Logan v. Access Ohio, L.L.C. , 2021 Ohio 3219 ( 2021 )

[Cite as Logan v. Access Ohio, L.L.C., 2021-Ohio-3219.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Devonte M. Logan, :
Plaintiff-Appellant, :
No. 20AP-422
v. : (C.P.C. No. 19CV-6361)
Access Ohio LLC, : (ACCELERATED CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on September 16, 2021
On brief: Devonte M. Logan, pro se.
On brief: Priscilla Hapner, for appellee. Argued: Priscilla
Hapner.
APPEAL from the Franklin County Court of Common Pleas
MENTEL, J.
{¶ 1} Plaintiff-appellant, Devonte M. Logan, appeals from the decision of the
Franklin County Court of Common Pleas dismissing his complaint against defendant-
appellee, Access Ohio, LLC under Civ.R. 12(B)(6) for failure to state a claim upon which
relief may be granted. For the reasons that follow, we affirm the trial court's dismissal. In
addition, we order the clerk to strike all of Mr. Logan's miscellaneous filings, letters,
motions and replies filed after the January 27, 2021 filing of his amended brief, as they
violate our January 28, 2021 order.
{¶ 2} On August 7, 2019, Mr. Logan filed a complaint against Access Ohio.
Mr. Logan alleged that he had stayed at the Faith Mission homeless shelter from June 20
to December 14, 2016, a period of nearly six months, even though the shelter had promised
him that it would only take three months to secure housing for him. Mr. Logan alleged that
a Faith Mission employee told him on December 14, 2016 that the Columbus Metropolitan
No. 20AP-422 2
Housing Authority had accepted him for housing, but the employee refused to drive him to
an appointment there the next day. That evening, "a bald head white guy with tattoo's [sic]
on his face" assaulted Mr. Logan in Faith Mission's bathroom, requiring him to be taken to
Grant Hospital. (Aug. 7, 2019 Compl. at 1.) The next day, Mr. Logan had to walk to his
housing appointment straight from the hospital.
{¶ 3} Mr. Logan also alleged that Access Ohio told him that he "didn't qualify" for
financial assistance and did not pay his deposit or first month of rent. Id. at 1, 3. He also
alleged that an employee forced him to apply for single housing even after he explained that
he was married. According to Mr. Logan, he lost a $10,000 truck because he did not have
the $525 necessary to have it released from an impound lot. His complaint stated that he
was suing Access Ohio because the man who attacked him almost killed him, "left a bite
mark" on his face, and because the three extra months he had to stay at Faith Mission felt
like he "was in jail." Id. at 3. Mr. Logan sought "$150 million for damages" based on claims
of fraud, deceptive advertising, and robbery, and claimed that Access Ohio owed him the
$525 he never received. Id.
{¶ 4} Access Ohio filed a motion to dismiss the complaint under Civ.R. 12(B)(6) for
failure to state a claim upon which relief may be granted, or, in the alternative, for a more
definitive statement under Civ.R. 12(E).
{¶ 5} The trial court granted the motion on September 10, 2020, reasoning as
follows:
In his Complaint, Plaintiff alleges that Defendant is
responsible for the assault that took place at the shelter.
However, * * * Plaintiff has not alleged that Defendants
own or had a duty to prevent the assault against
Plaintiff. Additionally, [the complaint] does not allege
that any facts about a rent deposit were misrepresented
by the Plaintiff, as he does not indicate the specific
representations, and concedes that he did not qualify for
this assistance.
(Sept. 10, 2020 Decision and Entry at 2.)
No. 20AP-422 3
{¶ 6} Mr. Logan appealed. He asserts the following sole assignment of error:
The trial court erred and abused its discretion in
dismissing appellant's action.
{¶ 7} An appellate court applies a de novo standard of review to a trial court's
decision granting a motion to dismiss under Civ.R. 12(B)(6) for failure to state a claim upon
which relief may be granted. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-
4362, ¶ 5. Under the de novo standard, we independently review the record and afford no
deference to the trial court's decision. Brust v. Franklin Cty. Sheriff's Office, 10th Dist. No.
15AP-488, 2015-Ohio-5090, ¶ 5, citing State v. Romage, 10th Dist. No. 11AP-822, 2012-
Ohio-3381, ¶ 6. "In reviewing whether a motion to dismiss should be granted, we accept as
true all factual allegations in the complaint." Perrysburg Twp. at ¶ 5, citing Mitchell v.
Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). "A complaint should not be dismissed
unless it appears 'beyond doubt from the complaint that the plaintiff can prove no set of
facts entitling him to recovery.' " Lunsford v. Sterilite of Ohio, L.L.C., 162 Ohio St.3d 231,
2020-Ohio-4193, ¶ 22, quoting O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio
St.2d 242 (1975), syllabus.
{¶ 8} Even when construing all factual allegations as true, our de novo review of
Mr. Logan's complaint leads to the conclusion that he has failed to state a claim upon which
relief may be granted. First, to the extent that he attempts to allege a premises liability
claim for the assault he suffered at the Faith Mission shelter, the complaint is silent as to
the shelter's relationship with Access Ohio, the named defendant. "It is a fundamental tenet
of premises tort law that to have a duty to keep premises safe for others one must be in
possession and control of the premises." Wireman v. Keneco Distribs., 75 Ohio St.3d 103,
108 (1996), citing Wills v. Frank Hoover Supply, 26 Ohio St.3d 186 (1986). "A defendant's
duty of care is determined by the relationship between the plaintiff and defendant and the
foreseeability of injury." Sleeper v. Casto Mgt. Servs., 10th Dist. No. 12AP-566, 2013-Ohio-
3336, ¶ 24, citing Simmers v. Bentley Constr. Co., 64 Ohio St.3d 642 (1992). The complaint
provides no basis to even infer that Access Ohio had possession or control of the premises
or that it had any duty of care to Mr. Logan whatsoever, much less the type of special duty
necessary to overcome the presumption that "that there is no common-law duty to
anticipate or foresee criminal activity." Fed. Steel & Wire Corp. v. Ruhlin Constr. Co., 45
No. 20AP-422 4
Ohio St.3d 171, 174 (1989), citing Prosser & Keeton, Law of Torts, Section 33, 201-03 (5th
Ed.1979).
