Wolff v. Dunning Motor Sales
| Decision Date | 11 March 2021 |
| Docket Number | Case No. 20CA000011 |
| Citation | 2021 Ohio 740 |
| Parties | KEVIN A. WOLFF Plaintiff - Appellant v. DUNNING MOTOR SALES, Defendant - Appellee |
| Court | Ohio Court of Appeals |
OPINION
APPEARANCES:
For Plaintiff-Appellant
KEVIN A. WOLFF, Pro Se
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 Civ.R. 12(b)(6). Appellee is Dunning Motor Sales.
{¶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 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 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, 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 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 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.
{¶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 ...
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