Roach v. Vapor Station Columbus, Inc.

[Cite as Roach v. Vapor Station Columbus, Inc., 2022-Ohio-2106.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Richard Roach, :
Plaintiff-Appellant, :
No. 21AP-511
v. : (C.P.C. No. 20CV-5894)
Vapor Station Columbus, Inc., : (ACCELERATED CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on June 21, 2022
On brief: Levin Simes Abrams LLP, and Angela J.
Nehmens, for appellant. Argued: William H. Cross.
On brief: Beausay & Nichols Law Firm, and Sara C.
Nichols, for appellee. Argued: Sara C. Nichols.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Plaintiff-appellant, Richard Roach, appeals from a judgment of the Franklin
County Court of Common Pleas dismissing his complaint pursuant to Civ.R. 12(B)(6). For
the following reasons, we affirm.
{¶ 2} On September 4, 2020, appellant filed a complaint against defendant-
appellee, Vapor Station Columbus, Inc., d/b/a Vapor Station, an e-cigarette company, and
numerous "John Doe" defendants involved in the design, production, and distribution of e-
cigarette components, including lithium-ion batteries.1 According to the allegations in the
1 Appellant alleged that he "does not know and cannot ascertain the true names of Defendant John Does 1
through 50 despite due diligence of Plaintiff." (Sept. 4, 2020 Compl. at ¶ 3.)
No. 21AP-511 2
complaint, appellant, on March 27, 2018, purchased from appellee Samsung lithium-ion
batteries to be used in conjunction with his Pegasus mod e-cigarette. On April 1, 2018, the
Pegasus mod e-cigarette containing the lithium-ion batteries purchased from appellee
spontaneously exploded inside appellant's pants pocket. As a result, appellant sustained
second- and third-degree burns to both hands and his right thigh. Based on these
allegations, appellant asserted six claims against appellee and the "John Doe" defendants:
product liability (defective design); product liability (failure to warn); negligence;
fraudulent omission; breach of implied warranty; and violation of the Ohio Consumer Sales
Practices Act.
{¶ 3} On December 8, 2020, appellee filed a motion to dismiss pursuant to Civ.R.
12(B)(6), arguing that appellant's claims were barred by the two-year statute of limitations
set forth in R.C. 2305.10(A). Appellant filed a combined memorandum contra and motion
for equitable tolling, to which appellee responded. In a decision and entry filed
September 7, 2021, the trial court granted appellee's motion to dismiss and denied
appellant's motion for equitable tolling.2
{¶ 4} Appellant assigns a single error for our review:
The trial court abused its discretion in finding equitable
tolling inapplicable to the case at bar.
{¶ 5} In his sole assignment of error, appellant asserts that the trial court erred
when it did not equitably toll the limitations period applicable to his claims. Appellant
maintains that extraordinary circumstances created by the COVID-19 pandemic warrant
equitable tolling. We disagree.
{¶ 6} The trial court granted appellee's motion to dismiss pursuant to Civ. 12(B)(6)
upon finding that the statute of limitations set forth in R.C. 2305.10(A) had lapsed and that
the doctrine of equitable tolling was inapplicable. Under Civ.R. 12(B)(6), a defendant may
move to dismiss a complaint for failure to state a claim upon which relief can be granted. A
Civ.R. 12(B)(6) motion to dismiss tests the sufficiency of a complaint. O'Brien v. Univ.
2 As to the "John Doe" defendants, the court stated: "The complaint included only one named defendant
(Vapor Station). No 'John Doe' defendant has been served and more than one year has passed, so under
Ohio Civ.R. 3(A) this case has not been 'commenced' as to any other potential party. This case is therefore
DISMISSED." (Emphasis sic.) (Sept. 7, 2021 Decision & Entry at 4.)
No. 21AP-511 3
Community Tenants Union, Inc., 42 Ohio St.2d 242, 245 (1975). In ruling on a Civ.R.
