doubt the plaintiff can prove no set of facts in support of his or her claim, which would entitle him or her to relief. York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d 143, 144. In construing a complaint on a motion to dismiss, pursuant to Civ.R. 12(B)(6), a court must presume all factual allegations contained in the complaint to be true and make all reasonable inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192. A Civ.R. 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. Leo Petronzio Landscaping, Inc. (1982), 69 Ohio St.2d 376, 379. 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 that would toll the statute, or make it inapplicable. Tarry v. Fechko Excavating, Inc. (Nov. 3, 1999), Lorain App. No. 98CA007180, unreported.
The statute of limitations in actions against the state filed in the Court of Claims is two years from the date of the accrual of the cause of action pursuant to R.C. 2743.16. Appellant's complaint states he was removed from service on July 31, 1995. He filed his complaint on May 10, 1999, approximately three years and ten months after his removal from service. Thus, appellant's complaint was filed approximately one year and ten months beyond the statute of limitations imposed by R.C. 2743.16.
Nevertheless, appellant contends he timely filed his complaint because his cause of action did not accrue until May 1998, when he "found the affect [sic] of [OANG's] wrongful actions when he attempted to apply for an AGR tour in May of 1998" which OANG refused to allow because of his previous involuntary separation. The Ohio Supreme Court has stated that, "[a]bsent legislative definition, it is left to the judiciary to determine when a cause 'arose.'" O'Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, 87, citing Harig v. Johns-Manville Products Corp. (1978), 284 Md. 70, 75. Generally, a cause of action exists and the statute of limitations begins to run from the time the wrongful act is committed. Id. Further, the discovery rule is only invoked in situations where the injury complained of may not manifest itself immediately and, therefore, fairness necessitates allowing the assertion of a claim when discovery of the injury occurs beyond the statute of limitations. NCR Corp. v. U.S. Mineral Products Co. (1995), 72 Ohio St.3d 269, 271.
In the present case, although appellant alleges that he did not understand the ramifications or "effects" of his separation until he was denied re-enlistment in May 1998, his denial of re-enlistment was not the injury complained of. Rather, the actual injury complained of was the allegedly wrongful involuntary separation from service on July 31, 1995, as is apparent from the following excerpts from appellant's complaint:
Therefore, it is clear on the face of the complaint that the wrongful act alleged in appellant's complaint was the allegedly "illegal" involuntary separation on July 31, 1995.
Because the involuntary separation was the actual injury at issue in the present case, we must next determine whether the injury manifested itself immediately, i.e., whether appellant had knowledge the separation was allegedly "illegal" and "wrongful" at the time of the separation as to fairly begin...
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