The opinion
[Cite as Gipson v. Ohio Dept. of Rehab. & Corr., 2024-Ohio-226.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Timothy W. Gipson et al., :
Plaintiffs-Appellants, :
No. 23AP-291
v. : (Ct. of Cl. No. 2023-00067JD)
Ohio Department of Rehabilitation : (REGULAR CALENDAR)
and Correction,
:
Defendant-Appellee.
:
D E C I S I O N
Rendered on January 23, 2024
On brief: Timothy W. Gipson, and Julie B. Gipson, pro se.
Argued: Timothy W. Gipson.
On brief: Dave Yost, Attorney General, and Michelle C.
Brizes, for appellee. Argued: Timothy M. Miller.
APPEAL from the Court of Claims of Ohio
BEATTY BLUNT, J.
{¶ 1} Plaintiffs-appellants, Timothy W. Gipson and Julie B. Gipson, appeal from
the April 19, 2023 judgment of the Court of Claims of Ohio granting the motion of
defendant-appellee, Ohio Department of Rehabilitation and Correction (“ODRC”), to
dismiss appellants’ complaint. For the reasons that follow, we affirm the judgment of the
trial court.
I. Facts and Procedural History
{¶ 2} This case arises from the alleged actions of a former inmate and current
parolee by the name of Andre L. Curry. In essence, appellants allege that the failure of
ODRC to investigate alleged crimes committed by Curry while on parole, including crimes
committed directly against appellants, resulted in Curry not being sent back to prison in
No. 23AP-291 2
2009 when he allegedly first began harassing and “torturing” appellants. (See generally
Jan. 26, 2023 Compl.)
{¶ 3} Appellants filed a complaint against ODRC in the Court of Claims on
January 26, 2023, asserting claims for “tampering with evidence” in violation of R.C.
2921.12 and failing to investigate why certain unspecified information regarding Curry was
not sent to Curry’s “P.O. Officer.” (Compl. at ¶ 12.) The complaint further alleged various
criminal activities of Curry, including threatening behavior and violence displayed by Curry
toward appellant. Id. at ¶ 13. In essence, appellants allege that had the unspecified
information been sent to Curry’s P.O. officer in 2015 or 2016, Curry would have been
returned to prison. Id. at ¶ 12. Appellants sought damages of 20 million dollars. Id. at ¶
14.
{¶ 4} On February 21, 2023, ODRC filed a motion to dismiss the complaint in its
entirety. (Feb. 21, 2023 Mot. to Dismiss.) In its motion, ODRC argued that the Court of
Claims does not have subject-matter jurisdiction over the alleged criminal violation, and
that to the extent appellants allege that ODRC failed to perform an investigation in 2015 or
2016, such a claim is time-barred by the relevant statute of limitations. (See Mot. to Dismiss
at 3.)
{¶ 5} Thereafter, on April 19, 2023, the trial court issued its entry of dismissal.
(Apr. 19, 2023 Entry of Dismissal.) In it, the trial court found that it lacked subject-
jurisdiction over appellants’ claim for tampering with evidence. Id. at 3. The trial court
further found that appellants’ claim regarding ODRC’s failure to investigate was barred by
the statute of limitations set forth in R.C. 2743.16(A). Id. at 3-4. The trial court dismissed
the complaint in its entirety. Id. at 4.
{¶ 6} This timely appeal followed and is now before the court.
II. Assignment of Error
{¶ 7} Appellants assert the following assignment of error for our review:
The trial court erred and abused its discretion in dismissing
appellant’s action.
III. Law and Analysis
{¶ 8} In appellants’ sole assignment of error, they contend that the trial court erred
and abused its discretion by dismissing their complaint. As explained below, we disagree.
No. 23AP-291 3
{¶ 9} As an initial matter, it must be noted that although appellants argue that the
trial court dismissed their complaint based on a failure to prosecute pursuant to Civ.