12(B)(6) motion to dismiss, the court must construe the complaint in the light most
favorable to the plaintiff, presume all factual allegations in the complaint are true, and make
all reasonable inferences in favor of the plaintiff. Mitchell v. Lawson Milk Co., 40 Ohio
St.3d 190, 192 (1988). The dismissal of a complaint for failure to state a claim is proper
when it appears, beyond doubt, that the plaintiff can prove no set of facts entitling him to
relief. Celeste v. Wiseco Piston, 151 Ohio App.3d 554, 2003-Ohio-703, ¶ 12 (11th Dist.) A
motion to dismiss based on the application of a statute of limitations may be granted when
the complaint shows conclusively on its face that the action is time barred. Velotta v. Leo
Petronzio Landscaping, Inc., 69 Ohio St.2d 376 (1982), paragraph three of the syllabus.
When reviewing a decision on a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim
upon which relief can be granted, this court's standard of review is de novo. Foreman v.
Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-15, 2014-Ohio-2793, ¶ 9.
{¶ 7} Under R.C. 2305.10(A), actions based on a product liability claim, a claim for
bodily injury, and a claim for loss to person or property share a two-year statute of
limitations, which accrues when the injury or loss to person or property occurs. Here, the
parties agree that all of appellant's claims are governed by R.C. 2305.10(A), that the claims
arose from bodily injuries suffered on April 1, 2018, and that the complaint was not filed
until September 4, 2020, which was after the two-year limitations period ended. Appellant
argues, however, that the limitations period should have been extended pursuant to the
doctrine of equitable tolling.
{¶ 8} The doctrine of equitable tolling is to be applied sparingly and only in
exceptional circumstances. Moore v. Dept. of Rehab. & Corr., 10th Dist. No. 10AP-732,
2011-Ohio-1607, ¶ 21; Engler v. Adjutant Gen. of Ohio, 10th Dist. No. 17AP-814, 2018-
Ohio-2273, ¶ 9. "Equitable tolling is only available in compelling cases which justify a
departure from established procedure." Sharp v. Ohio Civ. Rights Comm., 7th Dist. No. 04
MA 116, 2005-Ohio-1119, ¶ 11. A litigant seeking equitable tolling must demonstrate he
diligently pursued his rights, but some extraordinary circumstance stood in his way and
prevented timely action. In re Regency Village Certificate of Need Application, 10th Dist.
No. 11AP-41, 2011-Ohio-5059, ¶ 37. The doctrine is generally limited to circumstances in
No. 21AP-511 4
which a litigant is intentionally misled or tricked into missing the filing deadline. Moore at
¶ 21.
{¶ 9} Here, the trial court properly declined to apply the doctrine of equitable
tolling to extend the applicable statute of limitations. Appellant was injured on April 1,
2018; thus, under normal circumstances, his claims had a limitations period ending April 1,
2020. However, on March 9, 2020, in response to the emerging COVID-19 pandemic, the
Governor of Ohio issued Executive Order 2020-01D, declaring a state of emergency. In
addition, on March 27, 2020, the Ohio General Assembly passed a COVID-19 relief bill,
2020 Am.Sub.H.B. No. 197, which tolled, retroactively to March 9, 2020, all statutorily
established statutes of limitations, time limitations, and deadlines in the Ohio Revised Code
and Administrative Code until the expiration of Executive Order 2020-01D or July 30,
2020, whichever came sooner.3 Because the period of emergency was still in effect as of
July 30, 2020, the tolling period ended July 30, 2020. Chapman Enterprises, Inc. v.
McClain, 165 Ohio St.3d 428, 2021-Ohio-2386, ¶ 11. As a result, the April 1, 2020 statute
of limitations deadline was tolled beginning March 9, 2020, providing appellant a period
of 23 days (the time between March 9, and April 1, 2020) to file his complaint after the
statutory tolling period ended on July 30, 2020. Restarting the statute of limitations clock
on July 30, 2020, appellant's new deadline to file his complaint was August 24, 2020.4
Appellant acknowledges that he filed his complaint on September 4, 2020, 11 days past the
August 24, 2020 deadline.