{¶ 9} Second, under the applicable statute of limitations, any personal injury or
negligence claim that Mr. Logan wished to assert was required to be filed "within two years
after the cause of action accrue[d]." R.C. 2305.10(A). The complaint alleges that he was
attacked at the shelter on December 14, 2016, yet Mr. Logan did not file suit until August 7,
2019. Thus, any such claim is barred by the statute of limitations.
{¶ 10} Third, Mr. Logan asserts that he is suing Access Ohio for fraud, but the
complaint is devoid of factual allegations to support the required elements of such a claim.
A fraud claim must describe "(a) a representation or, where there is a duty to disclose,
concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with
knowledge of its falsity, or with such utter disregard and recklessness as to whether it is
true or false that knowledge may be inferred, (d) with the intent of misleading another into
relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a
resulting injury proximately caused by the reliance." Morrow v. Reminger & Reminger Co.
LPA, 183 Ohio App.3d 40, 2009-Ohio-2665, ¶ 20 (10th Dist.). In addition, a claim for fraud
is subject to the heightened pleading requirement of Civ.R. 9(B) that "the circumstances
constituting fraud * * * shall be stated with particularity." However, the only transaction
that may be inferred from Mr. Logan's allegations appears to be between himself and Faith
Mission for what may have been rental assistance. Yet, neither the refusal to provide such
assistance, nor the statement to Mr. Logan that he "didn't qualify" for it, are cognizable as
the basis of fraud. (Compl. at 3.)
{¶ 11} The complaint further asserts that Access Ohio is liable for "deceptive
advertising." Id. Such a claim may arise under R.C. 1345.09, which provides that "a
consumer has a cause of action and is entitled to relief" for violating Ohio's Consumer Sales
Practices Act ("CSPA"). E.g., Ferron v. Dish Network, LLC, 195 Ohio App.3d 686, 2011-
Ohio-5235, ¶ 6, 26 (10th Dist.) (reversing trial court's dismissal of CSPA claim where
complaint alleged that defendant "had engaged in deceptive practices by misusing the term
'free' in its television ads and failing to identify all of the terms and conditions of the
advertised sale"). Any such claim must allege that the "deceptive act" committed by the
defendant, a "supplier," was "in connection with a consumer transaction." R.C. 1345.02(A).
No. 20AP-422 5
But the complaint's description of Mr. Logan's interactions with Faith Mission does not
conform to the CSPA's definition of a "consumer transaction," nor does its description of
Access Ohio fit with the CSPA's definition of a "supplier." See R.C. 1345.01(A) (defining a
"consumer transaction" as "a sale, lease, assignment, award by chance, or other transfer of
an item of goods, a service, a franchise, or an intangible, to an individual for purposes that
are primarily personal, family, or household, or solicitation to supply any of these things")
and R.C. 1345.01(C) (defining a "supplier" as "a seller, lessor, assignor, franchisor, or other
person engaged in the business of effecting or soliciting consumer transactions"). There is
no plausible basis for identifying a CSPA claim in the complaint.
{¶ 12} Mr. Logan's complaint also states that he is pursuing a claim for robbery.
However, "the decision whether to pursue criminal charges is vested in the state, 'not with
a private citizen.' " State ex rel. Timson v. Shoemaker, 10th Dist. No. 02AP-1037, 2003-
Ohio-4703, ¶ 20, quoting Mantua ex rel. Webb v. Clavner, 88 Ohio App.3d 492, 495 (1993).
"A violation of the state's penal laws constitutes an offense against the state, and it does not
lie within the discretion of the victim as to whether the violator shall be punished."
Stebelton v. Haskins, 177 Ohio St. 52, 54 (1964). Thus, Mr. Logan was required to bring his
robbery allegation to an officer of the state vested with the authority to prosecute robbery
as an offense. His other option was to bring a claim under "R.C. 2935.09 and 2935.10,
which permit a private citizen to file an affidavit charging an offense against another
person." Hillman v. Larrison, 10th Dist. No. 15AP-730, 2016-Ohio-666, ¶ 2. However,
either option would have been futile. The allegation of robbery is not supported by the facts
alleged in the complaint, as the only person it describes using force or "inflict[ing] physical
harm" on Mr. Logan did not do so while "attempting or committing a theft offense," as
required by R.C. 2911.02(A)(1).
{¶ 13} Our de novo review of Mr. Logan's complaint leads us to the same conclusion
reached by the trial court: he has failed to state a claim upon which relief against Access
Ohio might be granted. Thus, the trial court did not err when it dismissed the complaint
under Civ.R. 12(B)(6). Accordingly, we overrule Mr. Logan's sole assignment of error,
affirm the judgment of the trial court, and order the clerk to strike all filings after his
No. 20AP-422 6
January 27, 2021 amended brief from the docket, as they violate our January 28, 2021
order.
Judgment affirmed; filings stricken.
BROWN and KLATT, JJ., concur.
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