41(B)(1), this is patently incorrect. The record clearly shows the motion to dismiss filed by
ODRC was made pursuant to Civ.R. 12(B)(1) (lack of subject-matter jurisdiction) and Civ.R.
12(B)(6) (failure to state a claim), and the record is equally clear the proper standards for
each rule were applied by the trial court in both considering the motion and ultimately
dismissing appellants’ complaint.
A. Tampering With Evidence Claim
{¶ 10} The trial court dismissed appellants’ claim for tampering with evidence for
lack of subject-matter jurisdiction pursuant to Civ.R. 12(B)(1). A de novo standard of review
is employed when reviewing a judgment on a Civ.R. 12(B)(1) motion to dismiss for lack of
subject-matter jurisdiction. Pankey v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 13AP-
701, 2014-Ohio-2907, ¶ 7; Foreman v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-
15, 2014-Ohio-2793, ¶ 9, citing Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-
Ohio-4362, ¶ 5.
{¶ 11} Civ.R. 12(B)(1) requires dismissal where the trial court lacks jurisdiction
over the subject matter of the litigation. “Subject-matter jurisdiction involves ‘ “a court’s
power to hear and decide a case on the merits and does not relate to the rights of the
parties.” ’ ” Moore v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 18AP-599, 2019-Ohio-
767, ¶ 4, quoting Robinson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 10AP-550,
2011-Ohio-713, ¶ 5, quoting Vedder v. Warrensville Hts., 8th Dist. No. 81005, 2002-
Ohio-5567, ¶ 14. A court presented with a motion to dismiss for lack of subject-matter
jurisdiction must determine whether the complaint states any cause of action cognizable
by the forum. State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 80 (1989); PNC Bank,
Natl. Assn. v. Botts, 10th Dist. No. 12AP-256, 2012-Ohio-5383, ¶ 21. Subject-matter
jurisdiction is “a condition precedent to the court’s ability to hear the case. If a court acts
without jurisdiction, then any proclamation by that court is void.” Pratts v. Hurley, 102
Ohio St.3d 81, 2004-Ohio-1080, ¶ 11; State ex rel. Ohio Democratic Party v. Blackwell,
111 Ohio St.3d 246, 2006-Ohio-5202, ¶ 8. In deciding a motion to dismiss for lack of
subject-matter jurisdiction, the trial court may consider evidence outside of the
complaint. Brown v. Ohio Tax Commr., 10th Dist. No. 11AP-349, 2012-Ohio-5768, ¶ 14,
citing Cerrone v. Univ. of Toledo, 10th Dist. No. 11AP-573, 2012-Ohio-953, ¶ 5; Southgate
No. 23AP-291 4
Dev. Corp. v. Columbia Gas Transm. Corp., 48 Ohio St.2d 211 (1976), paragraph one of
the syllabus.
{¶ 12} The Court of Claims is a court of limited jurisdiction and has exclusive,
original jurisdiction over only civil actions against the state specifically permitted by the
waiver of immunity set forth in R.C. 2743.02. Troutman v. Ohio Dept. of Rehab. & Corr.,
10th Dist. No. 03AP-1240, 2005-Ohio-334, ¶ 10. Thus, the Court of Claims does not have
jurisdiction over criminal matters against the state. Id. Accordingly, the Court of Claims
lacks jurisdiction “ ‘to determine whether or not a crime has occurred for the purpose of
awarding civil penalties for criminal violations of state statute.’ ” Evans v. Ohio Dept. of
Rehab. & Corr., 10th Dist. No. 18AP-713, 2019-Ohio-3788, ¶ 12, quoting Burse v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 17AP-452, 2019-Ohio-2882, ¶ 18.
{¶ 13} Here, appellants’ claim for tampering with evidence is premised upon the
violation of R.C. 2921.12, a crime established by statute. Based on the foregoing authorities,
it is clear the trial court lacked subject-matter jurisdiction over appellants’ claim for
tampering with evidence in violation of R.C. 2921.12 against ODRC. Therefore, the trial
court neither erred nor abused its discretion in dismissing this claim.