{¶ 10} Appellant contends that equitable tolling applies in this matter because he
has demonstrated that he diligently pursued his rights, but that some extraordinary
circumstance stood in his way and prevented timely action. Appellant maintains that at the
time he filed his complaint, he was unaware he had filed outside the applicable statute of
limitations period. According to appellant, he did not learn of the statute of limitations
issue until October 7, 2020, when he received a notice from the trial court setting a pretrial
3 The Supreme Court of Ohio simultaneously issued an Administrative Order tolling the time requirements
established by all Supreme Court-promulgated rules. In re Tolling of Time Requirements Imposed by Rules
Promulgated by the Supreme Court & Use of Technology, 158 Ohio St.3d 1447, 2020-Ohio-1166.
4 The 23-day period ended on August 22, 2020, which was a Saturday. Because the office of the Clerk of
the Franklin County Court of Common Pleas was closed to the public on August 22, 2020, the 23-day period
ending on that date was extended to Monday, August 24, 2020. See Rahm v. Hemsoth, 53 Ohio App.2d 147(6th Dist.1976), construing R.C. 1.14 and Civ.R. 6(A).
No. 21AP-511 5
conference for November 12, 2020, at which time the statute of limitations issue would be
discussed. Upon receipt of the trial court's notice, appellant confirmed that Executive
Order 2020-01D was still in place. However, upon review of Am.Sub.H.B. No. 197, he
realized that the complaint had to be filed by August 24, 2020 to satisfy the applicable
statute of limitations.
{¶ 11} Appellant contends that his 11-day delay in filing his complaint did not result
from a lack of diligence in pursuing his rights; rather, the delay resulted from the
"extraordinary circumstance" of the COVID-19 pandemic and the resulting ambiguity
regarding statutes of limitations created by Executive Order 2020-01D and 2020
Am.Sub.H.B. No. 197.
{¶ 12} We are unpersuaded by appellant's "ambiguity" argument, as it stems from
his own misreading of 2020 Am.Sub.H.B. No. 197. Appellant asserts that 2020
Am.Sub.H.B. No. 197 tolled the statute of limitations until July 30, 2020 or until the
expiration of Executive Order 2020-01D and that Executive Order 2020-01D was still in
effect when he filed his complaint. As such, he argues, "the legislative and executive
guidance espoused in House Bill 197 and Executive Order 2020-01D created ambiguity as
to the statute of limitations applicable to Plaintiff's claims." (Appellant's Brief at 5.)
However, appellant's assertion omits key language in 2020 Am.Sub.H.B. No. 197, which
tolled statutes of limitations until the expiration of Executive Order 2020-01D or July 30,
2020, whichever came sooner. Had appellant correctly analyzed 2020 Am.Sub.H.B. No.
197, he would have known that the statute of limitations was tolled only until July 30, 2020.
Indeed, he admits that upon receipt of the trial court's pretrial notice, he reviewed Executive
Order 2020-01D and 2020 Am.Sub.H.B. No. 197 and understood August 24, 2020 to be
the filing deadline. Appellant offers no explanation as to why he did not timely review
Executive Order 2020-01D and 2020 Am.Sub.H.B. No. 197. "In general, 'ignorance of legal
rights does not toll a statute of limitations.' " State ex rel. Scherfling v. State Emp. Relations
Bd., 152 Ohio App.3d 484, 2003-Ohio-1936, ¶ 16 (10th Dist.), quoting Larson v. Am. Wheel
& Brake, Inc., 610 F.2d 506, 510 (8th Cir.1979).
{¶ 13} Furthermore, appellant acknowledges that appellee did not mislead or trick
him into missing the filing deadline. Appellant's initial misunderstanding of Executive
Order 2020-01D and 2020 Am.Sub.H.B. No. 197 regarding the tolling period, through no
No. 21AP-511 6
fault of appellee, does not warrant application of the equitable tolling doctrine.
Accordingly, we overrule appellant's single assignment of error.
{¶ 14} Having overruled appellant's sole assignment, we affirm the judgment of the
Franklin County Court of Common Pleas.
Judgment affirmed.
BEATTY BLUNT and MENTEL, JJ., concur.