B. Failure to Investigate Claim
{¶ 14} Next, with regard to appellants’ claim for failure to investigate, the trial court
dismissed this claim for failure to state a claim upon which relief may be granted pursuant
to Civ.R. 12(B)(6), based on the relevant statute of limitations. A de novo standard of review
is employed when reviewing a judgment on a Civ.R. 12(B)(6) motion to dismiss for failure
to state a claim upon which relief may be granted. Pankey, 2014-Ohio-2907 at ¶ 7;
Foreman, 2014-Ohio-2793 at ¶ 9, citing Perrysburg Twp., 2004-Ohio-4362 at ¶ 5.
{¶ 15} A motion to dismiss pursuant to Civ.R. 12(B)(6) is procedural and tests the
sufficiency of the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. Of Commrs., 65
Ohio St.3d 545, 548 (1992), citing Assn. for the Defense of the Washington Local School
Dist. v. Kiger, 42 Ohio St.3d 116, 117 (1989). A trial court may not rely on allegations or
evidence outside the complaint when reviewing a Civ.R. 12(B)(6) motion. State ex rel.
Fuqua v. Alexander, 79 Ohio St.3d 206, 207 (1997). In addition, the trial court must
presume all factual allegations contained in the complaint are true and must make all
reasonable inferences in favor of the nonmoving party. Jones v. Greyhound Lines, Inc.,
10th Dist. No. 11AP-518, 2012-Ohio-4409, ¶ 31, citing Mitchell v. Lawson Milk Co., 40
No. 23AP-291 5
Ohio St.3d 190, 192 (1988). “[A]s long as there is a set of facts, consistent with the
plaintiff’s complaint, which would allow the plaintiff to recover, the court may not grant
a defendant’s motion to dismiss.” York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145
(1991). The court need not, however, accept as true any unsupported and conclusory legal
propositions advanced in the complaint. Lane v. U.S. Bank, N.A., 10th Dist. No. 22AP-
358, 2023-Ohio-1552, ¶ 23, citing Morrow v. Reminger & Reminger Co. L.P.A., 183 Ohio
App.3d 40, 2009-Ohio-2665, ¶ 7 (10th Dist.).
{¶ 16} Pursuant to R.C. 2743.16(A), all actions brought in the Court of Claims must
be filed within two years of the date the cause of action accrued. R.C. 2743.16(A); Smith v.
Ohio Dept. of Rehab. & Corr., 10th Dist. No. 22AP-604, 2023-Ohio-1007, ¶ 15. Generally,
a cause of action accrues, and the statute of limitations begins to run at the time the alleged
wrongful act was committed. (Further citations omitted.) Smith, citing McDougald v.
Ohio Dept. of Rehab. & Corr., 10th Dist. No. 20AP-218, 2020-Ohio-6697, ¶ 11. When it is
clear on the face of the complaint that a claim is barred by the statute of limitations, a court
may properly grant a motion to dismiss. Id., citing Coleman v. Columbus State Community
College, 10th Dist. No. 15AP-119, 2015-Ohio-4685, ¶ 6.
{¶ 17} Here, appellants’ claim for ODRC’s failure to investigate alleges that such
failure occurred in 2015 and/or 2016. As noted above, appellants filed their complaint on
January 26, 2023, at least five years after the statute of limitations for a claim brought
against the state in the Court of Claims had expired. Thus, the face of the complaint clearly
shows this claim is time-barred by R.C. 2743.16(A). Therefore, based on the foregoing
authorities, the trial court neither erred nor abused its discretion in dismissing this claim.
{¶ 18} Accordingly, for all the foregoing reasons, appellants’ sole assignment of
error is overruled.
IV. Disposition
{¶ 19} Having overruled appellants’ sole assignment of error, we affirm the
judgment of the Court of Claims of Ohio.
Judgment affirmed.
MENTEL, P.J. and JAMISON, J., concur.